Tokio Marine Specialty Insurance Company v. Altom Transport Inc. et al

Filing 49

MEMORANDUM Opinion and Order. The Court denies Tokio Marine's Motion for Summary Judgment 36 and grants Altom's Cross-Motion for Summary Judgment 38 . It is so ordered. Signed by the Honorable Charles P. Kocoras on 8/2/2022. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TOKIO MARINE SPECIALTY
INSURANCE COMPANY,
Plaintiff,
v.
ALTOM TRANSPORT, INC.; JAVONTE
AZCONA; MICHAEL CHAPA; and
CORTEZ MCCULLOUGH,
Defendants.

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20 C 7006

MEMORANDUM OPINION AND ORDER
CHARLES P. KOCORAS, District Judge:
In this insurance coverage action, Tokio Marine Specialty Insurance Company
(“Tokio Marine”) seeks a declaration it has no duty to defend or indemnify its insured,
Altom Transport, Inc. (“Altom”), in connection with three underlying lawsuits brought
in the Circuit Court of Cook County, Illinois. Altom sought coverage from Tokio
Marine, and Tokio Marine denied same. This lawsuit ensued, and the parties filed
cross-motions for summary judgment. For the following reasons, the Court denies
Tokio Marine’s Motion and grants Altom’s Motion.
BACKGROUND
In resolving a motion for summary judgment, the Court views the evidence in
the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The following facts are taken from the record and are
undisputed unless otherwise noted.
The Underlying Lawsuits
In August 2019, Altom transported a tankard-trailer containing isopentane from
East Chicago, Indiana, to a facility in Hillsborough, New Jersey. Tokio Marine says
unloading was completed on August 12, 2019 1, and on August 14, 2019, the tankardtrailer returned to Indiana where the Altom driver then brought it to a TAC East, Inc.
(“TAC East”) facility in East Chicago to have it cleaned.
On July 28, 2020, Javonte Azcona, Michael Chapa, and Cortez McCullough
(collectively, the “Underlying Plaintiffs”) filed separate lawsuits (the “Underlying
Lawsuits”) in the Circuit Court of Cook County, Illinois, against Altom and TAC East.
The Underlying Plaintiffs allege that on August 14, 2019, they were employed by Ron’s
Staffing Services, Inc., and were “deployed to assist in cleaning commercial vehicles
and transports” at TAC East’s East Chicago facility. On the day of the explosion, the
Underlying Plaintiffs allege they were preparing to clean the tankard-trailer Altom
brought for cleaning that day.
One of the Underlying Plaintiffs climbed up to the top of the tankard-trailer and
opened it to discover that about forty gallons of liquid-waste remained in the tank. The
Underlying Plaintiffs allege that at the direction of their supervisor, they opened the

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The parties disagree as to when “unloading” was completed.

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valve on the side of the tank and drained the waste into the facility’s drainage system.
When the waste reached the boiler room, it reacted with an open flame, causing an
explosion. The Underlying Plaintiffs allege they were still in the work area working on
the tankard-trailer when the explosion took place and that they sustained first- and
second-degree burns.
As a result of these events, the Underlying Plaintiffs brought claims against TAC
East for negligence and premises liability and claims for negligence against Altom. The
Underlying Plaintiffs allege Altom failed to disclose to TAC East the amount of highly
flammable chemicals that remained inside the tankard-trailer, failed to exercise a
reasonable degree of care and caution in its delivery of the tankard-trailer to TAC East,
and carelessly and negligently left an unsafe amount of highly flammable chemicals
inside its tankard-trailer.
Relevant Policy Provisions
Tokio Marine issued Policy No. PPK1856258 to Al Warren Oil Company, Inc.,
as named insured (the “Policy”).

The Policy provided premises environmental

insurance, including transportation coverage, with an effective policy period from
August 3, 2018 to August 3, 2021.
The Policy extended coverage, in part, as follows:
E. Transportation
We will pay for loss, remediation expense, or emergency expense in
excess of the self-insured retention that the insured becomes legally
obligated to pay as a result of a claim for bodily injury, property
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damage or environmental damage arising out of contamination that is
caused by transportation, but only if:
a.
b.

Such claim is first made against the insured and reported to us
during the policy period, or within the extended reporting period,
if applicable; and
The contamination first commences on or after the Transportation
Retroactive Date scheduled onto the policy.

This coverage may to be utilized to evidence financial responsibility of
any Insured under any federal, state, provincial or local law.
Dkt. # 37-5, at 16 (emphasis in original).
The Policy contains the following definitions:
D. Contaminant means any solid, liquid, gaseous or thermal irritant or pollutant,
including but not limited to smoke, vapor, odors, soot, fumes, acids, alkalis, toxic
chemicals, hazardous substances, petroleum hydrocarbons, legionella, mold,
electromagnetic fields, silt, sedimentation, viruses, bacteria, and waste materials
including but not limited to municipal, industrial, medical, pathological, and low
level radioactive waste and materials.
E. Contamination means:
1.

The discharge, dispersal, release or escape of any contaminant into
or upon land, or any structure on land, the atmosphere or any
watercourse or body of water, including groundwater, provided
such contaminant is not naturally occurring in the environment, or
in any structure, in the amounts or concentrations discovered; or

2.

The presence of contaminants that have been illegally disposed of
or abandoned at your insured location by parties other than an
insured provided that, prior to the inception date, no insured
knew or reasonably should have known of the presence of such
contaminants; or

3.

The presence of facility-borne viruses, bacteria, legionella or mold
in any structure at your insured location.

***
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DD. Transportation means the transport of your goods, materials,
product or waste beyond the boundaries of your insured location by your
conveyance or a carrier. Transportation includes loading or unloading
of your goods, products, materials or waste onto or from a vehicle, but
only at locations other than your insured location. Transportation
begins upon loading your goods, products, materials or waste onto a
vehicle and ends when goods, products, materials or waste has been
unloaded from a vehicle.
Dkt. #37-5, at 16–17, 21 (emphasis in original).
The Policy also includes a Contractor’s Environmental Coverage Endorsement
which provides, in pertinent part:
2. Section I. Insuring Agreements is amended to include the following:
Contractor’s Environmental Coverage
We will pay on behalf of the insured for loss or remediation expense in
excess of the self-insured retention that the insured becomes legally
obligated to pay as a result of a contamination caused by your
contracting operations or completed operations, provided:
***
3. Section II. Definitions is amended to include the following:
Completed operations means work from your contracting operations
that have been completed. Your contracting operations will be deemed
completed at the earliest of the following times:
1.

When all of your contracting operations to be performed in the
contract are complete;

2.

When all of your contracting operations to be done at a project
site have been completed; or

3.

When that part of your contracting operations at a project site
has been put to its intended use by any person or organization other
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than another contractor or subcontractor working on the same
project.
Your contracting operations that may need service, maintenance,
correction, repair or replacement, but are otherwise complete, will be
deemed complete.
***
Dkt. #37-5, at 42–43 (emphasis in original).
Altom sought coverage under the Policy in connection with the Underlying
Lawsuits, which Tokio Marine denied because it believed that the Underlying Plaintiffs
did not allege bodily injury “arising out of contamination caused by transportation” as
defined by the Policy. Tokio Marine then filed its Complaint for Declaratory Judgment
against Altom, seeking a declaration that Tokio Marine has no duty to defend or
indemnify Altom in connection with the Underlying Lawsuits. Both parties now move
for summary judgment.
LEGAL STANDARD
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(citation omitted). “A genuine dispute as to any material fact exists if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Kvapil v.
Chippewa Cnty., 752 F.3d 708, 712 (7th Cir. 2014) (cleaned up).
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In deciding whether a dispute exists, the Court must “construe all facts and
reasonable inferences in the light most favorable to the non-moving party.” Citizens
for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1074 (7th Cir. 2016). The
nonmovant “must go beyond the pleadings” to demonstrate that there is evidence “upon
which a jury could properly proceed to find a verdict in [their] favor.” Modrowski v.
Pigatto, 712 F.3d 1166, 1168–69 (7th Cir. 2013).
“The ordinary standards for summary judgment remain unchanged on crossmotions for summary judgment: we construe all facts and inferences arising from them
in favor of the party against whom the motion under consideration is made.” Blow v.
Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017). “Cross-motions must be evaluated
together, and the court may not grant summary judgment for either side unless the
admissible evidence as a whole—from both motions—establishes that no material facts
are in dispute.” Bloodworth v. Vill. of Greendale, 475 F. App’x 92, 95 (7th Cir. 2012).
Even though the parties may agree that no genuine dispute of material fact exists, the
Court can deny all motions if the parties do not establish their rights to judgment as a
matter of law. Grabach v. Evans, 196 F. Supp. 2d 746, 747 (N.D. Ind. 2002).
In deciding a motion for summary judgment, the Court’s sole function is “to
determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650,
657 (2014). The Court cannot weigh conflicting evidence, assess the credibility of
witnesses, or determine the ultimate truth of the matter, as these are functions of the

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jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Omnicare, Inc. v.
UnitedHealth Grp., Inc., 629 F.3d 697, 704–05 (7th Cir. 2011).
DISCUSSION
In Illinois, the duty to defend is broader than the duty to indemnify. Am. Bankers
Ins. Co. of Fla. v. Shockley, 3 F.4th 322, 327 (7th Cir. 2021). When determining
whether an insurer must defend an insured, Illinois courts compare the allegations of
the underlying complaint to the relevant policy provisions. Green4All Energy Sols.,
Inc. v. State Farm Fire & Cas. Co., 2017 IL App (1st) 162499, ¶ 24. If any of the
complaint’s allegations even potentially fall within a policy’s coverage, the insurer is
obligated to defend its insured. State Auto. Mut. Ins. Co. v. Kingsport Dev., LLC, 364
Ill. App. 3d 946, 951 (2d Dist. 2006) (citing Outboard Marine Corp. v. Liberty Mut.
Ins. Co., 154 Ill. 2d 90, 125 (1992)). This is so even if the allegations are groundless,
false, or fraudulent, and even if only one of several theories of recovery alleged in the
complaint falls within the potential coverage of the policy. Country Mut. Ins. Co. v.
Dahms, 2016 IL App (1st) 141392, ¶ 38. However, if the complaint does not state facts
bringing the case within or potentially within coverage, there is no duty to defend. L.J.
Dodd Constr., Inc. v. Federated Mut. Ins. Co., 365 Ill. App. 3d 260, 262 (2d Dist. 2006).
Both an insurance policy and an underlying complaint “must be liberally construed in
favor of the insured.” U.S. Fid. & Guar. Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 74
(1991) (internal citations omitted).

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As an initial matter, it is undisputed that the isopentane that was drained from
the tankard-trailer falls within the definition of “contaminant” under the Policy. It is
further undisputed that the draining of the isopentane from the tankard-trailer, as alleged
by the Underlying Plaintiffs, falls within the Policy’s definition of “contamination.”
Tokio Marine argues it has no duty to defend because the alleged bodily injuries
did not arise out of contamination caused by transportation, as required by the Policy.
More specifically, Tokio Marine says the Underlying Plaintiffs make no allegation that
they were ever in direct contact with or exposed to the purported contaminants. Instead,
they allege their injuries arose out of an inadequate drainage system into which the
isopentane was drained. The Court, however, disagrees with Tokio Marine’s assertion
that the Underlying Plaintiffs needed to specifically allege they were in direct contact
with or exposed to the isopentane.
Altom argues Tokio Marine’s assertion that the Underlying Plaintiffs had already
begun cleaning the tankard-trailer when the explosion occurred is not supported by the
allegations in the Underlying Complaints, which Altom says do not suggest that the
draining process was completed or that the Underlying Plaintiffs were cleaning the tank
when the explosion occurred. It is alleged that the explosion occurred when the “liquid
reacted with an open flame” in the “boiler room adjacent to the work-area,” and that the
Underlying Plaintiffs were “still in the work area working on the tankard-trailer when
the explosion took place.” Dkt. # 37-3, ¶¶ 17–18. “Working on the tankard-trailer”

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could be construed as cleaning it, or it could be construed as continuing to drain the
isopentane from the tank.
With respect to whether the injuries alleged arose out of contamination and
liberally construing the allegations in Altom’s favor, the facts and damages alleged
potentially fall within the Policy’s coverage because the injuries immediately sustained
by the Underlying Plaintiffs potentially occurred while they were still draining the
isopentane from the tankard-trailer and therefore arose out of contamination.
Tokio Marine argues that even if the Underlying Plaintiffs allege their injuries
arose out of contamination, there is still no potential for coverage because any purported
contamination was not caused by transportation.

According to Tokio Marine,

transportation ended when Altom unloaded the isopentane in New Jersey, days before
the explosion. In support of this argument, Tokio Marine relies on the “completed
operations” doctrine Illinois courts apply to determine when unloading is complete.
The Illinois Supreme Court has held that “‘unloading’ has been completed when,
subsequent to removal of the material from the vehicle, the deliverer has finished his
handling of it, and the material has been placed in the hands of the receiver at the
designated reception point, despite the fact that it is necessary to transport the material
thereafter to another point.” Estes Co. of Bettendorf, Iowa v. Emps. Mut. Cas. Co., 79
Ill. 2d 228, 234 (1980).
Tokio Marine says the fact that the isopentane was not entirely removed from
the tanker is “inconsequential as unloading refers to a process that ended because the
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product had been delivered and unloaded in New Jersey, no further action by Altom as
to the isopentane was contemplated, and the truck had returned to its home state.” Dkt.
# 36, at 9. Furthermore, Tokio Marine argues the Altom driver relinquished possession
of the vehicle to TAC East so that the tanker could be cleaned, prior to the purported
contamination.
Altom points out that Tokio Marine’s cited authority pertaining to the
“completed operations” doctrine involves automobile insurance policies and
automobile exclusions, not a Premises Environmental Coverage Policy like in this case.
According to Altom, finding the “completed operations” doctrine applies to a Premises
Environmental Coverage Policy would “effectively violate the parties’ intent under the
plain language of the Policy.” Dkt. # 38, at 12. Altom says Tokio Marine’s failure to
include explicit “completed operations” language under Part E of its insuring
agreement, as it did under the Contractor’s Environmental Coverage Endorsement, is
evidence that the parties never intended the “completed operations” doctrine to limit
coverage.
The Policy provides that “Transportation . . . ends when goods, products,
materials or waste has been unloaded from a vehicle.” Dkt. # 37-5, at 21. As discussed
above, the Underlying Complaints allege that the Underlying Plaintiffs were “working
on the tankard-trailer when the explosion occurred,” which could reasonably be
construed as the Underlying Plaintiffs were still draining (i.e., unloading) the isopentane
from the tank when the explosion happened. Under the plain language of the Policy,
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then, “transportation” would not have ended until all the waste was drained from the
tank.
Liberally construing the allegations of the Underlying Complaints in favor of
Altom, the Court concludes that the allegations at least potentially fall within the
coverage grant of the Policy. As such, Tokio Marine owes a duty to defend. The
question of whether an insurer must indemnify, however, is not ripe until the underlying
litigation ends. Travelers Ins. Co. v. Penda Corp., 974 F.2d 823, 833 (7th Cir. 1992);
United Nat’l Ins. Co. v. Dunbar & Sullivan Dredging Co., 953 F.2d 334, 338 (7th Cir.
1992). Thus, the portion of the Tokio Marine Complaint relating to the duty to
indemnify remains stayed until the Underlying Lawsuits are over. See Dkt. # 15.
CONCLUSION
For the foregoing reasons, the Court denies Tokio Marine’s Motion for Summary
Judgment [36] and grants Altom’s Cross-Motion for Summary Judgment [38].
It is so ordered.
Dated: August 2, 2022
__________________________
Charles P. Kocoras
United States District Judge

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