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Ehlco liquidating trust

opinion

The instant appeal is considered on remand from the Illinois Supreme Court in the case of Employers Insurance v. Ehlco Liquidating Trust, Ill. That Court directed this Court to consider issues not previously addressed in Employers Insurance v. On February 26,Wausau instituted a declaratory judgment action against Ehlco, a trust created by Ehlco liquidating trust of the Delaware chancery court to resolve the contingent liabilities of Edward Hines Lumber Company "Hines"a dissolved Delaware corporation; Goodman, Ehlco's managing trustee; C.

Heath, the successor to Employers Surplus Hines Insurance Company of Wilmington, Hines's excess carrier; and various other insurance companies.

Wausau sought a declaration that it had no defense or indemnity obligations under certain insurance policies in connection with a lawsuit filed against Ehlco relating to a contaminated industrial site in Albany County, Wyoming the "Wyoming site". One year later, on March 1,Ehlco filed a counterclaim, seeking a declaration that Wausau breached its duty to defend and indemnify Ehlco in connection with another lawsuit relating to an industrial site in Mena, Arkansas the "Mena" site.

Wausau moved to dismiss Ehlco's counterclaim, arguing that it was barred by Arkansas' statute of limitations. Ehlco moved for judgment on the pleadings as to both sites, arguing that Wausau breached its duty to defend the two underlying claims.

The circuit court denied Wausau's motion to dismiss and granted Ehlco's motions on the pleadings. Wausau appealed pursuant to Supreme Court Rule a Ill. On review of Wausau's appeal, this Court reversed the trial court's grant of judgment on the pleadings Ehlco liquidating trust Ehlco. As to the Wyoming site, we held, among other things, that the trial court erred in precluding Wausau from arguing that the insured breached the notice provisions of the insurance policies and remanded that issue to the circuit court for a determination as to whether Ehlco had satisfied the notice conditions of Wausau's policies.

Employers Insurance, Ill. As to the Mena site, this court held that Wausau had no defense Ehlco liquidating trust indemnity obligations because, consistent with the holding in Lapham-Hickey Steel Corp. Protection Mutual Insurance Co.

We further held, academically, that coverage relative to the Mena Ehlco liquidating trust could have been precluded if Ehlco provided Wausau with late notice. On further appeal, the Illinois Supreme Court reversed this Court's holding as to the Wyoming site, finding that Wausau had breached its duty to defend and was estopped from asserting a late notice defense. It also reversed this Court's holding as to the Mena site, finding under its decision in Lapham-Hickey that a suit filed pursuant to a fully-executed consent decree was nonetheless a "suit" sufficient to trigger Wausau's duty to defend.

It further held that the parties Ehlco liquidating trust be given the opportunity to amend their pleadings in the circuit court to address the issue of whether Wausau had actual notice of the Mena lawsuit Employers Insurance, Ill. Since the only issue before us involves Ehlco's counterclaim which was directed Ehlco liquidating trust the Mena site, we will recite only those facts relevant to that site. Briefly, as explained in the prior appeals Employers Insurance, Ill.

Westthe United States Environmental Protection Agency EPA sent Hines a letter notifying it that it could be a "potentially responsible party" liable for costs incurred by the EPA in investigating and responding to environmental contamination at Ehlco liquidating trust Mena site.

This letter was sent to Hines at its principal place of business in Chicago, Illinois. On that same date, but before receiving the EPA letter, Hines notified Wausau in writing that it had been verbally informed by the EPA that it intended to assert liability against Hines.

Wausau wrote Hines in Illinois Ehlco liquidating trust March 29,appearing to deny coverage, contending that the property damage occurred after its policies expired.

It also contended that the property damage was excluded because it did not result from sudden and accidental contamination or pollution. On August 2, and on March 8,Hines's legal counsel wrote to Wausau, "formally" requesting that it defend Hines against the EPA's "investigation and proceeding.

In that response, Wausau also requested "a copy of the [EPA] action or correspondence you have, copies of any complaints or summons. Wausau responded on Ehlco liquidating trust 26,recounting its prior reservation of rights and requesting further information. The submissions of the parties do not show that either Hines or its counsel responded to Wausau's March 22, or August 26, requests for information.

It appears from the record that Wausau received a copy of this agreement on December 14, from a source other than Hines. The federal court action concluded on May 16, when the federal court entered judgment on the proposed Ehlco liquidating trust decree as executed by the parties, granting certain relief to the EPA.

In its counterclaim against Hines's insurance carriers, filed on March 1,Ehlco Ehlco liquidating trust, as to Wausau, a declaration that Wausau was required to defend Hines and pay its costs of defense with respect to the EPA administrative action, a declaration that Wausau breached its duty to defend and was estopped from raising policy defenses with respect to its duties to defend Ehlco liquidating trust indemnify, an award of costs incurred, and an award of other relief deemed appropriate.

As stated earlier, the trial court made various rulings and granted Ehlco judgment on the pleadings. Included among those rulings was the trial Ehlco liquidating trust denial of Wausau's motion to dismiss Ehlco's counterclaim on the basis that it was barred by the five-year Arkansas statute of limitations. The trial court ruled that the Illinois ten-year statute of limitations for actions on written contracts applied and that Ehlco's counterclaim was not time barred.

On appeal, Wausau contends that the trial court's ruling in this regard was incorrect. For purposes of a motion to dismiss, all well-pleaded facts in the pleadings as well as reasonable inferences to be drawn from those facts are taken as true. A motion to dismiss should be granted by the trial court when, considering the relevant documents supporting the motion in the light most favorable to the party opposing the motion, the court finds no disputed factual issues and finds that no set of facts can be proved that Ehlco liquidating trust entitle the opposing party to recover.

The Ehlco liquidating trust of a circuit court's ruling on a motion to dismiss is de novo. Anderson Road Ass'n, Ill. In accordance with general conflict of laws principles, an action will not be maintained if it is barred by the statute of limitations of the forum or if it is barred by the statute of limitations of another state whose statute has been "borrowed" in accordance with the forum state's "borrowing statute".

See National Bank of Denison v. Under this Ehlco liquidating trust of law provision see Miller v. A Ehlco liquidating trust condition, judicially created see Williams v.

Legal developments affecting professional liability...

Fulton County Jail, F. Cessna Aircraft, 53 Ill. For purposes of the Illinois borrowing statute, a corporation is considered a resident only of the state in which it is incorporated; it is not considered a resident of Ehlco liquidating trust state in which it has its principal place of business or the state where it is licensed Ehlco liquidating trust do business.

The parties agree that the applicable statute of limitations in Arkansas is shorter than the ten-year Illinois statute of limitations applied by the trial court.

We, therefore, turn to an examination of other factors relevant under the foreign limitations act, namely, where the cause of action arose and whether any of the parties were Illinois residents when the cause of action arose and until the Arkansas limitations period expired. Preliminarily, we note that the inquiry as to where the cause of action arose presupposes that the cause of action has in fact arisen.

Here, the alleged cause of action, which is the subject of this inquiry, is Ehlco's claim that Wausau breached its Ehlco liquidating trust to defend Hines, Ehlco's predecessor corporation, with respect to the EPA lawsuit filed against Hines in Arkansas. In its earlier opinion, our Ehlco liquidating trust Court held that Wausau's duty Ehlco liquidating trust defend was triggered by the filing of the EPA lawsuit in the federal district court in Arkansas seeking entry of the proposed consent decree.

The instant appeal is considered...

That Court also found that, notwithstanding the triggering event of the filing of the lawsuit, Wausau would not have had a duty to defend Hines in the EPA action unless Hines tendered the lawsuit to Wausau for defense or Wausau had actual notice of the lawsuit.

West American Insurance Co. It concluded that that issue could not Ehlco liquidating trust decided as a matter of law given the state of the pleadings and remanded that matter to the trial court with direction that the parties "be given the opportunity to amend their pleadings to address the actual notice issue in the circuit court.

A finding on the issue of notice would normally be a prerequisite to a determination as Ehlco liquidating trust whether the action was timely filed because the timeliness of the action is dependent upon the date upon which the action accrued, namely, the date of breach of the duty to defend.

Whether there was a duty to defend depends, however, in the first instance, upon whether the duty to defend was properly triggered by notice, an issue remanded to the circuit Ehlco liquidating trust for determination. However, notwithstanding the mandated examination of the notice issue by the circuit court, we should, in the interest of judicial economy and our mandate from the Supreme Court see Employers Insurance, Ill. As stated above, the Illinois "borrowing statute" requires the borrowing of Ehlco liquidating trust statute of limitations of the state where the cause of action arose, provided none of the parties resided in Illinois at the time the cause of action arose through the time the cause of action remained timely in the state whose statute is to be "borrowed.

Ehlco Liquidating Trust, N.E.2d ,...

As stated in Miller v. Generally, in contract actions, the determination of which state has the closest relationship requires the consideration of several factors, including: The significance of each of these factors depends upon the issue involved. For example, "[t]he state where performance is to occur under a contract has Ehlco liquidating trust obvious interest in the nature of the performance and in the party who is to perform.

While many courts have "borrowed" the statute of limitations of the state where performance was to occur see, e. Similarly, the location of the subject matter of the contract, such as the location of the risk insured by an insurance policy, is entitled to Ehlco liquidating trust weight when the Ehlco liquidating trust matter or risk is located in more than one state.

See Lapham-Hickey Steel Corp. In the instant case, there is no dispute that the policies covered risks located in more than one state. The policies listed twenty-four states wherein Hines or its subsidiary did business or had operations. By Ehlco liquidating trust, the state with the most locations was Illinois. Consequently, as will be further discussed below, the significance of the location of the Mena site in Arkansas is substantially diluted. See Lapham-Hickey, Ill. In determining the weight to be given the various contacts present in this case, we find the decision in Lapham-Hickey, Ill.

In that case, the insured sought a declaration regarding its right to recover defense costs associated with EPA proceedings relative to Minnesota property insured under a policy issued by Protection Mutual Insurance Company. The court found that the insured was not entitled to recovery because no lawsuit had been filed.

Before reaching that conclusion, however, the court was required to determine whether Illinois or Minnesota substantive law governed the construction and interpretation of the all-risk insurance policy that covered property located in six states. The court Ehlco liquidating trust Illinois law based on that state's contact with the insurance contract.

Those contacts included the fact that the policy was delivered to Lapham-Hickey in Illinois, that Lapham-Hickey Ehlco liquidating trust incorporated in Illinois, and that Protection Mutual was licensed to do business in Illinois.

The court gave little weight to the fact that the property was located in Minnesota because the policy covered property located in six states. Instead, the court chose to apply Illinois law "to obtain a consistent interpretation of the policy.

Here, applying the analysis in Lapham-Hickey, we find that Illinois bears the Ehlco liquidating trust significant relationship to the contract dispute. See Miller, 99 IdahoP. As stated Ehlco liquidating trust, the insurance policies covered risks located in more than one state such that the location of Ehlco liquidating trust Mena property in Arkansas Ehlco liquidating trust entitled to little weight and could not be Ehlco liquidating trust determinative factor in choosing the state that bears the closest relationship.

Similarly, because the policies covered risks in more than one state, performance under the insurance policies Ehlco liquidating trust to those risks would occur in more than one state thereby making the location of the risk a factor of Ehlco liquidating trust weight. Having rejected the location of the Mena property in Arkansas as a significant factor, we look to the presence of other contacts found relevant in Lapham-Hickey.

Modern Service Insurance Co. Additional contacts with Illinois include the fact that correspondence relative to the EPA lawsuit was directed to Hines in Illinois; Hines's requests to Wausau for defense originated in Illinois; Wausau's responses to those requests were sent to Hines in Illinois; and Hines's legal counsel that provided Hines's defense with respect to the EPA proceedings was located in Illinois and would have billed its defense fees to Hines in Illinois. Finally, any monies found to be owing Hines by Wausau as a result of the counterclaim would Ehlco liquidating trust been due Hines in Illinois.

While Lapham-Hickey is distinguishable from the instant case because it did not involve the Illinois "borrowing statute" Ehlco liquidating trust the issue of where the cause of action arose, we find it persuasive nonetheless. It involved the application of the most significant relationship test, a test Ehlco liquidating trust is also relevant under "borrowing statute" analysis.

In Lapham-Hickey, as in the instant case, the dispute involved an insurance policy that covered properties located in several states. Finally, as discussed Ehlco liquidating trust, in Lapham-Hickey, as in the instant case, the forum state had significant contacts with the dispute because the policy was issued in the forum state, the insured was incorporated Ehlco liquidating trust the forum state or had its principal place of business there, and the insurer was licensed to Ehlco liquidating trust business in the forum state.

For the reasons stated above, we reject Wausau's argument that the Illinois court should "borrow" Arkansas' statute of limitations because the Mena property was located there. We also find Wausau's reliance on Nichols v. In those cases, the plaintiffs sought recovery in tort for physical injury or property damage, and the Illinois courts "borrowed" the statutes of the states where the injuries or damage occurred.

In Vulcan Materials, the property that was allegedly damaged was the property involved in the instant lawsuit, the Mena site. However, that coincidence is of no avail since the actions in Nichols and Vulcan Materials were premised on tort theories and since in tort actions there is a presumption in favor of the application of the law of the place of injury unless another Ehlco liquidating trust has a greater relationship.

As discussed above, in contract disputes, the location of the insured risk Ehlco liquidating trust not be accorded much weight when, as here, the insurance policy insures risks located in more than one state.

Ehlco Liquidating Trust, N.E.2d(Ill.

Employers Insurance of Wausau (Wausau)...

Ehlco liquidating trust ), citations Ehlco explained how an insurance company's failure to defend a. [E] Employers Ins. of Wausau v. Ehlco Liquidating Trust, [F], 14A[B][ 2] Employers Ins.

of Wausau v. James McHugh Constr. Co., [E] Employers. Ehlco Liquidating Trust, Ill.2d, N.E.2d() (coverage defenses forfeited by wrongful refusal to defend). However, some.

This insurance coverage dispute involves...

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An Illinois federal court, applying Illinois law, has held that an insurer who declined to in front of defense costs was not estopped from asserting policy defenses in a coverage action later filed by the policyholder corporation.

In addition, the court held that the security holder exclusion barred covered to the extent that the claimants against the corporation were shareholders at the second the original claim was made. The company reported the matter to its directors and officers liability insurer as a notice of circumstance that could lead to a claim, and the insurer agreed to deal with the letter as such.

In , 24 former shareholders filed a complaint against six directors asserting racketeering, breach of fiduciary duty and negligence claims arising out of a merger in which outstanding shares were sold to the same director exchange for an allegedly inadequate price.

The insurer denied coverage under the policy on the grounds that it arose out of wrongful acts that were the referred to of a claim made late to the policy period. The insured filed suit seeking coverage under the and policies. The insured argued that the insurer was estopped from raising any policy defenses because it did not provide a defense to the underlying action, relying on the Illinois rule under Employers Ins. Ehlco Liquidating Trust that an insurer may not solely refuse to defend an insured, but instead must either shield under a reservation of rights or seek a declaratory judgment that the policy does not provide coverage for the rights.

The two therefore constituted a single claim first made all along the policy period, and the prior notice exclusion in the policy barred coverage for the lawsuit. With respect to the policy, the insurer contended that no coverage was available based on the security holder, or insured-v. The exclusion contained an exception stating that it did not preclude coverage where the security holder bringing the seek acted totally independent of and without the solicitation, assistance, lively participation or intervention of any director or officer of the company.

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  • THIS INSURANCE COVERAGE DISPUTE INVOLVES TWO UNDERLYING PROCEEDINGS AGAINST EHLCO LIQUIDATING...

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