holding that pursuant to policy language, when the insurer has properly exhausted its policy limits by payment of judgment and/or settlements, it is no longer obligated to defend any actions, whether such actions are pending at the time of exhaustion or commenced thereafter
How later courts described this case
- holding that pursuant to policy language, when the insurer has properly exhausted its policy limits by payment of judgment and/or settlements, it is no longer obligated to defend any actions, whether such actions are pending at the time of exhaustion or commenced thereafter
- explaining that “[t]he insurer’s duty to defend its in- sured arises from the undertaking to defend as stated in the contract of insurance.”
- recognizing that each type of asbestos fiber inhaled over the exposure period contributes to the eventual development of the disease
- holding insurers jointly and severally liable for injuries stemming from a single occurrence but triggering multiple policies
Written by the judges who cited it.
Distinguished
Distinguished by Happel v. Wal-Mart Stores, Inc., 316 Ill. App. 3d 621 (2000)
Additionally, defendant’s reliance upon Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 59-60 (1987), is inapposite, as there the amicus filed a motion to strike the brief of another amicus.
The opinion
JUSTICE SIMON, concurring in part and dissenting
in part:
I concur in the court’s opinion but believe that exhaustion of the limits of liability of both the pre- and post-1967 insurance policies does not relieve the insurers of responsibility for the defense of pending cases. I am persuaded by the arguments advanced by Raymark that the policies contain no language limiting the insurer’s duty to defend pending cases. The majority opinion fairly and clearly sets forth Raymark’s interpretation of the policies and I see no reason to add thereto, except to state that I find Raymark’s construction more reasonable than the construction applied by the majority. It would indeed be a strange agreement that allowed an attorney to walk off a case the moment the limit of the insurer’s liability was reached, leaving the court and the plaintiff high and dry. Not only is such a practice fundamentally unfair to the plaintiff, but would also result in needless delays and a tremendous waste of judicial resources.
The language of both the pre- and post-1967 policies does not preclude continuation of defense of pending cases by the insurer. As I read the obligation which appears in Insuring Agreement II of the pre-1967 policies, which makes costs of defense “payable by the [insurance] company in addition to the applicable limit of liability of this policy,” the insurer is required to shoulder the costs of defense even after the policy limits have been reached. Similarly, the post-1967 policy language stating that “the [insurance] company shall not be obligated *** to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements” (emphasis added) refers only to suits filed after the applicable limits of liability have been exhausted, not to pending suits.
Accordingly, I believe that the clauses contained in the policies set forth in parts II and III of the majority opinion relieve the insurers only of defense of suits filed after liability limits have been exhausted, and not to pending suits. The circuit judge was correct in permitting an insurer to withdraw from the defense of a pending case only if another carrier is obligated and in fact assumes the defense of the action.