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THIRD DIVISION
September 30, 2003

No. 1-02-1359

Plaintiff, the Board of Education of Maine Township High School District No. 207 (theschool district), filed a declaratory judgment action against defendant, International InsuranceCompany (International), seeking a determination of coverage for $18 million in asbestos-related property damage under seven insurance polices issued by International from 1985through 1991 (hereinafter referred to individually by the policy year, i.e., 1985 policy, 1986policy, etc.). This appeal concerns the parties' cross-motions for summary judgment filed withregard to the 1985, 1986, 1987, 1988 and 1989 policies. The court found that a "latent defect"exclusion for asbestos-related losses in the policies precluded the school district's claims andthat asbestos-related costs the school district allegedly incurred pursuant to the IllinoisAsbestos Abatement Act (Asbestos Abatement Act) (105 ILCS 105/1 (West 1992)) and itsimplementing regulations were not a covered loss under the policies' "Ordinance DeficiencyClause." The court granted summary judgment to International and denied the school district'smotion for summary judgment.

The school district appeals the court's order regarding the 1986, 1987, 1988 and 1989policies, arguing that the court erred in entering summary judgment for International on thosepolicies because (1) the policies' ordinance deficiency clause extended coverage over theschool district's claims; and (2) supplemental coverage applied to the school district's claimspursuant to the "All-Risk" clause. The school district, having abandoned its claims under the1985 policy, concedes that summary judgment should be affirmed with regard to the 1985policy. The school district does not appeal the court's denial of its cross-motion for summaryjudgment. We affirm summary judgment for International with regard to the 1985 policy andreverse with regard to the 1986, 1987, 1988 and 1989 policies.

BACKGROUND

In 1979, pursuant to a guidance document published by the Environmental ProtectionAgency regarding the dangers of asbestos exposure in schools, the school district inspectedits schools for asbestos-containing building materials and found such materials in the schools. In 1984, the Asbestos Abatement Act took effect, requiring Illinois schools to identify, containand remove "all asbestos materials that constitute a significant health hazard" and to repairand maintain those which do not constitute a significant health hazard. Board of Education ofthe City of Chicago v. A C & S, Inc., 131 Ill. 2d 428, 437, 546 N.E.2d 580, 584 (1989); 105ILCS 105/2 (West 1992).

In 1985, the school district, as a member of the CLIC Insurance Cooperative,purchased a one-year insurance policy from International for coverage of loss or damage tothe school district's property during the policy period. Pursuant to Agreement A contained inthe "Property Insurance" section of the policy, International agreed, "subject to the limitations,terms and conditions of this Insurance, to indemnify the Insured for all risks of physical loss ordamage to All Property of the Insured of every kind and description wherever located occurringduring the period of this Insurance." The property insurance section of the policy containednumerous coverage exclusions, including exclusions for wear, tear and contamination, but noexclusion for asbestos-related loss or damage. The 1985 policy did, however, contain an"asbestos endorsement" which excluded losses

"[i]n connection with any claim (i) arising out of or (ii) related to any event or happening,or (iii) directly or indirectly caused by based upon or resulting from:

(a) Asbestos or any asbestos related injury or damage; or

(b) Any alleged act, error, omission or duty involving asbestos, its use,exposure, presence, existence, detection, removal, elimination or avoidance; or

(c) The use, exposure, presence, existence, detection, removal, elimination oravoidance of asbestos in any environment, building or structure."

The school district renewed the policy six times, from 1986 to 1991.

In 1986, International eliminated the asbestos endorsement but added a latent defectexclusion to the exclusions subsection of the policy's property insurance section. The newexclusion provided that there would be no coverage for

"[l]oss by latent defect including damage or loss caused by, aggravated by orcontributed by the presence of asbestos and all asbestos related products including butnot limited to paint, ceiling tile, floor tile, insulation and/or other sources.

UNLESS LOSS BY A PERIL INSURED AGAINST ENSUES AND THEN ONLY FORSUCH ENSUING LOSS."

This exclusion was included in subsequent polices until the 1990 and 1991 policies, wherein itwas slightly modified. The modification is not relevant here.

The property insurance section of the 1985 through 1989 policies also included a"Conditions" subsection consisting of eight clauses, one of which was the ordinance deficiencyclause. The ordinance deficiency clause provided:

"Notwithstanding anything contained herein to the contrary, the Company shall be liablealso for the loss occasioned by the enforcement of any state or municipal law,ordinance or code, which necessitates, in repairing or rebuilding, replacement ofmaterial to meet such requirements. If demolition is required to comply with suchenforcement, the Company shall also be liable for such additional costs."

In the 1990 and 1991 policies, the ordinance deficiency clause was changed to state that"[o]nce there is a covered loss, we will be liable for loss caused by enforcement of any state ormunicipal law, ordinance or code that requires that Insured to repair, rebuild, replace materialsor demolish the Insured's property."

The school district allegedly discovered in 1992 and/or 1993 that the majority of its floorand ceiling tiles contained asbestos and were a hazard. The school district abated theasbestos dangers by demolishing, repairing and replacing the asbestos-containing buildingmaterials.

In 1992, the school district filed a claim under the 1986 and 1987 policies for itsasbestos-related property damage with International . In 1993, after International allegedlyfailed to respond to the claim, the school district filed a complaint against International forbreach of contact pursuant to the 1986 and 1987 polices. In 1995, the school district filed anamended complaint alleging breach of contract of the 1985 through 1991 polices. Count I ofthe amended complaint requested that the court find coverage under the 1986 and 1987policies for risks of physical damage or loss resulting from asbestos-containing materials orasbestos in the school buildings and costs of asbestos inspection, removal, abatement andmaintenance programs and consequential damages resulting therefrom. Count II requested asimilar declaration under the 1985, 1988, 1989, 1990 and 1991 policies.

In 1996, the court granted partial summary judgment to International on the 1990 and1991 policies. We addressed the school district's appeal from that judgment in Board ofEducation of Maine Township High School District 207 v. International Insurance Co., 292 Ill.App. 3d 14, 684 N.E.2d 978 (1997). As shown above, the latent defect exclusion provision inthe 1990 and 1991 polices was essentially the same as that in the 1985 through 1989 policies,as was an exception to the exclusion for "a loss from covered peril that follows; and then onlyfor the following loss." For the purpose of the 1990 and 1991 policies, we determined that "loss or damage caused by, aggravated by, or added to by asbestos-related products is alatent defect excluded from coverage under the 'exclusions' section of the policies," andaffirmed the trial court. Board of Education of Maine Township High School District 207, 292Ill. App. 3d at 20, 684 N.E.2d at 983. We held that coverage was similarly excluded pursuantto the contamination, gradual deterioration and "wear and tear" exclusions, given that all theevents which caused the asbestos fibers to be released into the air constituted ordinary wearand tear. Board of Education of Maine Township High School District 207, 292 Ill. App. 3d at21, 684 N.E.2d at 983.

We found that, "although the 'exceptions' clause would bring within coverage a lossfrom a covered peril that follows an excluded peril, the clause did not operate [in the instanceof the 1990 and 1991 policies] to give back coverage for loss or damage caused by,aggravated by, or added to by asbestos-related products. Such a loss or damage is not acovered peril." Board of Education of Maine Township High School District 207, 292 Ill. App.3d at 21-22, 684 N.E.2d at 983. Our earlier decision did not address the applicability of theordinance deficiency clause. The ordinance deficiency clause in the 1990 and 1991 policieswas vastly different from the clause at issue here, having been changed to require a coveredloss as a prerequisite to applicability.

In 2001, the parties filed cross-motions for summary judgment on the 1985, 1986,1987, 1988 and 1989 policies. The court found, as a matter of law, that the policies were notambiguous and its determination would be based solely on the instruments themselves andnot on witness testimony regarding the parties' intent. Noting this court's previous decision inBoard of Education of Maine Township High School District 207, the court held that there was"unequivocally" no liability under the policies for any loss or damage relating to asbestos in anyform or under any circumstances pursuant to the latent defect exclusion.

Plaintiff argued that the ordinance deficiency clause reinstated coverage because theschool district's losses were occasioned by its compliance with statutory mandates to abate theasbestos hazard. The court disagreed, finding that the ordinance deficiency clause did notnegate the asbestos exclusion because the word "also" in the ordinance deficiency clauserefers to something which came before, i.e., a covered loss. The court noted that, "[w]ithout aprevious covered loss, the ordinance deficiency clause is without a predicate which has to bein existence for the clause to have any real meaning." Having previously determined thatasbestos-related damage was not a covered loss, the court, therefore, held that costs ofcompliance with the abatement statute were not a covered loss. The court granted summaryjudgment to International and denied the school district's motion for summary judgment. Theschool district timely appeals the grant of summary judgment to International.

ANALYSIS

Summary Judgment

Summary judgment is a drastic means of disposing of litigation and should be grantedonly when the pleadings, depositions, and admissions on file, together with any affidavits,construed strictly against the movant and liberally in favor of the opponent of the motion, showthat there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d 867, 871(1986). " 'When all parties file cross-motions for summary judgment, the court is invited todecide the issues presented as a question of law.' " Nudi Auto RV & Boat Sales, Inc. v. JohnDeere Insurance Co., 328 Ill. App. 3d 523, 531, 765 N.E.2d 1163, 1169 (2002), quotingContainer Corp. of America v. Wagner, 293 Ill. App. 3d 1089, 1091, 689 N.E.2d 259, 261(1997). We review the trial court's entry of summary judgment de novo. Axen v. OckerlundConstruction Co., 281 Ill. App. 3d 224, 229, 666 N.E.2d 693, 696 (1996).

Ordinance Deficiency Clause

The construction of an insurance policy and a determination of the rights andobligations thereunder are also questions of law that we review de novo and thus areappropriate for disposition by way of summary judgment. Traveler's Insurance Co. v. EljerManufacturing, Inc., 197 Ill. 2d 278, 292, 757 N.E.2d 481, 491 (2001); Crum & ForsterManagers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073, 1077 (1993). Our primary objective in construing the policy language is to ascertain and give effect to theintent of the parties to the contract. Traveler's Insurance Co., 197 Ill. 2d 278 at 292, 757N.E.2d at 491. To determine the meaning of the policy language and the parties' intent, wemust construe the policy as a whole, taking into account the type of insurance purchased, thesubject matter, the risks undertaken and purchased, and the overall purpose of the contract. Traveler's Insurance Co., 197 Ill. 2d 278 at 292, 757 N.E.2d at 491; Crum & Forster ManagersCorp., 156 Ill. 2d at 391, 620 N.E.2d at 1078.

If the words in a policy are clear and unambiguous, there is no need for construction. Rohe v. CNA Insurance Co., 312 Ill. App. 3d 123, 127, 726 N.E.2d 38, 41 (2000). Rather,words that are plain and unambiguous will be accorded their plain, ordinary and popularmeaning and we will enforce the policy according to its terms as written unless to do socontravenes public policy. Traveler's Insurance Co., 197 Ill. 2d 278 at 292-93, 757 N.E.2d at491; Crum & Forster Managers Corp., 156 Ill. 2d at 391, 620 N.E.2d at 1078; Rohe, 312 Ill.App. 3d at 127, 726 N.E.2d at 41. Policy language is not considered ambiguous merelybecause a term is not defined within the policy or because the parties can suggest creativepossibilities for the term's meaning. Rohe, 312 Ill. App. 3d at 127, 726 N.E.2d at 41. "Thecourt will not search for ambiguity where there is none." Crum & Forster Managers Corp., 156Ill. 2d at 391, 620 N.E.2d at 1078. If, however, the language of a policy is susceptible to morethan one reasonable meaning, such language is ambiguous and will be construed strictly infavor of the insured and against the insurer that drafted the policy. Traveler's Insurance Co.,197 Ill. 2d at 293, 757 N.E.2d at 491; Rohe, 312 Ill. App. 3d at 127, 726 N.E.2d at 41.

As the trial court stated, the ultimate issue in this case is whether the ordinancedeficiency clause in the 1986, 1987, 1988 and 1989 insurance policies negates the latentdefect exclusion for asbestos-related damages in those polices. In Board of Education ofMaine Township High School District 207, we determined that a similar latent defect exclusionand exception to that exclusion in the 1990 and 1991 policies precluded coverage forasbestos-related damages. Board of Education of Maine Township High School District 207,292 Ill. App. 3d at 22, 684 N.E.2d at 984. "A question of law decided on a previous appeal isbinding on both the trial court and the appellate court." Gord Industrial Plastics, Inc. v. AubreyManufacturing, Inc., 127 Ill. App. 3d 589, 591, 469 N.E.2d 389, 391 (1984). Accordingly,following Board of Education of Maine Township High School District 207, we agree with thetrial court that, standing alone, the latent defect exclusion in the 1986, 1987, 1988 and 1989policies precludes coverage for asbestos-related damages.

Although asbestos-related property damage initially falls within the scope of the broad"all risks" clause in the policies (Board of Education of Township High School District No. 211v. International Insurance Co., 308 Ill. App. 3d 597, 602, 720 N.E.2d 622, 625-26 (1999)), thecontracts state that coverage is "subject to the limitations, terms and conditions" of the policies. One such limitation is the latent defect exclusion clause, which serves to specifically excludeasbestos-related property damage from coverage. Since such damage is therefore not acovered peril, the exception to the exclusion, which provides "unless loss by a peril insuredagainst ensues and then only for such ensuing loss," does not serve to reinstate coverage. Board of Education of Maine Township High School District 207, 292 Ill. App. 3d at 21-22, 684N.E.2d at 984.

Coverage of asbestos-related damage is, however, provided in the 1986 through 1989policies by the ordinance deficiency clause. We find, as a matter of law, that the ordinancedeficiency clause in those policies does provide coverage for asbestos-related damages andlosses resulting from replacement of material required to meet state or municipal laws, codesor ordinances. In other words, the ordinance deficiency clause negates the asbestos exclusionif the claimed losses were incurred as a result of compliance with statutorily mandatedrequirements. In fact, we agree with the school district's interpretation of the policies that "theordinance deficiency clause overcomes all exclusions," including the "wear and tear" andcontamination exclusions raised by International.

The language of the ordinance deficiency clause, and of the policy as a whole, is notambiguous. The words contained therein are clear and susceptible to only a single meaning. The ordinance deficiency clause states in full as follows:

"Notwithstanding anything contained herein to the contrary, the Company shall be liablealso for the loss occasioned by the enforcement of any state or municipal law,ordinance or code, which necessitates, in repairing or rebuilding, replacement ofmaterial to meet such requirements. If demolition is required to comply with suchenforcement, the Company shall also be liable for such additional costs."

The words "notwithstanding," "herein" and "also" in the above clause are determinative ofwhether the ordinance deficiency clause provides coverage for previously excluded damages. Although the parties appear to agree on what the words mean, they do not agree on howthose words should be applied.

When used, as here, as a preposition, "notwithstanding" is defined as "[w]ithoutprevention or obstruction from or by; in spite of; * * * despite," and it "implies the presence ofan obstacle." Webster's Second New International Dictionary 1669 (1954). As the trial courtnoted, "notwithstanding," in essence "wipes out" anything to the contrary. "Herein" means "inor into this (place, or matter, circumstance, etc.)." Webster's Second New InternationalDictionary 1167. Giving the words "notwithstanding" and "herein" their plain and ordinarymeaning, the introductory phrase "[n]otwithstanding anything contained herein to the contrary"clearly means that the terms of the ordinance deficiency clause apply no matter what the otherclauses, terms or conditions in the policy might otherwise provide. In other words, if a loss fallswithin the scope of the ordinance deficiency clause, i.e., a "loss occasioned by theenforcement of any state or municipal law, ordinance or code, which necessitates, in repairingor rebuilding, replacement of material," the introductory phrase serves to create coveragewhere none existed previously under the "all risks" clause or to restore coverage where it hadbeen eliminated by an exclusion.

Although International argues that "herein" applies only to the conditions subsection,nothing in the ordinance deficiency clause, the conditions subsection or the policy as a wholelimits the ordinance deficiency clause's application to the conditions subsection. In fact,"herein" makes better sense if applied to the agreement as a whole. Although some conflictswith the coverage provided by the ordinance deficiency clause do arise in the conditionssubsection⁽¹⁾, they arise more egregiously in the preceding exclusions subsection, as evidencedby the asbestos exclusion. If the ordinance deficiency clause was not intended to apply to theentire property insurance agreement, limiting language could have been inserted to that effect. The "civil authority" clause, which precedes the ordinance deficiency clause in the propertyinsurance conditions subsection of the policies, expressly states that its terms apply"[n]otwithstanding anything contained in this Insurance, property which is insured under thisInsurance is also covered against the risk of damage or destruction by civil authority." Theordinance deficiency clause merely substitutes "herein to the contrary" for "in this insurance";the meaning is the same: no matter what else might be contained in the policy, the specifiedlosses and risks are "also" covered.

We agree with the school district that the word "also" clearly indicates that the insurer isadding responsibility in an area where it felt it had no responsibility. In context, "also" means"in addition; as well; besides; too." Webster's Second New International Dictionary 76. "Also"serves to provide liability "in addition to" preexisting liability but not, as International argues, inaddition to "pre-existing liability for a covered loss." There is absolutely no language in theconditions subsection or elsewhere in the policy limiting application of the condition clausesonly to covered losses that have not been otherwise excluded. Some of the condition clausescontain language limiting their application to "any loss hereby insured against" (debris removalclause) or "perils insured against" (removal clause). Other conditions such as the valuationclause and the appraisal clause necessarily apply only to covered losses. However, no clausespecifies that it applies only to a loss which has not previously been excluded or that anycondition is tied to another condition's limiting language.

Moreover, we do not agree with International that the ordinance deficiency clauseoperates only as a sub-clause of the valuation clause and that, therefore, because thevaluation clause assumes a covered loss in setting valuation limits, the ordinance deficiencyclause requires a covered loss. The conditions subsection contains the following eightclauses: valuation ("The Company shall not be liable for loss or damage in excess of: * * *");debris removal; removal clause; appraisal; civil authority clause; ordinance deficiency clause;expense to prevent or reduce loss clause; and automatic acquisition clause. No language inthe conditions subsection expressly ties one clause to another or makes any clausesubordinate to another. Reading the clauses together, they are clearly independent of eachother and concern separate matters, the valuation clause being the most detailed among thembut certainly not controlling over the other seven clauses.

The insuring agreement states that "[International] agrees, subject to the limitations,terms and conditions of this Insurance, to indemnify the Insured for all risks of physical loss ordamage to All Property of the Insured * * * occurring during the period of this Insurance." It isInternational's agreement to indemnify the school district for all risks of loss or damage whichis subject to the limitations, terms and conditions. That agreement is modified by thoselimitations and conditions, one of which excludes coverage for asbestos-related losses whileanother extends coverage for losses incurred due to statutory required replacement ofmaterials, no matter what else the agreement might state. Nothing in the policy indicates thatthe conditions are subordinate to the exclusions. Indeed, the all risks agreement states thatcoverage is "subject to the limitations, terms and conditions of this Insurance." It does notspecifically mention exceptions, although an exception is certainly a limitation. Clearlyexceptions and conditions are to be considered on the same footing unless, as here, qualifyinglanguage such as "[n]otwithstanding anything contained herein to the contrary" serves tochange that standing.

Examining the property insurance agreement as whole, we find that, initially, all risksare covered. The exclusion subsection then eliminated coverage for specific losses, includingasbestos-related losses. Subsequently, the conditions subsection added, expanded and/orreinstated coverage for various losses/costs such as removal of "debris remaining after anyloss hereby insured against"; "expense and damage occasioned by removal from the premiseendangered by the perils insured against or removed for preservation"; and "also" for "risk ofdamage or destruction by civil authority," "loss occasioned by enforcement" of statutoryrequirements, and "such expenses as are necessarily incurred for the purpose of reducing orpreventing any loss under this Insurance."

The coverage provided by the assorted condition clauses consists of coverage forlosses which are not evident as being covered under the all risks agreement. For example,although it might be obvious that the cost of replacing a roof damaged by a tree falling on it isa covered loss, it would not be evident that the cost of removing the debris remaining after theroof has been replaced is covered. The debris removal clause provides that coverage just asthe ordinance deficiency clause "also" provides coverage for statutorily mandatedreplacement. It makes no sense to require that a loss covered by the ordinance deficiencyclause be a covered loss, i.e., a loss not previously excluded. The ordinance deficiency clausethen adds nothing to the coverage since the reason for a covered loss is irrelevant. To use theprevious example, under the all risks agreement, whether done pursuant to statutory mandateor because a tree fell on it, replacement of a roof is a covered loss. The court's andInternational's interpretation of the ordinance deficiency clause renders the word "also"redundant because, under their interpretation, no coverage is added which did not existbefore. As used in the later three condition clauses, including the ordinance deficiency clause,"also" serves as an acknowledgment that the coverage provided is in addition to a coveredloss (i.e., an "all risks" loss not otherwise excluded) or losses covered under any of the otherconditions.

Having found that the ordinance deficiency clause extends coverage over thepreviously excluded asbestos-related losses if those losses were incurred in the enforcementof state or municipal laws, codes or ordinances, we reverse the grant of summary judgment toInternational on the 1986, 1987, 1988 and 1989 policies.

In addition, we find that, given that the ordinance deficiency clause extends coveragefor asbestos-related losses, the supplemental coverage provided by the "debris removal,""removal" and "expense to reduce or prevent loss" clauses also applies to asbestos-relatedlosses if those losses triggered coverage under the ordinance deficiency clause.

Timeliness of Suit International argues that it should be awarded summary judgment because the schooldistrict's suit is time barred. Under the "General Conditions" section of the policies, the"litigation proceedings clause" provides:

"No suit to recover on account of loss under this Insurance shall be brought until ninetydays after the proof of loss shall have been furnished, nor at all unless commencedwithin twenty-seven months from the date upon which loss occurred, if such loss iswithin the knowledge of the Insured; if not, the twenty-seven months shall begin uponnotice to the insured of such loss or claim."

International asserts that the school district's suit is untimely because it was filed on July 26,1993, more than 27 months after the school district first had notice of its loss given evidence inthe record that the school district began its asbestos abatement program in the 1980s. Theschool district responds that the general conditions only apply to agreements C (generalliability) and F (auto liability) in section II of the contract, the casualty insurance section, ratherthan to the entire contract and that the litigation proceedings clause therefore does not applyto section I, property insurance agreement A, at issue here. We disagree.

Of the 13 agreements in the contract, only agreements C and F in section II specificallyincorporate the general conditions, providing that the C and F coverages are "subject tolimitations, terms and conditions hereunder mentioned in Section II, General Conditions, oradded hereto by endorsement." However, reading the contract as a whole, it is clear that thegeneral conditions apply to the entire contract, including the property insurance agreementunder which the school district is claiming.

There is no overall statement in the "General Conditions" section limiting the generalconditions from being applied to the entire contract. In the three general condition clauseswhere a restriction is necessary, the clause at issue specifically limits that condition'sapplicability (two nuclear exclusion clauses limit their applicability to sections I and II; part 2 ofthe "name of insured" clause limits its applicability to section II, agreement F). The otherclauses have no restrictions and can be presumed to apply to the entire contract.

"General" is defined as "of or pertaining to the whole of a body * * *; held throughout orfor the whole or in every division"; and "pertaining to, affecting, or applicable to, each and all ofthe members of a class, kind, or order; universal within the limits of the reference." Webster'sSecond New International Dictionary 1043. "General denotes that which pertains to all, oralmost all." Webster's Second New International Dictionary 1044. Therefore, taking the"general conditions" section title at its plain meaning, the section would appear to be intendedto apply to the entire contract.

This determination is reinforced by an examination of the general conditionsthemselves. The litigation proceedings clause is one of 24 clauses listed in the "GeneralConditions" section at the end of each policy. Besides setting a time limit for suit, the clausesprovide, among other things, that the insurance contract embodies all agreements existingbetween the parties; the contract may be cancelled at any time by International upon 30 dayswritten notice to the insured; if the insured goes bankrupt, International is not relieved ofpayment of any claims; International's coverage is to be considered excess coverage if theinsured has other insurance covering the same loss; International will promptly pay its liabilitiesunder the contract; and International will be subrogated to all rights the insured may haveagainst other parties with respect to claims paid by International. These are all clearlyconditions that apply to the entire contract.

For the above reasons, having examined the general conditions section in the contextof the contract as a whole, we conclude that the general conditions apply to the entire contractand that, therefore, the litigation proceedings clause does apply to the school district's suit. However, timeliness of suit under the litigation proceedings clause depends on a determinationof several factual questions, including when or whether proof of loss was furnished, the dateupon which loss occurred, and whether the loss was in the insured's knowledge. Althoughthere is evidence in the record regarding these questions, the evidence conflicts and theparties' interpretation of the evidence differs greatly. Given that genuine issues of material factexist regarding the timeliness of the suit, summary judgment on this issue is not warranted.

Although we find that coverage exists under the policies for asbestos-related lossesincurred as a result of compliance with statutory requirements, whether the school district'slosses triggered the ordinance deficiency clause remains a question of fact to be determinedby the trier of fact. Similarly, the school district's arguments regarding issues that the trial courtdid not reach, such as whether International timely received notice of the claim, whetherasbestos-related losses were continuous during the policy period(s) and whether the losseswere fortuitous all concern genuine issues of material fact which cannot be decided bysummary judgment. These issues will be decided, if appropriate, by the court on remand.

The school district does not appeal the court's denial of its cross-motion for summaryjudgment. Suffice it to say that, given the genuine issues of material fact remaining in thecase, the court was entirely correct in doing so.

For the reasons stated above, we affirm the court's grant of summary judgment toInternational on the 1985 policy; reverse the court's grant of summary judgment to Internationalon the 1986, 1987, 1988 and 1989 policies and remand for further proceedings on those fourpolicies; and affirm the court's denial of summary judgment to the school district .

Affirmed in part; reversed and remanded in part.

HOFFMAN, P.J., and HALL, J., concur.

1. International suggests as an example of such a conflict, the limiting languagein the valuation clause which limits liability to the cost of like size, kind and quality ofmaterials whereas statutory compliance might require replacement with other materials. The ordinance deficiency clause would cover the additional cost of these materials.