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Guillen v. Potomac Insurance Co.

Case Date: 05/24/2001
Court: 1st District Appellate
Docket No: 1-00-2314 Rel

FOURTH DIVISION
May 24, 2001





No. 1-00-2314


DENISE GUILLEN, a Minor, by Suamy
Guillen, Her Father and Next Friend,

                    Plaintiff-Appellant and
                    Cross-Appellee,

                    v.

POTOMAC INSURANCE COMPANY OF
ILLINOIS,

                    Defendant-Appellee and
                   Cross-Appellant.

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)		 Appeal from the
Circuit Court of
Cook County.







Honorable
Ellis E. Reid,
Judge Presiding.


JUSTICE SOUTH delivered the opinion of the court:

This lawsuit arises from an insurance policy issued by Potomac Insurance Company ofIllinois (Potomac), to Ezequiel and Maria Ortiz (insureds/defendants). The initial policy wasissued for the period of October 12, 1991 to October 12, 1992, which contained no leadexclusion provision. Two additional policies were issued during the periods of October 12, 1992to October 12, 1993, and October 12, 1993 to October 12, 1994. The October 12, 1993, policycontained a lead exclusion provision which provides in pertinent part:

"This insurance does not apply to:

1.  'Bodily injury', 'property damage', 'personal injury', or 'advertising injury'arising out of, resulting from, or in any way caused or contributed to by the actual,alleged or threatened ingestion, inhalation, absorption of, exposure to or presenceof lead in any form emanating from any source, or

2.  Any loss, cost or expense arising out of, resulting from or in any way related toany:

a.  claim, suit, request, demand, directive or order by any person *** that any'insured' or others test for, monitor, clean up, remove, contain, treat,detoxify, neutralize or in any way respond to, or assess the effects of leadin any form, or to any

b.  claim or suit on behalf of any person, *** for damages because of testingfor, monitoring, cleaning up, removing, containing, treating, or detoxifyingor neutralizing, or in any way responding to, or assessing the effects oflead in any form.

We shall not be obligated to investigate, defend or indemnify any 'insured' or any personor entity claiming any right under the policy, for the matters excluded in thisendorsement."


This exclusion included all subsequent Potomac policies.

In May 1996, plaintiff, Denise Guillen, a minor, by Suamy Guillen, her father and nextfriend, filed a negligence complaint against the insureds. The insureds owned property located at2700-02 North Sacramento in Chicago, Illinois. Plaintiff lived at the property between October1993 to September 1995. The complaint alleged that while a tenant in one of the insureds'buildings, the minor plaintiff was poisoned due to exposure to lead. Plaintiff asserted that shesustained substantial and permanent injury due to this lead poisoning, which has affected hereducational, social, behavioral, vocational, and intellectual development. This complaint wasbased upon negligence, as well as violations of the Chicago Municipal Code (