SIXTH DIVISION
January 16, 2004

No. 1-03-1091

JUSTICE SMITH delivered the opinion of the court:

Defendants Ali & Sons, Company, Samir Ali, and Northway Cleaners were sued fornegligence and trespass relating to the alleged discharge of pollutants, among other things, by theowner of property they leased. Plaintiff National Fire and Indemnity Exchange, defendants'insurer for a portion of the lease period, brought an action for declaratory relief, seeking ajudgment that it did not owe a duty to defend or indemnify defendants in the underlying lawsuit. The trial court granted summary judgment in plaintiff's favor. Defendants appeal, contending thata genuine question of material fact precludes the grant of summary judgment and, alternatively,that plaintiff had a duty to defend and indemnify them as a matter of law. We affirm.

In November 2001, the property owner, Gilbert Raphael (Raphael or lessor), filed anamended, seven-count complaint against defendants Ali & Sons, Company and Samir Ali(collectively, lessee). According to the complaint, lessee operated a dry cleaning business fromJuly 1, 1991, to June 30, 2001, on the premises located at 7501 West Irving Park Road, Chicago(7501 premises). Under the lease, lessee also had exclusive use of the boiler room area of 7515West Irving Park Road (7515 premises). The complaint alleged that lessee "utilized certain drycleaning materials, chemicals and solvents, as well as certain underground storage tanks" and wasnegligent for, among other things, allowing dry cleaning materials, chemicals and solvents todischarge into and contaminate the ground "around and under the premises located at 7501 WestIrving Park Road" in violation of the Illinois Environmental Protection Act (415 ILCS 5/1 et seq.(West 2000)). The complaint further alleged that: such discharge and contamination "around andunder" the 7501 premises violated lease provisions against misuse; defendants' failure to yield thepremises in good condition created a hold-over tenancy at sufferance; and the contaminationresulted in a trespass upon lessor's property and constituted a private nuisance.

In May 2002, plaintiff filed its complaint for declaratory relief, alleging that it issuedinsurance policies to defendants for two separate three-year periods ending in 1992. Copies ofthe policies were attached to the complaint; the policy relevant to this appeal covered defendantsfor the second three-year period, from January 1, 1990, to January 1, 1993. Plaintiff sought adeclaration that it did not owe a duty to defend or indemnify defendants for property damagearising from the alleged discharge and contamination by pollutants, based on an absolute pollutionexclusion contained in the policy. Plaintiff denied the underlying complaint alleged a personalinjury offense within the policy's meaning of the term, but alleged that, even if it did, such offensewould have been committed outside the policy period. On that basis, plaintiff also sought adeclaration that it did not owe a duty to defend or indemnify defendants under the personal injurycoverage portion of the policy.

Plaintiff subsequently filed a motion for summary judgment based on the pollutionexclusion and the absence of any personal injury alleged in the Raphael complaint that occurredduring the policy period. In the motion, plaintiff anticipated that defendants would try to"circumvent" the pollution exclusion by arguing they were covered under the policy's personalinjury coverage. Personal injury was defined in the policy as "injury other than 'bodily injury,'arising out of" certain offenses which included "[w]rongful entry into, or eviction of a personfrom, a room, dwelling or premises that the person occupies."

Plaintiff maintained that defendants would argue that the "trespass" alleged in the Raphaelcomplaint fell within the policy meaning of "wrongful entry," but it denied the alleged trespasswas a "wrongful entry" covered by the policy. Plaintiff further contended that, even if trespass fellwithin the personal injury offense of "wrongful entry," there still would be no coverage fordefendants because trespass is an invasion of the exclusive possession of land which could nothave occurred during the policy period. Plaintiff based that contention on the fact that defendantshad exclusive possession of the 7501 premises until 2001, which was about eight years after thepolicy period.

In a response, defendants conceded that the pollution exclusion in the policy barred claimsfor property damage and bodily injury. However, defendants asserted that the language of thelease was ambiguous and the Raphael complaint, which alleged contamination "around and under"the 7501 premises, could include the 7515 premises. Defendants further asserted that "thecontamination migrated beyond" the 7501 premises based on statements of Ali that werecontained in an attached affidavit. Additionally, defendants conceded they legally occupied the7501 premises until the end of June 2001, but maintained their possession was not "exclusive"based on certain provisions in the lease. Based on their purported limited rights to possession ofthe 7501 premises, defendants further asserted, essentially, that trespass could have occurredduring the leasehold and, thus, the allegations contained in the Raphael complaint fell within, "orpotentially within," the policy's personal injury coverage.

The trial court granted plaintiff's motion for summary judgment "based on a reasonableinterpretation of 'around' as immediately adjacent," and ordered that plaintiff did not owe a dutyto defend or indemnify defendants in the underlying lawsuit.

On appeal, defendants first argue that the grant of summary judgment was improperbecause a question of facts exists as to whether the allegation of contamination "accumulated inthe ground around and under" the 7501 premises includes the 7515 premises. Defendants relyupon a dictionary definition of the word "around" for their assertion that the Raphael complaintcould have intended to allege damages to the 7515 premises as well as the 7501 premises.

Summary judgment is appropriate where there is no genuine issue as to any material factand the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West2000); Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390-91, 620N.E.2d 1073 (1993). The standard of review on an appeal from a grant of summary judgment isde novo. Crum & Forster Managers Corp., 156 Ill. 2d at 390.

Here, defendants' assertion about what the Raphael complaint might have intended toallege amounts to nothing more than mere conjecture. Defendants' reliance on their lease of theboiler room area of the 7515 premises does not create an issue of contested fact. The Raphaelcomplaint in fact cites provisions of the lease covering the boiler room at the 7515 premises, butalleges damages specifically--and only--at the 7501 premises.

Dictionary definitions notwithstanding, if Raphael had intended to allege contamination ofother premises, he could have done so. In the complaint at issue here, however, he did not. Wefind no basis in the record for defendants' assertion that the complaint could include allegations ofcontamination at the 7515 premises. Therefore, we find the trial court properly granted summaryjudgment for plaintiff based on a reasonable interpretation of "around" as "immediately adjacent."

Although defendants concede that, if the Raphael complaint "alleged an injury only to7501 West Irving Park Road *** the alleged injury fell outside the policy period," they argue,alternatively, that the allegations fell at least potentially within the policy's personal injurycoverage. Defendants argue in essence that trespass is a "wrongful entry," and because "wrongfulentry" is one of the personal injury offenses covered by the policy, plaintiff is required to defendand indemnify them.

When the facts alleged in the underlying complaint fall within, or potentially within, thepolicy's coverage provisions, the insurer has a duty to defend its insured. Crum & ForsterManagers Corp., 156 Ill. 2d at 393; Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154Ill. 2d 90, 108, 607 N.E.2d 1204 (1992).

Here, however, defendants' alternative argument is based primarily upon Millers MutualInsurance Ass'n of Illinois v. Graham Oil Co., 282 Ill. App. 3d 129, 668 N.E.2d 223 (1996). InMillers Mutual, the court found that allegations of gasoline contamination could fall within the useof the term "wrongful entry" in the policy provisions of the insured's personal injury coverage. See Millers Mutual Insurance Ass'n of Illinois, 282 Ill. App. 3d at 140. However, the facts inMillers Mutual involved allegations of contamination that migrated onto other properties and,thus, are fundamentally distinguishable from the facts in the case before us.

There, an oil company was sued by neighboring property owners for damages resultingfrom spillage of gasoline, held in underground tanks on the oil company's property, that allegedlycontaminated the neighboring property. The insurance company sought a determination that itwas not required to defend or indemnify the oil company defendant. Under the facts of the case,the court concluded that the "unauthorized seepage and migration of gasoline onto the propertyof an adjoining neighbor, [was] sufficient to bring the underlying complaint within the personalinjury coverage" of the insurance policies. Millers Mutual Insurance Ass'n of Illinois, 282 Ill.App. 3d at 140.

Although defendants assert that the facts in the case here are "almost identical" to those inMillers Mutual, their position is based upon the additional assertion that lessee committed atrespass on the 7515 premises. Even if the assertion of such trespass were true, it would beirrelevant since the underlying complaint alleges damages from contamination only at the 7501premises. Defendants' apparent willingness to admit to more contamination than was alleged doesnot change the fact that the Raphael complaint did not allege any migration of pollutants ontoother premises. Rather, the contamination was alleged only for the 7501 premises, whichdefendants lawfully possessed during the leasehold. Therefore, we find Millers Mutual inappositeto the situation here.

Moreover, defendants fail to cite any legal authority that would support the propositionthat, as lessee, they could trespass upon the premises they leased. Cf. Norfolk Southern Ry., Co.v. Gee Co., No. 98 C 1619 (N.D. Ill. 2001) (allegations of contamination of leased property didnot support claim for trespass by former lessee because "no 'invasion' occurred" where lessee waslegally in possession of property). Rather, it is well-established that "trespass is an invasion in theexclusive possession and physical condition of the land." Millers Mutual Insurance Ass'n ofIllinois, 282 Ill. App. 3d at 139.

Even if the alleged trespass were construed as a "wrongful entry" in the policy meaning ofthe term, plaintiff would not be obligated to defend or indemnify defendants. The trespass couldoccur only after defendants' legal right to possess the 7501 premises ended, i.e., after June 2001. Thus, any potential trespass, or wrongful entry, would have occurred approximately eight yearsafter the policy period. Therefore, the trespass alleged in the Raphael complaint would not falleven potentially within the policy's coverage provisions and plaintiff would have no duty to defendor indemnify defendants. See Crum & Forster Managers Corp., 156 Ill. 2d at 393.

Finally, defendants rely upon U.S. Fidelity & Guaranty Co. v. Wilkin Insulation Co., 193Ill. App. 3d 1087, 550 N.E.2d 1032 (1989), for the proposition that the insurer must take true butunpleaded facts together with the allegations of the complaint. Defendants assert that theyprovided plaintiff with an environmental report showing migration of the contamination from the7501 premises to the 7515 premises. Again, this assertion misses the point because any suchmigration, even if true, would be irrelevant here. Where no trespass was alleged at the 7515premises, plaintiff would have no duty to defend or indemnify defendants even if contaminants hadmigrated to that location. See Crum & Forster Managers Corp., 156 Ill. 2d at 393.

For the reasons stated above, the trial court properly granted plaintiff's motion forsummary judgment and ordered that plaintiff did not owe a duty to defend or indemnifydefendants.

Affirmed.

O'MARA FROSSARD, P.J., and GALLAGHER, J., concur.