AAA Disposal Systems v. Aetna Cas. & Sur., 2-03-0416.

• Court: United States Appellate Court of Illinois
• Citation: 355 Ill. App.3d 275,821 N.E.2d 1278,290 Ill.Dec. 704
• Docket Number: No. 2-03-0416.,2-03-0416.
• Parties: AAA DISPOSAL SYSTEMS, INC., M.I.G. Investments, Inc., Richard Ter Maat, and Jack Ter Maat, Plaintiffs-Appellants and Cross-Appellees, v. AETNA CASUALTY AND SURETY COMPANY, Commercial Union Insurance Company, Continental Casualty Company, National Fire and Marine Insurance Company, International Insurance Company, and United States Fire Insurance, Defendants-Appellees (BFI Waste Systems of North America, Inc., Apache Products Company, Tamms Industries, Daimler Chrysler Corporation, f/k/a Chrysler Corporation, The Ingersoll Milling Machine Company, Amerock Corporation, Camcar Division of Textron, Inc., Twin Disc, Inc., and Wilmar Processing Company, Intervenors-Appellants and Cross-Appellees; and American Employers' Insurance Company, Defendant-Appellee and Cross-Appellant).
• Decision Date: 12 January 2005

821 N.E.2d 1278
355 Ill. App.3d 275
290 Ill.Dec. 704

AAA DISPOSAL SYSTEMS, INC., M.I.G. Investments, Inc., Richard Ter Maat, and Jack Ter Maat, Plaintiffs-Appellants and Cross-Appellees,
v.
AETNA CASUALTY AND SURETY COMPANY, Commercial Union Insurance Company, Continental Casualty Company, National Fire and Marine Insurance Company, International Insurance Company, and United States Fire Insurance, Defendants-Appellees (BFI Waste Systems of North America, Inc., Apache Products Company, Tamms Industries, Daimler Chrysler Corporation, f/k/a Chrysler Corporation, The Ingersoll Milling Machine

Page 1279

Company, Amerock Corporation, Camcar Division of Textron, Inc., Twin Disc, Inc., and Wilmar Processing Company, Intervenors-Appellants and Cross-Appellees; and American Employers' Insurance Company, Defendant-Appellee and Cross-Appellant)

No. 2-03-0416.

Appellate Court of Illinois, Second District.

January 12, 2005.

821 N.E.2d 1282

Edward M. Maher, Guyer & Enichen, PC, Rockford, for AAA Disposal Systems, Inc., Jack Ter Maat, Richard Ter Maat

Sharon A. Salinas, Dykema Gossett Rooks Pitts PLLC, Chicago, William G. Beck, Alok Ahuja, Gary D. Justis, Jeffrey M. Russell, Lathrop & Gage, L.C., Kansas City, MO, for Amerock Corporation, Apache Products Co., BFI Waste Systems of North America, Inc., Camcar Division of Textron, Inc., Daimler Chrysler Corp., Ingersoll Milling Machine Co., M.I.G. Investements, Tamms Industries, Twin Disc, Inc., Wilmar Processing Co.

James R. Branit, James J. Berdelle, Bullaro & Carton, Chtd., Chicago, for American Employers' Insurance Co.

Jan M. Michaels, Steve Schulwolf, Michaels & May, P.C., Chicago, for Continental Casualty Co., Continental Insurance Co.

Michael R. Gregg, Donald G. Machalinski, Merlo, Kanofsky & Brinkmeier, Ltd., Chicago, for International Insurance Co., United States Fire Insurance Co.

Thomas B. Keegan, Edward W. Gleason, Keegan, Laterza, Lofgren & Gleason, P.C., Chicago, for National Fire & Marine Insurance Co.

Floyd A. Wisner, The Nolan Group, Chicago, for Aetna Casualty & Surety Co.

Justice McLAREN delivered the opinion of the court:

Plaintiffs and intervenors appeal the trial court's order determining that plaintiffs' claims were not covered under the policies at issue and granting summary judgment in favor of defendants. We affirm this order.

Intervenors appeal, and defendant American Employers' Insurance Company cross-appeals, the trial court's order regarding the allocation of liability. We reverse this order.

As a preliminary matter, we grant intervenors' unopposed motion to file corrected briefs.

The following facts are taken from the record. Plaintiffs in this suit are AAA Disposal Systems (AAA), M.I.G. Investments (MIG), and Jack and Richard Ter Maat. AAA was a cartage company that hauled waste to a landfill; MIG operated the landfill. The now-deceased Jack Ter Maat was a principal shareholder of both AAA and MIG and vice president of MIG. Richard Ter Maat was the president and a principal shareholder of both AAA and MIG.

Intervenors, BFI Waste Systems of North America, Inc, Apache Products Company, Tamms Industries, Daimler Chrysler Corporation, f/k/a Chrysler Corporation, The Ingersoll Milling Machine Company, Amerock Corporation, Camcar Division of Textron, Inc., Twin Disc, Inc., and Wilmar Processing Company are a group of companies that cleaned up the landfill site. Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),

821 N.E.2d 1283

42 U.S.C. § 9607 et seq. (2000), intervenors obtained a multi-million dollar judgment against plaintiffs for contribution to the cleanup costs of the 47-acre landfill, located near Belvidere, Illinois. The landfill was operated from February 1969 to June 1988, when the State of Illinois obtained an injunction ceasing all dumping operations at the landfill. In June 1988, plaintiffs abandoned the landfill

Defendants are insurance companies that issued plaintiffs insurance policies effective from October 1973 through May 1988. Commercial Union Insurance Company issued three one-year primary general liability policies to plaintiffs between 1973 and 1976, with per-occurrence liability limits of $100,000. Continental Casualty Company issued six primary general liability policies to plaintiffs between 1979 and 1985, with per-occurrence liability limits of $500,000. American Employers' issued three excess policies to plaintiffs MIG and AAA between September 1973 and October 1976. The first two policies had per-occurrence liability limits of $1 million, but the third policy's per-occurrence liability limit was $5 million.

In 1985, the State of Illinois filed a complaint against plaintiffs, alleging, inter alia, that the landfill was contaminating the waters of Illinois by runoff and seepage of contaminates. In September 1988, plaintiffs sold the landfill site to Waste Management of Wisconsin. In August 1990, the United States Environmental Protection Agency (USEPA) placed the landfill on the Superfund national priorities list.

On October 29, 1990, the USEPA and BFI entered into an administrative order on consent requiring interim remedial measures (IRMs). In May 1989, June 1990, April 1993, and July 1993, as part of the IRMs, thousands of gallons of leachate were removed from the landfill's leachate lagoon. In addition, in November 1990, the leachate lagoon berms were raised. From 1991 to 1993, intervenors conducted IRMs at the landfill pursuant to the administrative order on consent. These IRMs included tasks that were necessary to properly close the landfill.

The first notification to any insurer of problems with the landfill site was on January 6, 1991. In late 1991, intervenor/BFI initiated a CERCLA cause of action seeking money damages from plaintiffs for past and future costs incurred in response to environmental contamination of the landfill site.

In 1992, intervenors obtained a judgment against plaintiffs for contribution to the cost of the IRMs through December 1997. Plaintiffs were held responsible for 85% of the cost of emergency measures, IRMs, and supplemental emergency removals, for a total of $2,349,116.95. Plaintiffs were also liable for 27.14% of the costs not related to the IRMs, for a total of $1,795,318.20.

In December 1993, plaintiffs filed a declaratory action against defendants/insurers, seeking a declaration that defendants/insurers must indemnify plaintiffs under the terms of their policies. In 1998, the trial court granted intervenors leave to intervene.

On December 22, 1998, the trial court granted summary judgment in favor of all defendants/insurers based on plaintiffs' failure to give timely notice of an occurrence. After reconsidering its grant of summary judgment, the trial court again ruled in favor of all defendants except for the insurers that also provided excess coverage, including American Employers'. With respect to defendants Continental Casualty and Commercial Union, the trial court reasoned that, although they had not initially defended plaintiffs in the underlying

821 N.E.2d 1284

CERCLA action, they were not estopped from asserting a late-notice defense. The court based this ruling in part on an "interim defense agreement" entered into in 1995 among plaintiffs, Continental Casualty, and Commercial Union, providing that plaintiffs would not assert claims of estoppel or waiver against these insurers based on their alleged failure or wrongful refusal to defend plaintiffs in the CERCLA action. The trial court rejected intervenors' arguments that the agreement was not supported by consideration and that intervenors had vested rights that could not be diminished by the "interim defense agreement."

Subsequently, plaintiffs and intervenors settled with all defendants to whom summary judgment had been denied, except American Employers'. After a bench trial, the court found American Employers' liable for its pro rata share of the judgment entered against plaintiffs after exhaustion of primary policies and any future liability. This appeal followed.

We first address the motions to dismiss this appeal, filed by defendants Commercial Union and Continental Casualty. These defendants argue that this appeal should be dismissed because the intervenors and plaintiffs filed late notices of appeal as to these defendants. We disagree with Commercial Union and Continental Casualty and deny the motions to dismiss this appeal.

The relevant facts are as follows. In December 1998, the trial court granted summary judgment in favor of all seven defendants/insurers, including Commercial Union and Continental Casualty. The December 1998 order included Rule 304(a) (155 Ill.2d R. 304(a)) language, stating that there was no just reason to delay enforcement or appeal of the order. In August 1999, the trial court granted plaintiffs' and intervenors' motions for reconsideration, modified the December 1998 order, and vacated summary judgment as to four of the seven defendants/insurers, but not as to Commercial Union or Continental Casualty. This August 1999 order did not contain Rule 304(a) language. Plaintiffs and intervenors filed their notices of appeal in April 2003, within 30 days of the final order that is the subject of this appeal. Commercial Union and Continental Casualty assert that the notices of appeal were not timely as to them.

Supreme Court Rule 303(a)(1) states that a notice of appeal must be filed within 30 days of the entry of the final judgment appealed from or, "if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last pending post-judgment motion." 155 Ill.2d R. 303(a)(1). An order vacating a judgment is not final and consequently not appealable because the merits of the case are still pending. In re Marriage of Agustsson, 223 Ill.App.3d 510, 514, 165 Ill.Dec. 811, 585 N.E.2d 207 (1992).

Supreme Court Rule 304(a) provides that in an action...