Third Division

										Filing dateMarch 31, 2003Filing dateMarch 31, 2003

No. 1-00-2231

ARGONAUT-MIDWEST INSURANCE COMPANY,	)	Appeal from the 

								)	Circuit Court of

	Plaintiff,					)	Cook County, 

								)	Chancery Division

			v.					)	

								)

E.W. CORRIGAN CONSTRUCTION COMPANY,	)

E.W.C. CONTRACTORS, INC.,			)

NAGEL HARTRAY & ASSOCIATES, LTD.,		)

COHEN-BARRETO-MARCHERTAS, INC.,		)

ROBERT W. HUNT COMPANY and			)

GATEWAY CONSTRUCTION COMPANY, INC.,	)	No. 96 CH 10794

								)

	Defendants and Counter-			)

	plaintiffs-Separate Appellees,	)

								)

			v.					)

								)

(Continental Insurance Company,		)	 

								)	Honorable

	Counter-defendant-Separate		)	Lester D. Foreman

	Appellant). 					)	Judge Presiding.

	JUSTICE HALL delivered the opinion of the court:

	The sole issue presented in this appeal is whether an appeal

should be afforded to a successful party who agrees with the

trial court's judgment, but disagrees with the specific reasons,

conclusions or findings on which that judgment is based.  We hold

that such an appeal should not be granted.

	This cause arose out of an action to determine which

insurers were obligated to defend appellees E.W. Corrigan

Construction Company (Corrigan), and its subsidiary, E.W.

Contractors, Inc., (EWC), in an underlying property damage

lawsuit titled D.W. Lakeshore Associates Limited Partnership v.

E.W. Corrigan Construction Co., No. 95--L--8426 (Cir. Ct. Cook Co.).1  At the direction of the trial court, multiple insurance companies were joined in the underlying lawsuit.

	On September 24, 1999, the trial court heard arguments on

motions for partial summary judgment filed by the various

insurance companies, including CNA2.  In an order dated September 29, 1999, the trial court granted CNA's motion for partial

summary judgment as to the concrete issue, finding that CNA did

not have a duty to defend Corrigan and EWC (hereinafter sometimes

collectively referred to as Corrigan) in the underlying lawsuit. 

The trial court's ruling was based on its finding that the third

amended complaint in the underlying lawsuit failed to allege that

the relevant property damage occurred during the time that CNA's

policy was in force.

	On October 22, 1999, Corrigan filed a motion for

reconsideration of the trial court's September 29, 1999, order as

it pertained to CNA.  In the motion for reconsideration, Corrigan

claimed that endorsement No. 12 in the CNA policy3 required CNA to defend Corrigan in the underlying lawsuit even if the relevant

property damage occurred outside the policy period and even if

the other insurers did not have a duty to defend.  Corrigan

asserted that under endorsement No. 12, the relevant

consideration was not when the property damage occurred, but

whether there had been or might be a "determination" that the

concrete in question was defective.  Corrigan claimed that this

"determination" triggered the duty to defend even if it was made

outside the policy period because the endorsement was silent as

to when this "determination" must be made.

	On February 10, 2000, the trial court heard arguments on a

variety of motions including Corrigan's motion for

reconsideration.  During the course of the hearing, it was agreed

that a "determination" that the concrete work was defective

constituted property damage under the policies at issue.  Such a

"determination" could be made by an accredited independent agency

or by mere evidence that concrete had actually fallen off the

subject structure.  This "determination" was the event that

"triggered" coverage and the duty to defend.  The parties, however, disagreed as to whether a policyholder was covered where

the determination was made outside the policy period.  The trial

court believed that if concrete was installed and it was later

"determined," after the policy period had ended, that the

concrete was defective, then the policyholder was still

potentially covered because the term "determination" as it was

used in endorsement No. 12 was ambiguous since the endorsement

did not specifically state when the "determination" was to be

made.

	CNA argued that endorsement No. 12 did not trigger coverage

under the policy because there was language in the endorsement

stating that all provisions of the policy remained unmodified and

that one of the provisions that remained unmodified was the

requirement that the property damage occur during the policy

period.  CNA also argued that it did not have a duty to defend

because its policy was an excess policy.4  The trial court disagreed with both of CNA's arguments, finding that endorsement

No. 12 triggered coverage under the policy because the term

"determination" as it was used in the endorsement was ambiguous,

and that CNA's policy was not excess.

	Thus, in an order dated February 28, 2000, the trial court

granted Corrigan's motion for reconsideration, finding that CNA

did have a duty to defend Corrigan in the underlying lawsuit.  On

March 23, 2000, CNA then filed a motion to reconsider the

concrete issue on the ground that, pursuant to the excess

provision in endorsement No. 12, it did not have a duty to

defend.  In an order dated May 26, 2000, the trial court granted CNA's motion for reconsideration, finding that CNA did not have a

duty to defend Corrigan in the underlying lawsuit because its

policy was an excess policy.

	CNA now attempts to appeal the trial court's earlier order

of February 28, 2000, on the ground that the trial court in that

order incorrectly found that endorsement No. 12 triggered

coverage under the policy.  Corrigan responds that this court

does not have the jurisdiction to hear or determine CNA's

challenge to the trial court's order of February 28, 2000,

because that order was effectively overruled and vacated as to

CNA by the trial court's subsequent order of May 26, 2000, where

the trial court found that CNA did not have a duty to defend

Corrigan in the underlying lawsuit.  Corrigan also contends that

the February 28, 2000, order is not a final, appealable order,

because the order did not resolve all the issues as to all the

parties since the court did not make a Rule 304(a) (134 Ill. 2d

R. 304(a)) finding, whereas the trial court in its order of May

26, 2000, did include a Rule 304(a) finding with regard to the ruling affecting CNA.

ANALYSIS

	We review this case de novo since it involves the trial court's resolution of a legal question. Primeco Personal Communications, L.P. v. Illinois Commerce Commission, 196 Ill 2d 70, 83, 750 N.E.2d 202 (2001).  As an initial matter, we note

that we cannot agree with Corrigan's contention that this court

has no jurisdiction to hear this appeal on the ground that the

February 28, 2000, order is not a final, appealable order.  A

final judgment in a civil case is entered where the last order

closes the case and leaves no issues to be decided. In re E.L., 152 Ill. App. 3d 25, 30, 504 N.E.2d 157 (1987).  In the present

case, when the trial court entered its order of May 26, 2000,

this order was a final order regarding CNA's duty to defend

Corrigan in the underlying lawsuit.  Once a final order is

entered, all prior nonfinal orders and rulings become appealable.

In re E.L., 152 Ill. App. 3d at 30; Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433, 394 N.E.2d 380 (1979); Steinberg v. System Software Associates, Inc., 306 Ill. App. 3d 157, 166, 713 N.E.2d 709 (1999).  Thus, the February 28, 2000,

order became appealable when the trial court entered its final

order on May 26, 2000.

	We next consider whether an appeal should be afforded to a

successful party who agrees with the trial court's judgment, but

disagrees with the specific reasons, conclusions or findings on which that judgment is based.  Here, CNA agrees with the trial

court's order of May 26, 2000, holding that CNA does not have a

duty to defend Corrigan in the underlying lawsuit, however, CNA

disagrees with the specific reason or finding on which this order

is based.  A party cannot complain of error that does not

prejudicially affect it, and one who has obtained by judgment all

that has been asked for in the trial court cannot appeal from the

judgment. Geer v. Kadera, 173 Ill. 2d 398, 413-14, 671 N.E.2d 692 (1996).  In the instant case, CNA obtained all that it asked for

with respect to its motion for reconsideration, where the trial court found that CNA did not have a duty to defend Corrigan in

the underlying lawsuit.  CNA sought a judgment declaring that it

did not have a duty to defend Corrigan in the underlying lawsuit. 

The judgment in the trial court's order of May 26, 2000, did

exactly that.

	It is true that CNA made two distinct arguments in the trial

court that it did not have a duty to defend.  The first argument

was based on the trigger issue.  The second argument was based on

the contention that the policy was an excess policy.  The trial

court rejected the trigger argument and accepted the excess

policy argument, thereby finding that CNA did not have a duty to

defend Corrigan in the underlying lawsuit.  Therefore, CNA

obtained by judgment all that was sought in the trial court and

this judgment cannot be appealed.  Where a trial court's judgment

is entirely in favor of a party, specific findings of the trial court that may have been adverse to the party, do not give rise

to an appeal. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 386-87, 457 N.E.2d 9 (1983); Piersall v. SportsVision of Chicago, 230 Ill. App. 3d 503, 512, 595 N.E.2d 103 (1992); People ex rel. Village of Buffalo Grove v. Village of Long Grove, 173 Ill. App. 3d 946, 953, 526 N.E.2d 670 (1988).  It is the trial court's judgment, not its reasoning, that is

reviewed on appeal. Guerino v. Depot Place Partnership, 273 Ill. App. 3d 27, 31, 652 N.E.2d 410 (1995).  The forum of appellate

courts should not be afforded to successful parties who may not

agree with the reasons, conclusion, or findings of the trial

court. Geer, 173 Ill. 2d at 414; Material Service Corp., 98 Ill. 2d at 386.

	CNA contends that we should consider its appeal despite the

holdings in Piersall and Village of Buffalo Grove, because there is a possibility that the trial court's adverse finding regarding

the trigger issue might be asserted in future litigation.  We

must decline CNA's offer.  An appellate court's function, as a

reviewing court, is to determine whether the lower courts reached

the correct result. Devoney v. Retirement Board of the Policemen's Annuity & Benefit Fund for the City of Chicago, 199 Ill. 2d 414, 422, 769 N.E.2d 932 (2002).  A reviewing court

cannot permit hypothetical worst-case scenarios to be the basis

upon which it decides the case before it. Department of Public Aid ex rel. Skelton v. Liesman, 218 Ill. App. 3d 437, 441, 578 N.E.2d 310 (1991).  If the resolution of a certain question of

law cannot affect the result as to the parties or controversy

before it, a reviewing court should not resolve the question

merely to guide future litigation. Primeco, 196 Ill 2d at 100.

	In the instant case, the record indicates that the trial

court found that three insurers had a duty to defend Corrigan in

the underlying lawsuit: National Union Fire Insurance Company,

Pacific Employers Insurance Company, and U.S. Fire Insurance

Company.  In addition, the trial court ordered Reliance Insurance

Company to contribute a share of defense costs through the date

its named insured was granted summary judgment in the underlying

lawsuit.  The record further indicates that these named insurers

are now paying for Corrigan's defense in the underlying lawsuit

and that none of them are seeking contribution from CNA.  As a

result, there is no pending dispute between CNA and any other

party to the case.  Therefore, based on the rationale set forth

in Skelton and Primeco, we decline to issue an order regarding the "trigger" issue merely because this issue might be asserted

in future litigation.

	Accordingly, the judgment of the circuit court of Cook

County is affirmed.

	Affirmed.

	SOUTH, P.J., concurring.

	WOLFSON, J., specially concurring.

	JUSTICE WOLFSON, specially concurring:

	I would dismiss this appeal because the February 28, 2000,

order was vacated on motion for reconsideration.  There is

nothing to appeal.