## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Illin ois School

District Agency v. St. Char les Com m uni ty Unit School District 303 , 2012 IL App (1st) 100088

Appellate Court Caption I L L I NOI S SCHOOL DI STRI CT AGENCY, Plaintiff-Appellant and Cro s s

- A p p e ll e e , v

. THE ST. CHARL ES COMMUNI TY UN I T SC H O O L DI STRI CT 303, a Unit of L ocal Gover nment, Def

endant- Ap p el l ee and Cross-Appellant.

District & N o. First District, Six th Division
Docke t Nos. 1-10-0088, 1-10- 2005 cons.

Filed Marc h 30, 2012

Held (Note : This syl lab us

con st it u te s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er o

f 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

. ) In an action arising from a dispute over defe nd ant school district’s insurance cover ag e for mold claims, the appellate court reje cted the district’s arg

ument for the extensi o n of the targ eted tender rule beyond

case s involving concur

rent insurance policies wher e the policies at issue

wer e all consec utive and, there fore
, the appellate court reve rsed the trial court’s ruling that the selec tive tender rule applied to compel plaintiff, an ag ency established by sever al school districts to pool t h ei r risks by offe ring insurance cover ag e for purcha se by members, to defe nd the mold

c laim s a lo n e, without equitable contribution; howeve r, the appellat e c o u r t reje cted the district’s argument that invoices from a mold expert reta ined
separ ately by the district and the ag ency wer e for litigation purposes and

wer e subject to reimburs em ent under the policy and upheld the finding that the invoices we re the district’s responsibility

.Dec ision Under

Review Appea l from the Circuit Court of Cook County
, No. 03-CH-2413; the Hon. Nanc y

J . Arnold, Judge, pr esiding

.

J udg ment Reverse d in part and a ffirme d in part; ca use re manded.

Counsel on Appea l Daniel J

. Z ollner, of Dy kema Gossett PL L C, and J

. Timothy E at o n , Patricia S. Spratt, and Michae l P. Sheehan, all of Shefsky & Fr oelich L td., both of Chicag o, for a ppellant.

Scott O. Reed
, of Donnelly
, L ipinski & Har ris, L L C, and Michae l J

. Dug g an, of Klein, Thorpe & J enkins, L td., both of Chicag o, for appellee

.

Panel PRES I DI NG J USTI CE GARCI A delivere d the judgme n t of the court, with opinion.
J ustices McB ride and R. Gordon concur red in the judgme nt and opinion.

OP INION

¶ 1 P l ai n t i ff I l l i n o i s School District Ag ency (I SDA), a provider of commerc ial g ener al liability insurance
, appea ls the circ uit c ourt’s ruling that defe ndant St. Charles Communi ty Un i t S chool District 303 (District) proper ly targ eted the I SDA to defe nd the District in a series of lawsuits stemming from mold infestation in the District’s high school building, over

o t h er i n s u rers that issued policies cover ing the District prior to the policy issued by the I S DA

. I llinois is one of only three states that allow an insured to selec tively tend er t h e defe nse of a lawsuit t o o n e i n surer over other chronolog ically concurre nt insurers. The I llinois Supreme Court has nev er ap p ro ved extending this uncommon rig ht to include chronolog ically consec utive insurance policies. The policy g rounds underly ing the selec tive tender rule do not apply to past insurers wher e the risk of incre ased premiums or the risk of policy canc ellation does not exis t. We reve rse the circ uit court’s g rant of summary judgme nt in favor of the District on counts I I
, I I I and I V of the I SDA’s amende d complaint; we rema nd for further proce eding s consistent wi t h this opinion. We reje ct the District’s cross-a ppeal challeng ing the circ uit court’s judgme nt in favor of the I SDA on the District’s counter claim that it was entitled to reimburse ment for cer tain inv o i ce s from the same mold expert separ ately reta ined by

the I SDA and the District.

-2-¶ 2 BA CKGROUND

¶ 3 The District is a public entity that overse es St. Charles East Hig h School, which suffe red

a mold infestation that g ave rise to this case

. The I S DA wa s est ablished by cer tain school districts of I llinois to pool their risk. I t offe rs for purcha se by its members insurance

c o v e r a g e , much like ordinary commerc ial insurance car riers. The I SD A p r o v id e d c o mm e r c ia l
g ener al liability (CGL ) insurance cover ag e to the District from J uly 1, 1995, throug h J uly 11, 2001. I ts policy provided that the I SDA “will have the rig ht and duty to defe nd any ‘suits’ seeking *** damag es.” I t also provided that the I SDA “will pay , with respec t to any claim

or ‘suit’ we defe nd: *** All rea sonable expenses incurre d by the [Dist rict] at our reque st to assist us in the investigation or de fense of the c laim or ‘suit.’ ” ¶ 4 P ri o r t o co vera g e by the I SDA, the District held CGL policies with Gene ral Casua lty Company of Wis consin (Ge nera l Casualty ) from September 1, 1971, to September 1, 1974, Employ ers Fire Insuranc e Company from October 1, 1974, to October 1, 1 9 7 7
, Ha rt ford Acc ident and Indemnity Company (Ha rtford) from October 1, 1977, to J u l y 1, 1985, and Indiana Insuranc e Company (Indiana) from Oc tober 1, 1985, to Jul y 1, 1995.

¶ 5 The Mold L awsuits ¶ 6 In Marc h 1999, th e Di s t ri ct n o t i fi ed t h e I SDA that it fac ed potential tort liabilit y stemming from mold exposure to St. Charles East Hig h School students. The I SDA rese rved its rig hts and reta ined attorney R o b ert Smy th of the law firm of Donohue, Br own, Mathewson & Smy

th to investigate and monitor mold-based c laims. ¶ 7 Be tween Marc h 2001 and Marc h 2002, three separ ate lawsuits we re fi l ed against t he District alleg ing the District’s neg lige nce cause d the former students to suffe r mold-relate d injuries. In April 2001, the District tender ed the defe nse of the suits to the I SDA and Indiana. On J une 26, 2001, the I SDA acc epted the defe nse of the suits ag ainst the District, subject to

a rese rvation of rig hts; the I SDA reta ined attorney Smy th to repr esent and defe nd the District i n the lawsuits. On August 21, 2001, the District tender ed the defe nse of the lawsuits t o Har t fo rd and Gene ral Casualty as well. On September 7, 2001, Har tford acknow ledg ed

rec eipt of the tender

. On September 24, 2001, Indiana ag ree d to defe nd the District pursuant to a rese rvation of rig hts. On October 1, 2001, Gene ral Casualty acknow ledg ed rec eipt of the tender
, rese rved its rig hts, and declined to defe nd. On Fe bruar y 15, 2002, Har

tford ag ree d to defe nd ag ainst the lawsuits under a rese rvation of r ights. ¶ 8 In a letter dated Marc h 19, 2002, the District’s cover ag e counsel, Scott Ree d, informed the I SDA that the District “has now obtained defe nse of the [ac tion] under a rese rvation of rig hts from al l p ri m ary g ener al liability insurers with cover ag e in forc e on an occur renc e basis from Oc tober 1, 1981 through J uly 11, 2001.” ¶ 9 As a result of t he mol d problem, the District e mploy ed seve ral contractor s and ex perts to investigate and reme dy the mold infestation. On J uly 23, 2002, Reed provided the I SDA, Indiana, and Har

tford with copies of the “expert and consultant bills to date” g ener ated by these ser vices, whic h totaled appr ox imately $2.2 milli on.

-3-¶ 10 Har tford, Indiana, a

nd Gene ral Casua lty

Settle ¶ 11 On August 14, 2002, Har tford sued the District in fede ral co u rt , as s erting it was not obligat ed to reimburse the District for the expert and consultant bills the District had incurre d. On or about October 16, 2002, Har tford and the District rea ched a sett l em ent wher eby Har tford paid the D istrict $150,000 in ex chang e for the District’s “de -ac tivation” of its tender of defe nse, which rende red moot its claim for indemnity

. The ag ree ment was full y ex ec u ted on November 20, 2002. I t provided that Har tford’s pay

ment satisfied its obligations to t he District, including “any costs and expenses incurre d by The School District in defe nse or indemnity of the Under lying L awsuits, or any other costs associate d with the mold re m ed i at ion which

wer e incurre d on or befor e October 14, 2002. These costs and expenses include, but are not limited to, AAA Environmenta l, Golan Har ris, Holian Asbestos Removal, Carnow Conibear, J udg e & J ames, Raths Raths & J o h n s o n, Shirmer Eng ineer ing, STS C o n s ultants, Air Quality Service s, HP Woods, and Donohue Br own Mathewso n & Smy th [ here inafter , the vendor s].”
In a letter dated November 22, 2002, the District informed the I SDA’s in-ho u s e cl ai m s handler and its outside counsel that the District and Har tford had rea ched a s ett lement
ag ree ment, “the terms of which are confide ntial.” Pursuant to the settl em en t , t h e District withdrew its tender

to Hartfor d eff

ective O ctober

14, 2002. ¶ 12 On Dec ember 9, 2002, the District settled with Indiana. I t d ea ct i v at ed i t s t en d er in exchang e for a $500,000 pay ment. The settlement i n cluded languag e substantially simil ar to that of t he Ha

rtford se ttlement in that I ndiana’ s pay ment satisfied obl iga

tions as t o both litigation defense and reimburse ment of m old reme diation expenses provided by the s ame vendors listed in the Har tford settlement. The District also informed the I SDA’s claims handler and outside counsel of this agree ment, the terms o f which wer e decla red confide ntial. A similar settlement was r eac hed betwe en the District a nd Gene ral Casua lty

for $10,000. ¶ 13 The District’s reimburse ment claims arose from its pay ment of cer

tain vendors from its

own funds. When it later rec eived the settlement proce eds, it deposited the proce eds into the District’s “Educ ational Fund,” which it used to pay g ener al oper atingexpenses.

¶ 14 The L awsuits ¶ 15 The District rema ined in settlement discussions with the I SDA and appar ently believed the discussions would continue. The I SDA, howeve r, filed the instant action agai n s t t he District on Fe bruar

y 6, 2003. Count I of the lawsuit soug ht a decla ration that the I SDA had

no obligation t o co v er m o ld reme diation expenses unrelated to the defe nse of the mold l aw s u i t; count I I alleg ed the District’s “sec ret” settlements with the other three insurer s brea ched its insurance contra ct with the I SDA. On September 30, 2005, the District filed an

answe r and a four- count counter claim. Count I of the counter claim soug ht a decla ration that the I SDA was oblige d to cover mold reme diation costs in addition to litigati o n d efense
expenses; count I I alleg ed the I SDA had brea ched its contra ct with the District by failing to compens at e t h e District for reme diation and litigation defe nse costs; count I I I soug ht to

rec over costs and attorney fee s the District incurre d in pursuing insurance cover ag e from the

-4-other insurers; and count I V soug ht penalties ag ainst the I SDA pursuant to section 155 of the

Insuranc e Code (215 I L CS 5/155 (West 2004)) for the I SDA’s “vexatious and unrea sonable delay” in providingthe insuranc e cove rag e to which the D istrict was entitled. ¶ 16 The I SDA mo v ed t o dismiss all four counts of the counter claim. On May 4, 2006, the circ uit court denied the m otion as t o counts I throug h I I I
, but g rante d it as t o count I V. On J une 21, 2010, the court enter ed judgme nt for the I SDA on count I I I of the counter claim. The District does not cha lleng e these ruling s on cross-a ppeal. ¶ 17 On J anuar

y 27, 2006, the District moved for partial summary judgme nt on count I of its

co unterc laim that soug ht reimburse ment under the I SDA policy for mold reme d i at i o n expenses that it claimed also aided the litigation, and on count I I of the I SDA’s lawsuit that claimed the settlements with the three other insurers and deac tivations of tender brea ched the I SDA’s insurance contra ct

. Following oral argument, J udg e Nanc y Arnold denied the District’s summary

judgme nt motion as to count Iof the c ounterc laim. As to the District’s
summary judgme nt motion reg arding count I I of the I SDA’s complaint, the I SDA argued that the District’s deac tivatio n s o f tender to Har tford, Indiana, and Gene ral Casualty wer e improper beca

use the District was compensated for the deac tivations. J udg e Arnold ruled no leg al di stinction exis ted between compensated and uncompensated deactivation of t ender : “I don’t see a

ny rea l dispute in y our re sponse, fra nkly . *** There is a littl e ar gument made with no support say

ing there is a distinction here

. But there ’s no case law t el l i n g m e the distinction has any

leg al basis.” ¶ 18 On J une 14, 2006, the circ uit court enter ed summary judgme nt for the District on count I I o f t h e I SDA’s complaint, holding the District had the rig ht to deac tivate tender of the litigation defe nse as to the other three insurers and that doing so in exchang e for settlement
pay ments did not brea ch its policy with the I SDA. Wit h a favor able ruling on the same claim by the I SDA, the District voluntarily dismiss ed count I I of its counter claim, claiming a policy b re ach by the I SDA. The court, howeve r, grante d leave to the I SDA to file an ame n d ed complaint alleg ing the District rec eived a “double rec overy ” from its settlement with the other insure rs and the unspe cified insura nce pr ocee ds it rece ived from the I SDA. ¶ 19 T h e I S DA m o v ed for rec onsideration of the court’s ruling o n t h e co m p en s at ed deac tivation of tender
, which the court denied on August 14, 2006. On November 7, 2007, the I SDA aga i n moved the court to rec onsider, this time based on a relatively new case , Kajima Construction Service s, Inc. v . St. Paul Fire &Marine Insuranc e Co. , 368 I ll. App. 3d 665 (2006), aff’d
, 227 I ll. 2d 102 (2007). At oral argument, J udg e Arnold observe d that Kajima stood only for the proposition that an insured cannot selec tively tender defe nse of a lawsuit to an insurer based on an excess insurance policy when the insured still has available primary insurance policies. The circ umstances in Kajima wer e not the circ umstances in the instant case a

nd thus did not warra

nt rec onsideration of the I SDA’s claim. ¶ 20 On J une 8, 2008, the I SDA filed an amende d complaint, adding count I I I
, which soug ht setoff or restitution of amounts paid i n defe nding and s ett l i n g t h e litigation, and count I V, which argued for proration or restitut ion from the District fo r the amount it alleg edly paid in excess of its “alloca

ble pro rata share ” of defe nse costs i n t h e l aw s u i ts. The I SDA then filed a “Motion for Setof f o f Insuranc e Settlement Procee ds,” arguing that the District

-5-“bre ache d its express duties, implied duty of g ood faith, and fiduciar y duties under the I SDA Ag ree ment”; t hat t he D istrict “re ceive d a double rec overy of defense and indemnity costs,

rec eived a windfall profit and has been unjustly enric hed”; and that the District’s settlement
ag ree ments with the other insurers “intentionally prejudice d [t he] I SDA by rele asing its rig ht
to equitable contribution.” The District responde d that it had act u al l y rec overe d less than one-third of its investigative costs and there fore rec eived no windfall and brea ched no duty
to the I SDA. On Dec ember 4, 2009, the circ uit court denied the I SDA’s motion and enter ed judgme nt for the District on counts I I I and I V of the I SDA’s amende d complaint. The rec ord befor e us conta ins no findings of fac t or conclusions of law

as to the orde r of De cembe r 4, 2009, which is unac companied by any transcr ipt of the proce eding s. ¶ 21 The I SDA rema ined the lone insur er t h at defe nded and indemnified the District in the lawsuits, which settled for $90,000 in September 2007. The I SDA alleg es it paid “$550,889 in defe nse fe es and ex penses related to the M old L awsuits, and $90,000 to settle the Mold L awsuits,” for

a total expenditure of $640,889. 1 ¶ 22 The I SDA timely app ea l s , fo l l o wing the circ uit court’s order of J une 21, 2010, which disposed of count I I Iof the District’s c ounterc laim, the last issue in the case

.

¶ 23 The Cross-Appe al ¶ 24 The District cross-a ppeals from the circ uit court’s judgme nt in the I SDA’s favor on count I o f the District’s counter claim and count I of the I SDA’s amende d complaint. Be for e t h e circ uit court, the parties submitt ed cross-motions for partial summ ar y judgme nt reg arding “whe ther disputed invoice entries from Dr. J ames Woods are leg itimate defe nse costs as to which [the I SDA] owes a duty to reimburse [the District], or whether these invoice entries
repr esent service s reque sted by [t he District] for its eff orts to reme diate the mold condition in its phy sical plant.” The court’s previous order s of J une 14, 2006, and April 24, 2008, had established that the I SDA had no du t y t o indemnify the District for reme diation under the CGL policy

. The court resolved the cross-motions for reimburse ment on the disputed invoices in “a bench trial,” pursuant to a joint stipulation. On May 22, 2009, the court issued written “F indings of Fa ct and Entry of J udg ment After Stipul ated Trial.” In the course of the stipulated trial, the court considere d the briefs, exhibi ts, oral arguments, and the depositions of expert Woods and attorney Smy th. ¶ 25 T h e co u rt found Dr. Woods was “an expert orig inally reta ined by the I SD A d ef en s e counsel, Robert Smy

th, but then separ ately reta ined by [t he District] for its own purposes.” I t n o t ed t h at the I SDA had only paid a portion of expert Woods’ invoices, contending t h e unpaid invoices wer e allocable to mold reme diation, n o t l itigation defe nse. Under the languag e of the I S DA ’s p o l i cy , the “I SDA was obliga ted to pay for expenses it actua lly incurre d, and all re asonable expenses incurre d by [t he Dist rict] at I SDA’s request to assist in th e i n v es t i gati on or defe nse of the mold litigation.” The court agree d with the case law

T he I SDA al so st at es at page 22 of it s bri ef tha t “[ t] he tot al spe nt by [t he] I SDA to def end 1 and set tl e the Mol d Lawsui t was $715,6 74.” T he dis cr epa ncy of $74,7 85 betwe en the two tot al s is the amount f

or “al loc at ed L oss (Cl ai m Adj ust m ent ) Ex pen ses .”

-6-cited by the District, Aerojet-G eneral Corp. v. Transport Indem nity Co.
, 948 P.2d 909, 924

(Cal. 1997), that “the burden of proving the exis tence , amount, rea sonablene ss, and nece ssity of site investigation as defe nse costs rests with the insured.” Howeve r, the circ uit court found Aerojet and the other case s cited by the District distinguishable beca use the rem ed i at i o n

measure s under t aken by the insureds in those case s wer e compelled by g overnme nt environmenta l clea

nup regulations, which trig g ere d the duty of the insurers to indemnify for the reme diation costs. The court noted: “The mold infestation at St. Charles Hig h School did not need to be c orre cted to avoid potential liability in any of the law suits.” ¶ 26 T h e co u rt then turned its attention to the disputed invoices from expert Wood s

. T h e question for t h e co u rt was whether the disputed invoice entries repr esente d rea sonable
expenses incurre d for defe nse purposes at the I SDA’s reque st. The court “r ej ect[ed] [t he District’s] arg

ument that wher e Woods’ work was useful for reme diation and litigation, the
court should arbitra

rily order eac h party to bear half of the costs.” I t found “re levant, but not conclusive, the fac t that [t he District] internally coded these expenditures as cons t ruction, capital improvement, or operation and mai n t en an ce costs.” The court found that Woods’

wo rk o n the “Seven- Step Protocol,” a step-by -step plan for some of his work at the h i gh school, “wa s done pursuant to [t he District’s] reque st, was not reque sted b y t h e defe nse counsel eng age d b y t h e I SDA, and was implemented for the purpose of reme diation, not litigation.” Turning to spe cific invoices, the court found the invoices dated April 26, 2001, and May 16, 2001, wer e proper ly charg eable to litigation expenses, which the I SDA was obligated to pay . The I SDA does not appe al that finding

. ¶ 27 The court next found the “ov er wh el m i n g ev i dence ” indicated the May 14-16 entry perta ined to meeting s and prepa ration re q uested by the District for purposes of mold

reme diation. The court observe d, “The rema ining invoices wer e all billed to [the District]” throug h its superintendent. I t found “[the District] bear s the burden of proving that the
expenses listed are rea sonable expenses incurre d at the I SDA’s reques t t o assi st in the investigation or defe nse of the mold litigation.” Wit h reg ard to eac h of the rema ining invoices, dated J une 14, August 6, October 1, a nd Dec ember

31, 2001, consistent with the deposition testimony of Woods that the work “w as n ee d ed for reme diation [but ] could be used for fore nsic[s] ,” the court found the work predominate ly serve d to reme dy the school’s mold infestation. J udg e Arnold ruled t h e possible dual purpose of the work was “not sufficie nt to establish that the work repr esente d *** was perf ormed at the I SDA’s reque st to aid it in the mold litigation.” Acc ording ly
, the court held the I SDA had no obligation to pay any of the re maining disputed invoice s. ¶ 28 The District timely cross-a ppeals.

¶ 29 ANALYSI S ¶ 30 The I SDA contends the District violated the terms of its insurance policy by enter ing into “sec ret” settlements with the other insurers and tender ing the defe nse of the mold litigation
to the I SDA alone. I t argues these actions constituted a bre ach of the District’s purported fiduciar y duty to the I SDA and that the District rec eived a “windfa ll” in the amount of t he insurance proce eds it rec eived that exceede d the amount of its litigation cost s. The I SDA

-7-seeks a setoff or restitution of that amount. The District counter s that an insured party has a

para mount rig ht to tend er d ef ense of a lawsuit to any primary insurer it chooses, that an insured owes no fiduciar

y duty to a

n insurer, a

nd that the mold infestation cost the District far more than the sum of the settlements it rec eived. In its cross-a ppeal, the District urg es that the I SDA is liable for a g reater portion of the Woods invoices than the circ uit court allowed. The I SDA responds that the court ruled based on the evidenc e befor e it whe n i t found the I SDA not liable for the invoice s in question. ¶ 31 We note t hat t he Dist rict’s responsive brief contains 3 4 s ingle -spac ed footnotes, many of which advanc e substantive argum en t s , i n the span of 64 pag es. “F ootnotes are discourag ed, but if used must be double-sp ac ed

. ” I ll. S. Ct. R. 341(a) (ef f. J uly 1, 2008). “Substantive arguments may not be made in foo t notes.” Technology Solutions Co. v. N o r t h rop Grumman Corp.
, 356 I ll. App. 3d 380, 382 (2005) ( sua sponte striking all footnotes from the parties’ bri ef s wh ere their briefs contained slightly more footnotes per pag e than the Dis trict’s). W hile we gr ant t he Dist rict gre ater lenience than di d the court in Technology Soluti ons , we cauti o n co u n s el for the Dis trict that supreme court rules are not

mere sug g estions.

¶ 32 The I SDA’s Appea l–Selective Te nder ¶ 33 We ag ree with the parties that our revie w of the circ uit court’s summary judge ment order finding the District in compliance with the I SDA insurance contra ct i s s ub j ec t to de

novo revie w. Kajima
, 227 I ll. 2d at 106 (“This court conducts a de novo revie w of an order
g ranting summary judgme nt.”); Ave ry v. State Farm Mutual Automobile Insurance Co.
, 216 I ll. 2d 100, 129 (2005) (“the construction, interpre tat i o n , or leg al eff ect of a contra ct is a matter to be deter

mined by th e court as a question of law”)

. “Summary judgme nt is
appropr iate wher e the pleading s, depositions, admissions and aff idavits on file, viewed in the light most fa

vorable to the nonmoving party , reve al that there is no ge nuine issue as to a ny materia l f act and that the moving party is e ntitled to judgme nt a s a matter of law.” Kajima
, 227 I ll. 2d at 106 (citing735 I L CS 5/ 2-1005(c ) (West 2006)). ¶ 34 The I SDA notes the parties’ insuranc e agr ee m en t ex p re s s l y p rovi des the I SDA’s

cover ag e is applicable only as excess over other applicable insurance

. I t a rgues the District brea ched the policy ’s p rovi sion of “other insurance ” when the District, throug h its settlements with Indiana, Har tford, and Gene ral Casualty
, fore closed the I SDA from seeking equitable contribution from thes e o t h er insurance companies for the mold litigation. The District counter s that it had the unfetter ed rig ht to tender the defe nse of the law suits to any of its insurers. ¶ 35 “[T] he doctrine of equitable contribution allows [an insurer] to be reimburse d by other insurers that are also liable for [a] loss.” American States Insurance Co. v. CFM Construction Co.
, 398 I ll. App. 3d 994, 998 (2010). I t “ ‘arises from a rig ht, which is independe nt from the rig hts of the insured, to rec over from a co-oblig or who share s the same liability as the party seeking contribution.’ ” Id. (quoting Argonaut Insurance Co. v. Safway St ee l P roducts, Inc.
, 355 I ll. App. 3d 1, 10-11 (2004))

. “The purpose of the doctrine i s t o provide a reme dy when one insurer has paid a debt that is equally owed by another insurer.”

-8-CFM
, 398 I ll. App. 3d at 998. “ ‘The fac t that one insurer underta k es the burden of a full settlement pay

ment does not mean the insurer is a volunteer.’ ” Id. (quoting Chicago Hospital Risk Pooling Program v. Illinois State Medic al Inter-I nsurance Exc hange
, 325 I ll. App. 3d 970, 981 (2001))

. “Equitable ‘contribution applies to *** policies [t hat] insure the

sam e en t i t i es, the same interests, and the same risks.’ ” CFM
, 398 I ll. App. 3d at 998 (quoting Home I

nsurance Co. v. Cincinnati InsuranceCo. , 213 I ll. 2d 307, 316 (2004)). ¶ 36 The Distr i ct d o es n o t ar gu e that the I SDA failed to meet the criter ia for e quitable contribution; rathe r, it contends the I SDA is ineligible for equitable contribution arising from the doctrine’ s exception known as the targ eted tender or selec tive tender rule. “[T] he ‘targ eted’ or ‘selec tive’ tender doctrine allows an insured cover ed by multipl e insurance policies to selec t or targ et which insurer will defe nd and indemnify i t wi t h re gard to a specific cla i m .” Kajima
, 227 I ll. 2d at 107; John Burns Construction Co. v. Indiana Insurance Co.
, 189 I ll. 2d 570, 574 (2000); Cincinnati Cos. v. W est American Insurance Co.
, 183 I ll. 2d 317, 323 (1998). “ ‘Where an insured makes s u ch a desig nation, the duty to defe nd falls s o l el y on the selec ted insurer. That insurer may not in turn seek equitable contribution from the other insurers who wer e not designated by the insured.’ ” Burns
, 189 I ll. 2d at 575 ( quoting Cincinnati
, 183 I ll. 2d at 324). “The insured may choose to f org o an insurer’ s assistance for various rea sons, suc h as the insure d’s fe ar that premiums would be incre ased or the policy canc elled, in the future.” Cincinnati
, 183 I ll. 2d at 326. The insured is also “ ‘per

mitted to deac tivate cover ag e with a car rier previously selec ted for purposes of invoking exclusive cover ag e with another car rier.’ ” Kajima
, 227 I ll. 2d at 110-11 (quoting Alcan United, Inc . v. W

est Bend M

utual Insurance Co. , 303 I ll. App. 3d 72, 83 (1999)). ¶ 37 In 2001, J ustice Quinn of the First District observe d that I llinois ’s status as one of a ver y small minority of states that employ the targ eted tender doctrine is not one of distinction: “In the vast are a of leg al jurisprudenc e, there are undoubtedly many instances whe re be ing the first, or only
, jurisdiction to g rant rights to persons or entities may rightly b e a source of pride. Whil e it is still very early
, the doctrine of ‘selec tive tender ’ does not a ppear to me to be one of those instances.” Chicago Hospital Risk Pooling Program
, 325 I ll. App. 3d at 987 (Quinn, J
., specia lly concur ring). T en year s later, our rese arc h has i dentified Montana and Washington as the only other states rec og nizi ng t h e rig ht of selec tive tender

. See XL Specialty Insurance Co. v. Progressive Casualty In surance Co.
, 411 F. App’x 78, 81 (9th Cir. 2011) (citing Casualty Indem n i t y E xchange Insurance Co. v. Liberty National Fire Insurance Co.
, 902 F. Su p p

. 1 2 3 5, 1237, 1238 & n.3 (D. Mont. 1995), citing Institute of London Unde rwrit ers v. Hartford Fire InsuranceCo. , 234 I ll. App. 3d 70 (1992)) ; Mutual

o f En u mclaw Insurance Co. v. USF Insurance Co.
, 191 P.3d 866, 873 (Wash. 2008). As such, we trea d with caution when the application of this rig ht, which is uncommonly
g ener ous to insured parties, falls outsi d e of the circ umstances previously approve d by our supreme c ourt. ¶ 38 T h e I S DA co n t en d s the “other insurance ” clause of its policy entitled it to equitable contribution from the District’s othe r insurer s. The cla use provides:
“Covera g e provided by this Plan shall apply only as excess over other insurance and/or

cover ag e applicable to a loss here u n der reg ardle ss of whether such other cover ag e provides primary
, excess, umbrella or conting ent cover ag e. When both this cover ag e and

-9-other insurance apply to t h e l o s s o n the same basis, whether excess or conting ent, the Ag ency shall not be li able under this Plan for a g reater proportion of t he los s than t h at stated in the [contribution by equal sha res pr ovision] .” “Other insurance ” excess clause s such as this one are “a n ef fort to override [an insured’s rig ht] to choose among co-insure rs.” River Village I, LLC v. Central Insurance Cos.
, 396 I ll. App. 3d 480, 487 (2009). Such prov i sions, as in this case , “attempt to rende r otherwise primary insurance as excess over any other collectible insurance
, most often with statements in the p o licy that decla

re the insurer’ s cover ag e to be excess over any other valid and collectible insurance available to the insured.” Id. “An ‘other insurance ’ provision does not in itself overc ome the right of an insured to tender defe nse of an action to one insurer alone.” Burns
, 189 I ll. 2d at 578. Acc ording ly , the ex istence of the “other insurance ” clause i s not disp o s i t i v e. No r are we inclined to addre ss in this case whether a leg al distinction exis ts betwee n compensated and uncompensated deac tivation of tender
, as the circ uit court below reje cted. ¶ 39 Rather, we deem the dispositi ve issue to be whether an insured’s rig ht to selec tive tender
among chronolog ically concur rent policies extends to consec utive ones such as the policies
at issue in this case

. There is no supreme court prec edent for doing so. See Kajima
, 227 I ll. 2d at 117; John Burns Construction Co. v. In d i a n a Insurance Co.
, 189 I ll. 2d 570 (2000); Cincinnati
, 183 I ll. 2d at 317. The most rec ent supreme court decision on the selec tive tender rule sug g ests that the insurance policies must be concur rent for the rule to apply : “[T] arg eted
te n d e r c a n b e a p plied to circ umstances wher e concurre nt primary insurance cover ag e exis ts. ” (Emphasis added.) Kajima
, 227 I ll. 2d at 117 (insured could not selec t ively tender lawsuit defe nse to one i n s u rance car rier over another wher e the two policies wer e not concur rent primary policies); see also L ee R. Russ & Thomas F. Seg alla, Couch on Insuranc e § 200:37 (3d ed. 2007) (citing Kajima for the proposition that “the selec tive tender ru l e i s only applicable to concur

rent insurance cover ag e and not consec utive primary or excess cover ag e policies wher e other primary cover ag e is availa b l e” ). Acc ording ly
, wher e cover ag e is not

concur re n t , but rathe r consec utive as it was in this case , we do not rea d the authority the District relies upon as fore closing the I SDA’s claim for equitable contribution by invoking the targ eted tende r exception. ¶ 40 In River Village
, this court decl i n ed t o ap p l y t h e t ar get ed tender rule to a policy deter mined to provide “excess cover ag e,” con sistent with the supreme court’s decision in Kajima

. River Village
, 396 I ll. App. 3d at 492. The River Village court noted: “The targ eted tender doctrine allows an insured wh o i s cover ed by multiple and concurre nt insurance policies to selec t, or ‘targ et,’ which insurer he wants to defe nd and indemnify him reg arding

a specific claim.” (Emphasis added.) Id. at 486. River V i l l a g e i s not authority for the District’s claim in the instant ca se. ¶ 41 We are awa

re of only one I llinois ca s e that appea rs t o have applied t he targ eted tende r rule to consec utive insurance policies, a case which the District ac k nowledg ed at oral
argument is not fac tually on point for the issue befor e us. See Richard Marke r Associates v. Pek in Insurance Co. , 318 I ll. App. 3d 1137 (2001). ¶ 42 In that case , arc hitect Marke r was insured by Pekin Insuranc e Company from August 25,

-10-1 9 9 1, to August 25, 1992, and by Statewide Insuranc e C ompany beg inning on August 25
,

1992. Id. at 1139. Marke r was sued by a client and tender ed defe nse of the suit to both insurance companies. Id. Marke r then withdrew his tender to Statewide, leaving only Pekin
to indemnify Marke r afte r he settled with the former client. Id. In Pekin’s suit for equitable contribution from Statewide, the circ uit court g rante d Pekin summary judgme nt. Id. at 1140. T h e ap p ellate court reve rsed, holding t hat P ekin was not entitled to equitable contribution from Statewide prec isely “bec ause Marke r had elec ted to forg o cover ag e under Statewide’s policy .” Id. at 1145. The Marke r court acknow ledg ed that “our courts have chosen to protec t the insured’s rig ht to choose or knowing ly for eg o cover ag e.” Id. at 1144. An insured’s decision to fore g o cover ag e by one insurer in favor o f another was explained by “the insured’s fea

r that premiums would be incre ased or the policy canc eled in the future.” Id. at 1141 (citing Cincinnati , 183 I ll. 2d at 326, and Alcan , 303 I ll. App. 3d at 79). ¶ 43 That explanation for the selec tive tender rule has no application in this case

. The District selec tively tender ed the defe nse of its litigation t o i t s curr ent insurer, the I SDA. Thus, the District could not have acte d out of “fe ar that premiums would be incre ased or the policy

canc eled, in the future” as was no t ed i n Ma rke r

. Marke r , 318 I ll. App. 3d at 1141. See Cincinnati
, 183 I ll. 2d at 326 (“[The] insured may choose to forg o an insurer’ s assistance for various re asons, such a s the insured’s f ear that premiums would be incr ease d or t he policy

canc elled in the future.” ); Enumclaw
, 191 P.3d at 873 (“L ike a driver involved in a minor

acc ident, an insured may choose n o t to tender in order to avoid a premium incre ase. The insured may

also want to pr eser

ve its policy

limit s for other

claims, or simply

to safeguard its relationship with its insurer.” ). The District’s t ender to the I SDA made f uture pre mium incre ases or canc ellation of i ts p o l i cy more li kely
, rathe r t han less. Of course, the District 2
may well have decided t hat either risk was acc eptable g iven the compensation it rec eived from I ndiana, Hartfor d, and Genera l Casualty for deactivation of its tender of def en s e. C f

. CFM
, 398 I ll. App. 3d at 998. Nor is it acc u rate to descr ibe this case as one wher e the District exercised its right “[to] forg o cover ag e” from the other insurers as the Marke r court noted for the out come there. Marke r , 318 I ll. App. 3 d at 1 1 4 4

. Whil e we have declined to addre ss the issue of compe nsated versus uncompensa ted deac tivation of

tender , first noted and then dismiss ed by the circ uit court, we observe t h at f o regoing cover ag e from other insurers g ener ally does not entail rec eiving $660,000 as the District rec eived from Har tford, Indiana, and Gene ral Casu al t y for its deac tivation of tender

. Compensated deac tivation of tender appea

rs indisti nguishable from a pay ment of “a debt *** eq u al l y o wed by another insurer.” CFM

, 398 I ll. App. 3d at 9 9 8

. T h e District prese nts us with no g ood rea son to conclude that the targ eted tender doctrine, as established by our supreme court’s decisions, should ex tend to the circ umstances pr esent in this case

. ¶ 44 T h e I SDA advanc es a handful of other argument s ef fe ct i v el y s ee k i n g eq u i t ab l e contribution. It relies on the “transfer of rights” clause of its insurance ag ree ment with the District; it argues t h e t ar g eted tender doctrine does not apply to it beca use it is an

I nde ed, the ins ura nce pol ic y bet ween the Dis tr ic t and the I SDA was te rminat ed abo ut thr ee 2

m ont hs a ft erth e Di st ri ctte nde re d t o t he ISDA.

-11-“interg overnme ntal cooper ative”; and it c ontends the District violated a f iduciary duty and

a du t y o f good faith owed to the I SDA. Fur ther, it argues that the District “has been paid twice for its defe nse and indemnity costs in the Mold lawsuits–once by [t he] I SDA and once by the settling insure rs.” We dec line to addre ss those arguments as well. ¶ 45 Under the circ umstances prese nted in this case , we narr owly draw our holding. In our revie w of the gra

nt of sum mary judgme nt on counts I I , I I I , and IV of the I SDA’s amended complaint, we conclude that the District was not entitled to judgme nt as a matter of law. No
supreme court case approve s the use of th e s el ec t i v e tender rule to consec utive insurance policies. Nor do we provide such authority in this case

. Acc ording ly
, we conclude the circ uit
court err ed in g ranting summary judgme nt t o t h e Di s trict based on its purported rig ht to selec tively tender the defe nse of the m o l d l aw s u i ts to the I SDA as a consec utive insurer. Given our re m an d
, we decline to addre ss the “double pay ment” arg

uments urg ed by the I SDA to support this outcome, though we note that the I SDA is corr ect that an insured party may not rec eive a double rec overy for the same “har m or injury .” Fede ral I

nsurance Co. v

. Binney & Smith, Inc.
, 393 I ll. App. 3d 277, 296 (2009) (re manding for further finding s wher e “[f]ailure to acc ount for *** settlement [wit h one ins urer ] ha[d] the pot enti al of providing [t he insured] with a windfall” in light of additional insurance pay ments from a second insurer)

. We rema

nd to the circ uit court for further proce eding s consistent with this opinion. ¶ 46 Thoug h our reve rsal of summary judgme nt in favor of the District rende rs unavailingthe District’s reque st for attorney fee s in its “Conclusion” of its brief, even if our decision wer e otherwise, we would reje ct the District’s re q u es t o u t -of-hand as “a claim of err or that is

mere ly listed but not ‘ar gued’ [does] not satisfy the require ments of Rule 341.” Vancura v. Katris , 238 I ll. 2d 352, 373 (2010) (c iting I ll. S. C t. R. 341 (eff. July 1, 2008)).

¶ 47 The District’s Cross-A ppeal ¶ 48 The District asser ts it is entitled to reimburse m en t fr o m t h e I SDA for cer tain invoices from Dr. J ames W oods that it co n t en d s could benef it both reme diation and li tigation. The District contends the circ uit court misconstrued the District’s burden as to the so-ca lled “dual purpose” invoices. The District contends the circ uit court enhanc ed the District’s burden of proof at trial when the court ref ere nced policy languag e that the I SDA would be responsible only for de fense costs “at I SDA’s re quest.” ¶ 49 We understand the I SDA to counter that the true issue on cross-a ppeal is whethe r t h e District met its burden b ef o re the circ uit court to prove the “dual purpose” invoices wer e predominate ly litigation expenses rathe r than re mediation expenses, which the be nch trial, based on the stipulated fac ts, was meant to re solve. ¶ 50 The part ie s d is p ute the applicable standard of revie w on the cross-a ppeal issue. The I SDA

acc uses the District of failing to identify the applicab l e s t an d ar d of revie w in violation of I llinois Supreme Court Rules 341(h)( 3) and 341(i) (ef f. J uly 1, 2008) (bot h parties “must include a concise statement of the applicable s tandar d of review for eac h issue”). W e note the I SDA’s position on the applicable s t an d ar d is itself unclea r as it identifies potentially d i ff er en t appli cable standards but fails to state which standard should apply to the issu e befor e us. The District argues that its fundam ental claim that the circ uit court improperly

-12-enhanc ed its burden reg arding the disputed invoices prese nts a question of law subject to de

novo revie w. ¶ 51 We elec t to apply a de novo standard of revie w to the District’s initial contention that its b u rd en was unfairly enhanc ed by the circ uit court’s interpre tation of the CGL con t ra ct betwee n the parties. See 1350 Lake Shore Associates v. Healey
, 223 I l l. 2d 607, 614, 627 (2006) (questions of law reg arding t h e b urden of proof are revie wed de novo ). Should we find no fundame ntal err or of law reg arding the District’s burden, we re v i ew the circ uit court’s finding s supporting its judgme nt, fo l lowing the bench trial, ag ainst the manifest weig ht of t he evidence. System Deve lopm en t S er vices, Inc. v. Haarmann
, 389 I ll. App. 3d 561, 570 (2009) (“The standard of revie w in a bench trial is whether the judgme nt is ag ainst the manife st weig ht of the evide nce.” (Interna l quotation marks omitted.)). ¶ 52 T h e Di s t ri ct conce des that it bore the g ener al burden of establishing that the disputed invoices wer e subject to reimburse ment under the CGL policy

. Our supreme court “has long established that the burden is on the insured to prove that its claim falls within the cover ag e of an insurance policy .” Addison Insurance Co. v. Fay
, 232 I ll. 2d 446, 453 (2 0 0 9 ). The District quotes Aerojet

for the indisputable proposition, unde r the context of this case, that “it i s t h e insured that must car ry the burden of proof on the exis tence , amount, and

rea sonablene ss and nece ssity of the site investigation expenses as defe nse costs, and it must do so by the preponde ranc e of the evidenc e.” Aerojet
, 948 P.2d at 924; see also Continental Casualty Co. v. Board of

Education
, 489 A.2d 536, 546 (Md. App. 1985) (“The insured has
t h e b u rd en of establishing that a g iven item of leg al service or expense was rea sonably related to the def

ense of [t he suit ag ainst it.] The [ insured] must prove its damag es.”) . The District acknow ledg es that expenses incurre d only for reme diation are its sole responsibility

. ¶ 53 Paragraph 4 of the supplementary pay ments subs ec t i o n i n s ec tion I of the CGLpolicy expressly p ro v i d es : “We will pay , with respe ct to any claim or ‘suit’ we defe nd: *** All

rea sonable expenses incurre d by the Member [t he District] at our request to assist us in the i n v es t i g ation or defe nse of the claim or ‘suit.’ ” (Emphasis added.) The circ uit court duly noted this languag e. “When construing the languag e of an insurance policy
, a court’s primary objective is to asce rtain and g ive eff ect to the intentions of the parties as expressed by the words of the policy .” Rich v. Princ ipal Li fe InsuranceCo. , 226 I ll. 2d 359, 371 ( 2007). “I f the words used in the policy are clea r and unambiguous, they must be g iv en their plain, ordinary , and popular

meaning .” Id. ¶ 54 The District argues that the circ uit court improperly enhanc ed its burden when it r equire d the District to demonstrate, pursuant to the policy languag e, that the defe nse costs wer e “at I SDA’s reque st.” The District asser ts the circ uit court “we nt too far in [t he] I SDA’s favor .” Howeve r, t he Dist rict does not contend this provision was i n v al i d or i napplicable

. Rather, the District sug g ests that requiring it to demonstrate Woods’ s er v i ce s we re at the I SDA’s
reque st eff

ectively allows an insurer to simply “say *** that it is not go i n g t o p ay for particula r service s.” Acc ording to the District, such an unrestra ined rea ding of para g raph 4 of the supplementary pay

ments of the policy g ives insufficient consideration to the I SDA’s “duty ,” under the C GL policy
, to defe nd suits ag ainst the Dis trict. The District contends it sh o u l d not be require d to prove the I SDA “re quested” the work of Woods ref lected in the disputed invoices when the work u n d er l y ing the invoices benef itted the investigation or

-13-defe nse of the suits ag ainst the District and the reme diation the District soug ht. The District

cont en d s the circuit court errone ously classified certa in expenses as remediation expenses when they wer e in fac t litigation defe nse costs as well, for which the I S DA s h o u ld share responsibility

. ¶ 55 The I SDA contends the District’s burden at the stipulated bench trial was the same with

or without “ at our request” languag e in the policy that the circ uit court duly noted. The I SDA points out that had the District not hired the same individual for its reme diation work that the I SDA hired as a litigation expert, the dispute betwee n the parties would not ha ve arisen

. In any event, it rema ined the District’s burden to prove, by preponde ranc e of the evidenc e, that
any so-ca lled “dual pur

pose” billings weig hed in f avor of an expense for litig ation defe nse and ag ainst an expense for reme diation. The I SDA points to the absenc e of a provision in the CGL policy for equally sharing so-ca lled “dual purpose” expenses. The I SDA contends the District’s challeng e to the outcome of the trial conce rns the circ uit court’s assessment of the evidenc e, not some sort of misallocation of the District’s burde n. ¶ 56 Eac h of the invoices contested by the District was for work perf ormed subsequent to the District’s rete ntion of Woods for its own reme diation pur poses. Indeed, Woods’ testimony

was that his litigation work was “winding up” toward t h e en d o f April of 2001. The four invoices contested by the District, with the ear liest dated J une 14, 2001, wer e billed direc tly
to the District, unlike previous bills, which wer e billed to defe nse counsel. T h e Di s t rict internally coded all of Woods’ invoices it rec eived direc tly as construction, capital improvement, or ope ration and ma intenance costs. ¶ 57 Woods testified that he considere d the J une 14, 2001, invoice to be the responsibility of the District. He stated that all of the work invoiced for August 16, 2001, was done pursuant to his contra ct with the school board. He testified that the Oc t o b er 1
, 2001, invoice “wa s neede d for the reme diation, but it could be used for the fore nsic[s] .” The final invoice, dated Dec ember 31, 2001, contained a single line entry that expre s s l y p er t ai ned to a meeting
reg arding reme diation. Woods testified that other line items on this invoice “could have been used for both
, ” b ut later stated line items wer e perf ormed for reme diation and “we re not intended for the lawsuit.” Nonethele ss, Woods noted that most of the work ref lected in the invoices “c ould” have been use d for litiga tion in addition t o reme diation. ¶ 58 At the bench trial on the stipulated fa cts, the circ uit court was asked t o decide whether the service s in the disputed invoices wer e “incur red by [t he District] at [t he I SDA’s] reque st to assist [ t he I SDA] in the investigation or defe nse of the claim or ‘suit,’ ” under the languag e of the policy

. Whether Woods’ service s could have been used for litigation, and not solely for purposes of reme diation, was rende red a fac tual question, which fell to the circ uit
court to resolve as trier of fac t. The court did prec isely that. The circ uit court did not rule that absent a direc tive from the I SDA authorizing Woods’ work all of the disputed invoices wer e the responsibil ity of t he Dist rict. R ather
, the circuit court prope rly sifted throug h eac h line item in the invoices to deter mine whether the invoices, which undoubt ed l y ar o s e at the direc tion of th e Di s t ri ct, wer e predominate ly for reme diation or litigation. The court conclude d that the I SDA had to reimburse the District for the April 26, 2001 invoice and the May 16, 2001 invoice, beca use the line items conce rned litigation defe nse matter s , n o t beca use there was a showing that the I SDA expressly “re quested” the work to be perf ormed.

-14-As we note d, the I SDA does not cha lleng e these finding s on appea l.

¶ 59 We reje ct the District’s contention that the circ uit court’s ref ere nce to the policy languag e should somehow be understood as enhanc ing the District’s burden at trial. Ba sed on our de

novo revie w, the Di strict’s burden was never enhanc ed by the circ uit court below. The District’s burden befor e the circ uit court was to demonstrate that t h e disputed invoices predominate ly conce rned litigation work, not reme diation work. Ba sed on the circ uit court’s judgme nt, the District did not meet its burden below. ¶ 60 We also ag ree with the I SDA that the District attempts to make more out of the languag e in para g raph 4 of the supplementary pay ments of the policy than is supported by the rec ord. The District’s novel cla im that the circuit cour t’s reje ction of the District’s “ dual purpose”
argument is the product of some sort of misunderstanding by the circ uit court reg arding the Dis t ri ct ’s burden of proof on the issue is not only misguided but unsupported by any case law. Nor does t h e re cord support the District’s sug g estion that Woods was eng ag ed to do “dual purpose” work. As the circ uit c ourt expressly found, Woods was “orig inally reta ined by [t he] I SDA defe nse counsel, Robert Smy th, but then separately retained by [t he District] for its own purposes.” (Emphasis added.) The District disinge nuously at t em p t s to use the timing of the hiringof Woods to bols ter its argument that it should nothave be en re quired
to o b t ain the I SDA’s consent for Woods’ “dual purpose” work beca use the “I SDA had alre ady g iven its ove rall approva l to Woods’ r etention.” The distinct and separ ate hiring of Woods by the I SDA and the District amply supports the cir cu i t court’s resolution of the disputed invoices in the I SDA’s favor

. Cle ar l y , t h e I S DA did not approve all of the work perf ormed by Woods. The circ uit court proper ly reje cted the District’s fac ile claim that the hiring of Woods by the I SDA trig g ere d a duty to reimburse the District for the invoices that

arose , followingits hiring of Woods, for his ef forts at re mediation. ¶ 61 The case s cited by t h e Di s t ri ct do not support a result contra ry to one rea ched by

the circ uit court. “[I ]t is the insured that must car ry the burden of proof on the exis tence , amount, and rea sonablene ss a

nd nece ssity of the site investigation ex penses a s defe nse costs, and it
must do so by the preponde ranc e of th e ev i d en ce.” Aerojet
, 948 P.2d at 924. Whether

e xp e n s e s are reme dial or defe nse-r elated “will depend upon the fac ts.” Continental Casualty
, 489 A.2d at 544. Nor does the languag e in another California case cited by the District help its cause

. “ ‘ If site investigation expenses must be incurre d by the insurer in fulfilling its duty to de fend the insured, they must be incurre d. *** Even if the insured may happen to de rive

some added benef

it, the insurer does not shoulder any added burden. The insurer may not be hear d to complain.’ ” (Emphasis added.) Barratt American, Inc. v. T r a n scontinental Insurance Co.
, 125 Cal. Rptr. 852, 859 (Cal. App. 2002) (quoting Aerojet
, 948 P.2d at 925). As alway s, “if” convey s far more than its two letters sug g est. I t is undoubtedly true that the insurer will not be hear d to complain when the insured proves “site investigation expenses” had to be incur

red to fulf

ill the insurer’s duty

to defe nd the insured. In the instant case, the inesca pable conclusion is the District failed to meet that burden. The other case s the District cites, Gene ral Acc ident Insurance Co. of America v. State of New Jerse y, Dep a r t me n t of Environmental Protection
, 672 A.2d 1154 (N.J. 1996), American Bumper & Manufacturing Co. v. Hartford Fire Insurance Co.
, 550 N.W.2d 475 (Mich. 1996), and State v. Blank
, 745 F. Supp. 841 (N.D. N.Y. 1990), are equally inapposite. Those case s involved g overnme ntally

-15-mandated investigations that wer e nece ssary for the defe nse in the litigation, unlike Woods’

work in the invoice s befor e us. ¶ 62 We are g iven no rea son t o d i s t u rb t h e finding s of the court below that the conteste d
expenses wer e incurre d pursuant to Woods’ eng ag ement by the Dis t ri ct and not at the I SDA’s reque st, as the policy require s for re i m b ursement. The District failed to meet its burden befor e this court to demonstrate that the circ uit court’s finding s wer e contra ry to the manifest we ight of the evidenc e prese nted. Haarmann , 389 I ll. App. 3d at 570. The c ircuit court’s finding s do not r efle ct some sort of enhanc ed burden imposed on the District based

on the pol icy languag e; rather, the finding s wer e in line with the evidence th at ea ch o f the disputed invoices was the sole responsibility of the District, which arose from its reme diation eff orts. W e al s o agre e with the circ uit court’s observation that nothing in the CGL policy provides support for the District’s proposition that reme diation invoices should be split evenly betwee n the insur er an d i nsured when the underly ing work “could” have aided the litigation. ¶ 63 Upon our revie w of t h e re co rd
, the circ uit court’s conclusions reg arding eac h of the disputed invoices wer e not contra ry to the manifest weig ht of the evidenc e. Rather, the rec ord evidenc e supports that the work ref lected in the disputed invoices was not r equeste d by the I SDA or re quired to fulfill the I SDA’s duty to defe nd the District.

¶ 64 CONCLUSI ON ¶ 65 We decline the District’s invit at i o n t o ex t en d t h e targ eted tender rule beyond case s involving concur

rent insurance policies, as the only context in which our supreme court has applied the rule. Be cause the District’s insurance policies wer e all consec utive, the selec tive tender rule did not apply to compel the I SDA to defe nd alone, without the prospec t of equitable contribution from other insurers, the mold lawsuits ag ainst the District. We reve rse the summary judgme nt g rante d to the Distri ct o n co u n t s I I
, I I I
, and I V of the I SDA’s amende d complaint. We reje ct the District’s cross-a ppeal that the circ uit court err ed in i ts judgme nt that cer

tain invoices from the mold expert, reta ined separ ately by the I SDA and the District, wer e for litigation purposes and there fore subject to reimburse ment under the CGL policy

. We aff

irm the judgme nt in favor of the I SDA following the stipulated bench trial. We

rema nd for f urther pr ocee dings c onsistent with thi s opinion.

¶ 66 Reverse d in part and a ffirme d in part; ca use re manded.

-16-