FIFTH DIVISION

November 20, 2009

No. 1-08-3529

RIVER VILLAGE I, LLC, a/k/a River Village, LLC, and ) Appeal from the

HARLEYSVILLE LAKE STATES INSURANCE COMPANY, ) Circuit Court of

) Cook County.

Plaintiffs-Appellants and Cross-Appellees, )

)

v. ) No. 06 CH 11597

) 

CENTRAL INSURANCE COMPANIES, ) The Honorable

) James Epstein,

Defendant-Appellee and Cross-Appellant. ) Judge Presiding.

JUSTICE FITZGERALD SMITH delivered the opinion of the court:

Plaintiffs-appellants and cross-appellees River Village I, LLC, a/k/a River Village, LLC

(River Village or plaintiffs), and Harleysville Lake States Insurance Company (Harleysville or

plaintiffs) brought a declaratory judgment action against defendant-appellee and cross-appellant

Central Insurance Companies (Central) seeking defense and indemnification. Following crossmotions for summary judgment, the trial court held in favor of Central, finding it was not required

to cover River Village pursuant to a certain insurance policy. Plaintiffs moved for reconsideration

and the trial court denied their motion. Plaintiffs appeal from both orders, contending that the

court erred in granting summary judgment to Central and in denying their motion for

reconsideration. They ask that we reverse these orders and remand the cause for further

consideration. For the following reasons, we affirm.

BACKGROUND

In 2004, River Village was the general contractor on a building project, with Harleysville

as its primary insurer. River Village hired First Choice Drywall (First Choice) to perform
No. 1-08-3529

2

subcontracting work at the project site. A contract between River Village and First Choice

required First Choice to name River Village as an additional insured on its insurance policy for

defense and indemnification purposes. This contract did not specify what type of insurance, i.e.,

primary or excess, First Choice was required to obtain for River Village, but only that First

Choice was to "indemnify and hold harmless" River Village for any and all claims and "pay for and

maintain" such insurance as agreed to by the parties. 

Pursuant to this contract, First Choice added River Village as an additional insured to the

commercial general liability insurance policy it had with its insurer, Central. This Central policy

contained an "other insurance" excess provision, stating, in pertinent part:

"B. Additional Insured – Automatic Status (not applicable to Employee

Benefits Liability Coverage)

1. Section II – WHO IS AN INSURED is amended to include as an

insured any person or organization (called additional insured) whom you

are required to add as an additional insured on this policy ***.

***

3. As respects the coverage *** provided under the General Liability Plus

Section IV – Commercial Liability Conditions, Paragraph 4.b.2) is

amended with the addition of the following:

4. Other insurance – Excess Insurance

***

b. 2) This insurance is excess over:
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3

Any other valid and collectible insurance available to the

additional insured whether primary, excess, contingent or on

any other basis unless a contract specifically requires that

this insurance be either primary or primary and

noncontributing." 

The policy also contained an amendment of primary and excess provision endorsement, which

reiterated paragraph 4.b.2) by stating:

"Any coverage provided hereunder shall be excess over any other valid and

collectible insurance available to the additional insured whether primary, excess,

contingent or on any other basis unless a contract specifically requires that this

insurance be either primary or primary and noncontributing." 

In addition, the certificate of insurance issued to River Village by Central for the policy stated that

River Village would be "added as primary additional insured if required by written contract on the

above general liability policy." 

In March 2004, Ricky Roche, an employee of First Choice, was injured while working at

the project site. He brought suit against, among others, River Village. In October 2005, River

Village tendered its defense in the suit to First Choice, noting that it was instructing its insurer,

Harleysville, not to respond to the suit or provide coverage unless and until the policy River

Village had with Central through its contract with First Choice was exhausted. When Central did

not respond, River Village tendered its defense directly to it in February 2006; River Village made

a second tender in April 2006. 
No. 1-08-3529

4

In June 2006, River Village brought a declaratory judgment and breach of contract action

against Central, claiming that Central owed it a defense in the Roche litigation. Central responded

by denying tender, filing an answer and bringing its own counterclaim for declaratory judgment

against River Village. There were several bases for Central's counterclaim, including that River

Village was not a proper party, the contract between River Village and First Choice covered only

certain individuals and not River Village as a business entity, a bodily injury exclusion applied, and

Central's insurance was only excess to the primary policy River Village maintained with

Harleysville. 

As litigation progressed, Central requested, as part of discovery, that River Village

provide the name of any individual who conducted an investigation relative to River Village's

claim for insurance coverage under any policy other than Central's, as well as a copy of all

insurance policies covering River Village for any work performed at the project site, which would

have included the Harleysville policy. River Village objected to these requests as "irrelevant and

immaterial," stating that they were "calculated to harass and seek[] information not calculated to

be admissible at trial as [they] seek[] information unrelated to this litigation." Accordingly, River

Village did not provide Central with a copy of its Harleysville policy.

River Village and Central then filed cross-motions for summary judgment. Addressing

these, the trial court partially held in favor of River Village by finding that it was a proper party,

the contract did intend to cover it as an additional insured, and the bodily injury exclusion did not

apply. However, the court found that there was a genuine issue of material fact as to whether

Central's insurance policy was primary or only excess as to River Village and, therefore, remanded
No. 1-08-3529

5

the matter.

Meanwhile, the Roche litigation settled and that cause was dismissed; Harleysville paid out

on the claim on behalf of River Village, which was within its policy limits. Accordingly, the trial

court allowed River Village to file a second amended complaint in the Central litigation to add

Harleysville as a party plaintiff. The court also granted the parties leave to file new cross-motions

for summary judgment, specifically and solely on the issue of whether Central's policy was

primary or only excess as to River Village's policy with Harleysville. 

On October 15, 2008, the court held oral argument on these cross-motions, during which

it noted that the contract between River Village and First Choice requiring the latter to obtain

insurance for the former did not contain language specifying that the insurance be primary. The

court asked plaintiffs to produce a copy of the Harleysville policy, which had not been submitted

into evidence, so it could examine whether that policy contained a provision similar to paragraph

4.b.2) in the Central policy regarding excess other insurance:

"THE COURT: The question I have is: Do we have the Harleysville

policy?

[CENTRAL]: I requested that in written discovery.

THE COURT: All right. So the question I have is: Is there a dueling

excess clause in the Harleysville policy?

***

Why haven't we seen that policy?

[PLAINTIFFS]: Because, your Honor, based on our review of the case 
No. 1-08-3529

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law, the Harleysville policy and its contents, including its other-insurance clause, is

irrelevant."

In relation to this, the court referred to Ohio Casualty Insurance Co. v. Oak Builders, Inc., 373 Ill.

App. 3d 997 (2007), which neither party had discussed. The court mentioned that this case dealt

with competing "other insurance" clauses in policies concurrently held by an insured and noted its

holding that these could cancel each other out and may render co-insurers liable for coverage. 

Following further commentary, the court announced that it would issue its ruling in November

2008.

On October 24, 2008, plaintiffs filed a motion to supplement the record with a discussion

of Ohio Casualty, in response to the oral argument. However, neither plaintiff provided the court

with a copy of the Harleysville policy.

 On November 17, 2008, the trial court issued its memorandum opinion and order granting

Central's motion for summary judgment. The court discussed the cases cited by plaintiffs, along

with their reliance on the Illinois targeted tender rule, and found them to be inapposite and

inapplicable to the instant facts. Instead, again noting that it was "undisputed" that the contract

between River Village and First Choice was "completely silent regarding the type of insurance,

i.e. excess or primary, First Choice [had] to provide," and that there was no other agreement

requiring that the Central policy be primary, the court held that the "unambiguous language" of

paragraph 4.b.2) providing that primary coverage was to be triggered only if stated by written

contract rendered the Central policy excess to the Harleysville policy. Accordingly, the court

denied plaintiffs' motion for summary judgment.
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Plaintiffs filed a motion for reconsideration. Attaching for the first time a copy of the

Harleysville policy, they argued that the trial court misapplied the Illinois targeted tender rule and

that it should consider the language of the Harleysville policy, since its relevance was only raised

during oral argument by the court. However, the trial court found that it would be inappropriate

to consider the policy as it was not newly discovered evidence. The court stated that it had

"basically begged" plaintiffs to provide it with a copy of the Harleysville policy, which it had made

clear during oral argument and in its written decision was "pertinent" and "very relevant" to the

instant cause. Noting that plaintiffs "had control of evidence that [they] decided not to submit"

for strategic and tactical purposes, the court concluded it could not consider it now and, thus,

denied their motion.

ANALYSIS

As noted above, River Village and Harleysville appeal from both the trial court's

November 17, 2008 order granting Central's motion for summary judgment (and denying their

motion for same) and the court's denial of their motion for reconsideration. We address each in

turn.

I. Cross-Motions for Summary Judgment

Summary judgment is proper when the pleadings, affidavits, depositions and admissions of

record, construed strictly against the moving party, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. See Hall v.

Henn, 208 Ill. 2d 325, 328 (2003); Morris v. Margulis, 197 Ill. 2d 28, 35 (2001). While this relief

has been called a "drastic measure," it is an appropriate tool to employ in the expeditious
No. 1-08-3529

1We do wish, however, to note for the record that this line of cases, beginning with

London, has been called into question and, in some cases, rejected by several Illinois courts.

8

disposition of a lawsuit in which " 'the right of the moving party is clear and free from doubt.' " 

Morris, 197 Ill. 2d at 35, quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Appellate review of

a trial court's grant of summary judgment is de novo. See Hall, 208 Ill. 2d at 328; accord Rich v.

Principal Life Insurance Co., 226 Ill. 2d 359, 370 (2007).

Plaintiffs first contend that the trial court erred in granting Central's motion for summary

judgment and denying theirs because it is obvious that Central was required to provide defense

and indemnification for River Village in the Roche litigation. They cite a series of constructioncontract insurance cases, including Institute of London Underwriters v. Hartford Fire Insurance

Co., 234 Ill. App. 3d 70 (1992), Bituminous Casualty Corp. v. Royal Insurance Co. of America,

301 Ill. App. 3d 720 (1998), Alcan United, Inc. v. West Bend Mutual Insurance Co., 303 Ill. App.

3d 72 (1999), and John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570 (2000),

in which insureds who maintained concurrent insurance policies with multiple insurers were

legally able to appoint which insurer would provide defense and indemnification upon a loss. 

Following these, plaintiffs argue that their targeted tender to Central prohibits any consideration

of the "other insurance" excess provision found in paragraph 4.b.2) of the Central policy and,

thus, that Central cannot escape liability. 

Plaintiffs are correct in their general description of the targeted tender rule and in their

citation to the cases mentioned.1 The targeted tender doctrine allows an insured who is covered

by multiple and concurrent insurance policies to select, or "target," which insurer he wants to
No. 1-08-3529

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defend and indemnify him regarding a specific claim. See London, 234 Ill. App. 3d at 78-79. The

insured essentially can choose which insurer among his several co-insurers will participate in the

claim against him; he can elect one insurer over another, or even deactivate coverage with an

insurer he previously selected in order to invoke exclusive coverage with another. See London,

234 Ill. App. 3d at 78-79; see also Alcan, 303 Ill. App. 3d at 83. This allows an insured who has

paid for multiple coverage to protect his interests, namely, keeping future premiums low,

optimizing loss history and preventing policy cancellation among the insurers he chooses. See

London, 234 Ill. App. 3d at 78-79; accord Cincinnati Cos. v. West American Insurance Co., 183

Ill. 2d 317, 326 (1998). 

In an effort to override this right of the insured to choose among co-insurers, insurers

developed "other insurance" excess provisions in their policies. These provisions attempt to

render otherwise primary insurance as excess over any other collectible insurance, most often with

statements in the policy that declare the insurer's coverage to be excess over any other valid and

collectible insurance available to the insured. See Progressive Insurance Co. v. Universal

Casualty Co., 347 Ill. App. 3d 10, 20 (2004) . In such instances, the "other insurance" excess

provision requires the insured to exhaust the policy limits of the other co-insurers before being

able to trigger a defense and indemnification duty in that insurer. See, e.g., Progressive, 347 Ill.

App. 3d at 20.

In the ensuing battle between the doctrine of targeted tender used by an insured to obtain

his selected primary coverage and the application of "other insurance" excess provisions used by

insurers to invoke only excess coverage, the question arose as to which should prevail. As in the
No. 1-08-3529

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series of cases plaintiffs here cite, our courts have held that, when an insured has maintained

concurrent primary insurance among multiple insurers, the presence of an "other insurance"

excess provision in one insurer's policy does not, in and of itself, overcome the insured's right of

targeted tender. See John Burns, 189 Ill. 2d at 578 ("other insurance" provision alone does not

defeat insured's right to target tender defense to one particular insurer among class of primary coinsurers), citing Alcan, 303 Ill. App. 3d at 82-83 (in situation where one is insured by multiple

insurers on primary bases, insured's right to choose or not to choose certain insurer's participation

in claim is "paramount"), and Bituminous, 301 Ill. App. 3d at 725-26 (insured can knowingly

forego assistance from one primary insurer in favor of requesting exclusive coverage from

different primary co-insurer, despite "other insurance" clause in that insurer's policy).

Again, the common and determinative element shared by these cases is that, in each, the

insurance at issue--that held by the insured and provided by his multiple insurers--originated from

primary policies. In other words, all the insurers stood in the same position with respect to the

potential duty of defense and indemnification owed to the insured. It is in this situation, where the

concurrent multiple policies held are primary policies, that the targeted tender rule prevails and

allows the insured to select which insurer will defend and indemnify him.

However, this is not always the case. Recently, our courts, including our state supreme

court, recognized that a markedly different situation occurs when an insured is covered by

multiple insurers providing different types of coverage. That is, policies concurrently held by an

insured are not always all primary; an insured may hold primary insurance from one insurer and, at

the same time, excess coverage from another. In this instance, when the insurers do not stand in
No. 1-08-3529

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the same position with respect to a potential duty of coverage, our courts have clearly held that an

insured cannot use his targeted tender right to choose to impose a coverage duty on an insurer

with an "other insurance" excess provision in its policy to the exclusion of other co-insurers with

which he holds primary policies. See Kajima Construction Services, Inc. v. St. Paul Fire &

Marine Insurance Co., 227 Ill. 2d 102, 117 (2007); see, e.g., State Automobile Mutual Insurance

Co. v. Habitat Construction Co., 377 Ill. App. 3d 281 (2007). 

In Kajima, general contractor Kajima entered into a subcontract with Midwestern Steel

Fabricators, Inc., which required Midwestern to add Kajima as an additional insured on the

commercial general liability insurance policy it held with St. Paul. Midwestern did so, obtaining

an umbrella, or excess, policy for Kajima; Kajima, meanwhile, retained its own primary insurance

with its insurer, Tokio Marine and Fire Insurance Company. When an employee was injured at

the project site and sued Kajima, Kajima made a targeted tender to Midwestern and St. Paul for

defense and indemnity, rather than to Tokio. 

Citing the same cases plaintiffs reference in the instant cause, our supreme court in Kajima

specifically noted that none of these were "on point" because they did not involve excess

insurance policies, such as the umbrella policy Midwestern had obtained for Kajima. See Kajima,

227 Ill. 2d at 107-12 (examining London, Bituminous, Alcan and John Burns and stating that "our

prior decisions addressing targeted tender are not entirely on point, as those cases did not involve

excess insurance policies" but only concurrent primary policies). Rather, as the court made clear,

this situation provided a different context--an insured (Kajima) holding different types of

concurrent insurances, i.e., primary (from Tokio) and excess (St. Paul's umbrella policy). See
No. 1-08-3529

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Kajima, 227 Ill. 2d at 112 (examining cause "in the context of primary and excess insurance"). 

The issue became, then, whether the targeted tender rule would still dominate an excess insurer's

right to force exhaustion of all primary insurances before its duty would be triggered. See

Kajima, 227 Ill. 2d at 113.

Our supreme court answered this question in the negative. It found that there is an

evident distinction between primary and excess insurance: excess insurance "provides a secondary

level of coverage" and is triggered only after the limits of primary insurance have been exhausted. 

Kajima, 227 Ill. 2d at 114 (in contrast to primary insurance, excess insurance premiums are lower 

precisely because this secondary coverage is not to be collected unless and until the limits of the

insured's primary coverage are exhausted). With this distinction, then, the court refused to extend

the targeted tender doctrine to allow an insured to request the application of an excess policy

before he exhausts all his primary coverage:

"[W]e find that the better rule is that *** targeted tender can be applied to

circumstances where concurrent primary insurance coverage exists for additional

insureds, but to the extent that defense and indemnity costs exceed the primary

limits of the targeted insurer, the deselected insurer or insurers' primary policy

must answer for the loss before the insured can seek coverage under an excess

policy." Kajima, 227 Ill. 2d at 116-17. 

Accordingly, despite its targeted tender to St. Paul, Kajima was first required to exhaust the limits

of its primary policy with its own insurer, Tokio, before it could legally invoke coverage under the

St. Paul policy. See Kajima, 227 Ill. 2d at 117. 
No. 1-08-3529

13

Our own court applied the same legal principles in State Automobile, where we, too, were

confronted with an insured holding concurrent insurance of varying degrees. There, general

contractor Habitat and subcontractor Central Building & Preservation agreed that Central

Building would add Habitat as an additional insured on its commercial general liability policy with

State Automobile Mutual Insurance Company; Habitat, meanwhile, retained primary insurance

with its own insurer, Pennsylvania General Insurance Company. The State Auto policy, though

not an excess insurance umbrella policy as in Kajima, contained an "other insurance" excess

provision which attempted to render it an excess policy. That provision stated: 

"Any coverage provided hereunder shall be excess over any other valid and

collectible insurance available to the additional insured whether primary, excess,

contingent, or on any other basis unless a contract specifically requires that this

insurance be non-contributory and or primary or you request that it apply on a

non-contributory and or primary basis." State Automobile, 377 Ill. App. 3d at

283. 

During construction, an employee was injured at the project site and sued Habitat. Instead of

turning to its own primary insurer, Habitat made a targeted tender upon State Auto for defense

and indemnification. State Auto rejected this and sought a declaratory judgment that it was not

required to provide coverage until Habitat exhausted its primary policy with Pennsylvania

General, since there was never a request to make its coverage noncontributory or primary

pursuant to the "other insurance" provision. Habitat responded that the State Auto policy was

indeed primary because of the targeted tender rule.
No. 1-08-3529

2Because it was unclear in the record, the cause was remanded to determine whether

Habitat had any primary insurance "available to" it. See State Automobile, 377 Ill. App. 3d at 293

("the record discloses no information about any such policy").

14

Upon review, we agreed with State Auto. We, too, examined the same series of cases

cited by plaintiffs here and discussed the targeted tender rule. See State Automobile, 377 Ill.

App. 3d at 293. However, citing Kajima's distinction between primary and excess policies held

concurrently, we reiterated its holding that an insured cannot selectively tender a defense to his

excess insurer while primary coverage remains unexhausted. See State Automobile, 377 Ill. App.

3d at 293. Accordingly, we concluded that Habitat could not target tender its defense to State

Auto where the State Auto "policy's 'other insurance' provision states the policy is to apply in

'excess over any other valid and collectible insurance available to' Habitat." State Automobile,

377 Ill. App. 3d at 293.2

Turning to the instant cause, plaintiffs' entire argument rests on the conclusion, which they

consistently maintain on appeal, that the Central policy is a primary one and that, accordingly,

Central and Harleysville were concurrent primary co-insurers of River Village. Upon this

presumption, they assert that their targeted tender of the Roche litigation to Central should rule

their defense and indemnification. We wholeheartedly disagree, as it is quite clear that the

situation at issue here does not involve concurrent primary insurers as in London and its progeny

but, rather, concurrent primary and excess insurance as in Kajima and State Automobile.

As noted earlier, the Central policy contains an "other insurance" excess provision,

namely, paragraph 4.b.2), which is similar to that found in State Automobile. Again, that
No. 1-08-3529

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provision mandates that Central's insurance is excess over:

"Any other valid and collectible insurance available to [River Village] whether

primary, excess, contingent or on any other basis unless a contract specifically

requires that this insurance be either primary or primary and noncontributing." 

(Emphasis added.)

The words in this provision are clear and unambiguous: unless there is a contract specifically

requiring that Central's insurance be primary, its coverage of River Village is only excess over and

above any other insurance River Village would be able to collect in the event of a loss. See

American Family Mutual Insurance Co. v. Fisher Development, Inc., 391 Ill. App. 3d 521, 525

(2009) (if the words in an insurance policy are clear and unambiguous, a court must afford them

their plain, ordinary and popular meaning); accord Crum & Forster Managers Corp. v. Resolution

Trust Corp., 156 Ill. 2d 384, 391 (1993). 

The record makes clear that Harleysville has already paid out on, and completely satisfied,

the Roche litigation as River Village's primary insurer. It did so upon settlement of that suit, and

this is why Harleysville was permitted to join the instant action as a party plaintiff. From this,

then, there can be no question that the Harleysville policy comprised "other valid and collectible

insurance" available to River Village, as stated in paragraph 4.b.2). In addition, it remains

undisputed, and plaintiffs admit on appeal, that the only contract at issue here--that between River

Village and First Choice which set up the Central insurance policy--is completely silent regarding

the type of insurance (primary or excess) First Choice was to obtain for River Village. Therefore,

there is no contract requiring that Central's insurance covering River Village be "primary or
No. 1-08-3529

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primary and noncontributing." Pursuant to paragraph 4.b.2), then, without such "a contract

specifically" requiring that the insurance First Choice was to obtain from Central for River Village

be primary, the Central policy is an excess insurance policy to the primary policy River Village

held with Harleysville. 

This is further supported by the endorsement and certificate of insurance that were part of

Central's policy coverage of River Village, also found in the record. As we noted earlier, the

endorsement reiterated paragraph 4.b.2) of the Central policy, using the same language found

there to warn River Village that any coverage under the policy "shall be excess" over any other

valid and collectible insurance available to it in case of a loss unless a contract existed stating that

this insurance would be primary. Thus, the same condition precedent to full primary coverage,

namely, a contract dictating this, was clearly stated for a second time in the policy. Moreover, the

certificate of insurance accompanying the policy stated that River Village would be considered a

"primary additional insured if required by written contract." Again, the condition precedent to full

primary coverage is clear and, in the absence of such a written contract naming it a primary

insured, Central's policy coverage of River Village was only excess.

From this, it becomes obvious that the targeted tender doctrine used in London and its

progeny, all of which involved concurrent primary insurers, is inapplicable to the instant cause. 

Rather, River Village maintained concurrent insurance of varying degrees: primary coverage with

Harleysville and excess coverage with Central. Therefore, and contrary to plaintiffs' assertions,

the legal precedent of Kajima and State Automobile is more on point with the instant cause. 

Therefore, we find no error in the trial court's grant of summary judgment in favor of
No. 1-08-3529

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Central and its denial of plaintiffs' motion for same. Pursuant to the above analysis, the Central

policy required River Village to first exhaust the primary insurance it held with Harleysville before

it could trigger the excess coverage it held with Central. Because the Roche litigation was

completely satisfied within the limits of the Harleysville policy, there remained no claim in excess. 

Accordingly, the Central policy was not triggered, and plaintiffs' attempt at targeted tender and

suit for reimbursement from Central must fail. See Kajima, 227 Ill. 2d at 116-17; see, e.g., State

Auto, 377 Ill. App. 3d at 293.

II. Motion for Reconsideration

Plaintiffs' second, and final, contention on review is that the trial court erred in denying

their motion for reconsideration. They insist that the court should not have ignored the

Harleysville policy they submitted with their motion because its relevance was only raised for the

first time during oral argument and only by the court itself and not the parties. They further claim

that, had the court examined the policy, it would have ruled in their favor since that policy

contained an "other insurance" excess clause that would have rendered Central a primary insurer. 

Generally, the denial of a motion to reconsider is reviewed de novo. See Compton v.

Country Mutual Insurance Co., 382 Ill. App. 3d 323, 330 (2008) (this standard applies when

denial is based on trial court's application of existing law). However, where, as here, the denial is

based on new matters, such as additional facts or new arguments that were not previously

presented during the course of proceedings leading to the order being challenged, we are to

employ an abuse of discretion standard of review. See Delgatto v. Brandon Associates, Ltd., 131

Ill. 2d 183, 195 (1989); accord Compton, 382 Ill. App. 3d at 330.
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The purpose of a motion to reconsider is to bring to the trial court's attention newly

discovered evidence not available at the time of the first hearing, changes in the law, or errors in

the previous application of existing law to the facts at hand. See Gardner v. Navistar

International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991); accord Weidner v. Midcon

Corp., 328 Ill. App. 3d 1056, 1061 (2002). Accordingly, a trial court is well within its discretion

to deny such a motion and ignore its contents when it contains material that was available prior to

the hearing at issue but never presented. See Weidner, 328 Ill. App. 3d at 1061-62 (trial court's

denial of motion to reconsider was proper because proponents presented no new evidence that

was not available when court ruled on prior motion, nor did they raise claim of change in law);

Gardner, 213 Ill. App. 3d at 248 (trial court was justified in disregarding contents of affidavit

attached to motion to reconsider summary judgment ruling and in denying that motion solely on

basis that this material was available prior to hearing on that motion but never presented). 

Litigants should not be allowed "to stand mute, lose a motion, and then frantically gather

evidentiary material to show that the court erred in its ruling." Gardner, 213 Ill. App. 3d at 248. 

Rather, "the interests of finality and efficiency require that the trial courts not consider such latetendered evidentiary material, no matter what the contents thereof may be." (Emphasis in

original.) Gardner, 213 Ill. App. 3d at 248-49.

At the outset, we find that plaintiffs are incorrect in their statement that the relevance of

the Harleysville policy was raised only during oral argument at the hearing on the cross-motions

for summary judgment and only by the court itself and not the parties. First, the record reveals

that during discovery in the litigation between Central and River Village, Central asked River
No. 1-08-3529

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Village to provide the name of anyone who conducted an investigation relative to its claim for

insurance under any policy other than Central's and for a copy of any insurance policies River

Village held for work performed at the project site. This would clearly have included the

Harleysville policy. However, instead of providing a copy of this policy, River Village objected

and refused to produce it, claiming that it was "irrelevant and immaterial," "unrelated to this

litigation," and "inadmissible" before the court. 

Next, during the hearing on the cross-motions, the trial court communicated to the parties

the legal principle that, if the Harleysville policy had an "other insurance" excess provision similar

to the one in the Central policy, these could cancel each other out and River Village and

Harleysville might have a valid legal basis for suit against Central to recover defense and

indemnification expenses from the Roche litigation. The court made note that this was the

holding of Ohio Casualty. Incidentally, this principle is also stated in Progressive, a case which

plaintiffs cited throughout this litigation. See Progressive, 347 Ill. App. 3d at 20 ("where primary

policies contain dueling excess 'other insurance' clauses, they cancel each other out and any loss

may be prorated between companies as if they were co-primary insurers"). Plaintiffs, however,

overlooked this legal argument in their favor and admitted to the trial court that they never

provided a copy of the Harleysville policy to Central, nor to the court itself. Indeed, the record

shows that they continued to insist, even after the trial court demanded to know why they had not

provided it to Central or at the instant hearing, that the policy was "irrelevant" because River

Village had made a targeted tender to Central. Again, plaintiffs did not submit a copy of the

policy.
No. 1-08-3529

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Finally, the record reveals that, before the date on which the trial court had stated it would

render its decision on the cross-motions, plaintiffs filed a motion to supplement the record in

response to the court's mention of Ohio Casualty and its applicability to the instant cause. 

However, instead of attaching a copy of the Harleysville policy to their motion at this time,

plaintiffs again failed to do so. Ultimately, it was not until after the court rendered its decision on

the cross-motions, making clear in its written memorandum that the submission of the Harleysville

policy might have changed its verdict, that plaintiffs for the first time presented the policy and

argued its applicability before the court. 

From all this, we find that the trial court did not abuse its discretion in denying plaintiffs'

motion for reconsideration. Undeniably, plaintiffs were well aware of the importance and

relevance of the Harleysville policy in relation to this litigation--if not during the pretrial process,

then surely at the oral argument on the cross-motions for summary judgment and most definitely

before the trial court rendered its decision on those motions. Plaintiffs had at least three

opportunities in which to submit the Harleysville policy, but consistently chose not to present it. 

The Harleysville policy can hardly be considered newly discovered or previously unavailable

evidence. As the trial court stated in its colloquy during the motion to reconsider, it practically

"begged" plaintiffs several times to submit the policy into evidence and made it obvious that it

believed this evidence was "very relevant" to the issues at hand. Plaintiffs had control of this

evidence but decided, pursuant to their strategy, not to submit it; unfortunately, this backfired on

them as they chose to remove from the record the evidence they later sought to have the court

analyze in their motion to reconsider. It would have been erroneous for the trial court to have
No. 1-08-3529

3Plaintiffs also alleged in their motion for reconsideration that the trial court misapplied the

law of targeted tender. While an assertion of the misapplication of existing law is a proper basis

for such a motion (see Gardner, 213 Ill. App. 3d at 248; Weidner, 328 Ill. App. 3d at 1061), we

have already concluded that the court properly applied the rule in reaching its decision.

4We note for the record that, were we to have reversed the trial court's holding, Central

presented an alternative cross-appeal asserting trial court error regarding its previous decision

finding that River Village was an additional insured under the Central policy. However, because

we have affirmed this cause, we need not address Central's cross-appeal. 

21

allowed them, after standing mute and losing their motion, to then present the Harleysville policy

and argue upon reconsideration that the court's decision to grant summary judgment in favor of

Central was incorrect because the court did not consider the provisions of the Harleysville policy.

Therefore, as plaintiffs simply failed to establish any ground3 entitling them to

reconsideration, we conclude that the trial court properly and within its sound discretion denied

their motion.

CONCLUSION

Accordingly, for all the foregoing reasons, we affirm both the judgment of the trial court

granting Central's cross-motion for summary judgment (and denying plaintiffs' motion for same),

and its judgment denying plaintiffs' motion to reconsider.4

Affirmed.

TOOMIN, P.J., and HOWSE, J., concur.
No. 1-08-3529

22

__________________________________________________________________________________________________________________________

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

 (Front Sheet to be Attached to Each Case)

_________________________________________________________________________________________________________________________

Please use the following

form River Village I, LLC, a/k/a River Village, LLC, and Harleysville Lake States Insurance

Company, 

Plaintiffs-Appellants and Cross-Appellees,

v.

 

Central Insurance Companies,

Defendant-Appellee and Cross-Appellant.

_____________________________________________________________________________________________

 No. 1-08-3529

 Docket No.

 Appellate Court of Illinois

COURT First District, FIFTH Division

 Opinion 

 Filed November 20, 2009 

 (Give month, day and year)

 __________________________________________________________________________________________ 

 JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT:

 JUSTICES TOOMIN, P.J., and HOWSE, J., concur.

 Lower Court and Trial Judge(s) in form indicated in margin:

APPEAL from the

Circuit Court of Cook Appeal from the Circuit Court of Cook County.

County; the Hon________

Judge Presiding. The Hon. JAMES EPSTEIN, Judge presiding.

__________________________________________________________________________________________________________________________

 Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r

FOR APPELLANTS NONE if not represented.

John Doe, of Chicago

For APPELLEES, : APPELLANTS: DOHERTY & PROGAR LLC, Chicago, IL Mary Jo Greene and Stephanie W. Weiner

 _________________________________ __ 
No. 1-08-3529

23

Smith and Smith of 

Chicago, APPELLEE: LEAHY, EISENBERG & FRAENKEL, LTD., Chicago, IL Heath Sherman

 __________________________________________________________________________________________________

(Joseph Brown, of counsel)

Add attorneys for thirdparty appellants and/or 

appellees.