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                                                                                                                                                       SECOND DIVISION
                                                                                                                                                       November 29, 2005

JUSTICE WOLFSON delivered the opinion of the court:

The $10 million question in this case is whether mercuryspills during 17 years of insurance coverage were a singleoccurrence or separate occurrences.

Nicor, Inc., and Northern Illinois Gas Co., d/b/a Nicor GasCo. (Nicor), seek coverage from their general liability insurersfor costs associated with the investigation and cleanup ofmercury in customers' residences during a 17-year period. Themercury contamination was the result of Nicor's removal ofmercury-containing gas meter regulators. In 0.5% of theremovals, mercury was spilled.

The trial court entered partial summary judgment for Nicor,finding Nicor's "systematic failure to consistently remove themercury regulators in a safe manner resulted in a single'occurrence' under [the policies]." On appeal, the defendants(London Insurers) contend each of the spills that resulted inmercury contamination was a separate "occurrence" under thepolicies, requiring Nicor to pay separate self-insured retentions(SIR's). We reverse and remand.

FACTS

Nicor supplies natural gas to residential and commercialproperties throughout Northern Illinois and Chicago. As part ofits service, Nicor installs gas meters to measure the amount ofnatural gas being supplied to the properties. The meters includea regulator that controls the flow of gas into a residence. Prior to the mid-1950's, Nicor installed regulators insidecustomers' homes. The regulators contained a small amount(approximately 1.5 to 4 fluid ounces) of mercury. Beginning in1961, Nicor began using temperature-compensating or mechanical-relief meters that could be installed on the outside ofcustomers' homes. Those meters did not contain mercury.

In 1961, Nicor began removing the mercury-containingregulators. When service crews visited a home to performmaintenance or repair work, they would remove a mercury-containing meter from inside a residence and replace it with atemperature-compensating meter outside the residence. Nicor usedwritten materials and videotapes to train its employees in theproper removal procedures. When removing the regulators fromcustomers' homes, Nicor's technicians occasionally tilted ordropped the regulators and spilled the mercury.

By early 2000, Nicor had received isolated claims of mercurycontamination in the homes of some customers. On September 5,2000, the Illinois Attorney General and the state's attorneys ofCook, DuPage, and Will counties filed a lawsuit against Nicordemanding that Nicor investigate the extent of mercurycontamination in all potentially impacted homes and clean allhomes where mercury contamination was detected above anestablished threshold.

On September 12, 2000, the circuit court entered an agreedpreliminary injunction in the attorney general's action. Thecourt ordered Nicor to begin the identification, investigation,and cleanup of homes contaminated by mercury spills fromregulators. The order codified the removal procedures forregulators as well as the procedures to be followed in case of aspill during removal. Nicor admits the order provided for thesame general procedures for the removal of mercury-containingregulators as were set forth in Nicor's Safety Program guidelinespromulgated in 2000.

Pursuant to the court's order, Nicor inspected about 200,000residences. Of those inspected, approximately 1,070 homes testedpositive for the presence of mercury at levels above thosemandated by the court. Those residences represented about 0.5%of all inspected residences. Nicor incurred approximately $90million in connection with the investigation and cleanup of themercury contamination. According to the appellants' brief,mercury spills occurred in 195 homes during the policy periodsrelevant to this appeal.

Nicor estimates there were approximately 155,554 indoormercury-containing regulators in the system before 1961. As ofJanuary 2001, 25,905 indoor mercury-containing regulatorsremained in the system. On October 10, 2001, the court enteredan order finding Nicor had complied with the terms of theSeptember 12, 2000, order.

Several customer class action lawsuits also were filedagainst Nicor and its contractors as a result of the mercurycontamination. The suits were consolidated into a single classaction. The class action was settled in October 2001. Thesettlement incorporated monetary relief as well as theinvestigation and cleanup procedures that resolved the attorneygeneral's action.

The excess liability insurance policies at issue cover theperiod from 1961 through 1978. The insuring agreements requireLondon Insurers to indemnify Nicor for "all sums" Nicor becomeslegally obligated to pay because of property damage caused by orgrowing out of an "occurrence." There were two sets of policiescovering the time period. The policies issued between 1961 andNovember 1976 define an "occurrence" as:

"one happening or series of happenings,arising out of or due to one event takingplace during the term of this contract."

The policies issued from November 1976 through 1978 define an"occurrence" as:

"(1) an accident, or

(2) event or continuous or repeated exposureto conditions which result in bodily injury,personal injury, death or physical damage toor destruction of tangible property,including loss of use. All damages arisingout of such exposure to substantially thesame general conditions shall be consideredas arising out of one occurrence."

The policies provide coverage in excess of a self-insuredretention (SIR). The amount of the SIR ranges from $100,000 to$250,000, according to the policy period. Nicor is responsiblefor satisfying the SIR for losses paid as a consequence of acovered occurrence before London Insurers is required toindemnify Nicor for that occurrence. The cost to Nicor toremediate any individual home rarely exceeded the per-occurrenceSIR.

On November 13, 2000, Nicor brought a complaint fordeclaratory judgment, breach of contract, and anticipatory breachof contract against its insurers. Those of Nicor's insurers whosettled with Nicor or were dismissed are not parties to thisappeal.

In a pre-trial stipulation, the parties stipulated that"[m]ercury contamination found in the residences of Nicor'scustomers was more likely than not due to the removal of mercury-containing regulators from inside the homes." They furtherstipulated that at least one mercury spill occurred during eachpolicy period that the London policies were in place.

Nicor and London Insurers filed cross-motions for summaryjudgment on the issue of the number of occurrences. For purposesof the motions, Nicor stipulated that the loss associated witheach individual home contaminated by mercury did not exceed theapplicable SIR of the particular policy. In other words, if thetrial court found each mercury spill was a separate occurrence,London Insurers would owe nothing.

On September 1, 2004, the court found in favor of Nicor. Inits memorandum opinion and order, the court found Nicor'simproper removal of mercury regulators must be regarded as asingle occurrence under the policies. The court said:

"In this case, plaintiff Nicor's inconsistentand unsafe conduct in removing the mercurycontaining regulators created harmfulresults. These harmful results stemmed fromNicor's failure to appropriately andcarefully follow an acceptable procedure inremoving the mercury regulators. Althoughharm did not result every time a mercuryregulator was removed from a home, such harmwas consistently and routinely a result ofNicor's failure to invoke proper proceduresto safely remove the mercury regulators."

Nicor and London Insurers subsequently stipulated to theremaining facts and issues necessary for the trial court to enterjudgment in Nicor's favor. On October 25, 2004, a final judgmentwas entered against London Insurers in favor of Nicor in theamount of $10,281,703.46.

DECISION

"Summary judgment is appropriate when there is no genuineissue of material fact and the moving party's right to judgmentis clear and free from doubt." Espinoza v. Elgin, Joliet &Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Our review of the trial court's grant of partial summary judgmentis de novo. Zekman v. Direct American Marketers, Inc., 182 Ill.2d 359, 374, 695 N.E.2d 853 (1998). The construction of theprovisions of an insurance policy also is subject to de novoreview. Krusinski Construction Co. v. Northbrook Property &Casualty Insurance Co., 326 Ill. App. 3d 210, 218, 760 N.E.2d 530(2001). The determination of the scope of an insurance policy isa question of law appropriately decided in a motion for summaryjudgment. Illinois Central R.R. Co. v. Accident & Casualty Co.of Winterthur, 317 Ill. App. 3d 737, 749, 739 N.E.2d 1049 (2000).

Our primary objective in construing the language of aninsurance policy is to ascertain and give effect to the intent ofthe parties to the contract. We must "construe the policy as awhole, taking into account the type of insurance for which theparties have contracted, the risks undertaken and purchased, thesubject matter that is insured and the purposes of the entirecontract." Crum & Forster Corp. v. Resolution Trust Corp., 156Ill. 2d 384, 391, 620 N.E.2d 1073 (1993). If the terms of thepolicy are clear and unambiguous, they must be given their plainand ordinary meaning. Gillen v. State Farm Mutual AutomobileInsurance Co., 215 Ill. 2d 381, 393, 830 N.E.2d 575 (2005). Ifthe terms are susceptible to more than one meaning, they areambiguous and will be construed strictly against the insurer. American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479,687 N.E.2d 72 (1997). Provisions that limit or exclude coveragewill be interpreted liberally in favor of the insured. Koloms,177 Ill. 2d at 479.

The issue is whether, under the insurance policies, Nicor'sliability resulted from a single "occurrence" or multipleseparate "occurrences." Illinois follows the majority ofjurisdictions in using the "cause" analysis to determine thenumber of occurrences. Aetna Casualty & Surety Co. v. O'Rourke,333 Ill. App. 3d 871, 881, 776 N.E.2d 588 (2002). The courtlooks to the underlying cause or causes of the damage rather thanto the number of individual claims or injuries. O'Rourke, 333Ill. App. 3d at 881. "[T]he court's inquiry is whether there wasone proximate, uninterrupted and continuing cause which resultedin all of the injuries and damage." United States Gypsum Co. v.Admiral Insurance Co., 268 Ill. App. 3d 598, 650, 643 N.E.2d 1226(1994), quoting Owens-Illinois, Inc. v. Aetna Casualty & SuretyCo., 597 F. Supp. 1515, 1527 (D.D.C. 1984).

The parties offer different definitions of the "cause" ofthe damages in this case. London Insurers say the mercury spillsresulted from multiple, separate causes, depending on theindependent conduct of the particular Nicor servicemen and theunique circumstances of each house. The insurers point to thefact that 99.5% of the removals occurred without incident, and,according to a Nicor employee, it was a "rare event" that mercurywould be spilled in the course of removing a regulator.

The reasons for spills were varied. They includedcarelessness or negligence by employees, accidental tripping orstumbling, and the particular circumstances presented by eachcustomer's home. For example, appliances, cabinets, or shelvesmight be located close to the regulator or built around theregulator. The spills occurred over the course of 20 years, 17of them coverage periods. As part of the court order settlingthe attorney general's litigation, Nicor agreed to continueremoving the regulators using essentially the same procedures ithad been using.

Nicor says the damages arose from a single occurrence underthe policies. Nicor defines the cause as the recurring, system-wide removal of the mercury-containing regulators "in a mannerresulting in a spill." It relies on a number of cases which,Nicor says, support a finding of a single occurrence whereinjuries are system-wide and recurrent. See HouseholdManufacturing, Inc. v. Liberty Mutual Insurance Co., No. 85 C8519 (N.D. Ill. Feb. 10, 1987); U.S. Gypsum, 268 Ill. App. 3d598; O'Rourke, 333 Ill. App. 3d 871.

In Household, the plaintiff manufactured and sold a plumbingsystem to plumbing contractors, who then installed the system forresidential use. Although the plumbing system consisted ofseveral separate components, it was designed, marketed, sold, andwarranted as a single, unified plumbing system. The courtrejected the insurer's attempt to separate damage claims based onthe discrete component complained to be defective. Household,No. 85 C 8519, slip op. at 4-5. Moreover, the court found theinsurance policy's plural use of "conditions" in its definitionof "occurrence" (i.e., "continued or repeated exposure toconditions") "strongly supports the inference that more than onespecific physical defect can give rise to a single occurrence." Household, No. 85 C 8519, slip op. at 4-5. Thus, the act thatgave rise to plaintiff's liability in more than 60 lawsuits wasits continuous and repeated sale of a defective product, whichconstituted a single occurrence. Household, No. 85 C 8519, slipop. at 4.

Similarly, the court in U.S. Gypsum found that Gypsum'scontinuing process of manufacturing and selling asbestos-containing products constituted one occurrence, even thoughapproximately 250 claims were filed against Gypsum. 268 Ill.App. 3d at 648. The language of the insurance policies provideddamage that resulted from " 'substantially the same condition' "or out of a " 'common defect, condition or cause' " constituted asingle occurrence. U.S. Gypsum, 268 Ill. App. 3d at 649. Thecourt likened the damages to those in which an insured's conductis repetitive and results in a number of similar injuries. U.S.Gypsum, 268 Ill. App. 3d at 651, citing Wilkinson & Son, Inc. v.Providence Washington Insurance Co., 124 N.J. Super. 466, 307A.2d 639 (1973) (single occurrence where one employee damaged 34apartments in a two-day period), and Michaels v. Mutual MarineOffice, Inc., 472 F. Supp. 26 (S.D.N.Y. 1979) (the negligentunloading of a ship resulting in more than 200 holes to theship's surface during a nine-day period was a single occurrence).

The court noted other courts generally hold that where the"continuous production and sale of an intrinsically harmfulproduct results in similar kinds of injury or property damage,then all such injury or property damage results from a commonoccurrence." U.S. Gypsum, 268 Ill. App. 3d at 650.

Relying on U.S. Gypsum, the court in O'Rourke foundO'Rourke's continued solicitation of its satellite systemconstituted one occurrence, giving rise to all of plaintiffs'claims. O'Rourke, 333 Ill. App. 3d at 882. Because eachplaintiff's settled claim fell below the policy retained limit, afinding of multiple occurrences would make O'Rourke liable forall damages awards, and Aetna for none. O'Rourke, 333 Ill. App.3d at 882. The court found that this would, in effect, denyO'Rourke coverage, and make Aetna's policy illusory. O'Rourke,333 Ill. App. 3d at 882.

We believe the cases cited by Nicor in favor of finding asingle occurrence are distinguishable and in fact support theinterpretation offered by the insurers. In U.S. Gypsum, thecourt rejected the insurer's argument that each installation ofasbestos-containing products in a building constituted a separateoccurrence. The reason for that rejection has an impact in thiscase. The court took pains to distinguish the manufacture andsale of defective products from the installation of suchproducts:

"It would be unwise and without support incase law to determine that each installationof the asbestos-containing productsconstituted a separate occurrence whenGypsum's liability is predicated on itsinvolvement in the manufacture and sale ofthe products rather than the installation ofthe products." U.S. Gypsum, 268 Ill. App. 3dat 651.

We read the court as saying that had Gypsum's liability beenpredicated on the installation of the defective products ratherthan their manufacture and sale, the court would have found eachinstallation constituted a separate occurrence. Both partiesagree we are not deciding a case involving the manufacture andsale of defective products, as in U.S. Gypsum, or the sale ofproducts, as in Household and O'Rourke. No mercury was spilled,and no damages occurred, until the mercury-containing regulatorswere removed.

Nicor has taken the position that the single event oroccurrence it relies on is removal of the regulators in a mannerthat resulted in mercury spills. The removal of a defectiveproduct is more similar to the installation of a product than tothe manufacture and sale of products. To say the manner in whichthe removals occurred over a period of 20 years is "one event" ora single occurrence defies common sense.

Nicor's argument is similar to that advanced by the insuredin Norfolk & Western Ry. Co. v. Accident & Casualty Insurance Co.of Winterthur, 796 F. Supp. 929, 932 (W.D. Va. 1992). The caseinvolved railroad employees' claims of hearing loss from excessnoise. The railroad contended its negligence in failing toprotect its employees was the single cause of the injuries. Norfolk, 796 F. Supp. at 937. Calling the railroad's argument"nonsensical," the court found the argument removed any limitfrom the category of things which might be found to be a cause. "By moving the analysis of cause to a level sufficiently generalto support an interpretation which would maximize coverage, therailroad has attempted to convert the cause test into a rubberstamp which would justify coverage in every case." Norfolk, 796F. Supp. at 937.

We have held that where each asserted loss is the result ofa separate and independent intervening human act, eithernegligent or intentional, each loss arises from a separateoccurrence. See Illinois Central R.R. Co. v. Accident & CasualtyCo. of Winterthur, 317 Ill. App. 3d 737, 748-49, 739 N.E.2d 1049(2000) (discriminatory hiring claims were separate occurrenceswhere each hiring decision involved a "human agency committing aspecific act," and there was no well-defined policy with adiscriminatory impact); Roman Catholic Diocese of Joliet, Inc. v.Interstate Fire Insurance Co., 292 Ill. App. 3d 447, 455, 685N.E.2d 932 (1997) (in lawsuit alleging sexual abuse of a minor bya priest, each repeated "exposure" of the minor to thenegligently supervised priest in each of the policy periodsconstituted a separate occurrence); Illinois National InsuranceCo. v. Szczepkowicz, 185 Ill. App. 3d 1091, 1096, 542 N.E.2d 90(1989) (in a collision involving three vehicles, claims arose outof two separate accidents because conditions resulting in eachcollision were not "substantially the same.")

Courts also have found separate occurrences where each actincreased the insured's exposure to liability. See Village ofCamp Point v. Continental Casualty Co., 219 Ill. App. 3d 86, 103,578 N.E.2d 1363 (1991) (each time the attorney rendered legalservices knowing his activities violated a statute was a separatecause of an injury); Michigan Chemical Corp. v. American HomeAssurance Co., 728 F.2d 374, 383 (6th Cir. 1984) (each shipmentof contaminated livestock feed constituted a separate"occurrence" because the individual shipments of the substance,rather than the contamination itself, created the exposure toliability); Mason v. Home Insurance Co. of Illinois, 177 Ill.App. 3d 454, 460, 532 N.E.2d 526 (1988) (each sale andconsumption of tainted food constituted a separate occurrenceunder the policy, where the insured incurred liability each timeit served its patrons contaminated food.)

Here, Nicor incurred liability each time mercury was spilledfrom a regulator. Rather than attributing the cause of thedamage to a system-wide failure by Nicor to remove the regulatorssafely, we find the spills occurred in an isolated number ofcases as a result of an individual serviceman's actions or theparticular circumstances in each residence.

Nicor advances other arguments in support of its contentionthat the systematic removal of the regulators in a mannerresulting in mercury spills was one occurrence, none of which wefind persuasive.

Nicor contends that by framing each spill as the result of aseparate and independent act, London Insurers are attempting toevade the cause test and are asking this court to look at themore distant "cause of the cause." For example, Nicor contendsthat London Insurers ask the court to separate occurrences basedon whether the spill was the result of negligence, as opposed toan accident, and whether the spill was caused by the tipping of aregulator when being removed from its position, as opposed tospilling while the regulator was being carried out of the home. We disagree with Nicor's contention. As we have stated, webelieve it is more logical to say the damages were caused by eachindividual removal than by the general, system-wide removal in amanner resulting in spills over the course of 20 years.

Nicor contends a finding of multiple occurrences wouldrender its insurance coverage illusory, as the court held inO'Rourke, 333 Ill. App. 3d at 882. Courts have found insurancepolicies were rendered meaningless where it was unlikely that asingle claim would generate enough damage to meet a large self-insurance retention. See Owens-Illinois, Inc. v. Aetna Casualty& Surety Co., 597 F. Supp. 1515, 1527 (D.D.C. 1984); O'Rourke,333 Ill. App. 3d at 871. Courts often employ the reasonableexpectation test to determine whether an insurance policy isillusory. See, e.g., Norfolk, 796 F. Supp. at 938; Owens-Illinois, Inc., 597 F. Supp. at 1527; Michael Nicholas, Inc. v.Royal Insurance Co. of America, 321 Ill. App. 3d 909, 915, 748N.E.2d 786 (2001). The policy need not provide coverage againstall possible liabilities; if it provides coverage against some,the policy is not illusory. Norfolk, 796 F. Supp. at 938.

In Norfolk, the court held if the claims arose out ofseparate occurrences, the insurance policy was not renderedmeaningless because there were other possible liabilities coveredby the policy. Norfolk, 796 F. Supp. at 938. The claims did notappear to be the type of "big bang" catastrophe the railroadintended to insure. Norfolk, 796 F. Supp. at 938. The railroadsought insurance coverage for an incident where a train spilledtoxic chemicals in several places in a heavily populated area. Norfolk, 796 F. Supp. at 938. The court found the incidents ofspill were separate occurrences. We believe the policy in thiscase is similar to that in Norfolk.

It is easy to envision a scenario where the policies atissue would have provided coverage to Nicor. For example, hadthere been a single spill of toxic chemicals resulting inwidespread damage to property, the policies would have providedcoverage.

Next, Nicor contends a stipulation between the partiesamounted to a concession by London Insurers. At trial, Nicor andLondon Insurers, along with several other party insurers, entereda stipulation regarding the testimony of expert witness PhilipCali. In lieu of calling this witness, the parties agreed that:(1) "[m]ercury contamination found in the residences of Nicor'scustomers was more likely than not due to the removal of mercury-containing regulators from inside the homes," and (2) "theearliest date of contamination as being more likely than not thedate the regulator was removed."

Nicor contends the underlying actions brought by theIllinois Attorney General and the consolidated class establishedthe cause as a single occurrence. Nicor relies on the followingevidence: each action alleged a common and collective injury; theIllinois Attorney General did not allege individual spills to beisolated incidents; the Illinois Attorney General and theconsolidated class actions sought to require Nicor to investigateand perform remediation across its entire system; and each actionresulted in a comprehensive order, on behalf of all affectedresidents. Nicor contends that, because the underlying actionstreated the cause as a single occurrence, this court must findthe same.

A similar argument was rejected in Illinois Central, wherethe insured contended the federal court's finding in theunderlying litigation required the appellate court to find asingle occurrence. 317 Ill. App. 3d at 749-50. In rejectingthis argument, the court distinguished the purpose of theunderlying litigation from the current task of determining theimpact of the damage in terms of number of occurrences. IllinoisCentral, 317 Ill. App. 3d at 749-50. Similarly, the purpose ofthe attorney general and consolidated class actions here was notto determine the number of occurrences.

Finally, Nicor contends a finding of multiple occurrenceswould violate Illinois public policy. Determination of whetheran insurance contract is contrary to public policy depends on thefacts and circumstances of each case, as well as the language ofthe contract. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d201, 215-16, 676 N.E.2d 1295 (1997); American Country InsuranceCo. v. Cline, 309 Ill. App. 3d 501, 506, 722 N.E.2d 755 (1999). Courts prefer construing a contract so that the agreement isenforceable rather than void. Braye, 175 Ill. 2d at 217. InBraye, the court presumed parties to the contract knew the law inexistence at the time they executed the contract and read thecontract language so as not to violate public policy. 175 Ill.2d at 217. The court in American Country endorsed an insurancepolicy that contained an exclusion provision where the insuredswere sophisticated businesses that, assumedly, would negotiatecoverage prior to execution of the contract. 309 Ill. App. 3d at512. Nicor was not an unsophisticated individual consumer whenit purchased the insurance policies. We do not find anyviolation of public policy stemming from our reading of theinsurance contracts.

CONCLUSION

We reverse the trial court's order entering summary judgmentfor Nicor and remand for proceedings consistent with ourconclusion that each mercury spill was a separate occurrence. Reversed and remanded with directions.

GARCIA, P.J., and SOUTH, J., concur.