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This coverage dispute between plaintiff Illinois Central Railroad Company (IC) and its 35 excess insurers (collectively defendants)has been before this court previously. See Kerr v. Illinois Central R.R. Co., 283 Ill. App. 3d 574 (1996). There we held that IC'snotice to its first-layer excess insurers was untimely. IC now appeals from the circuit court's March 20, 1998, order grantingsummary judgment to defendants and its October 20, 1997, order denying IC's motion for partial summary judgment on the issue oftrigger of coverage and granting partial summary judgment to defendants on the issues of trigger of coverage, allocation andexhaustion of self-insured retentions (SIR). The circuit court incorporated its October 20, 1997, ruling into its March 20, 1998, finalorder. These rulings by the circuit court resulted in IC being required to absorb the entire loss stemming from its unsuccessfuldefense and ultimate settlement of a class action employment discrimination suit. The defense and settlement cost IC more than $13million for which, in the present litigation, it seeks indemnification.

BACKGROUND

I. The Underlying Discrimination Suit

In 1981, Robert Earl Mister filed a federal civil rights action against IC on behalf of a class of would-be laborers, allegingdiscriminatory hiring practices (hereafter the Mister litigation). IC prevailed at the district court level, with the court holding thatwhile a prima facie case of disparate treatment had been established, IC had rebutted it by showing that distance from home toworkplace and a practice of local hiring accounted for the apparent racial disparity in hiring. Mister v. Illinois Central Gulf R.R. Co.,639 F. Supp. 1560 (S.D. Ill. 1986). On appeal, however, the Seventh Circuit Court of Appeals reversed the district court andremanded the case for proceedings to determine damages. Mister v. Illinois Central Gulf R.R. Co., 832 F.2d 1427 (7th Cir. 1987). In1993, after commencement but before conclusion of proceedings on remand, the parties agreed to settle the case for $10 million,wherein each of the 583 class members received $5,656.56. During the course of the litigation IC expended approximately $3 millionin attorney fees and costs.

II. The First Coverage Dispute

IC gave notice to its insurers of a potential claim in excess of its $1.5 million SIR only after the Seventh Circuit's reversal. Thereafter, in 1991, certain underwriters at Lloyd's, London and certain London Market Insurance Companies (collectively theLondon Insurers) filed a declaratory judgment action, claiming that IC's notice was untimely pursuant to the policies. Therefore, itwas argued, they were not obligated to indemnify IC for losses arising out of the Mister litigation. The London Insurers provided thefirst layer of coverage in excess of IC's SIR, i.e., between $1.5 million up to $4 million. IC filed a counterclaim against the LondonInsurers, and also filed a third-party action against several of its other insurers. The circuit court, upon a finding that IC had failed toprovide timely notice, granted summary judgment in favor of the London Insurers as to the policies providing the first-layer ofcoverage and to other third-party defendant insurers which had joined in the motion. This court affirmed the circuit court's judgment. Kerr v. Illinois Central R.R. Co., 283 Ill. App. 3d 574 (1996).

III. The Second Coverage Dispute

Following issuance of the Kerr opinion, the parties were, on IC's motion, realigned in the circuit court so that IC was the plaintiff andits insurers were the defendants. On May 23, 1997, IC filed an amended complaint seeking a declaration that its insurers wereobligated to indemnify it for defense and settlement costs resulting from the Mister litigation. The complaint did not distinguishamong the various insurers except to say that, during the allegedly relevant time period (June 1, 1975, through June 1, 1979), ICpurchased liability insurance from defendants providing four separate layers of coverage. The first layer provided coverage from $1.5million up to $4 million; the second layer from $4 million up to $6 million; the third layer, from $6 million up to $11 million; and thefourth layer, from $11 million up to $16 million.

In July 1997, IC filed a motion for partial summary judgment concerning the reasonableness of notice to all insurers providingcoverage above the first layer of excess coverage. In August 1997, IC filed another motion for partial summary judgment concerning"occurrence" and "trigger of coverage" issues. IC argued that the facts of the Mister litigation and the unambiguous policy languageestablished that the Mister discrimination claims constituted a single, continuing occurrence triggering coverage only under thosepolicies in effect during the 1975-1976 policy period, and that those insurers were obligated to indemnify IC for its $13 million loss,subject only to each policy's upper and lower limits. The occurrence, according to IC, was the delegation of hiring authority to MaryAnnette Lane in 1975, for IC's St. Louis, Missouri, division.

The London Insurers, Century Indemnity Company (successor to CIGNA Speciality Insurance Company, f/k/a California UnionInsurance Company), Bellefonte (U.S.) Insurance Company and Stonewall Insurance Company responded to IC's motion and filedtheir own cross-motion for partial summary judgment on the issues of "trigger of coverage" and "allocation." Continental InsuranceCompany (successor to certain policies issued by Harbor Insurance Company, n/k/a Greenwich Insurance Company) joined indefendants' response and motion.

Defendants argued that the Mister claims grew out of discriminatory hiring practices spanning many years and involving multipleoccurrences. Based upon the Mister class definitions, which included would-be laborers who applied with IC between January 8,1976, to November 4, 1982, they asserted that the claims arising from the railroad's discriminatory hiring practices implicated sixpolicy periods.⁽¹⁾

Defendants further argued that IC must first horizontally exhaust its SIR ($1.5 million) and its first layer of excess coverage ($1.5million to $4 million) for each of the policy years at issue before it may reach its second layer of coverage provided by defendants.

In September 1997, IC filed a motion for reconsideration apparently in anticipation of the possibility of an adverse ruling ondefendants' motion. IC stated that if defendants' motion for partial summary judgment finding multiple occurrences were to begranted, it would then petition the court pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West1996)), to reconsider its March 21, 1995, ruling (affirmed in Kerr) that IC's notice to the first-layer excess insurers was untimely. ICargued that implicit in the circuit court's late notice ruling was the conclusion that the Mister claims were recoverable from a singlepolicy period. IC claimed that, because its expert's analysis of the Mister case showed a potential exposure of $2 million, it was held,in Kerr, to be under a duty to give notice to the first-layer excess insurers, whose inception amount was $1.5 million. However, ICargued, if the estimated potential $2 million loss were allocated over six years, then the loss attributable to any single policy periodwould fall far short of the $1.5 million inception. In that case, IC would have been under no duty to give notice to its excess insurers.

On October 20, 1997, the trial court granted IC's motion for partial summary judgment to the extent that it found the Mister claimsgave rise to a single occurrence. That occurrence, according to the circuit court, was the delegation of hiring authority to MaryAnnette Lane. However, the court granted defendants' motion for partial summary judgment finding that multiple policies in forceduring the years covered by the Mister class definitions were triggered. Further, the court ruled that liability attached to a triggeredpolicy only for that portion of the damages allocable to the period such policy was in force. The court noted that damages sustainedby Mister class members could be "easily allocated." Finally, the circuit court agreed with defendants that IC must first horizontallyexhaust its SIR for each triggered policy period before looking to coverage from its excess insurers.

IC moved the circuit court to reconsider its October 20, 1997, ruling, arguing inter alia, that it ignored the so-called "deemer" or"telescope" clause contained in the policies, which had the effect of "sweeping back" all the damages into the 1975-1976 policy. Thatclause provided that "[e]ach 'occurrence' shall be deemed to commence on the first happening of any material damage not within theperiod of any previous 'occurrence'." (Emphasis added.)

While IC's motion for reconsideration was pending, the London Insurers filed a motion for summary judgment. They argued that ICmust exhaust the first $4 million of losses in each of seven, rather than six as previously argued, relevant policy periods (IC's $1.5million SIR and its first-layer of excess coverage amounting to $2.5 million) before looking to its second-layer insurers. However,because IC's loss in any given policy period did not exceed $4 million, they argued that IC was not entitled to any reimbursement as amatter of law. Century Indemnity Company filed a motion for summary judgment making an identical argument.

Stonewall Insurance Company also moved for summary judgment, arguing that its policies covered periods prior to the onset ofdamages. Stonewall further argued that it issued fourth-layer coverage, i.e., coverage in excess of $11 million, and that based uponthe circuit court's October 20, 1997, ruling, Stonewall's coverage would never be reached.

On March 20, 1998, the circuit court granted defendants' motions for summary judgment. The order allocated the $10 millionsettlement and $3,088,547 in defense costs over seven years beginning with the 1975-1976 policy year and ending with the 1981-1982 policy year. The court determined that: (1) IC must horizontally exhaust its $1.5 million SIR in each policy year; (2) IC is notentitled to reimbursement from its first-layer providers (in accordance with this court's Kerr decision); and (3) the loss, as allocated,does not exceed $4 million in any one policy year; therefore, IC was "not entitled to any reimbursement whatever from its excessinsurers."

The circuit court also denied IC's motion for reconsideration of its October 20, 1997, order denied IC's motion for reconsideration ofits March 21, 1995, ruling as to the timeliness of notice to the first-layer excess insurers and determined that IC's motion for summaryjudgment as to the timeliness of notice to insurers above the first layer of coverage was moot. IC now appeals.

ANALYSIS

I. Requirement of a Cross-Appeal

Defendants argue that summary judgment in their favor is proper for the separate reason that there was at least one occurrence in eachof the relevant policy years. Thus, defendants challenge the trial court's October 20, 1997, ruling that there was a single, continuingoccurrence. IC claims that this issue is not properly before this court because part of the trial court's ruling was adverse to defendantsand that they failed to file a cross-appeal.

In general, "[a] party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all thathas been asked for in the trial court cannot appeal from the judgment." Material Service Corp. v. Department of Revenue, 98 Ill. 2d382, 386 (1983); see also Geer v. Kadera, 173 Ill. 2d 398, 413-14 (1996). Even though a successful party may not agree with thereasons, conclusions or findings of the lower court, it is improper to provide that successful party with a forum in a reviewing court. Geer, 173 Ill. 2d at 414.

IC misconstrues the final judgment entered below. Although the circuit court, on October 20, 1997, rejected defendants' argumentthat there were at least six separate occurrences, on March 20, 1998, the court entered its final order granting summary judgment infavor of defendants, finding that IC was "not entitled to any reimbursement whatever from its excess insurers." Thus, defendantsobtained all that they asked for in the circuit court, albeit on grounds different from what they argued. Because the final judgment isentirely in defendants' favor, specific findings adverse to defendants do not require a cross-appeal in order for this court to addressthose findings. See Solimini v. Thomas, 293 Ill. App. 3d 430, 435 (1997). Therefore, we will consider defendants' argumentregarding the number of occurrences.

II. Number of Occurrences

IC argues that the circuit court properly ruled that the Mister claims arose out of a single, continuing occurrence, that being IC'sdelegation of hiring authority to Lane in 1975. In response, defendants argue that the Mister claims resulted not from the delegationof hiring authority to Lane, but rather IC's discriminatory hiring practices, which spanned many years and may have involvedhundreds of occurrences.

When construing an insurance policy, this court's primary function is to ascertain and enforce the intentions of the parties asexpressed in the agreement. De Los Reyes v. Travelers Insurance Cos., 135 Ill. 2d 353, 358 (1990). When ascertaining the meaningof the words used in the policy and the intent of the parties, it is proper to construe the policy as a whole, while taking into account"the type of insurance for which the parties have contracted, the risks undertaken and purchased, the subject matter that is insured andthe purposes of the entire contract." Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Theconstruction of the provisions contained in an insurance policy is a question of law that can properly be decided in a motion forsummary judgment. Crum & Forster, 156 Ill. 2d at 391. "Summary judgment is appropriate when there is no genuine issue ofmaterial fact and the moving party's right to judgment is clear and free from doubt." Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165Ill. 2d 107, 113 (1995). When ruling on a motion for summary judgment, it is proper to construe all evidence in the light mostfavorable to the nonmoving party and strictly against the moving party. Espinoza, 165 Ill. 2d at 113. Finally, we review the circuitcourt's summary judgment rulings de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

The insurance policies at issue provide in relevant part:

"This policy indemnifies the Assured for any and all sums which the Assured shall become legally liable or obligated by contract topay to any person or persons as compensation or damages for injury or damage to any person or persons *** and for injury or damageto property *** arising out of any occurrence or occurrences caused by or growing out of the Assured's operations and/or anyoperations incidental thereto during the term hereof; and to indemnify the Assured for legal, investigation and, other expenses ***.

***

*** [T]here is no limit to the number of accidents or occurrences for which claims may be made provided such accidents oroccurrences take place during the term hereof.

***

The term 'occurrence' shall mean one or more accidents or disasters and/or series of accidents or disasters arising out of or resultingfrom one event.

***

Each 'occurrence' shall be deemed to commence on the first happening of any material damage not within the period of any previous'occurrence'.

***

The term 'injury or damage to any person or persons' as used in this Policy shall be construed to include *** discrimination ***."

In its motion for summary judgment, IC pointed out that the Mister class, as constituted by its definition in the underlying litigation,consisted of all black persons who had applied for and been denied employment with IC's St. Louis, Missouri, division from 1976 to1982. IC further asserted that during that time frame, hiring decisions for the division were consolidated in the Carbondaleheadquarters and were made there by a single person, the aforementioned Lane. This delegation of hiring authority, according to IC,was the event that led to all of the discrimination injuries which resulted in the Mister litigation. The circuit court agreed finding thatthe delegation of hiring authority to Lane was a single, continuing occurrence that caused injuries and damage to the Mister classmembers.⁽²⁾

In Illinois, the number of "occurrences" involved in liability policies is determined by using the "cause," rather than the "effect"theory. United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598, 648 (1994); Illinois National Insurance Co. v.Szczepkowicz, 185 Ill. App. 3d 1091, 1094-95 (1989). Under the "cause" theory, the number of "occurrences" is determined byreferring to the cause or causes of the damage, rather than to the number of individual claims or injuries, as is the case under the"effect" theory. United States Gypsum, 268 Ill. App. 3d at 648; Szczepkowicz, 185 Ill. App. 3d at 1094-95.

What constitutes an "occurrence" within the context of employment discrimination has not yet been decided in Illinois. In support ofits assertion that the Mister litigation involved only one occurrence, IC points to Appalachian Insurance Co. v. Liberty MutualInsurance Co., 676 F.2d 56 (3d Cir. 1982), Liberty Mutual Insurance Co. v. Those Certain Underwriters at Lloyds, 650 F. Supp. 1553(W.D. Pa. 1987),⁽³⁾ and Transport Insurance Co. v. Lee Way Motor Freight, 487 F. Supp. 1325 (N.D. Tex. 1980).

In Appalachian Insurance Co. v. Liberty Mutual Insurance Co., 676 F.2d 56 (3d Cir. 1982), female employees at Liberty Mutualbrought suit in May 1971 alleging that the company maintained employment policies that discriminated against them. The caseeventually settled and Liberty sought indemnification from Appalachian, its insurer from August 1, 1971, to August 1, 1974. Appalachian argued that indemnification was improper because Liberty had adopted its discriminatory employment policies in 1965;therefore, the occurrence of loss and the impact from that occurrence took place prior to the effective date of its policies. The districtcourt agreed and granted Appalachian's motion by applying the cause theory and finding that Liberty's claim for indemnification wasbased on a single occurrence, which took place prior to the policies' effective dates. The Court of Appeals for the Third Circuitaffirmed, rejecting the argument that multiple occurrences over an extended period of time had occurred based upon multiple injuries. Appalachian, 676 F.2d at 61.

In Transport Insurance Co. v. Lee Way Motor Freight, Inc., 487 F. Supp. 1325 (N.D. Tex. 1980), an insurance company sought adetermination as to its liability for damages which Lee Way, the insured freight company, incurred in an underlying discriminationsuit. The district court ruled that the freight company was required to bear only one deductible amount because the pattern andpractice of discrimination it had undertaken against black employees constituted only one occurrence under the relevant policiesdespite the fact that the discrimination occurred in four separate locations and over multiple policy periods. In arriving at thisdetermination, the district court looked to the underlying discrimination suit and found that the freight company's implementation of a"corporate policy," which was traceable to decisions and procedures made at its headquarters, resulted in discrimination on a "system-wide basis." Transport, 487 F. Supp. at 1328-29.

Defendants argue that IC's discriminatory hiring practices occurred over six years and involved seven separate policies. They assertthat at least one "occurrence" resulted during each policy period in which new damages were suffered by members of the Mister classwho were not covered under the previous periods' policies. Defendants focus on the indemnification language set out above, whichprovides that the insurers will indemnify IC for injuries "arising out of any occurrence or occurrences caused by or growing out of theAssured's operations and/or any operations incidental thereto during the term hereof." According to defendants, "during the termhereof" can only mean during the particular policy period that a refusal to hire a class member took place, and that each year IC's six-year discriminatory hiring practices continued constituted, at a minimum, a separate occurrence. In support of their position,defendants rely on Roman Catholic Diocese of Joliet, Inc. v. Lee, 292 Ill. App. 3d 447 (1997).⁽⁴⁾

In Roman Catholic Diocese, this court considered whether a priest's sexual molestation of a single minor victim over two policyperiods constituted occurrences in both policy periods. The court held that whether analyzed from the standpoint of principlesgoverning negligent supervision of an employee or from the language of the policies in question as they define occurrence, there weretwo occurrences. The court found persuasive the policies' definition of occurrence, i.e., "a continuous or repeated exposure toconditions which *** result in personal injury *** during the policy period." (Emphasis in original.) Roman Catholic Diocese, 292Ill. App. 3d at 455. The court quoted further definitional language stating that "[a]ll such exposure to substantially the same generalconditions existing at or emanating from one location shall be deemed one occurrence." (Emphasis in original.) Roman CatholicDiocese, 292 Ill. App. 3d at 455. Based upon the policy language, this court concluded that negligent supervision alone did nottrigger any obligation on the part of the insurers. Rather, it was the minor's exposure to the negligently supervised priest in each ofthe policy periods that constituted a separate occurrence which provided the basis for indemnification. Roman Catholic Diocese, 292Ill. App. 3d at 455-56. In making this determination, the court cited Mason v. Home Insurance Co., 177 Ill. App. 3d 454 (1988). There, numerous patrons were stricken with food poisoning after eating at the insured's restaurant over a three-day period. This courtfound that the serving of contaminated food to the patrons was the act from which liability arose. Rejecting the notion that thepatrons' claims arose out of one uninterrupted and continuing cause, the Mason court held that each incident in which tainted foodwas served to a patron constituted a separate occurrence. Mason, 177 Ill. App. 3d at 460.

We disagree with the circuit court's determination that the delegation of hiring authority to Lane constituted as a matter of law asingle event resulting in one occurrence causing injuries to each Mister class member during the time span encompassed by the classdefinition. In our view, Appalachian and Transport offer no guidance for resolution of this case. As defendants point out, there is nowell-defined and consistently applied policy here, in contrast to the circumstances present in those cases. We find that difference tobe a significant and critical factor distinguishing the instant case from those relied upon by IC. Here, IC does not contend that any ofLane's superiors instructed her to follow or informed her of any corporate policy promulgated by IC's senior management or traceableto decisions made at its corporate headquarters. IC attempted to justify its hiring as nondiscriminatory by professing to hire locally,but that was belied by the evidence adduced as it applied to relevant employees in nonmobile jobs. See Mister, 832 F.2d at 1430. Incontrast, in Appalachian and Transport, there existed specifically declared and promulgated corporate policies that impacted in adiscriminatory manner against women or blacks. The adoption of the policies complained of were the cause of the discriminatoryacts and thus, in each case, a single occurrence. There is nothing inherently discriminatory about IC's delegation of hiring authorityto Lane.

We liken Lane's acts of denying employment to black would-be laborers to the priest's conduct in Roman Catholic Diocese. Just asmolestation of the minor in two separate policy periods constituted two separate occurrences, so too here, each time Lane exercisedher authority in hiring in a discriminatory manner against a member of the Mister class, a separate and discrete occurrence resulted. While the definition of "occurrence" in Roman Catholic Diocese included "exposure," here, the definition of "occurrence" likewisesupports a finding that multiple occurrences resulted. Each Mister class member was subjected to "one or more accidents or disasters*** arising out of or resulting from one event," that being Lane's refusal to hire him, not the mere placing of her in a position whereshe made hiring decisions.

IC argues that we have in the case at bar a single occurrence, which spanned multiple policy years. In support, it relies upon MoPac,288 Ill. App. 3d 69, where noise-induced hearing loss and asbestos claims each arose from a single occurrence that spanned multiplepolicy periods. We believe the approach taken by this court in Roman Catholic Diocese represents the more suitable paradigm for thecase sub judice than MoPac, a case involving physical injuries caused over extended periods. Lane's conduct in the case at bar andthe priest's conduct in Roman Catholic Diocese both involve a human agency committing a specific act, rather than the continuationof a process or condition.

IC further argues that its liability was not premised upon individual acts of discrimination, but was based upon statistical findingsfrom which was inferred a pattern and practice of discrimination over a period of years that affected the class as a whole. See Mister,832 F.2d at 1429. Thus, it maintains that there is no evidence that discrimination against the class members had multiple causes. ICalso contends that because the federal courts in the underlying litigation made a finding that Lane caused the discrimination, thiscourt is thereby required to find a single occurrence.

We do not dispute that it stands as established in the underlying litigation that IC engaged in discriminatory hiring practices throughthe actions of Lane, who was thus the cause of the discrimination, and that damages to the Mister class members resulted. However,the purpose of the proceeding at bar is to determine whether the damage suffered in the underlying litigation falls within the scope ofindemnities covered by the insurance contracts and, if so, the nature and extent of that indemnification. These determinations arequestions of law, not fact, and it is therefore appropriate for us to make legal conclusions based upon the facts established in previousproceedings. See United States Gypsum, 268 Ill. App. 3d at 623-24. In any event, neither the district court nor the circuit court ofappeals found an express policy in place and implemented by Lane or any other IC employee that resulted in discrimination. Moreover, the federal courts were not called upon to determine the impact of the discrimination found to exist upon the nature andextent of the coverage IC received from the policies purchased in terms of number of occurrences, allocation of damages andexhaustion of policy limits.

Defendants have suggested that the record is "undeveloped" as to how and when IC promulgated its discriminatory hiring practiceswhich led to the Mister plaintiffs' damages. We deem, however, the record to be adequate to support the view that each action, i.e.,rejection of a class member's application for employment by the railroad's clerk, was a separate and distinct event constituting anoccurrence. See Roman Catholic Diocese, 292 Ill. App. 3d at 455-56.

III. Trigger of Coverage

We turn next to the question of which policies must respond to, or are "triggered" by, the covered occurrences. The coverageprovision is clear: The "policy indemnifies *** for any and all sums which the Assured shall become legally liable *** to pay to anyperson *** as *** damages for injury *** arising out of any occurrence or occurrences caused by or growing out of the Assured'soperations *** during the term hereof." The policies further provide that "[e]ach 'occurrence' shall be deemed to commence on thefirst happening of any material damage not within the period of any previous 'occurrence'."

IC claims that only the 1975-1976 policy, the one in effect when Lane assumed her position, was triggered as a result of the Misterlitigation. In support of this claim, IC refers to the so-called "deemer" clause in the policy, which provides: "Each occurrence shall bedeemed to commence on the first happening of any material damage not within the period of any previous 'occurrence.'" Accordingto IC, the proper interpretation of the clause as it applies here is to "sweep back" all class members' damage to the policy period inwhich Lane was placed in her position with hiring authority and caused her first injury to a member of the Mister class.

Defendants argue that the policies triggered were those in effect at the time the applicants submitted their applications. Theirassertion is that IC's discriminatory hiring practices existed, and the accompanying injuries accrued, contemporaneously with thesubmission of each Mister class member's employment application. It makes no sense, in defendants' view, to tie a policy's "trigger"to an event (Lane's placement) separate from the cause (Lane's action) and the injury (the discrimination).

IC's argument that it is only the policy in effect in 1975-1976 that must respond to the Mister claims is premised upon the assumptionthat all of the damages to the class resulted from a single, continuous occurrence. As we have stated above, the damage award andcosts incurred due to the discrimination litigation resulted from multiple occurrences; each submission of an application by a Misterclass member. Accordingly, it follows that it is the policy in effect at the time an application was tendered by a would-be employeethat must respond to his claim because the "first happening of any material damage" occurred at the time the futile application wassubmitted. This view finds support in IC's amended complaint wherein it is admitted that about 175 blacks applied for jobs with therailroad on March 27, 1979, none of whom were interviewed or hired. Therefore, because futile applications for employment weresubmitted over several years, policies issued during successive periods were triggered.

Defendants have suggested, and we agree, that the proper interpretation of the "deemer" clause within the context of employmentdiscrimination cases would be a circumstance wherein the discrimination against an individual employee continued over time. Thepolicy triggered in that instance would be the one in effect when the injury (discrimination) first occurred, regardless of how long itmight continue. This would exemplify how a discrimination case could result in damages exceeding the instant policies' SIR, thusresponding to IC's assertion that viewing this as a multiple occurrence case where multiple policies were triggered would render the"deemer" clause meaningless because no discrimination award to an individual could exceed the SIR.

The record establishes that IC kept applications from potential employees on file for six months. We construe the "deemer" clause,under the circumstances here present, applicable wherein an application's six-month life span may extend over two policy periods. Insuch cases, the damages will be deemed to have occurred during the policy in which the first material damage (the presentation of thefutile application) took place. This interpretation would serve to resolve any question with regard to which policy must respond tothe damage. Therefore, we reject IC's contention that to accept an interpretation of the clause other than its own would render thedeemer provision meaningless.IV. Allocation

IC was able to provide the circuit court with applications of only 267 out of the 583 Mister class action members. The circuit courtallocated the damages resulting from those denied applications to the policies in effect at the time the applications were made. As forthe remaining 316 class members for whom IC was unable to provide applications, the circuit court allocated their damageshorizontally among the insurance policies in effect during the time covered by the Mister class definition (January 8, 1976, toNovember 4, 1982) using a pro rata time-on-the-risk formula. The $10 million settlement was allocated as follows:

1975-1976 -- $1,083,068

1976-1977 -- $1,803,480

1977-1978 -- $1,048,763

1978-1979 -- $2,901,250

1979-1980 -- $1,614,800

1980-1981 -- $ 774,320

1981-1982 -- $ 774,320.⁽⁵⁾

As for the $3,088,547 in legal fees IC incurred during the course of the Mister litigation, the circuit court again allocated horizontallyusing a pro rata time-on-the-risk formula among the seven policies implicated in the Mister class definition. Therefore, $441,221was allocated to each policy. This amount, when added to the settlement amounts allocated above, resulted in a total allocation afterrounding as follows:

1975-1976 -- $1,524,289

1976-1977 -- $2,244,701

1977-1978 -- $1,489,984

1978-1979 -- $3,342,471

1979-1980 -- $2,056,021

1980-1981 -- $1,215,541

1981-1982 -- $1,215,541.

This allocation is identical to that urged by defendants in their motion for summary judgment. The circuit court further ruled that ICwas required to exhaust horizontally one SIR for each policy triggered before looking to defendants for coverage.

The "retention" provisions of the second layer policies in question provide that "Underwriters shall not be liable hereunder unless theUltimate Net Loss amounts to $4,000,000 any one occurrence involving coverage *** and then only for the sum excess of $4,000,000underlying Ultimate Net Loss *** subject to the limit $2,000,000 ***."

IC makes a series of arguments in support of its claim that because the circuit court found a single, continuing occurrence, it erredwhen it ruled that IC was required to exhaust seven retentions. For example, IC cites the language contained in the retentionprovision and argues that the language of the policy clearly states only one retention must be exhausted for "any one occurrenceinvolving coverage." However, as we have previously stated, each time a Mister class member's futile application was submitted toIC, an occurrence resulted and a policy was triggered. Thus, we agree with the trial court that IC was required to horizontally exhaustone SIR for each policy triggered.

IC further argues that the damages and defense costs resulting from the Mister litigation should have been spread over, at most, onlyfive policy periods (1975-1976 through 1979-1980), rather than seven policy periods, because IC was undergoing downsizing in theearly 1980s and "failed to hire even a single worker in 1981 or 1982."

We agree with the lower court's allocation of damages for those class members for whom applications are available. The damages tothose class members were properly allocated to the policy in effect at the time the application was made and, as previously stated,therefore triggered. It is true that IC failed to provide the circuit court with any applications involving would-be laborers who appliedwith the railroad during the 1980-1981 and 1981-1982 policy years. However, those policies are implicated in the years encompassedin the Mister class definition, a time frame in which Lane held the position, which included duties involving hiring decisions. IC wasunable to allocate damages paid to 316 class members and the fees resulting from the Mister litigation based upon the time when theinjury was suffered. Therefore, the circuit court allocated the damages for the class members for whom no application was availableand the legal fees using a pro rata time-on-the-risk method. This, we consider, was proper under the circumstances presented here. See Roman Catholic Diocese, 292 Ill. App. 3d at 456-57. We therefore affirm the determination by the circuit court as to theallocation of damages and legal fees.

V. The Effect of Kerr on the Preceding Issues

The parties disagree as to the effect of our previous holding in Kerr v. Illinois Central R.R. Co., 283 Ill. App. 3d 574 (1996). In itsmotion for reconsideration, IC asked the circuit court and ultimately this court to reexamine the decision in Kerr if we determine thatpolicies subsequent to the initial policy period are triggered by the existence of occurrences during the respective policy periodscovered by the Mister class definition. IC argues that defendants and both the circuit and appellate courts "assumed" as part of theiranalysis in the Kerr phase of this litigation that all of the foreseeable damages would be recovered from a single policy period. ICclaims it was subjected to "bait and switch" tactics by the insurance carriers by being able in this phase of the litigation to switch to a"spread the loss" strategy. IC argues that if the loss is to be spread out, then the maximum loss posited by its expert (see Kerr, 283 Ill.App. 3d at 584) of $2 million would have amounted to less than $300,000 per policy period. Thus, a claim in excess of $1.5 millionper each covered policy period would not have been "likely" to a reasonable policyholder. The issue, says IC, is not trivial because ifthis court were to affirm the lower court on the allocation and exhaustion issues, but reverse the earlier late notice ruling, IC wouldhave a substantial recoverable claim resulting from the fact that the allocated amount of loss for the policy periods 1975-76, 1976-77and 1978-79 all exceed $1.5 million. IC argues that it is being subjected to "one set of rules for notification and then a new set ofrules for indemnification."

We disagree. Kerr decided the notice issue, but did not address questions of the number of occurrences, trigger of coverage,allocation of loss or SIR exhaustion. See Allstate Insurance Co. v. Hoffman, 21 Ill. App. 2d 314, 324 (1959) ("The requirements ofthe policy as to notice and the question as to whether the policy affords coverage are separate and distinct matters"). This court hasnot previously addressed, within the context of this litigation, these questions and we do not believe that the determinations made byus in this phase of the litigation with respect to number of occurrences, allocation and exhaustion require that we revisit the noticeissue.

For the reasons above stated, the judgments of the circuit court are affirmed.

Affirmed.

HOFFMAN and HALL, JJ., concur.

1. ⁰Because the policy periods in question each began on June 1 and ended the following year on June 1, seven, rather thansix, policy periods were actually implicated based upon the class definition.

2. ⁰The circuit court never expressly found that there was a single, continuing occurrence. Nonetheless, it is implied fromthe circuit court's reliance on Missouri Pacific R.R. v. International Insurance Co., 288 Ill. App. 3d 69 (1997) (MoPac),which addressed allocation of a loss arising out of a "single continuous occurrence" implicating successive policy periods. MoPac, 288 Ill. App. 3d at 78. IC refers to the court's finding as a "multi-year occurrence," and defendants refer to thecourt's finding as a "single, continuing occurrence."

3. ⁰The case Liberty Mutual Insurance Co. v. Those Certain Underwriters at Lloyds, 650 F. Supp. 1553 (W.D. Pa. 1987),was related to the litigation involved in Appalachian Insurance Co. v. Liberty Mutual Insurance Co., 676 F.2d 56 (3d Cir.1982). Because the court of appeals' determination that only one occurrence resulted in the underlying discrimination suitwas not at issue in Liberty Mutual v. Those Certain Underwriters, that case will not be discussed here.

4. ⁰Defendants also cite Lee v. Interstate Fire & Casualty Co., 86 F.3d 101 (7th Cir. 1996), in support of their claim thatmultiple occurrences resulted in the case at bar. However, Lee is not instructive on this issue because the court did notdetermine the number of occurrences.

5. ⁰Because of rounding off figures, the amount actually allocated is $10,000,001.