Noel liquidating trust

The instant appeal arises from a declaratory judgment action filed by plaintiff Employers Insurance of Wausau, A Mutual Company (Wausau) against Ehlco; Ehlco's trustee, Noel H. Wausau's original declaratory complaint also named 15 other insurance carriers in addition to Heath as defendants, who with the exception of Heath were each dismissed from this action prior to the entry of the orders from which this appeal was taken. In its first-amended complaint filed in this action, Wausau sought a declaration that it owed no duty to defend or indemnify Ehlco in an underlying suit concerning environmental property damage at an Ehlco-affiliated industrial site in Wyoming. Ohio 1987) (federal district court decision, applying Ohio law, stating that even if a "potentially responsible party" ("PRP") letter does not constitute a suit, once a court action is filed pursuant thereto, the insured becomes entitled to all defense costs retroactively, dating back to the date of the PRP letter). It would seem that a pro forma lawsuit, which only serves to reduce to judgment by agreement of the parties a settlement to which the parties had already consented in an administrative proceeding, is but an extension or implementation of that administrative proceeding. Contemporaneously on that date, Wausau obtained leave of court to file its second-amended complaint (in lieu of filing an answer to Ehlco's Mena counterclaim), in which it reiterated its allegations regarding the Wyoming site and additionally sought declaratory relief with respect to the Mena site. Ehlco does not anywhere controvert these averments. Thereafter, Wausau moved to dismiss Ehlco's Mena counterclaim pursuant to sections 2-615(e) and 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-615(e), 2-619(a)(5) (West 1994)) on statute of limitations grounds and on the grounds that Hines' notice to Wausau regarding the Mena contamination had been untimely. Moreover, the signature page of the consent decree bears the date of May 16, 1987, which purports to be well in advance of the filing of the federal action in March 1988. The trial court granted Wausau leave to file its third-amended complaint without prejudice to Ehlco's right to oppose the legal and factual sufficiency thereof and without waiver of any defenses to it. E.2d at 286 ("Lapham-Hickey is to be given retroactive application because the Supreme Court's opinion in Lapham-Hickey did not state that it was prospective, and the opinion on its face applies to the litigants in the Lapham-Hickey case."); Forest Preserve, 279 Ill. There is nothing on the face of the decree that is inconsistent with the non-adversarial nature of the federal action in which it was contemporaneously filed. 99-499, 100 Stat 1613 (1986).""the parties agree and the Court finds that settlement of these matters without further litigation is in the public interest and that the entry of this Decree is the most appropriate means of resolving these matters.""for the duration of this Consent Decree for the purposes of issuing such further directions as may be necessary or appropriate to construe, implement, modify, enforce, terminate, or reinstate the terms of this Consent Decree * * *." As is apparent from its face, the consent decree was fully executed prior to the filing of the federal action and was filed simultaneously with it. That order also provided that Ehlco's pending motions for judgment on the pleadings as to both sites would stand as to the third-amended complaint, and that Ehlco's answer, affirmative defenses and counterclaim would stand to the extent that Wausau's third-amended complaint repeated the allegations and claims of its second-amended complaint. The provisions of the decree wholly define and predetermine the full nature and extent of the judicial action to be taken pursuant to the filing of the lawsuit and the entry of the decree. § 50.7 and Section 122(i) of the Superfund Amendments and Reauthorization Act of 1986, Pub. Second, the role of the federal court was clearly limited and defined on the face of the consent decree to the future enforcement of the settlement if necessary, and did not call for any concurrent defense of the action by Ehlco.

Prior to any ruling on these motions, Wausau filed a motion seeking leave of court to file its third-amended complaint. Thus, the entry into the consent decree prior to the filing of the federal suit completely neutralized the anticipated federal action and rendered it non-adversarial in nature.

Justice GORDON delivered the opinion of the court: This insurance coverage dispute involves two underlying proceedings against Ehlco Liquidating Trust (Ehlco) and affiliated entities for environmental property damages allegedly caused by those parties at two industrial sites, one located in Wyoming and the other in Mena, Arkansas.

Apparently, Ehlco Liquidating Trust is a trust created by order of the Delaware Chancery Court to resolve the contingent liabilities of Edward Hines Lumber Company (Hines), a dissolved Delaware corporation. Heath Compensation and Liability Insurance Company (Heath), which is identified as the successor to Employers Surplus Lines Insurance Company, Hines' excess liability carrier.

In its third-amended complaint, Wausau repeated the allegations in its previous complaint and added several new counts seeking a determination of noncoverage under the subject policies. E.2d 414, 416-17 (1997) ("Lapham-Hickey's requirement of a lawsuit to trigger the insurance company's duty to defend is to be applied retroactively."); Fruit of the Loom, 284 Ill. As noted, the consent decree provides in pertinent part as follows: "This Consent Decree shall be lodged with the Court for a period of 30 days for public comment pursuant to the provisions of 28 C. Third, the decree provided its own stipulated penalties.

Ehlco filed its answer and a motion for judgment on the pleadings pursuant to section 2-615(e) of the Illinois Code of Civil Procedure (735 ILCS 5/2-615(e) (West 1994)), seeking defense and indemnification coverage with respect to the underlying Wyoming action. Consequently, to invoke coverage for the filing of a lawsuit already consented to in a settlement agreement in the underlying administrative action, where the outcome of that lawsuit is pre-ordained by that agreement, would contravene the thrust of the holding of Lapham-Hickey, which precludes any duty to defend against administrative proceedings.

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While that motion was pending, Ehlco moved for leave to file a counterclaim for declaratory judgment against Wausau and Heath seeking defense and indemnification coverage with respect to underlying administrative proceedings and a subsequent consent decree action initiated by the United States Environmental Protection Agency (USEPA) concerning environmental property damage at an Ehlco-affiliated site in Mena, Arkansas. E.2d 1097 (1994) (supreme court has power to declare when a decision will apply prospectively only, and in the past has said so expressly when it intended for prospective application alone; supreme court's decisions apply retroactively to cases pending at time decision is announced). Once a consent decree is fully agreed upon in the underlying administrative settlement, a suit which is filed pursuant thereto as a mere formality provides nothing to defend upon which to invoke any duty to defend.

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