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JUSTICE SLATER delivered the opinion of the court:

The plaintiff, Central Illinois Light Company ("CILCO"), brought this action seekingindemnification under comprehensive liability policies issued between 1948 and 1985 by thedefendants, the Home Insurance Company ("Home") and Certain London Market Insurers("CLMI"), for environmental liabilities at three former manufactured gas plants ("MGPs"). Thedefendants filed nine motions for summary judgment and partial summary judgment. The trialcourt granted five of those motions. The plaintiff is appealing the trial court's order grantingthree of those motions. The defendants have cross-appealed the trial court's denial of threesummary judgment motions filed by them. We affirm in part and reverse in part the orders of thetrial court.

The environmental liabilities at issue in this case arose at three former MGP sites inIllinois: MacArthur Boulevard in Springfield ("MacArthur"), First and Washington Streets inSpringfield ("First and Washington") and Persimmon Street in Peoria ("Persimmon") (collectively,"the MGP sites"). Gas was manufactured at these sites from the 1850s until the 1930s, usingboth coal carbonization and carbureted water gas processes. One of the main by-products of bothgas making processes was tar, which was extracted, stored and sold at each of the MGP sites. Various tar containment structures were used at the sites. Generally, these containment structureswere built underground out of masonry, concrete or metal. After natural gas pipelines weredeveloped in the mid-1900s, MGPs began to be dismantled. CILCO dismantled the First andWashington MGP in the late 1920s and the Persimmon and MacArthur MGPs in the early 1950s. During the dismantling process, the covers of the structures were removed and the tar wasextracted and sold. However, not all of the tar could be removed. Significant amounts of tarremained in the structures, which were then filled with building debris or other materials. Overtime, the underground containment structures leaked tar into the soil. Those leaks were causedby a myriad of reasons, including cracks, breaks, seismic shifts, vibrations from traffic,precipitation, changes in groundwater levels and flooding. The leaking of this tar and other tar-related constituents has caused soil and groundwater contamination. CILCO has spent over $5million to investigate, remediate and mitigate environmental property damage, including soil andgroundwater contamination, at and around these MGP sites. CILCO claims that the propertydamage occurred at the MGP sites throughout the period of the defendants' policies.

In 1985, after reviewing a report from the Environmental Protection Agency regardingpossible environmental contamination at some MGP sites, CILCO learned that it owned theformer MGP sites at issue in this case. In 1985 and 1986, CILCO visually inspected the formerMGP sites but did not observe any evidence of contamination. In September 1986, workersfound discolored and odorous soil at the MacArthur site. CILCO began a Phase I environmentalinvestigation at the site. A preliminary investigation report was issued in April 1987 andconcluded that tar constituents were present in the soil.

Thereafter, the Illinois Environmental Protection Agency (IEPA) held a meeting with theenvironmental department managers for Illinois utility companies, including CILCO. At thatmeeting, CILCO learned about the potential environmental contamination at hundreds of formerMGPs throughout Illinois.

In 1987, the IEPA entered into an agreement with CILCO whereby CILCO would enrollthe MGP sites in the IEPA's Pre-Notice Site Cleanup Program ("Pre-Notice Program") andinvestigate and remediate, if necessary, the MGP sites one at a time. When CILCO enrolled in thePre-Notice Program, the work at the MGP sites became subject to specific IEPA guidelines andinstructions on how to proceed. The IEPA regularly reviewed, commented upon, and approvedthe work plans and reports prepared by CILCO. CILCO did not proceed with remediation untilthe IEPA had approved the work plans. Additionally, the IEPA regularly sent invoices to CILCOfor "oversight costs", i.e., the time spent by IEPA employees in overseeing the investigation andremediation work. The Pre-Notice Program was replaced in 1995 by the Site RemediationProgram, which also provided for voluntary cleanup of certain types of sites with IEPA oversight. Pursuant to the Pre-Notice Program, CILCO began a Phase II investigation of theMacArthur site between 1988 and 1989. Groundwater contamination at this site was discoveredin 1989. CILCO submitted a remedial action work plan to the IEPA in 1990. That plan wasapproved, and work at the MacArthur site was completed in 1991.

In 1991, CILCO began investigating the Persimmon site. In 1992, the preliminaryinvestigation of the Persimmon site concluded that there was a high probability of contaminationat the site. Remedial investigation/feasibility study work and field sampling plans for thePersimmon site were completed and submitted to the IEPA in September 1992. In 1993, CILCOacknowledged that contamination existed at the site. The IEPA approved CILCO's work plan forfurther site investigation. Cleanup of that site was completed in 1998.

The IEPA sent "No Further Action" letters for the MacArthur and Persimmon sites in1999 and 2000, respectively. Those letters stated that CILCO was released from furtherresponsibilities under the Illinois Environmental Protection Act. ⁽¹⁾ 415 ILCS 5/1 et seq. (West2002).

In June 1989, CILCO was advised by the developer of property adjacent to the First andWashington site that its property, located at First and Adams, was contaminated. CILCO laterreceived a copy of an investigation report prepared by Hanson Engineers which stated thatconstituents of tar had been found in soil and groundwater at the First and Adams property. CILCO met with the developer in 1989 and 1990, but CILCO did not agree with the developer'sproposals. In 1994, Vector-Springfield, the owners of the First and Adams property, threatenedCILCO with a lawsuit, which was ultimately filed. The suit was eventually dismissed on statute oflimitations grounds. CILCO expended approximately $350,000 in defending that lawsuit. Nojudgment was entered against CILCO, and no settlement payment was made to Vector-Springfield.

Between 1948 and 1985, CLMI and Home issued a series of occurrence-based comprehensive liability policies which provide coverage for sums that CILCO becomes liable topay with respect to occurrences of property damage. It is the wording of these policies that is atissue in this case.

We initially note that CILCO did not bring suit against Home with respect to theMacArthur site. Therefore, Home is potentially liable only for the costs associated with thePersimmon site.

Home issued one first-layer excess policy to CILCO and two second-layer excess policies. Home Policy No. HEC 9 30 46 82 ("Home I"), effective May 31, 1968 to September 30, 1968,states that it follows the form of an underlying CLMI excess policy. Home I's coverage was for10% of a $4,000,000 layer that attached in excess of $1,000,000. The trial court dismissed HomeI because the underlying CLMI policy was missing.

Home Policy No. HEC 9 30 46 83 ("Home II"), effective September 30, 1968, toOctober 31, 1971, follows the form of an underlying CLMI excess policy effective between 1968and 1971. Home II's coverage was 10% of a $4,000,000 layer that attached in excess of $1,000,000.

Home Policy No. HEC 4 16 58 35 ("Home III") is a first-layer excess indemnity policy,effective October 31, 1971, through September 3, 1974, that sits above a $100,000 self-insuredretention. The relevant terms and conditions of Home III are as follows:

INSURING AGREEMENTS

I. The Company agrees to indemnify the Named Insured forultimate net loss in excess of the retained limit hereinafter statedwhich the Named Insured may sustain by reason of the liabilityimposed upon the Named Insured by law or assumed by the namedInsured under contract or agreement, for damages . . . caused by anoccurrence as defined herein. 

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III. Limit of Liability - Retained Limit

The Company's limit of liability shall be only for the ultimate netloss in excess of $100,000.00 as a result of any one occurrence . . and then only up to an amount exceeding $1,000,000.00 for suchoccurrence . . . There is no limit to the number of occurrences forwhich claims made be made hrerunder [sic], provided suchoccurrences begin during the policy period." 

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CONDITIONS 

D. DEFINITIONS 

(C) "Ultimate Net Loss" means the sum actually paid in cash inthe settlement or satisfaction of losses for which the insured inliable, either by adjudication or compromise with the writtenconsent of the company, after making proper deductions of allrecoveries, (other than recoveries from underlying insurancepurchased by or in [sic] behalf of the insured), and salvagescollectible, and shall include all adjustment expenses arising fromthe settlement of claims, other than salaries of employees and officeexpenses of the insured, but shall exclude legal expenses. Nothingherein contained shall be construed to mean that the insured shall berequired to enforce by legal action any rights of subrogation beforethe company shall pay any loss for which it may be liable hereunder. Except as provided in Condition G, legal expenses (includingattorneys' fees, court costs and interests on any judgment or award)incurred with the consent of the company shall be apportioned inproportion to the respective interests as finally determined. 

G. LEGAL EXPENSES 

In the event of an occurrence which may involve liability on the partof the company, the company shall, except in the case of appeal, oras provided in Condition L, contribute to the legal expenses in theproportion that its share of the loss, as finally settled, bears to thetotal sum payable. Where multiple claims result from the sameoccurrence, apportionment of such expenses between the insuredand the company will be made at the time of settlement of the firstclaim for which the company is liable under the contract and oneach subsequent claim resulting from the same occurrence,reapportionment of legal expenses incurred to that time will bemade, to the end that the insured will not be required to advancethe entire legal expenses without reimbursement until the final claimis disposed of.

In its complaint, CILCO names 72 alleged CLMI excess policies spanning the years 1948until 1985. CILCO has not produced any policy wording for the pre-1957 policies or for severalother post-1957 policies. In the 1957 policies through 1971 policies, CLMI agreed:

"to indemnify [the insured] for any and all sums which the Insuredshall by law become liable to pay and shall pay or by final judgmentbe adjudged to pay, or which by agreement between the Insuredsand the Underwriters, or their representatives shall be paid to anyperson, firm . . . as damages for personal injuries . . . or damage⁽²⁾ toproperty (excluding damage to property owned by the Insured) byreason of an occurrence resulting from the Insured's . . . ownership,maintenance, operation, use of or liability for properties of all kindsand nature . . ."

For the lower layer policies after 1979, CLMI agreed, subject to all terms, conditions,exclusions and limitations of the policies, to indemnify CILCO:

"for all sums which the Assured shall be obligated to pay by reasonof the liability: (a) imposed upon the Assured by law, or (b) assumed under contract or agreement with the NamedAssured for damages on account of: (i) Bodily Injury (ii) Property Damage caused by or arising out of each occurrence happening within theUnited States of America."

The higher layer policies after 1979 follow form in relevant part to the lower layerpolicies. The limit of CLMI's monetary obligation is to pay the amount of "ultimate net loss" thatis in excess of any retained limit or underlying insurance, and not greater than the upward limit ofthe particular policy. CLMI's earlier policies define "ultimate net loss" as "the sums for which theInsured is liable in settlement of an occurrence . . ." Later policies define the term "ultimate netloss" as "the total sum which the Assured . . . become[s] obligated to pay by reason of bodilyinjuries or property damage claims, either through adjudication or compromise, excluding allexpenses and costs."

CILCO does not have copies of all of the policies issued to it by the defendants. Specifically, CLMI policies from the years 1948 through 1957 and 1974 through 1985 could notbe located. According to CILCO, it searched its own insurance department files, as well as itsinsurance brokers' files. Through the efforts of an insurance archeology firm, CILCO obtainedcertain records from London market brokers who had been involved in the placement of themissing policies. CILCO requested formal discovery from CLMI regarding the missing terms orpolicies. CILCO served a production request for insurance policies, but CLMI only produced afew policies. CILCO also requested that CLMI provide discovery regarding the drafting historyof the policies and claim files from other MGP insurance coverage cases in an effort to findanalogous or standard policy language.

The trial court denied CILCO's motions to compel the requested discovery. CILCO'smotion for reconsideration was also denied. When the defendants' moved for summary judgmenton the missing policies, CILCO sought additional discovery of sample or specimen policylanguage. That request was also denied when the trial court granted the defendants' missingpolicy motion.

CILCO presented to the trial court secondary evidence of most of the missing policies,such as placing slips, correspondence and evidence of reinsurance. These documents containedthe dates of the policies, the identities of the insurer and insured, the type of coverage provided,the dollar limits of coverage and the premiums paid. CILCO also filed additional policy evidenceindicating that CILCO had insurance coverage with London Market insurers as far back as the1930s. The evidence also showed that the relevant language at issue in the defendants' summaryjudgment motions remained virtually the same as far back as 1938.

On June 23, 1997, CILCO filed a complaint for declaratory judgment and breach ofcontract against the defendants. On March 17, 2000, the defendants filed summary judgmentmotions. Hearings on the motions were held on June 13, 2000, and September 11, 2000. Thetrial court issued its ruling on March 7, 2002. The trial court granted the following motions forsummary judgment: (1) CLMI's motion for partial summary judgment based on CILCO nothaving been legally obligated to pay "as damages" (for the MacArthur and Persimmon sites) andHome's joinder thereto; (2) CLMI's motion for summary judgment dismissing purported CLMIpolicies that were missing and Home's joinder as to the Home policy number HEC 9 30 46 42; (3)Home's motion for partial summary judgment that Home had no duty to pay legal expenses; (4)Home's motion for partial summary judgment that Home had no duty to defend, and CLMI'sjoinder thereto. Additionally, the trial court treated Home's motion for partial summary judgmentbased on lack of justiciability with respect to the First and Washington sites, and Home's joinderthereto, as a motion to dismiss, and granted that motion. In granting the defendants' summaryjudgment motion on the indemnity issue, the trial court held that it was difficult to determinewhen an insured shall become "legally obligated" or "liable" to pay for environmental cleanupexpenses. However, the court noted that it was bound by a First District appellate court decisionwhich mandated that a "suit" be filed against an insured in order for an insurer to be required toindemnify the insured for such costs. See Zurich Insurance Company v. Carus Corp., 293 Ill.App. 3d 906, 689 N.E.2d 130 (1997).

The trial court denied the following motions for summary judgment filed by thedefendants: (1) trigger of coverage; (2) late notice; (3) First and Washington liability not arisingout of CILCO's operations; and (4) "Sudden, Unintended and Unexpected" Pollution Exclusion."

On May 6, 2002, the trial court issued its order on the motions for summary judgment andentered judgment in favor of the defendants and against CILCO on CILCO's claim for declaratoryrelief and breach of contract.

On appeal, CILCO first argues that the trial court erred in granting summary judgment infavor of CLMI and Home on the issue of coverage when it found that CILCO was not "legallyobligated" to pay the environmental clean up costs associated with the MGPs as "damages" in theabsence of a "suit" against CILCO. CILCO contends that the trial court's ruling is contrary to theplain language of CILCO's indemnity-only policies, which do not require a "suit" but only a "legalobligation" to pay "damages" for property damage. Further, CILCO notes that it is "legallyobligated" to remediate environmental contamination at its MGP sites under federal and stateenvironmental laws and regulations. See the Comprehensive Environmental Response,Compensation, and Liability Act of 1980 (CERCLA) (42 U.S.C. section 9601 et. seq.); 415 ILCS5/22.2. In addition, CILCO claims that the courts's ruling on this issue is based upon anerroneous application of Illinois case law. CILCO also contends that the trial court's rulingrequiring a "suit" before there is an indemnity obligation under the policies is contrary to bothCILCO's duty to mitigate its damages and to public policy. Finally, CILCO argues that the MGPcleanup expenses are obligations "assumed by contract" under the policies.

In response, Home⁽³⁾ argues that the trial court correctly ruled that Home had no coverageobligations in connection with the Persimmon site because CILCO was never legally obligated topay damages to a third-party claimant after an adjudication or compromise, as the policy required. It claims that the trial court properly relied on Zurich Insurance Co. v. Carus Corp., 293 Ill. App.3d 906, 689 N.E.2d 130 (1997), and rejected CILCO's attempt to distinguish the instant casefrom Carus on duty to defend grounds. Home argues that Carus was not only based on the dutyto defend, but also on the duty to indemnify. Zurich Insurance Co. v. Carus Corp., 293 Ill. App.3d 906, 689 N.E.2d 130 (1997). Further, Home contends that the trial court's decision is fullyconsistent with Northern Illinois Gas Co. v. Home Insurance Company, 334 Ill. App. 3d 38, 777N.E.2d 417 (2002), which rejected the same arguments that CILCO raises. Home also respondsthat CILCO's mitigation of damages argument is wrong as a matter of Illinois law.

CLMI responds to CILCO's coverage argument by contending that the trial courtproperly found that the investigation and remediation costs which CILCO incurred voluntarily arenot covered under the CLMI policies. According to CLMI, under Illinois law, where the insuredincurs investigation and remediation costs pursuant to a voluntary program, the insured has notbeen legally obligated to pay those expenses and is not entitled to coverage. To support thiscontention, CLMI cites to Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill.2d 90, 607 N.E.2d 1204 (1992), Lapham-Hickey Steel Corp. v. Protection Mutual InsuranceCompany, 166 Ill. 2d 520, 655 N.E.2d 842 (1995), Zurich Insurance Company v. Carus Corp.,293 Ill. App. 3d 906, 689 N.E.2d 130 (1997), and Northern Illinois Gas Company v. The HomeInsurance Company, 334 Ill. App. 3d 38, 777 N.E.2d 417 (2002). CLMI claims that Carus makesit clear that an insurer's duty to defend and indemnify is triggered by a suit against the insured,and in the absence of a suit, no duty exists. Zurich Insurance Company v. Carus Corp., 293 Ill.App. 3d at 910, 689 N.E.2d at 133. CLMI rejects CILCO's proposition that the duty toindemnify depends not on whether there has been a suit, but rather on whether the insured faceslegal liability.

In construing an insurance policy, the primary function of the court is to ascertain andenforce the intention of the parties as expressed in the agreement. Crum & Forster ManagementCorp. V. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073 (1993). The court mustconstrue the policy as a whole, taking into account the type of insurance for which the partieshave contracted, the risks undertaken and purchased, the subject matter that is insured and thepurposes of the entire contract. Crum & Forster, 156 Ill. 2d at 391, 620 N.E.2d at 1078.

On appeal from a summary judgment ruling, this court must conduct a de novo review. Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill. 2d 90, 607 N.E.2d 1204(1992). Summary judgment is only appropriate if the moving party demonstrates that there is nogenuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Outboard Marine, 154 Ill. 2d at 102, 607 N.E.2d at 1209.

CILCO first contends that the trial court's ruling is contrary to the plain language ofCILCO's indemnity-only policies, which do not require a "suit" but only a "legal obligation" topay "damages" for property damage. Home responds that there has been no liability imposed onCILCO for damages to anyone through "adjudication or compromise" as defined in the "ultimatenet loss" section in Home III. CLMI responds by insisting that some type of suit is necessary andcites to Outboard Marine to support this argument. Outboard Marine Corp. v. Liberty MutualInsurance Company, 154 Ill. 2d 90, 607 N.E.2d 1204 (1992).

We agree with CILCO that the trial court erred in holding that a "suit" was required forindemnity to attach under these policies. The plain language of the insurance policies sold toCILCO does not require that a "suit" be brought in order for the indemnity obligation to arise. Under the plain language of Home III and the CLMI policies issued after 1979, coverage existsfor liability "imposed . . . by law" or "assumed" by the insured "under contract or agreement," for"damages" as a result of property damage. The plain language of the CLMI policies issued before1979 provides coverage for liability imposed "by law" or by "final judgment" or by "agreement"for "damages" as result of "property damage." The word "suit" does not appear anywhere in the"insuring agreements" of any of these policies.

Home notes that in Home III , "ultimate net loss" is defined as "the sum actually paid incash in the settlement or satisfaction of losses for which the insured is liable either by adjudicationor compromise with the written consent of the company. . ." Home then contends that the"ultimate net loss" provision's reference to "adjudication or compromise" narrows the scope ofthe "liability imposed . . . by law" in the insuring agreement of the policy. We disagree. First,nowhere in Home III is a "compromise" defined as limited to judicial proceedings. Therefore, theword "compromise", standing alone, would also cover the compromise of a statutory liability forproperty damage. Further, such a compromise could occur without the written consent of Home. An insurance company does not have unfettered discretion to withhold consent where, as in thiscase, it would have been futile. See e.g., Davis v. United Fire & Casualty Co., 81 Ill. App. 3d220, 225, 400 N.E.2d 984, 987 (1980) (futility excuses notification to insurer).

Second, even if we assume that Home is correct that this "ultimate net loss" definitionlimits the meaning of "liability . . . imposed by law," and we do not, then it follows that the otherpolicies in this case, which do not contain this language, provide for a broader type of "liability"beyond "adjudication" or "compromise." For example, the CLMI policies in effect from 1957 to1979 define "ultimate net loss" as "the sums for which the Insured is liable in settlement of anoccurrence" without any reference to an "adjudication," "judgment" or "suit" (emphasis added). Additionally, certain CLMI policies issued in the years 1963-1971 stated that they "shall include"as "ultimate net loss" "all expenses incurred in the investigations [and] adjustment . . .therewith." (Emphasis added.) Inclusion of the word "expenses" in an excess/umbrella policywas found by the California appellate court in a recent decision to be a distinguishing factor fromthe California supreme court's holding in an earlier case. Further, it was the primary basis for thecourt's holding that the insurance company was obligated to pay the policyholder's "costs . . .incur[red] in complying with the cleanup and abatement orders issued by the administrativeagencies when no lawsuit was filed." Powerine Oil Company v. Superior Court of Los AngelesCounty, et. al, 104 Cal. App. 4^th 957, 128 Cal. Rptr. 2d 827 (2002) ("Powerine II").⁽⁴⁾

Other policies likewise do not restrict "ultimate net loss" to judgments or settlements withthe insurance companies' written consent. For example, a CLMI policy effective from 4/1/79 to4/1/81 provides that "[t]he term 'Ultimate Net Loss' shall mean the total sum which the Assured .. . become[s] obligated to pay by reason of bodily injuries or property damage claims, eitherthrough adjudication or compromise . . ." without requiring the insurance company's writtenconsent (emphasis added). Therefore, if the "ultimate net loss" language is reviewed, the use ofthe terms "settlement of an occurrence" and "adjudication or compromise" further demonstratethat the concept of "legal obligation" or "liability imposed by law" is broader than a "suit," or"judgment."

CLMI cites to Outboard Marine as support for its argument that some type of suit isnecessary in order for CLMI to be required to indemnify CILCO for the environmental cleanup. Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill. 2d 90, 607 N.E.2d 1204(1992). In Outboard Marine, the defendants' comprehensive general liability insurers, argued thatthey had no duty to defend lawsuits against the insured because those suits sought equitable reliefcompelling remedial activities, rather than compensatory damages. Our supreme court held:

"To the popular mind, to most people, to ordinary laypersons,'damages' connotes money one must expend to remedy an injuryfor which he or she is responsible, irrespective of whether that expenditure is compelled by a court of law in the form ofcompensatory damages or by a court of equity in the form ofcompliance with mandatory injunctions." Outboard Marine, 154 Ill.2d at 116, 607 N.E.2d at 1216.

CLMI cites this quote from Outboard Marine and then argues that while enforcement may takethe form of an action in law or an action in equity, some type of suit is necessary. We are notpersuaded. First of all, this quote comes from the portion of the opinion where the SupremeCourt is discussing the definition of the word "damages." Further, it is well settled that if thewords in the policy are unambiguous, a court must afford them their plain, ordinary or popularmeaning. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108, 607N.E.2d 1204, 1211 (1992). In Outboard Marine, the policy contained the word "suit." Again,the word "suit" is not found in any of the policies in this case. Therefore, a "suit" is not a requiredbefore Home or CLMI has an obligation to indemnify CILCO for CILCO's environmentalcleanup.

CILCO argues that it is "legally obligated" to remediate environmental contamination atits MGP sites under federal and state environmental laws and regulations. See theComprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA")(42 U.S.C. section 9601 et. seq.); 415 ILCS 5/22.2 (West 2002).

Home responds that the trial court properly relied on Zurich Insurance Co. v. CarusCorp., 293 Ill. App. 3d 906, 689 N.E.2d 130 (1997) and properly rejected CILCO's attempt todistinguish the instant case from Carus on duty to defend grounds. Home argues that Carus wasnot only based on the duty to defend, but also on the duty to indemnify. Zurich Insurance Co. v.Carus Corp., 293 Ill. App. 3d 906, 689 N.E.2d 130 (1997). Further, Home contends that the trialcourt's decision is fully consistent with Northern Illinois Gas Co. v. Home Insurance Company,334 Ill. App. 3d 38, 777 N.E.2d 417 (2002), which rejected the same arguments that CILCOraises.

CLMI responds to CILCO's coverage argument by contending that the trial courtproperly found that the investigation and remediation costs which CILCO voluntarily incurred arenot covered under the CLMI policies. According to CLMI, under Illinois law, where the insuredincurs investigation and remediation costs pursuant to a voluntary program, the insured has notbeen legally obligated to pay those expenses and is not entitled to coverage. To support thiscontention, CLMI cites to Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill.2d 90, 607 N.E.2d 1204 (1992), Lapham-Hickey Steel Corp. v. Protection Mutual InsuranceCompany, 166 Ill. 2d 520, 655 N.E.2d 842 (1995), Zurich Insurance Company v. Carus Corp.,293 Ill. App. 3d 906, 689 N.E.2d 130 (1997), and Northern Illinois Gas Company v. The HomeInsurance Company, 334 Ill. App. 3d 38, 777 N.E.2d 417 (2002). CLMI claims that Carus makesit clear that an insurer's duty to defend and indemnify is triggered by a suit against the insured,and in the absence of a suit, no duty exists. Zurich Insurance Company v. Carus Corp., 293 Ill.App. 3d at 910, 689 N.E.2d at 133. CLMI rejects CILCO's proposition that the duty toindemnify depends not on whether there has been a suit, but rather on whether the insured faceslegal liability.

As we have noted, the trial court erred in ruling that the appropriate analysis was whethera "suit" has been filed against CILCO. Instead, we need to determine whether CILCO faces legalliability for environmental response costs.

We hold that the trial court erred when it found that CILCO was not "legally obligated" toremediate the environmental contamination at its MGP sites. First, CERCLA as well as theIllinois Environmental Protection Act mandates such cleanup. See 42 U.S.C. section 9601 etseq.; 415 5/22.2 (West 2002). Second, Outboard Marine and Lapham-Hickey do not stand forthe rule that where the insured incurs investigation and remediation costs pursuant to a voluntaryprogram, the insured is not legally obligated to pay those expenses and is not entitled to coverage. See Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill. 2d 90, 607 N.E.2d1204 (1992); Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Company, 166 Ill. 2d520, 655 N.E.2d 842 (1995). Third, we are not persuaded nor or we bound by the reasoning inCarus or NiGas. See Zurich Insurance Company v. Carus Corp., 293 Ill. App. 3d 906, 689N.E.2d 130 (1997) ; Northern Illinois Gas Company v. The Home Insurance Company, 334 Ill.App. 3d 38, 777 N.E.2d 417 (2002). Finally, in holding that CILCO is "legally obligated" toclean up its MGP sites, we are persuaded by opinions filed in the United States District Court forthe Northern District of Illinois, as well as courts of several other states. Vogue Tyre & RubberCompany v. CIGNA Property & Casualty Insurance Company, No. 96 C 4864 (N..D. Ill.November 13, 1998), reconsideration granted and summary judgment denied, No. 96 C 4864(N.D. Ill. February 11, 1999); Metex Corp. v. Federal Insurance Company, 290 N.J. Super. 95,675 A.2d 220 (1996); Weyerhaeuser Company v. Aetna Casualty & Surety Company, 123 Wn.2d891, 874 P.2d 142 (1994); Bausch & Lomb, Inc. v. Utica Mutual Insurance Company, 330 Md.758, 625 A.2d 1021 (1993).

The Comprehensive Response, Compensation, and Liability Act of 1980 (CERCLA) givesthe federal government broad power to combat contamination of the environment. CERCLAimposes liability on parties designated as responsible for the release of hazardous substances intothe air, land, surface water, or groundwater. 42 U.S.C. sections 9601(8)(B), (14), (22); 9607(a),(b) (2000). Under the Act, the federal government may seek an injunction requiring theresponsible party to clean up an environmentally contaminated site. See 42 U.S.C. section9606(a) (2000). In the alternative, the government may: (1) clean up the site and demandreimbursement for its incurred costs (42 U.S.C. sections 9604(a)(1), 9607(a) (2000)); or (2) issuean administrative order requiring the responsible party to perform the cleanup, subject to civilfines for a failure to comply. 42 U.S.C. section 9606(a), (b) (2000).

The IEPA imposes strict liability for the type of environmental contamination which wasdetected at the MGP sites. See 415 ILCS 5/22.2(f) (West 2000).

Here, it is undisputed that the MGPs are environmentally contaminated. Likewise, it isundisputed that CERCLA and the IEPA can make owners of contaminated property liable for thecleanup of contaminated MGP sites. Therefore, we do not agree with Home or CLMI thatCILCO's cleanup of the sites was purely voluntary. Even if CILCO initially approached the IEPAabout the cleanup and requested to be entered into the IEPA's Pre-Notice Program, it obviouslydid so to avoid the consequences of not "voluntarily" cleaning up the sites. The tacit threat offormal state or federal intervention was surely the impetus to begin the cleanup. When CILCOenrolled in the Pre-Notice Program, the work at the MGP sites became subject to specific IEPAguidelines and instructions on how to proceed. The IEPA regularly reviewed, commented upon,and approved the work plans and reports prepared by CILCO. CILCO did not proceed withremediation until the IEPA had approved the documentation. Implicit in the IEPA's approval wasthe power to disapprove and demand that more be done. The IEPA did not adopt an adversarialposture toward CILCO. It did not sue the company. However, "'polite but puissant compulsion'may inhere to State regulatory activities, especially when, as here, the regulators actively monitorthe cleanup." Bausch & Lomb Inc. v. Utica Mutual Insurance Company, 330 Md. 758, 780, 625A.2d 1021, 1032 (1993) (quoting A.Y. McDonald Industries v. Insurance Company of NorthAmerica, 475 N.W.2d 607, 620 (1991)).

In Outboard Marine, the defendant insurers argued that they had no duty to defendlawsuits against the insured because those suits sought equitable relief compelling remedialactivities, rather than compensatory damages. Our supreme court held that damages connotesmoney paid to remedy an injury whether or not that expenditure is compelled by a court of law inthe form of compensatory damages or by a court of equity in the form of compliance withmandatory injunctions. Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill. 2d90, 116, 607 N.E.2d 1204, 1216 (1992). Outboard Marine did not review the issue of whether aninsurer was legally obligated to pay the costs of an environmental cleanup if the "damages" werenot the result of some type of lawsuit. Outboard Marine Corp. v. Liberty Mutual InsuranceCompany, 154 Ill. 2d 90, 116, 607 N.E.2d 1204, 1216 (1992).

In Lapham-Hickey, our supreme court addressed the issue of whether a suit had beencommenced against the insured sufficient to trigger the insurer's duty to defend. Lapham-HickeySteel Corp. v. Protection Mutual Insurance Company, 166 Ill. 2d 520, 526, 655 N.E.2d 842, 844(1995). In addressing this issue, the court examined at length the meaning of the word "suit" inthe primary comprehensive general liability policy's provision which provided for a duty to defend"suits." Lapham-Hickey, 166 Ill. 2d at 531, 655 N.E.2d at 847. The court held that the word"suit" in the context of a duty to defend was unambiguous and must be given its plain andordinary meaning: a lawsuit. Lapham-Hickey, 166 Ill. 2d at 531-32, 655 N.E.2d at 847-48.

Although we are bound by the decisions of our supreme court, it is clear that the holdingsin Outboard Marine and Lapham-Hickey do not impact the issue of whether CILCO was legallyobligated to pay for the environmental cleanup of the MGP sites pursuant to the terms of theirpolicies with Home and CLMI. See Outboard Marine Corp. v. Liberty Mutual InsuranceCompany, 154 Ill. 2d 90, 607 N.E.2d 1204 (1992); Lapham-Hickey Steel Corp. v. ProtectionMutual Insurance Company, 166 Ill. 2d 520, 655 N.E.2d 842 (1995). Therefore, we will look toappellate court decisions which have addressed this issue.

In 1997, the First District rendered its decision in Zurich Insurance Company v. CarusCorp., 293 Ill. App. 3d 906, 689 N.E.2d 130 (1997). In Carus, the plaintiff-insurer brought adeclaratory judgment action against the defendant-insured, Carus Corporation, a chemicalmanufacturer. The plaintiff sought a declaration as to whether it owed Carus reimbursement forexpenses incurred during an investigation of possible contamination in the soil and groundwater. The general liability policies at issue in Carus are similar to the policies in this case.

In 1991, the IEPA and the United States Environmental Protection Agency made anassessment of the Carus chemical facility. In 1993, Carus petitioned the IEPA to proceed underthe site remediation program. In 1994, the IEPA notified Carus that hazardous substances hadbeen found on the property. In 1995, the plaintiff filed its declaratory judgment action. Allparties filed motions for summary judgment and the trial court granted the insurers' motions anddenied Carus' motion. The issue on appeal was whether the insurers were "required to indemnifyCarus for expenses incurred while participating in the IEPA's site remediation program." Carus,293 Ill. App. 3d at 908, 689 N.E.2d at 132. The Carus court held that the insurers had no duty todefend or indemnify Carus because the language in the policies required the environmentalagencies to initiate a proceeding in a court of law in order for coverage to apply. Carus, 293 Ill.App. 3d at 910, 689 N.E.2d at 133. To support this conclusion, Carus cited to two IllinoisSupreme Court decisions when it stated, "[T]he rule coming out of Outboard Marine andLapham-Hickey is clear: an insurer's duty to defend and indemnify is triggered by a suit againstthe insured, and in the absence of a lawsuit, no such duty exists. Since no suit was broughtagainst Carus, the insurers had no duty to defend or indemnify." Carus, 293 Ill. App. 3d at 910,689 N.E.2d at 134 (citing to Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d90, 607 N.E.2d 1204, and Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Co., 166Ill. 2d 520, 655 N.E.2d 842 (1995)).

Five years later, the First District decided Northern Illinois Gas Co. v. Home InsuranceCompany, 334 Ill. App. 3d 38, 777 N.E.2d 417 (2002) ("NiGas"). In NiGas, the gas companybought comprehensive general liability policies from insurance companies. The policy language inNiGas is also similar to the policies in the instant case.

While the policies were in effect, the gas company voluntarily investigated and cleaned upseveral of its MGP sites that had become contaminated. It then sought a determination that theinsurers were required to indemnify NiGas for the cleanup. An IEPA official testified thatalthough the IEPA informed utility companies that they might want to investigate potentialenvironmental problems at the MGP sites, the official stressed that the utilities were not legallyobligated to enroll in any program. The court in NiGas relied heavily on the IEPA official'stestimony regarding the voluntary nature of the cleanup and held that enrollment of MGP sites inthe IEPA's voluntary clean-up programs was not a liability imposed on the policyholder by law, asrequired by third-party indemnity policies that have no duty to defend. Northern Illinois Gas Co.v. Home Insurance Company, 334 Ill. App. 3d 38, 55, 777 N.E.2d 417, 430 (2002).

It is well settled law that one district of an appellate court is not bound by the decisions ofanother district of that court. See State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533,539, 605 N.E.2d 539, 542 (1992). We have reviewed Carus and NiGas and believe that they arewrongly decided. Contrary to the holding in Carus, and as we have noted, we do not agree thatOutboard Marine and Lapham-Hickey established as a rule that an insurer's duty to defend andindemnify is triggered by a suit against the insured, and in the absence of a lawsuit, no such dutyexists. See Zurich Insurance Company v. Carus Corp., 293 Ill. App. 3d 906, 689 N.E.2d 130(1997); Outboard Marine Corp. v. Liberty Mutual Insurance Company, 154 Ill. 2d 90, 607N.E.2d 1204 (1992); Lapham-Hickey Steel Corp. v. Protection Mutual Insurance Company, 166Ill. 2d 520, 655 N.E.2d 842 (1995). Further, we disagree with the ruling in NiGas that a"voluntary" cleanup program is not a liability imposed on the policyholder by law when state andfederal law both mandate such cleanup. See Northern Illinois Gas Company v. The HomeInsurance Company, 334 Ill. App. 3d 38, 777 N.E.2d 417 (2002). We decline to follow thosecases.

In Vogue Tyre & Rubber Company v. CIGNA Property & Casualty Insurance Company,No. 96 C 4864 (N.D. Ill. November 13, 1998), reconsideration granted and summary judgmentdenied, No. 96 C 4864 (N.D. Ill. February 11, 1999), the insured sought, inter alia, to beindemnified for expenses incurred in remediating environmental contamination resulting fromleaking underground storage tanks. The insurance company denied that it had a duty to defend orindemnify Vogue Tyre because no suit had been filed, and it moved for summary judgment. Inreviewing whether there was a duty to indemnify under the policies, the court held that the properinquiry is whether the policyholder faces legal liability, not whether there is a "lawsuit":

"The language of the policies clearly states that CIGNA willindemnify Vogue Tyre for all sums it becomes legally obligated topay as damages because of bodily injury or property damage. Itsplain language does not require a lawsuit to begin that obligation. Therefore, the issue is not whether a suit has been initiated againstVogue Tyre, but rather whether Vogue Tyre was legally obligatedto clean up the environmental contamination under theEnvironmental Protection Act ("the Act"). Vogue Tyre, No. 96 C4864 (N.D. Ill. November 13, 1998), slip op. at ___.

Upon reconsideration, the Vogue Tyre court denied the insurance company's motion for summaryjudgment, finding that Illinois law does not require a court action to trigger a legal obligation. Instead, it held that a duty to indemnify existed because environmental regulations mandated thecleanup. Vogue Tyre, No. 96 C 4864 (N.D. Ill. February 11, 1999), slip op at ___. Moreover,the Vogue Tyre court rejected the insurers' argument that Outboard Marine held that a third partyaction is required to create "damages" in a comprehensive general liability policy under Illinoislaw. Vogue Tyre correctly noted that Outboard Marine construed the word "damages" as used inthe policy broadly, not narrowly, and held that damages "connotes money one must expend toremedy an injury for which he or she is responsible." Vogue Tyre, No. 96 C 4864 (N.D. Ill.February 11, 1999), slip op. at ___ (quoting Outboard Marine, 154 Ill. 2d at 116, 607 N.E.2d at1204). Finally, Vogue Tyre noted that Outboard Marine did not address whether a legalimposition required third party action or could be triggered by complying with mandatoryenvironmental regulations. See Outboard Marine Corp. v. Liberty Mutual Insurance Company,154 Ill. 2d 90, 607 N.E.2d 1204 (1992).

We are persuaded by the reasoning of the court in Vogue Tyre, No. 96 C 4864(February 11, 1999). In the instant case, CILCO is legally obligated under federal and state lawsto comply with mandatory environmental regulations. The fact that it chose to voluntarilyremediate its MGP sites before the federal or state government took action is irrelevant to thisanalysis. The focus of our consideration is whether CILCO was "legally obligated" to clean upthe sites. It was. See 42 U.S.C. 9601 et seq. (2002); 415 ILCS 5/22.2 (West 2002). Therefore,because CILCO is liable for the costs of investigation, prevention, mitigation and/or remediationdamage to groundwater, surface water or other natural resources of the state of Illinois at oraround the MGP sites, we find that it is "legally obligated" to remediate the environmentalcontamination at the sites as provided in the policies.

Cases in several other states which have addressed the issue of indemnity forenvironmental cleanup have agreed with this analysis. See Bausch & Lomb, Inc. v. Utica MutualInsurance Co., 330 Md. 758, 779-80, 625 A.2d 1021, 1031-32 (1993) (Maryland Court ofAppeals held that although the state filed no suit or issued any order, the tacit threat of stateintervention through Maryland environmental regulations satisfied the requirement that thecontaminator was legally obligated to pay); Weyerhaeuser Co. v. Aetna Casualty & Surety Co.,123 Wn.2d 891, 896, 874 P.2d 142, 145 (1994) (Supreme Court of Washington held that aninsurer may be legally obligated to pay for property damage by reason of state environmentalstatutes when an insured engages in the voluntary cleanup of contamination in cooperation withan environmental agency); Metex Corp. v. Federal Insurance Co., 290 N.J. Super. 95, 104, 675A.2d 220, 225 (1996) (Superior Court of New Jersey held that it is the statutory mandate thatmakes a polluter legally obligated to pay damages because of property damage, not whether alawsuit had been filed or an agency had issued a directive to remediate the contamination).

Both defendants claim that the term "as damages" as referenced in their respective policiesmeans that they do not have to pay the cost of the MGP cleanups unless CILCO has paid cashbecause a claim or lawsuit was adjudicated against it. Additionally, Home argues that the definedterm "ultimate net loss" in Home III expressly states that Home's only obligation is to indemnifyCILCO for those sums CILCO "paid in cash in settlement or in satisfaction of losses for which[CILCO] is liable either by adjudication or compromise with the written consent of [Home]."

We are not persuaded. First, as was noted in Vogue Tyre, the Illinois supreme court inOutboard Marine held that the word damages "connotes money one must expend to remedy aninjury for which he or she is responsible." Vogue Tyre, 1999 U.S. Dist. LEXIS 22327 at 3(quoting Outboard Marine, 154 Ill. 2d at 116, 607 N.E.2d at 1204). Therefore, no claim or suitis needed to constitute damages. Second, as we have previously stated, Home III cannot be readas restrictively as Home desires. The word "compromise" in Home III's "ultimate net loss"provision is, under its plain and ordinary meaning, not limited to compromise of judicialproceedings. It would also cover the compromise of a statutory liability for property damage. Aninsurance company does not have unfettered discretion to withhold its consent where, as in thiscase, it would have been futile. See e.g., Davis v. United Fire & Casualty Co., 81 Ill. App. 3d220, 225, 400 N.E.2d 984, 987 (1980) (futility excuses notification to insurer).

In sum, the trial court erred in granting summary judgment in favor of the defendants onthe issue of coverage. Both Home and CLMI were obligated to indemnify CILCO for the costsincurred in the cleanup and remediation of the MGPs based on the wording of their respectivepolicies. Accordingly, we reverse the trial court's grant of summary judgment on this issue.

Next, CILCO argues that the trial court erred in dismissing the missing policies becauseCILCO presented sufficient evidence of the policies' existence and essential terms to create agenuine issue of material fact. Within this argument, CILCO also claims that the trial court erredin denying its motion to compel additional discovery. In response, CLMI contends that the trialcourt properly granted its motion for summary judgment dismissing these policies becauseCILCO: (1) did not establish a foundation for the use of secondary evidence; and (2) did notestablish the essential terms of the purported policies. CLMI also claims that the trial courtproperly denied CILCO's request for additional discovery because CILCO was not entitled tobelatedly requested additional discovery.

In order to introduce secondary evidence of a writing, a party must first prove: (1) priorexistence of the original; (2) that the document is lost, missing, destroyed or unavailable; (3) thesubstitute is authentic; and (4) the party has been unable to locate the policies through a diligentsearch. Gillison v. Gulf, Mobile & Ohio R.R. Co., 42 Ill. 2d 193, 246 N.E.2d 269 (1969). Theparty seeking to prove the existence and terms of the missing policies must do so by apreponderance of the evidence. See Sears, Roebuck & Co. v. Seneca Insurance Co., 254 Ill. App.3d 686, 691, 627 N.E.2d 173, 177 (1993). Summary judgment is only appropriate if the movingparty demonstrates that there is no genuine issue of material fact and that the moving party isentitled to judgment as a matter of law. Outboard Marine Corp. v. Liberty Mutual InsuranceCompany, 154 Ill. 2d 90, 607 N.E.2d 1204 (1992).

We have reviewed the parties' briefs as well as the record and conclude that CILCO established a foundation for the use of the secondary evidence and the terms of the purportedpolicies which is sufficient to withstand a motion for summary judgment. From 1988 to 1991,CILCO conducted an extensive search of its own insurance department files, the company'srecord center, and the files of the insurance broker involved in the placement of the policies. CILCO also retained an insurance archaeology firm to assist it in locating copies of the missingpolicies. The evidence uncovered from this search confirms the existence of the policies. CILCO's secondary evidence includes "placing slips" signed or stamped by the lead Londonunderwriter indicating his acceptance of the risk. These efforts are clearly sufficient to establishthat a diligent search was conducted by CILCO. If there is any doubt as to the movant's right tosummary judgment, that doubt must be resolved in favor of the non-movant so that evidence maybe presented to the trier of fact. See Reed v. Fleming, 132 Ill. App. 3d 722, 477 N.E.2d 733(1985). For these reasons, we find that the trial court erred in granting CLMI's motion forsummary judgment on the missing policies issue.

CILCO argues that the trial court erred in denying its motion for additional discovery. Generally, CILCO sought discovery of standard or sample policy language in use by thedefendants at the time of the "missing" policies. In response, CLMI contends that CILCO hadample opportunity to conduct discovery and was not entitled to belatedly requested additionaldiscovery.

The trial court's decision to admit evidence should not be reversed unless it is an abuse ofdiscretion. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 738 N.E.2d 199 (2000). The primary goal of the discovery rules is to promote complete disclosure. Buehler v. Whalen, 70Ill. 2d 51, 374 N.E.2d 460 (1977).

Here, the trial court abused its discretion in denying CILCO's motion for additionaldiscovery. The discovery that CILCO requested, sample policy language used by the defendantsat the time of the "missing" policies, is highly relevant to this case. That discovery may aidCILCO in establishing the essential terms of its missing policies. Therefore, the trial court erredin denying this motion.

Finally, CILCO is appealing the trial court's order granting Home's motion for partialsummary judgment that Home had no duty to pay legal expenses for what is referred to as theVector-Springfield litigation.. At issue in this motion is $350,000 in legal fees CILCO spentsuccessfully defending a lawsuit brought by the owner of property adjacent to the First andWashington MGP site. In granting Home's motion, the trial court found that the definition of"ultimate net loss" in Home III excluded legal expenses. The court further noted that althoughthe policy provides for reimbursement for legal expenses in certain situations, none of thosesituations were applicable to this case where CILCO successfully defended the action broughtagainst it and paid nothing in settlement or satisfaction of any loss.

CILCO claims that although legal expenses should be incurred with the "consent of thecompany," as required under the policy, Home was specifically advised about the lawsuit and thedefense in May 1985 and raised no objection. According to CILCO, Home's silence constitutesconsent to the defense expenditures that continued through 1997. In the alternative, CILCOclaims that Home's inaction demonstrates that it would have been futile for CILCO to seekHome's consent to those legal expenses because Home intended to deny coverage all along, asevidenced by the fact that it conducted no investigation and took no coverage position. CILCOalso claims that the last sentence of the "ultimate net loss" definition provides for an independentbasis requiring Home to reimburse CILCO for its legal expenses as "ultimate net loss." Finally,CILCO contends that the trial court's interpretation of the policy as requiring a settlement orjudgment in order to be indemnified for legal expenses would lead to the absurd result thatCILCO must lose a lawsuit brought by a third party before it could be indemnified for legalexpenses.

Again, in construing the language of an insurance policy, the court's primary objective isto ascertain and give effect to the intent of the parties of the contract. Traveler's Insurance Co. v.Eljer Manufacturing, Inc., 197 Ill. 2d 278, 757 N.E.2d 481 (2001). "If the words of a policy areclear and unambiguous, a court must give them their plain, ordinary and popular meaning." Traveler's Insurance Co., 197 Ill. 2d at 292, 757 N.E.2d at 491. Therefore, an insurer's duty todefend, and likewise to pay legal expense, arises only from an express undertaking as stated in thepolicy. See Zurich Insurance Co. v. Raymark Industries, 118 Ill. 2d 23, 514 N.E.2d 150 (1987).

It is undisputed that the Home III policy does not contain a duty to defend. Therefore, weare only concerned with whether Home must contribute to the cost of legal expenses that CILCOincurred in defending the Vector-Springfield litigation. The policy is quite clear on this point. Home's only indemnity duty to CILCO is for "ultimate net loss" that exceeds $100,000.00. CILCO's $350,000.00 in legal expenses are not considered part of the "ultimate net loss" becauselegal expenses are expressly excluded. Therefore, CILCO's legal expenses are not applied to therequirement that the "ultimate net loss" exceed CILCO's self-insured retention of $100,000.00.

We disagree with CILCO that the last sentence of the "ultimate net loss" definitionprovides for an independent basis requiring Home to reimburse CILCO's legal expenses as"ultimate net loss." The last statement states, "[e]xcept for Condition G, legal expenses must beincurred with Home's consent and apportioned in proportion to the respective interests as finallydetermined." The plain meaning of that sentence is that legal expenses are covered under certainother policy conditions. If one of those conditions applies, that sentence requires Home'sconsent, except for Condition G, and sets forth that the legal expenses shall be apportioned inproportion to the respective interests as finally determined. None of the other conditions in thepolicy applied, so CILCO's argument about Home's lack of consent is irrelevant.

The first requirement under Condition G is that there be an occurrence that involvesliability on the part of Home. If there was a covered occurrence, Condition G only applies ifHome had a share of the loss. Here, Home did not have a share of the loss because CILCOprevailed in the Vector-Springfield litigation. Therefore, there was no "sum actually paid in cashin the settlement or satisfaction of losses for which the insured is liable, either by adjudication orcompromise with the written consent of [Home]." Because Home is not liable for "ultimate netloss" in excess of $100,000.00, it is not required to reimburse CILCO for its legal expenses underCondition G.

Condition G's requirement that there be liability on the part of Home before it agrees topay legal expenses reflects the excess nature of the policy. It is well settled that primary andexcess insurers insure different risks. Instead of providing a duty to defend, most excess policiesrequire the excess insurer to indemnify for the costs of the defense as part of the "ultimate netloss" against which the policy insures. See Krusinski Construction Co. v. Northbrook Property &Casualty Insurance Co., 326 Ill. App. 3d 210, 219, 760 N.E.2d 530, 537-38 (2001). By the verynature of the coverage purchased, Home has no duty to indemnify CILCO unless CILCO is liablefor damages in the underlying action in excess of $100,000.00.

We are not persuaded by CILCO's argument that the policy as written would lead toabsurd results. If CILCO wanted its defense costs paid, it should have purchased primaryinsurance or found an excess carrier willing to pay legal expenses as an obligation of the policy. For these reasons, we hold that the trial court properly granted Home's motion for partialsummary judgment that it was not responsible to pay the legal expenses associated with theVector-Springfield litigation.

Finally, the defendants have appealed the trial court's denial of three summary judgmentmotions. Home has appealed the denial of its "trigger" of coverage motion as well as its "latenotice" motion. CLMI has appealed the trial court's denial of it "trigger"of coverage motion.

The denial of a motion for summary judgment is not a final and appealable order. Blott v.Hanson, 283 Ill. App. 3d 656, 670 N.E.2d 345 (1996). Here, the denial of Home's and CLMI'smotions for summary judgment are not final orders. Therefore, they are not appealable as amatter of law.

We reverse the trial court's ruling granting summary judgment in favor of the defendantson the issue of indemnity. We also reverse the trial court's order granting summary judgment infavor of the defendants on the missing policies issues. We affirm the trial court's ruling thatCILCO was not entitled to legal expenses for the costs incurred in defending the Vector-Springfield litigation. Finally, we decline to review the defendants' appeals from the denial oftheir summary judgment motions.

Accordingly, the judgment of the circuit court of Peoria County is affirmed in part andreversed in part.

Affirmed in part; reversed in part.

HOLDRIDGE and LYTTON, J.J., concur.

1. At the time CILCO filed this suit, it had not begun to remediate the First and Washingtonsite. Therefore, the trial court dismissed that site from the complaint for lack of justiciability. CILCO does not appeal that ruling.

2. Some policies contain the word "damage", others do not.

3. Home notes that its response to the coverage issue is only directed to the Home III policyand the Persimmon site. As we have noted, Home was not sued with respect to the MacArthursite. Home also notes that Home II follows the form of the underlying CLMI policy effectivebetween 1968 and 1971. Therefore, if the relevant policy language is different, Home adopts thearguments made by CLMI with respect to Home II.

4. CILCO acknowledges and we agree that inclusion of the word "expenses" is notdeterminative of the "legal obligation" issue before this court. However, it is further evidence thatthe policies provide indemnity for "liability" beyond a "suit" or "judgment."