## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Coun try Mutu al Insu rance Co. v. Hilltop V iew, LLC , 2013 IL App (4th) 130124

Appellate Court Caption COUNTRY MUTUAL I NSURANCE COMPANY, Plaintiff-Appellant,

v. HI L L TOP VI EW, L L C, an I llinois Corporation; PRO FE SSI ONAL SW I NE MANAGEMEN T, L L C, an I llinois Corporation; DONAL D WARD; DI ANNE WARD; J AMES VAUGH N; MARJ EAN VAUGH

N; J OE HEATON ; PAM HEATON ; BI L L Y J OE TROUTMAN; J UL I E T R OU T MAN; GARY L

. HAND; PAUL ETTE L

. HAND; J AMES A. HOP KI NS; KAREN S. HOPKI NS; DONAL D L

. BROWN; AN D GAYL EEN J. BROWN, Defenda nts-Appellee s.

District & N o. Four th District
Docke t No. 4-13-0124

Filed November 13, 2013

Held (Note : Thi s syl l abus

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R e

por te r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from a dispute over plaintiff i n s u rer’s obligation to defe nd its ins u re ds in the underly ing nuisance and neg lige nce action predic ated on the odors associate d with the ins u re d s ’ confine ment hog far m, the t rial court proper ly denied the insurer’ s motion for partial
summary judgme nt and proper ly g rante d the insureds’ motions for partial
summary judgme nt to the extent that the umbrella policy ’s pollution exclusion did not apply

to the claims, but the portion of the trial c ourt’s order requiring the insurer to defe nd its insureds was reve rsed on the
g round that other c overa g e def enses r emained pe nding.

Dec ision Under
Review Appea l from the Circuit C o u rt o f Schuy ler County
, No. 09-MR-7; the Hon. Alesia A . McMillen, J udg e, pre siding.

J udg ment Affir med in part and re v erse d in part; cause rema nded for further
proce eding s.Counsel on

Appea l Keith G. Carlson, of Carlson L aw Offic es, of Chicag o, an d Ke n t R. Schnack, of L aw Offic e of Kent R. Schnack, P.C., of Quin cy , an d Wil liam P. Pipal, of Troutman Sander s L L P, of Chicag o, and Charle s I

. Hadde n (ar g ued), of Troutman Sanders L L P, o f W ashi ng ton, D.C., for appellant.

E d ward W. Dwy er, J ennife r M. Martin (arg ued), and J oshua J

. Houser, all of Hodg e, Dwyer & D river, a nd Richard J. W ilderson, of Gr aham & Gra ham, L td., both of Springf ield, for appellee s Hilltop View, L L C, and Professional Swine Mana g ement, L L C.

Charles F. Speer and Br itt Bie ri, both of Speer L aw Firm, P.A., of Kansa s City , Missouri, and Ralph D. Davis, of Ralph Davis L aw, of Peoria, for other a ppellees.

Panel J USTI CE POPE delivered the judg ment of the c ourt, with opinion.
J ustices Appleton an d Holder Whit e concur red in the judgme nt and opinion.

OP INION

¶ 1 On Oc t o b er 2 6
, 2 0 1 2
, t h e t ri al co u rt denied plaintiff Country Mutual I nsuranc e Company ’s (Country

) motion for partial summary judgme nt, finding the pollution exclusion clause in Country ’s far

m umbrella policy (umbrella policy ) was ambig uous. On th e s a me d a y , the court enter ed an order g ranting d ef en d ants Hilltop View, L L C’s (Hilltop) and Professional Swine Manag ement, L L C’s (PSM) respe ctive cross- m otions for partial
summary judgme nt to the extent Country is responsible for defe nding Hilltop and PSM (the insureds) in the unde rlying la wsuit (Schuy ler County

case No. 08-L -02) f

iled ag ainst them by 14 neig hbors of Hilltop’s confine ment hog far m. Pursuant to the court’s I llinois Supreme Court Rule 304(a) ( eff

. Fe b. 26, 2010) finding , Country appea ls, arguing the court e rre d in (1) denying its motion for summary jud gm en t, which relied on the umbrella policy ’s pollution exclusion clause ; and (2) g ranting the insureds’ respe ctive cross

- motions for partial
summary judgme nt to the ex tent Country is responsible for defe nding the insureds aga inst the neig hbors’ lawsuit beca use Country alleg ed additional, and still unresolved, defe nses to

cover ag e under the umbrella policy

. We aff irm in part, reve rse in part, and rema nd for further
proce eding s.

-2-¶ 2 I . BA CKGROUND

¶ 3 On May 9, 2008, the neig hbors filed their initial complaint ag ainst Hilltop and PSM

. The neig hbors have since amended their complaint on more than one oc casion. The neig hbors’ nuisance and neg lige nce claims ag ainst Hilltop, PSM
, and Steven L

. and L inda J

. Fog lesong

are predic ated on a lleg ed odors a ssociated with the ope ration of the conf inement hog far

m and the land application of manure from the confine ment hog far m on proper

ty owned by the Fog lesong s. ¶ 4 On May 21, 2 0 0 8
, Hi l l t op delivere d a notice of claim and a copy of the neig hbors’ complaint to Country

. Since t hen, Hill top has provided cop i es of all subsequent pleadings
to Country
, from which it had purchased severa l insurance policies prior to the neighbors’ lawsuit ag ainst them, incl u d i n g an “Agr iPlus ” policy
, an umbrella policy
, and a pollution liability policy (pollution poli cy

). ¶ 5 On J un e 1 3
, 2 0 0 8
, Hi lltop rec eived notice Country was deny ing cover ag e under the “Ag riPlus” policy

. After rec eiving no formal response from Country with reg ard to any of its other policies, Hilltop reta ined counsel to respond to the neig hbors’ complaint. On J une 19, 2008, Hilltop rec eived a rese rvation of rig hts letter from Country addre ssing cover ag e under the pollution pol icy . The letter stated:
“I t is Country ’s understanding that y ou have e ng ag ed and direc ted [ private counsel] to prepa re a motion to dismiss the above captioned matter. You hav e t h e ri gh t to hire, at
y our own expense, a persona l attorney to revie w the defe nse being provided to y ou. Howeve r, Country has the rig ht to control the defe nse of this matter. I did not assig n this
matter to [private counsel], n o r d i d I authorize [private counsel] to do any work. There fore
, Country wi l l n o t pay for the char g es associate d with the prepa ration of the motion to dismiss

. I n addition, y ou are direc ted not to have anyone file any pleading s nor take any action in this matter without Country ’s consent. Your cooper ation in this matter is a condition prec edent to cove rag e.” ¶ 6 On Au gu s t 1 4
, 2008, the insureds and Country met to discuss the neig hbors’ law suit. Country advised the insureds it would make a deter mination of cover ag e under the pollution policy based on the amende d complaint to be filed by the neig hbors. ¶ 7 On Aug ust 28, 2008, Country filed its initial complaint for decla ratory judgme nt a g ainst Hilltop, P SM, and the neig hbors, alleging it had no duty pursuant to its pollut ion policy to defe nd or indemnify the insureds ag ainst the neig hbors’ lawsuit. Howeve r, in a letter dated September 9, 2008, Country ag ree d to provide a defe nse to the insureds pursuant to the pollution pol icy , subject to a re servation of rig hts. ¶ 8 Country provided Hillto p an d P S M wi t h a d efe nse under the pollution policy until Fe bruar y 4, 2011. At that time, Country had filed its third amende d complaint for decla ratory judgme nt, which soug ht to resc ind the pollution policy based on alleg ed misrepre sentations during the policy application proce ss. I n a letter to Hil l t o p and PSM ’s privately reta ined counsel, C o u n t ry stated it would “no longe r advanc e any defe nse costs pursuant to any

rese rvation of r ights, but instead will be pursuing its rights and r emedies a s encour ag ed by I llinois law in the dec laratory judgme nt action.”

-3-¶ 9 On Aug ust 31, 2011, the insureds asked Country to provide a defe nse to the neig hbors’

complaint pursuant to the umbrella policy

. On September 26, 2011, Country s e nt th e insureds notice it was denying cover ag e under the umbrella policy based on the p o l i cy ’s p o llution exclusion. Accordingto the letter wr itten by counsel for

Country : “This responds to y our letter to me of Aug ust 31, 2 0 11[,] and our subsequent discussions, all on behalf of our respe ctive clients conce rning cover ag e for the un d e r ly in g litigation u n d er the pol icies t hat C ountry Mutual issued to Hilltop. I
, and therefor e my client, Country Mutual, was under the impression that we previously had addre ssed the umbrella policy and that neither Hilltop nor Professional Swine curr ently was asser ting claims under a

ny umbrella policy .” Country stated it would not p ro v i d e a d efense under the umbrella policy and would seek leave to amend its complaint for decl ar at o ry judgme nt to addre ss the absenc e of cover ag e under the umbrella policy

. ¶ 10 On November 7, 201 1
, C o u n t ry fi l ed i t s fo urth amende d complaint for de clar atory judgme nt, which contained eig ht counts ad d r e s s in g c o v e rag e defe nses to the umbrella policy

. One o f t h e ei ght counts addre ssed t he poll ution exclusion and the rema ining seven counts

asser ted other de fense s to covera g e under the umbrella policy

. ¶ 11 On Fe b ru ar y 2
, 2012, Hilltop and PSM filed answe rs to Country ’s fourth ame nd ed complaint, denying that cover ag e under the umbrella policy was prec luded by the defe nses

asser ted by Country

. That same day
, Hilltop and PSM eac h ask ed for leave to file a third amende d counter claim for de clar atory judgme nt ag ainst Country

. ¶ 12 On Marc h 2, 2012, Country filed its motion for partial summary judgme nt, a rg uing the pollution exclusion bars cover a g e under the umbrella policy

. On Marc h 28, 2012, Hilltop and PSM filed their r espec tive third amende d counter claims. ¶ 13 On April 5, 2012, Hilltop and PSM filed a joint response to Country ’s motion for pa rtial
summary judgme nt. I n their re sponse, Hilltop a nd PSM argued the pollution ex clusion did
not bar cover ag e in this situation. Hilltop and PSM also stated “[t] he only question prese nted in Country Mutual’s Motion [for partial summary judgme nt] is whether the pollution

ex cl u s i on in the Umbrella Policy bars cover ag e and a defe nse for the I nsureds in the Under ly ing L itigation.” ¶ 14 On April 5, 2012, Hilltop and P SM filed t h ei r o wn cr o ss-motions for partial summary judgme nt, arguing Country was obligated to provide eac h of them a defe nse in the underlying lawsuit. The primary focus of eac h motion was the in a p p licability of the “pollution-exclusion clause ” of the umbrella policy

. Howeve r, Hilltop and PSM also both briefly argued Country

was estopped from asser

ting policy defe nses under the umbrella policy beca use it brea ched that policy

by ref using to de fend the m in the underlying a ction broug ht by the neig hbors. ¶ 15 On J une 12, 2012, Country filed a re p l y i n fu rt h er support of its motion for pa rtial
summary judgme nt that the pollution exclusion bars cover ag e under the umbrella policy

. The

same day
, Country also filed a response to Hilltop’s cross-motion for summary judgme nt, incorpora ting all the arg

uments it made in its own motion for partial summary judgme nt and its reply in further support of its motion for partial summary judgme nt. Country argued it was not estopped from asser

ting policy defe nses to cover ag e under the umbrella policy

. On J une

-4-13, 2012, C o u n t ry filed a simil ar response with reg ard to PSM ’s cross-motion for partial

summary judgme nt. On J uly 16, 201 2
, Hi l l t o p and PSM filed a joint reply to Country ’s
response s to their cross-motions for pa rtial summary

judgme nt. ¶ 16 The trial c ourt held a he aringon the summary judgme nt motions and cross-motions on J u l y 2 6, 2012. On October 26, 2012, the court enter ed an order denying Country ’s m otion for partial summary judgme nt and a separ ate order g ranting the insureds’ cross-motions for partial summ ary judgme nt “to the extent that [C ountry ] is responsible for [t he insureds’] defe nse” pursuant to the same a uthority and re asons it denied Country ’s motion for partial
summary judgme nt. ¶ 17 On November 26, 2012, Country fil ed a m o t i o n t o v ac at e and rec onsider judg ment pursuant to section 2-1203 of the Code of Civil Procedur e (735 I L CS 5/2-1203 (West 2010)). Country argued the trial court err ed in denying its partial motion for summary judgme nt. I n the alternative, Country argued the court should vacate its order gra n t i n g Hilltop’s and PSM ’s cross-motions for partial summary judgme nt beca use C o u n t ry ’s complaint for decla ratory judgme nt raised many cover ag e defe nses the parties had not briefe d and the court did not address. Ac cordingto the motion:
“That Def

en d an t s d efe ated one of sever al cover ag e defe nses raised in Country ’s Complaint does not mean that Country has a duty to defe nd beca use Country may preva il

on its other claims that rema in unresolved at this point. Whether Country ultimately will be found to owe a duty to defe nd to the Def endants is still an open question, and Def endants are not entitled to partial summ ary judgme nt, reg ardle ss of what the C ourt decide s with respec t to the polluti on exclusion.”
On Dec ember

18, 2012, Hilltop and PS M filed a joint response in opposition t o Country ’s motion to vacate a

nd rec onsider judg ment. ¶ 18 On J anuar

y 1 0
, 2 0 1 3
, t h e t ri al court hear d arguments on Country ’s motion, which it denied the same day

. On J anuar y 29, 2013, pursuant to Supreme Court Rule 304(a)
, the court found no just rea son to delay enfor ceme nt or appea l of the court’s October 26, 2012, order s denying Country ’s motion for partial summary judgme nt an d g ranting defe ndant’s crossmotions for partial summary judgme nt to the extent Country must defe nd Hilltop and PSM in the underlying c ase br oug ht by the neig hbors. ¶ 19 This appea l followed.

¶ 20 I I . ANALYSI S ¶ 21 A. Summary J udg ment ¶ 22 Summary judgme nt is a drastic reme dy and may on l y b e grante d when “the pleading s, depositions, and admissions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as to any

materia l fac t and that t he movi ng party is entitled to judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2010). I n ru l i n g o n a motion for summary judgme nt, the trial court must construe the pleading s, depositions, and aff idavits in the light
most favor able to the nonmoving party

. Quincy Mall, Inc. v. Kerasotes Showplace Theatres, LLC , 388 I ll. App. 3d 820, 824, 903 N.E.2d 887, 890 (2009).

-5-¶ 23 I n ruling on a mot ion for summ ary judgme nt, courts mus t reme mber t h e p arty moving for summary judgme nt is the burdene d party for purposes of the motion and must meet both the initial burden of production (see North Ame r i ca n Insurance Co. v. Kemper National Insurance Co.
, 325 I ll. App. 3d 477, 482, 758 N.E.2d 856, 8 6 0 (2 0 01)) and the ultimate burden of proof. See Pec ora v. County of Cook
, 323 I ll. App. 3d 917, 933, 752 N.E.2d 532, 545 (2001); W

illiams v. Covenant Med i ca l Center
, 316 I ll. App. 3d 682, 689, 737 N.E.2d 662, 668 (2000); see also Ba rbar a A. McDona ld, The Top 10 W ays to Avoid Losing a Motion for Summary Judgme nt , 92 I ll. B.J. 128, 128-29 (2004). I n this case , Country bore the initial burden of production and the ultimate burden of proof with re g ard to its motion for partial
summary judgme nt. Howeve r, Hilltop and PSM bore the initial burden of production and the ultimate burden of pr oof with reg ard to their c ross-motions for par tial summary

judgme nt. ¶ 24 Only afte r a movant produce s evidenc e that, if uncontra dicted, wou l d en t i t l e it to a direc ted verdic t at trial does the burden of production shift to the party opposing the motion for summary judgme nt. At that point, the party may not simply rely on its pleading s to raise

an issue of materia l f

act. Larson v. Decatur Me morial Hospital , 236 I ll. App. 3d 796, 801, 602 N.E.2d 864, 868 (1992) . We reviewa summary judgme nt ruling de novo

. Id.

¶ 25 B. I nsuranc e Policy

Rules of Construction ¶ 26 The issues in this case c oncer n the construc tion of Country ’s fa rm umbrella policy . As

a g ener al matter, the construction of an insurance contra ct is a matter to be deter mined by the
court as a question of law and is subjec t to de novo revie w. American States Insurance Co. v. Koloms , 177 I ll. 2d 473, 479-80, 687 N.E.2d 72, 75 (1997). Where a policy provision is clea r and unambiguous, its words must be g iven their plain, ordinary
, and popular meaning

. Kolo ms , 1 7 7 I ll. 2d at 479, 687 N.E.2d at 75. Howeve r, if the terms of a policy are ambig uous, the lang uag e will be strictly construed ag ainst the insurer that draf ted the policy

. Koloms , 177 I ll. 2d at 479, 687 N.E.2d at 75. “In addition, provisions that li mit or exclude

cover ag e will be interpre ted liberally in favor of the insured and ag ainst the insurer.” Koloms
, 177 I ll. 2d at 479, 687 N.E.2d at 75.

¶ 27 C. Umbrella Policy ’s Polluti on Ex clusion Clause ¶ 28 Country argues the trial court err ed in finding the umbrella policy ’s pollution exclusion clause did not apply to the neig hbors’ nuisance an d neg lige nce claims based on the odors coming from the operation of the confine ment hog far m and the application of hog manure to the surrounding fields. This is the primary issue on appea l. The pollution exclusion states the umbrella policy

does not apply
“M. to persona l injury or proper ty d am age arising out of the actua l, alleg ed or threatened discha

rg e, dispersa l, relea se, or e scape of pollutants:

* * *
Pollut ant s means any solid, liquid, g aseous or thermal irritant or contaminant including smoke, vapor, soot, fume, acids, alkalis, chemica ls, and waste materia ls. Waste materia ls include materia ls which are in tended to be or have been rec y cled,

-6-rec onditioned, or rec laimed.”

¶ 29 I n Kolo ms , o u r supreme court examined the scope of the absolute pollution ex clusion provision contained in a commerc ial liability (CGL ) policy

. The court found the dispositi ve issue to be “whe ther that exclusion bars cover ag e for claims of car bon monox ide poisoning

cause d by an alleg edly defe ctive furna ce.” Koloms
, 177 I ll. 2d at 476, 687 N.E.2d at 73. The

case involved a furna ce in a two-story commerc ial building that beg an to emit car bon diox ide and other nox ious fumes. Koloms
, 177 I ll. 2d at 476, 687 N.E.2d at 74. Employ ees of one of the building’s tenants beca me ill and sued the benef

icial owner s of the building, alleg ing the

owner s had n egl i gently maintained the furna ce, had failed to keep the furna ce in g ood working condition, and had not proper ly inspected some repa ir work don e o n t h e fu rnac e. Koloms
, 177 I ll. 2d at 476, 687 N.E.2d at 74. The owner s tender ed the co m p l ai n t t o their insurance company

. Koloms , 177 I ll. 2d at 476, 687 N.E.2d at 74. The insurance c ompany ag ree d to de fend the owner s subject to a rese rvation of rig hts, r eser ving the rig ht to contest

cover ag e pursuant to the pollution exclusion. Koloms
, 177 I ll. 2d at 476, 687 N.E.2d at 74. The clause at issue in Koloms is near ly identical to the clause at issue in the case sub judice
, stating:
“ ‘This insura

nce doe s not apply

to: * * * f.(1) “B odily injury” or “prope rty damag e” arising out of actua l, alleg ed or threatened discharg e, dispersa l, relea se or e scape of pollutants: (a) At or from premises y ou own, rent or occupy ***.’ ” Koloms
, 177 I ll. 2d at 476- 77, 687 N.E.2d at 74.
Acc ording to the exclusion, “pollutants” wer e “ ‘any solid, liquid, g aseous or thermal irritant

or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemica ls and waste.’ ” Koloms , 177 I ll. 2d at 477, 687 N.E.2d at 74. ¶ 30 Shortly there afte r, t he ins uranc e company filed a decla rato ry judgme nt action, ar g uing it did not have a duty to defe nd or indemnify the owner s for injuries cause d by the emission of the car bon monox ide. Koloms
, 177 I ll. 2d at 4 7 7
, 6 8 7 N.E.2d at 74. Acc ording to the

co m p any , the term “pollutants” was unambig uous, and under the plain lang uag e of the
p o licy
, the “emission of car bon monox ide fumes constituted the ‘re lease ’ of a g ase o u s ‘irritant or c ontaminant.’ ” Koloms , 177 I ll. 2d at 477, 687 N.E.2d at 74. ¶ 31 The owner s denied the materia l alleg ations of the decla ratory judgme nt action and filed

an aff irmative defe nse, arguing the pollution exclusion did not apply beca use it “wa s limit ed
to injuries resulting from industrial, commer cial or la rg e sca le pollution.” Koloms , 177 I ll. 2d at 477, 687 N.E.2d at 74. The owner s did not argue the pollution exclusion wa s fac ially ambig uous. Koloms
, 177 I ll. 2d at 483, 687 N.E.2d at 77. Howeve r, reg ardle ss of the clause ’s fac ial clar ity
, the owner s argued “the exclusion [di d] not apply to ‘dama g es due to routine

commerc ial hazards such as a f aulty heatingand ventilation sy stem.’ ” Koloms , 177 I ll. 2d
at 483, 687 N.E.2d at 77. The owner s also argued “an insured person in their position would
not rea sonably expect car bon monox ide, a commonly occur ring chemica l compound, to be considere d a pollutant.” Koloms , 177 I ll. 2d at 477, 687 N.E.2d at 74. ¶ 32 Our supreme court noted both the own er s an d t h e i n s u ra n ce co m p an y p resented

-7-compelling rea sons supporting th e ir r e s p e c ti v e p o s itions and rec og nized the “vast diverg ence

of t he jurisprudence f

ro m co u rt s acr oss the country which have already strug g led wit h the question” befor e the court. Koloms
, 177 I ll. 2d at 485, 687 N.E.2d at 78. The court observe d: “The source of the disag ree ment within the jurisprudenc e seems to lie in the fac t that the lang uag e of the clause is *** ‘quite specific ’ on i ts fac e, and y et a literal interpre t at i on of that languag e results in an application of the clause which is ‘quite broad.’ We note that when the definition of the term ‘pollutant’ is inserted into the body of the exclusion, the clause eliminates cover age fo r ‘ “[b] odily injury ” or “prope rty damag e” arising out of actua l, alleg ed or threatened discharg e, dispersal, rel ea se or

esca pe of *** any solid, liquid, g aseous or thermal irritant or contaminant, i n cl u d ing smoke, vapor, soot, fumes, acids, alkalis, chemica ls and waste.’ A close examination of this l an gu age reve als that the exclusion (i) identifies the ty pes of injury -produc ing

m at erials which constitute a pollutant, i.e.
, smoke, vapor, soot, etc. , (ii) sets forth th e phy sical or elementa l states in which the materia ls may be said to exis t, i.e.
, solid, liquid,
g aseous or

thermal, a

nd (iii) specifie s the var ious means by which the mate rials ca

n be disseminated, i.e.
, discharg e, dis persa l, rele ase or esca pe. To that extent, there fore
, the exclusion is indeed ‘quite specific ,’ and those courts wishing to focus exclusively on the bare lang uag e of the exclusion will have no difficulty in concluding that it i s als o unambig uous. See, e.g. , Reliance Insurance Co. v. Moessne r , [121] F.3d [895] *** (3d Cir. Aug ust 5, 1997).
Not all courts, howeve r, find the bare lang uag e of the exclusion dis positive. A number of court s , wh i l e acknow ledg ing the lack of any fac ial ambiguity
, have

never theless questioned whe ther the br eadth of the languag e re nders a

pplication of t he exclusion uncer

tain, if not absurd. *** These courts, troubled by the results which obtain when the terms of the clause are applied in the context of an actua l c laim, of ten decline
to apply the pollution exclusion to injuries other than those cause d by traditional environmenta l contamination.” Koloms , 177 I ll. 2d at 487-88, 687 N.E.2d at 78- 79.
Our supreme court noted it believed “a purely literal interpre tation of the disputed lang uag e, without r eg ard to the fac ts alleg ed in the underly ing complaints, fails to a dequate ly resolve the issue prese nted to this court.” Koloms
, 177 I ll. 2d at 488, 687 N.E.2d at 79. In addition, the cour t stated:
“L ike many courts, we are troubled by what we perc eive to be an overbr eadth in the lang uag e of the exclusion as well as the manifestation of an ambig uity wh i ch results when the exclusion is applied to c ases which have nothing to do with ‘ pollution’ in the conventional, or ordinary
, sense of the word. [(Emphasis added.) ] [C itation. ] Acc ording ly
, we ag ree with those courts which have restric ted the exclusion’s otherwise potentially limit less application to only those hazar ds traditionally associate d with environmenta l pollution. We f ind support for our decision in the draf ting history of the exclusion, which reve als an intent on the part of the insurance industry to s o limit the clause

. * * *
Our revie w of the history of the p ollution exclusion amply demonstrates that the

-8-predominate [ sic ] motivation in draf ting an exclusion for pollution-related injuries was the avoidanc e of the ‘enor mous expense and exposure resulting from the “explosion” of environme ntal litigation.’ (Emphasis added.) [C itation.] Simi larly
, the 1986 amendment to the exclusion was wroug ht, not to broade n the provisi on’s s cope bey ond its original
purpose of excluding cover ag e for environmenta l pollution, b u t ra t her to remove the ‘sudden and acc idental’ exception to cover ag e which, as noted above, resulted in a costly onslaug ht of litigation. We would be remiss, there fore
, if we wer e to simply look to the bare words of the exclusion, ignor e its raison d’ être
, and apply it to situations which do
not remotely rese mble traditional environmenta l contamination. The pollution exclusion has bee n, and should continue to be, the appropr iate mea ns of avoiding ‘ “the y awning extent of potential liability arising from the g radua l or repe ated discharg e of hazardous substances into the environme nt .” ’ (Emphasis in orig in al

. ) [ C itation.] We think it improper to extend the exclusion bey ond that are na.” Koloms
, 177 I ll. 2d at 488-93, 687 N.E.2d at 79-81. The supreme co u rt held the pollution exclusion only applies to those injuries cause d by “tra di t i o n al environmenta l pollution.” Koloms
, 177 I ll. 2d at 494, 687 N.E.2d at 82. As a result, we must deter

mine whether the neig hbors’ odor claims conce rn “tra ditional environmenta l polluti on.” ¶ 33 Country points out ou r s u p re m e co u rt d i d n o t d ef i ne what constitutes “traditional environmenta l polluti on” and c ites three case s as establishing what constitutes “traditional environmenta l pollution.” See Kim v. State Farm Fire & Casualty Co.
, 312 I ll. App. 3d 770, 774-75, 728 N.E.2d 530, 533-34 (2000); Connecticut Specialty Insurance Co. v. Loop Paper Rec ycling, Inc.
, 3 56 I ll. App. 3d 67, 81-82, 824 N.E.2d 1125, 1137-38 (2005); Village of Crestwood v. Ironshore Specialty Insurance Co.
, 2013 I L App (1st) 120112, ¶¶ 16-18, 986 N.E.2d 678. I n Kim
, the appellate court define d “tra ditional environmenta l p o l l u t i o n” as “hazar dous materia l discharg ed into the land, atmosphere
, or any wate rc o urse or body of
water .” Kim , 312 I ll. App. 3d a t 774, 728 N.E.2d at 534. We find this definition som ewhat misleading beca

use many materia ls can be hazardous to a body of water but benef icial to the land. As a result, the fac t a materia l is hazardous in cer tain situations does not alway s justify a labe l it constit utes a “ hazardous mater ial.” Manur e is one such material. ¶ 34 Country argues the odors at issu e i n t h i s ca s e co n s t i t u te traditional environmenta l pollution under this definition. We disag ree

. T h i s case is easily distinguishable from Kim
, Loop Paper
, and Village of Crestwood
, all of which involved nonnatura lly occur ring chemica ls. In Kim
, the parties ag ree d the chemica l at issue which leake d into the g round,
tetrac hloroethane (per c), was a hazardous materia l. Kim
, 312 I ll. App. 3d at 775, 728 N.E.2d at 534. ¶ 35 I n Loop Paper
, the plaintiffs in the underly ing case claimed they wer e exposed to highly
tox ic and hazardous pollution in the form of smoke fr o m a fi re at defe ndant’s rec y cling fac ility

. Loop Paper
, 356 I ll. App. 3d at 69, 824 N.E. 2 d at 1 1 2 7-28. Acc ording to the complaint in the underlying action, the “ ‘ca rdboar d commonly utiliz ed and obtained for

rec y cling contains additives, adhe sives, bonding material, a nd/or other fix atives as well as viny l chloride, urea , melamine, phenol formalde hy de, uretha nes, and acr

y lics an d other substances and on inform ation and belief, the car dboard prese nt at the Def endant, L oop

-9-Paper [ Recy cling ’s] fac ility did contain such mat er i al s

. ’ ” Loop Paper
, 356 I ll. App. 3d at

69, 824 N.E.2d at 1128. ¶ 36 I n Village of Crestwood
, the underly ing claim alleg ed the Villag e of Crestwood and its former long- standing may or had routinely an d k nowing ly mix ed polluted water into the municipal tap water supply to save money for the municipality

. Village of Crestwood
, 2013 I L App (1st) 120112, ¶ 1
, 986 N.E.2d 678. Acc ording to the underly ing complaint, the Vi l l ag e knowing ly supplied water to its residents from a g roundwater well which was contaminated with perc hloroethylene, or P C E
, a sol vent us ed in the dry clea ning industry
, “and other chemica ls that occur when PCE brea ks down over time.” Village of Crestwood
, 2013 I LApp (1st) 120112, ¶ 5, 986 N .E.2d 678. ¶ 37 According to Country
, the crux of the neig hbors’ claims is th e o d o rs fr o m (1 ) t h e insured’s hog confine ment far m and (2) the application of the hog manu re t o surrounding fields are hazardous and the substantial foul and obnox ious odors have cause d them to suffe r loss of enjoy

ment of their proper

ty and harme d their way of life as it exis ted befor e the swine fac tory beg an operation. Howeve r, based on the alleg ations in the neig hbors’ complaint, we d o n ot find the hog s, their manure , nor the smells associate d with these things con s t i t u t e traditional environmenta l pollution. At the hear ing on Country ’s motion to vacate judgme nt and for rec onsideration, the ne ighbor s’ attorne y stated:
“I ’d like to make it clea

r about what the plaintiffs in the underly ing case are claiming

. We have made no claim that any body ’s been hurt. We’ve made no claim that they ’re fac ing the risk of injury

. There ’s no claim to health, and ther e’s no c laim to injury . I t is a very pure claim. And that claim is interfe renc e with the enjoy ment of proper

ty

. And I ’ll just simply ref er to the c omplaint, and it’s made ver y clea r there .” ¶ 38 Ba sed on the alleg ations in the neig hbors’ complaint, the confine ment hog operation in question appea

rs larg er than traditional hog far ms. Howeve r, the neig hbors do not appea r to be claiming the insureds are polluting the environment in the traditional sense of the word. ¶ 39 Hog far

ms have been around for a long time, and neig hbors of hog far ms have dealt with the smells created by

hog far ms ever sinc e. The se fa

rms have be en traditionally thought of

as a source of food, not pollution. This is not to say a hog far m, espec ially a confine ment hog far m, could never pollute. For example, if a hog far mer dumped hog manure into a cre ek instead of sprea ding it on his fields, it might be difficult not to cate g orize the contamination of the cre ek as a form of traditional environmenta l pollution. Howeve r, we are not fac ed with that sort of situation in this case

. ¶ 40 Country argues char acte rizing the neig hbors’ odor claims as “tra ditional environmental pollution” is consistent with the I llinois Environmental Protection Act’s (Ac t) treatment of odors as “air pollution.” We disag ree

. The Act does not classify all odors as “air pollution.” I nstead, the Act define s “air pollution” as “t he prese nce in the atmosphere of one or more contaminants i n sufficient quantities and of such characte ristics and duration as to be injurious to human, plant, or animal life, to health, or to proper ty , or to unrea sonably interfe re with the enjoy

ment of life or proper

ty .” (Emphasis added.) 415 I L CS 5/3.115 (West 2010). The Act define s “conta

minant” as “any solid, liquid, or g aseous matter, any odor, or any form of ene rg y , from whatever source .” 415 I L CS 5/ 3.165 (West 2010).

-10-¶ 41 Even if the odors at i s s u e in this case constituted air poll ution for purposes of t he Ac t,

this does not mean the odors constitute “tra ditional environmenta l pollution.” The statute in question ref

lects t he poli cy of the Genera l Assembly as t o what now constitutes pollution. The fac t an odor may now constitute p o l lution pursuant to statute does not mean it also

c o n s ti tute s “tra ditional environmenta l pollution.” Gene rally speaking
, the scope of the thing s

seen as hazardous to the environment, as ref lected in e nvironmental protec tion law s today
, is far g reater than what we conclude our supreme court had in m i n d when it spoke of “tra ditional environmental pollution.” ¶ 42 Country

also argues the L ivestock Manag ement F acilities Act (F acilities Act) suppor ts its argument s wi n e wa ste odors are “tra ditional environmenta l pollution.” We disag ree

. Country cites section 20(f) of the Fa cilities Act (510 I L CS 77/20(f) (W es t 2 0 10)), which
states in part: “The application of livestock waste to the land is an acc eptable, rec ommended, and established prac tice in I llinois

. Howeve r, when livestock waste is not applied in a

re sponsible manner , it may create pollutional problems.” (Emphasis added.) 510 I L C S 77/20(f) ( West 2010). I f any thing, this section of the Fa cilities Act shows the s prea ding of

manure on far

m fields is a traditional ag ricultural prac tice and would no t co n s t itute “tra ditional environmental pollution.”

¶ 43 D. Country ’s Other Coverag e De fense s ¶ 44 Country next argues the trial court err ed in g ranting Hilltop’s and PSM ’s cross-motions for partial summary judgme nt to the extent Country owes a duty to defe nd Hilltop and PSM beca use seven of the cover ag e defe nses Country asser ted in the decla

ratory judgme nt action have not be en re solved. We ag ree

. ¶ 45 I n their respe ctive cross-motions for partial summary judgme nt, Hilltop and PSM argued they are entitled to judgme nt as a matter of law on count I I I of their respe ctive third amende d

co u n t er claims for decla

ratory relief beca

use Country has an obligation to provide them a defe nse ag ainst the neig hbors’ c laims pursuant to the terms and conditions of the umbrella policy . Hilltop and PS M both requeste d the trial cour t to “ente r summary

judgme nt and dec lare that Country Mutual has bre ache d the Umbre lla Policy by failing to provide a defe nse to [Hil ltop and PSM ] in the Under ly ing Action *** [and] find that [Hil ltop and PSM are ] entit led to damag es, including reimburse ment of all defe nse costs incurre d in the Under ly ing Action, and that Country Mutual is estopped from ra ising de fense s to covera g e under the Umbre lla Policy .” ¶ 46 Acc ording to the trial court’s October 26, 2012, written order
, the court g rante d Hilltop’s and PSM ’s cross-motions for partial summary judgme nt “to the extent that [C ountry Mutual] is responsible for [Hil ltop’s and PSM ’s] defe nse based on the same citations and for the same

rea sons a s stated in the Orde r for Plaintiff’s Motion for Summary J udg ment enter ed on the same date.” ¶ 47 On appea l, Hilltop and PSM do not argu e C o u n t ry wa s es t o p p ed fr o m raising the unresolved policy defe nses to cover ag e under the umbrella poli c y

. I nstead, without citing any authority for the proposition, Hilltop and PSM argue “the Circuit Court’s order s wer e valid

an d within its discretion in view of Country ’s s trategy to unrea sonably delay the l itigati o n

-11-of its other ‘c overa g e def enses.’ ” We disag ree

. ¶ 48 Summary judgme nt is a drastic reme dy and m ay o n l y be gra nted when “the plea dings, depositions, and admissions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as t o any materia l fac t and that the moving pa rty is entitled to judgment as a
matter of law.” 735 I L CS 5/2-1005(c) (West 2010). A trial court does not have discretion to

awa rd summary judgme nt if the moving party is not en t i t l ed t o summary judgme nt as a matter of la

w. Larson , 236 I ll. App. 3d at 801, 602 N.E.2d at 868. ¶ 49 The part y m o v i n g fo r s u m m ary judgme nt is the burdene d party for purposes of the motion and must meet both the initial burden of production (see North American Insurance Co.
, 325 I ll. App. 3d at 482, 758 N.E.2 d at 860) and the ultimate burden of proof. See Pec ora , 323 I ll. App. 3d at 933, 752 N.E.2d at 545; W illiams , 316 I ll. App. 3d at 689, 737 N.E.2d at 668; see also Ba rbar a A. McDona ld, The Top 10 W ays to Avoid Losing a Motion f o r S u mm ary Judgme nt , 92 I ll. B.J. 128, 128-29 (2004). Her e, Hilltop and PSM bore t h e initial burden of production and the ultimate burden of proof wi t h re gard to their crossmotions for partial summary judgme nt. H o w e v e r , Hilltop and PSM have ignor ed that burden. ¶ 50 Be fore Hilltop an d P S M co u l d succe ed on a motion for summary judgme nt requiring Coun t ry t o d ef

end them in the underly

ing litigation, they had to establish all of Country ’s

cover ag e defe nses wer e not valid as a matter of law. The trial court only found the pollution exclusion clause in the umbrella policy did not apply

to this claim as a matter of law. ¶ 51 Whil e the trial court corr ectly g rante d partial summary judgme nt to Hilltop and PSM to the ex tent the um brella policy ’s pol lution ex cl usion clause did not apply to the neighbors’ claims, the trial court err ed i n p re m at urely finding Country responsible for Hilltop and PSM ’s defense because C o u n t ry still has ot her potential cover ag e defenses. W e recog nize the court’s conce rn with serial mot i o n s fo r s ummary judgme nt and the resulting delay there from. Howeve r, wher e, as here
, the parties proce eded on motions for partial summary judgme nt ba sed only on the pollution exclusion clause of the umbrella policy and the court made a Rule 304(a) finding by ag ree ment of the parties, we are deciding only that issue. The
court can control future filin gs of any motions for summary judgme nt throug h its case manag ement orde rs. ¶ 52 The Third D istrict Appellate Court re cently noted:
“I t is well settled that an insurer may either seek a decla ratory judgme nt or defe nd the suit ag ainst its insured u n d er a re servation of rig hts.” (Emphasis in orig inal.) Grinnell Mutual Reinsurance Co. v . Hubbs , 2013 I L App (3d) 110861, ¶

12, 988 N.E.2d 761.
As a result, Country can choose to continue its decla ratory judgme nt action instead of defe nding H illtop and PS M under a rese rvation of r ights.

¶ 53 I I I . CONCL USI ON ¶ 54 For the rea sons stated, we aff irm the trial court’s denial of Country ’s motion for partial

s u mmary judgme nt. We aff irm in part the court’s order g ranting Hilltop’s and PSM ’s
respe ctive cr oss-motions for partial summary judgme nt to the extent the umbrella policy ’s
p o l l u tion exclusion clause does not apply to the neig hbors’ claims in the underlyi n g

-12-litigation, but we reve rse the portion of the court’s order requiring Country to defe nd Hilltop

and PSM beca

use Country raised other cover ag e defe nses in its decla ratory judgme nt action still pending befor e the c ourt.

¶ 55 Affir

med in part a

nd reve rsed in par

t; cause r emande d for f

urther pr ocee dings.

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