COMBINED INSURANCE COMPANY OF AMERICA,	)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellant,		)	Cook County.

								)

	v.							)

								)	No. 03 CH 15225	

CERTAIN UNDERWRITERS AT LLOYD’S LONDON,	)	

subscribing to Reinsurance Contract No.	)

BK0030050 for the 12-month period 		)

incepting on April 30, 2001,			)	Honorable

								)	Nancy J. Arnold,

		Defendant-Appellee.			)	Judge Presiding.

	PRESIDING JUSTICE REID delivered the opinion of the court:

	The plaintiff, Combined Insurance Company of America

(Combined), appeals the trial court’s decision to grant the

motion under section 2-619(a)(3) of the Code of Civil Procedure

(735 ILCS 5/2-619(a)(3) (West 2002)) motion to dismiss of the

defendant, Certain Underwriters at Lloyd’s, London, subscribing

to reinsurance contract No. BK0030050 for the 12-month period

incepting on April 30, 2001 (Underwriters).  On appeal, Combined

argues that the trial court erred when it granted Underwriters’

motion to dismiss because it did not follow the standards

enunciated in A. E. Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245 (1981).  For the foregoing reasons, we reverse the

decision of the trial court and remand this matter.

BACKGROUND

	Combined issued to its parent corporation, Aon Corporation

(Aon), an insurance policy that was effective April 30, 2000.  The policy provided accidental-death-and-dismemberment coverage

to Aon employees.  The Aon policy was drafted, negotiated, and

executed in Illinois and expressly provides that it is governed

by the laws of the State of Illinois.	

	On April 14, 2000, Combined and Underwriters entered into a

reinsurance contract with respect to the Aon policy.  This

reinsurance contract was issued for the period of April 30, 2000,

to April 30, 2001.  Thereafter, it was extended through April 30,

2003.

	On September 11, 2001, 176 Aon employees died at Aon’s

offices at the World Trade Center, during the terrorist attacks

on the United States.  Combined paid approximately $95 million to

the families or beneficiaries of the victims of the events of

that day.

	On October 31, 2001, Underwriters consented to the payment

of the Aon claims by Combined, but specifically reserved its

rights to consent to coverage under the reinsurance contract.  On

November 9, 2001, Underwriters filed a civil action in commercial

court in London, England, seeking declaratory relief based on the

language of the reinsurance contract.  Underwriters sought a

declaration that it was not liable to indemnify Combined with

respect to any liability that it might have arising out of the

deaths of any eligible persons who were not engaged in business

travel at the time that they perished on September 11, 2001.

	On November 13, 2001, Combined filed a competing action in

the United States District Court for the Southern District of New

York in reliance on section 408(b)(3) of the then recently

enacted Air Transportation Safety and System Stabilization Act

(Pub. L. No. 107-42, 115 Stat. 230 (2001)(codified at 49 U.S.C.

§§ 4010).  While this New York action was pending, Combine

applied to stay the London action, on December 10, 2001.  

	Thereafter, the parties agreed to enjoin the London action

until there was a resolution of the New York case.  At this time,

Combined also informed the court in London that if it lost the

New York action, it would consider filing an action in Illinois. 

In response, the London court informed Combined that, “It is a

most unattractive position because it is just another way of

postponing things.”

	With regard to the New York action, Underwriters responded

to Combined’s complaint by filing a motion to dismiss for lack of

subject matter jurisdiction.  On September 10, 2002, the New York

district court dismissed Combine’s action for lack of subject-

matter jurisdiction.  Combined appealed the matter, and on August

22, 2003, the United States Court of Appeals for the Second

Circuit affirmed the district court’s ruling in a nonpublished

summary order.

	Thereafter, on September 11, 2003, Combined filed a

complaint in the circuit court of Cook County, Illinois.  Combined sought a declaration of the parties’ rights and

obligations under the reinsurance contract and to recover damages

as a result of Underwriters’ alleged breach of the reinsurance

contract.  Subsequently, on October 13, 2003, Combined requested

that the London court stay further proceedings in favor of the

Illinois action.  However, the London court refused to do so.

	On November 20, 2003, Underwriters filed a “motion to

dismiss or stay this action pursuant to section 2-619(a)(3) or,

in the alternative, to dismiss on the grounds of forum non conveniens.”  On January 16, 2004, after hearing extensive arguments from both parties, the trial court granted

Underwriters’ motion, dismissing the case on section 2-619(a)(3)

grounds in favor of the London action.  The trial court’s

specific ruling on Underwriters’ section 2-619(a)(3) motion to

dismiss follows: 

			“But as to the first part of this motion

today, the motion that this case should be

dismissed for the reason that there is

another action pending in a competent court

in which this exact cause of action is

proceeding, the Court is most impressed with

the oral argument that was made by the movant

here today.  Counsel has succinctly set out

the basis for his motion and has succinctly and accurately set out the reasons courts

dismiss cases when another case is pending in

another jurisdiction and has accurately and

well set out the principles involved.  That

therefore excuses me from having to repeat

those at this point.  I will adopt those

arguments as my reasons here.  As the London

Underwriters argue, there is, in fact,

another action pending in a credible court

sitting I note in the very nation from which

our own law and chancery jurisprudence

derives.  The principles of comity are at

work here.

			Although Combined sees some higher right

on their part to persist in the suit here in

Illinois, based on what it has characterized

as the, quote, devious behavior on

Underwriters’ part, namely negotiating and at

the same time filing a declaratory judgment

action in London, the Court rejects this

argument.  It is well established that an

insurer who contests its liability to an

insured under its policy should file a

declaratory judgment action to have that issue resolved by a court of competent

jurisdiction.

			In addition, Combined casts itself here

as a plaintiff, and certainly in this case it

is nominated as a plaintiff because it was

the party that brought suit here.  But it is

not just Combined that has a right to bring

we will call it a claim, but it’s not really

a claim, but has a right to bring an action

seeking a declaratory judgment as to the

rights of the parties on an insurance

contract.  Each party to that policy, that

contract, has a right.  It belongs equally to

London Underwriters as it does to Combined

Insurance.

			Combined has relied very strongly, among

other cases, but very strongly on the A. E.

Staley Manufacturing case, arguing that in

some instances a forum [non conveniens]

consideration  should be brought to bear when

a motion is brought on the grounds that

another action is pending.  I do not believe

that the situation or anything like the

situation that was present in A. E. Staley case is present here.

			In the A. E. Staley case, there was a

concern that there would be a bar of a cross-

complaint.  Here we have a coverage issue,

two issues, two coverage issues being brought

to a court.  Once the declaratory relief is

issued, the payment, if that’s what the issue

is, if that’s the way it goes, would follow,

or nonpayment if that’s the way the decision

would go would follow.  There is no need for

a cross-claim here in this case.  The issues

will be decided in the declaratory judgment

part of the case.

			Also in the Staley analysis is the argument

that the choice of law factor should come into

play.  In the case before me and the case before

the London judge, either court would face the

prospect of having to apply English law for one of

the coverage issues and Illinois law to the other. 

So I don’t find the outweighing of the balancing

that Combined argues to be here.

			This court certainly has confidence in

the ability of the London court to do justice

between the parties and sees no reason why Combined should be given preference to having

its action proceed here in its home state.

			So I’m going to grant the motion on the

grounds that there is another action pending

in a competent jurisdiction involving these

parties and comprising of the same cause of

action.”

	Thereafter, on February 5, 2004, Combined timely filed its

notice of appeal.

ANALYSIS

	Combined argues that the trial court erred when it granted

Underwriters’ motion to dismiss pursuant to section 2-619(a)(3).

	Generally, motions to dismiss do not require the trial court

to weigh facts or determine credibility, and, as a result, our

review is de novo.  Overnite Transportation Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of

America, 332 Ill. App. 3d 69, 73 (2002); Miller v. Thomas, 275 Ill. App. 3d 779, 786 (1995).  However, a section 2-619(a)(3)

motion seeking dismissal is inherently procedural and urges the

trial court to weigh several factors to determine whether it is

appropriate for the action to proceed. Overnite Transportation Co., 332 Ill. App. 3d at 73; Miller, 275 Ill. App. 3d at 786.  Thus, we apply an abuse of discretion standard of review to a trial court's decision to dismiss a case pursuant to section 2-

619(a)(3).  Overnite Transportation Co., 332 Ill. App. 3d at 73; Halverson v. Stamm, 329 Ill. App. 3d 1206, 1215 (2002); Doutt v. Ford Motor Co., 276 Ill. App. 3d 785, 789 (1995). 	Pursuant to section 2-619(a)(3) of the Code, a defendant may

seek dismissal of a complaint on the basis that "there is another

action pending between the same parties for the same cause." 735

ILCS 5/2-619(a)(3) (West 2002); Doutt, 276 Ill. App. 3d at 788.  Section 2-619(a)(3) furthers judicial economy by avoiding

duplicative litigation.  Doutt, 276 Ill. App. 3d at 788.  Within the meaning of section 2-619(a)(3), actions involve the “same

cause” when the relief requested is based on substantially the

same set of facts.  Overnite Transportation Co., 332 Ill. App. 3d at 76; Doutt, 276 Ill. App. 3d at 788.  In determining whether the two actions are for the same cause, the crucial inquiry is

“whether the two actions arise out of the same transaction or

occurrence [citation], not whether the legal theory, issues,

burden of proof or relief sought materially differ between the

two actions.’ ”  Kapoor v. Fujisawa Pharmaceutical Co., Ltd., 298 Ill. App. 3d 780, 786 (1998), quoting Terracom Development Group, Inc. v. Village of Westhaven, 204 Ill. App. 3d 758, 768 (1991).  See also Overnite Transportation Co., 332 Ill. App. 3d at 76.  In addition, it is not necessary that the purpose of the two actions be identical; rather, section 2-619(a)(3) may be invoked where

there is a substantial similarity of issues between the two

actions.  Overnite Transportation Co., 332 Ill. App. 3d at 76; Kapoor, 298 Ill. App. 3d at 786.  Thus, the central inquiry, which is guided by common sense, is whether the relief requested

rests on substantially the same facts.  Kapoor, 298 Ill. App. 3d at 786.  The “same parties” requirement of section 2-619(a)(3) is

satisfied “where the litigants' interests are sufficiently

similar, even though the litigants differ in name or number.” 

Doutt, 276 Ill. App. 3d at 788.  See also Kapoor, 298 Ill. App. 3d at 786.” 

	“Section 2--619(a)(3) is designed to avoid duplicative litigation and is to be applied to carry out that purpose.

(People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 127; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255.)  Nevertheless, even when the ‘same cause’ and ‘same parties’ requirements are met, section

2--619(a)(3) does not mandate automatic dismissal.  Rather, the

decision to grant or deny defendant's section 2--619(a)(3) motion

is discretionary with the trial court.  (People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 125.)  ‘The more reasonable construction [of section 2--619(a)(3)] is

that the circuit court possesses some degree of discretion in ruling upon the motion and that multiple actions in different

jurisdictions, but arising out of the same operative facts, may

be maintained where the circuit court, in a sound exercise of its

discretion, determines that both actions should proceed.’  A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252-53.

	The factors that a court should consider in deciding whether

a stay under section 2-619(a)(3) is warranted include: comity;

the prevention of multiplicity, vexation, and harassment; the

likelihood of obtaining complete relief in the foreign

jurisdiction; and the res judicata effect of a foreign judgment in the local forum.  (People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 130; A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 254.)”  Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447-48 (1986).

	“[S]ubsequent cases have extended the Kellerman factors to section 2-619(a)(3) dismissals.  Kapoor v. Fujisawa Pharmaceutical Co., 298 Ill. App. 3d 780, 789, 699 N.E.2d 1095, 1102 (1998).  We further note that courts are not required to

apply the Kellerman factors. Kapoor, 298 Ill. App. 3d at 789, 699 N.E.2d at 1102 (courts ‘should,’ not ‘must,’ consider them).  In

fact, not all four Kellerman factors necessarily apply to each section 2-619(a)(3) dismissal.  Kapoor, 298 Ill. App. 3d at 789- 90, 699 N.E.2d at 1102(res judicata not a relevant consideration in the context of dismissal, as opposed to a stay, since after a

dismissal, there is no remaining action to which res judicata principles can be applied).

	This court has defined ‘comity’ as ‘ “giving respect to the

laws and judicial decisions of other jurisdictions out of

deference.” [Citation.]’  Hapag-Lloyd, 312 Ill. App. 3d at 1096, 729 N.E.2d at 43.  Since the inquiry does not focus on whether

the causes of action are identical, if the two actions arose out

of the same occurrence, the consideration of comity will not

preclude a dismissal.  Kapoor, 298 Ill. App. 3d at 790, 699 N.E.2d at 1102.”  Overnite Transportation Co., 332 Ill. App. 3d at 76. 	Here, we find that Staley is controlling.  Staley involved two Delaware corporations, with their principal places of

business in Illinois, which sued one another in Iowa and Illinois

on the same day.  The Iowa suit of the Illinois defendant, Swift

& Company (Swift), sought recovery of funds which the Illinois

plaintiff, A. E. Staley Manufacturing Company (Staley), retained

to secure Swift's construction of a soybean-processing plant. 

Staley's Illinois suit sought damages for Swift's failure to

complete construction of the soybean-processing plant.  Swift

filed a motion to, inter alia, dismiss on grounds of forum non conveniens in the Illinois action, the denial of which the appellate court had earlier affirmed on the grounds that: both

parties had their principal offices in Illinois; under the terms

of their contract, Illinois law would govern its interpretation;

most of the principals were Illinois residents; most of the

discoverable paper work was in Iowa or Illinois; and the economic

impact of the litigation would be greater on Illinois.

	Thereafter, Swift filed a second motion to dismiss under

then section 48(1)(c) (Ill. Rev. Stat. 1977, ch. 110, par.

48(1)(c)), which was the former designation of section 2-

619(a)(3).  “Section 2-619(a)(3), like its predecessor section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch.

110, par. 48(1)(c)), is designed to promote orderly procedure by

preventing a multiplicity of actions.  (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255, 357 N.E.2d 534, 537.)”  Couri v. Korn, 203 Ill. App. 3d 1091, 1093 (1990).  

	The trial court concluded that it was required to grant the

motion to dismiss because Swift had filed its Iowa action before

Staley filed its Illinois action.  Reviewing the appellate

court's reversal of that ruling, our supreme court reasoned that,

contrary to the trial court's conclusion, a trial court has some

degree of discretion in ruling upon a section 48(1)(c) motion and

in the sound exercise of that discretion could determine that separate actions in different jurisdictions arising out of the

same operative facts should proceed simultaneously.  Then,

undertaking the exercise of discretion which the trial court

failed to undertake, the supreme court held that section 48(1)(c)

did not bar Staley's Illinois action.  A. E. Staley, 84 Ill. 2d at 253.  The relevant portions of the Staley court’s ruling stated:

		“The purpose of section 48(1)(c) is to avoid

duplicative litigation [citations], and the trial

court's analysis should be geared toward effectuating

that purpose.  Notwithstanding this policy, however, we

do not believe that the legislature intended that the

filing of a section 48(1)(c) motion should result in

automatic dismissal or that two separate actions

concerning the same subject matter could never proceed

simultaneously.  The more reasonable construction is

that the circuit court possesses some degree of

discretion in ruling upon the motion and that multiple

actions in different jurisdictions, but arising out of

the same operative facts, may be maintained where the

circuit court, in a sound exercise of its discretion,

determines that both actions should proceed [citation]. 

The circuit court here felt that it had no discretion in this matter and therefore failed to conduct an

appropriate analysis of the situation. With the benefit

of the parties' briefs and argument on the questions

presented, we have nonetheless considered carefully the

questions raised, and in the exercise of this court's

power to enter any relief that the trial court may have

afforded (73 Ill. 2d R. 366(a)(5)), we hold that

Staley's action in the Illinois courts is not barred by

section 48(1)(c).  In successfully defending Swift's

prior motion to dismiss on the basis of forum non conveniens, Staley has demonstrated that this litigation has a legitimate and substantial relation to

Illinois, and Swift has presented no additional grounds

from which we could conclude that Staley's action

cannot be maintained in the courts of this State. 	Also of importance to us in our analysis is that

dismissal of Staley's action would force it to seek the

relief it desires by way of counterclaim in Swift's

Iowa action.  It is not clear that such a course is

required under Iowa procedural rules (see Iowa R. Civ.

P. 29 (counterclaim need not be pleaded where the

relief which would be sought is the subject of an

action pending elsewhere), yet a ruling here against

Staley would create such a rule de facto and would allow Swift to bootstrap Staley's breach-of-contract

action into the Iowa courts through the filing of its

action for recovery of amounts retained by Staley and

for indemnity against a third-party guarantor.  We do

not believe that the policy of avoiding duplicative

litigation requires this result.  Swift may, if it

chooses, assert its claim for recovery of amounts

retained by Staley in the Illinois courts, and if it

does not successfully defend Staley's breach-of-

contract action, it may seek indemnity from the third-

party guarantor in Iowa or any appropriate forum. 

Significantly, resolution of Staley's breach-of-

contract action could moot or facilitate resolution of

the questions of Swift's right to indemnity and its

right to recovery of amounts retained by Staley.” 

Staley, 84 Ill. 2d at 252-54.					

	In this matter, the trial court erred when it granted

Underwriters’ section 2-619(a)(3) motion to dismiss.  The trial

court erred because it failed to properly apply the legal

standards articulated by the Illinois Supreme Court in Staley.  Although a section 2-619(a)(3) motion to dismiss is committed to

the sound discretion of the trial court, that discretion must be

exercised with due consideration of the well-recognized principles of Illinois law.

	In Staley, the Illinois Supreme Court held that an Illinois resident with a case pending in Illinois should not have to file

a counterclaim in a foreign jurisdiction where the rules of that

jurisdiction do not otherwise require it.  Staley, 84 Ill. 2d at 254.  The London action is only a declaratory action.  Here, if

we were to affirm Underwriters’ section 2-619(a)(3) motion to

dismiss and the London court ruled in Combined’s favor, in order

for Combined to receive complete relief in that foreign

jurisdiction, it would be required to file a counterclaim seeking

damages.  This is in direct contradiction to the ruling in

Staley.

	Furthermore, section 155 of the Illinois Insurance Code (215

ILCS 5/155 (West 2002)) is intended to penalize vexatious delay

or rejection of legitimate claims by insurance companies.  If the

insurer vexatiously delays or rejects legitimate claims, it is

responsible for the expense resulting from the insured's efforts

to prosecute the claim.  Verbaere v. Life Investors Insurance Co. of America, 226 Ill. App. 3d 289 (1992).  In this matter, it is unclear if Combined would have this remedy at its disposal if it

is determined that Underwriters has vexatiously delayed bringing

this cause to a close.

	We reiterate that two separate actions concerning the same subject matter can proceed simultaneously.  Staley, 84 Ill. 2d at 252-53.  This court will not force an Illinois resident with a

case pending in Illinois to seek a counterclaim in a foreign

jurisdiction in order to gain complete relief.  This is in

contradiction to Staley and Kellerman.  As such, the trial court’s decision must be reversed.

CONCLUSION

	For the foregoing reasons, the decision of the trial court

is reversed and this matter is remanded.

	Reversed and remanded.

	Greiman, J., concurs.

	Quinn, J., dissents.

	JUSTICE QUINN, dissenting:

	I respectfully dissent.  The majority correctly state that

our standard of review of the trial court's grant of

Underwriter's section 2-619(a)(3) motion to dismiss is whether

the trial court abused its discretion in doing so.  Under the

abuse of discretion standard, the role of the reviewing court is

not to substitute its judgment for that of the trial court, or

even to determine whether the trial court acted wisely.  Members Equity Credit Union v. Duefel, 295 Ill. App. 336, 342 (1998).  As our supreme court has pointed out, this standard has been

recognized as "the most deferential standard of review available

with the exception of no review at all."  People v. Coleman, 183 Ill. 2d 366, 387 (1998).  Because we are to reverse only when no

reasonable person could adopt the view taken by the lower court

(In re Marriage of Getautus, 189 Ill. App. 3d 145, 148 (1989)), I would affirm the trial court's order of dismissal pursuant to

section 2-619(a)(3).  735 ILCS 5/2-619(a)(3)(West 2002).    

	In reversing the trial court, the majority wholly rely upon

the holding in A.E. Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245 (1981).  I agree with the trial court's extremely

well-reasoned decision in which the court found that the facts of

the present case bear little relation to those found in Staley.  The parties in Staley filed their respective lawsuits on the same day.  Underwriters filed its declaratory action in London

Commercial Court on November 9, 2001 and Combined filed the

instant suit in Illinois on September 11, 2003, almost two years

later.  Combined seeks damages and a declaration that it is

entitled to indemnification under the "Reinsurance Contract" -

the declaration sought is identical to the relief sought by the

Underwriters in the London court.  While Combined's delay in

filing suit in Illinois may be attributable to a legitimate

belief that it was required to file suit in the Federal district

court in New York, that belief proved to be erroneous and Combined's action was dismissed for lack of jurisdiction.  This

dismissal was then affirmed by the federal court of appeals. 

Combined Insurance Co. of America v. Certain Underwriters at Lloyd's London, 75 Fed. Appx. 799 (2nd Cir. N.Y. 2003).

	In Staley, the trial court found that section 48(1)(c)(the predecessor to 2-619(a)(3))required it to dismiss the action

before it.  The supreme court reversed, holding that the circuit

court had discretion in ruling upon motions to dismiss based on

the existence of a suit pending in a different jurisdiction which

arose out of the same operative facts.  Consequently, the circuit

court failed to conduct an appropriate analysis of the situation. 

Staley, 84 Ill. 2d at 253.  In the instant case, the trial court was well aware that it was within its discretion to stay

Combined's action, dismiss it or allow it to proceed

simultaneously with the declaratory action in London.

	The majority also hold that the trial court failed to give

due consideration to Staley's discussion of whether a counterclaim would be necessary to receive complete relief.  The

majority hold that, because the London action is a declaratory

action, if "the London court ruled in Combined's favor, in order

for Combined to receive complete relief in that foreign

jurisdiction, it would be required to file a counterclaim seeking

damages."  

	The trial court addressed this assertion as follows:

		"In the A.E. Staley case, there was a concern

	that there would be a bar of a cross-complaint.  Here

	we have a coverage issue, two issues, two coverage 

	issues being brought to a court.  Once the declaratory

	relief is issued, the payment, if that's what the issue

	is, if that's the way it goes, would follow, or non-

	payment if that's the way the decision would go would

follow. There is no need for a cross-claim here in this

case.  The issues will be decided in the declaratory 

	judgment part of the case."

	I agree with the reasoning of the trial court.  Combined

would only need to file a counterclaim if Underwriters were to

lose its declaratory action and then refuse to pay out on its

policy.

	The majority also base their decision on the fact that it is

"unclear" whether Combined might be entitled to damages under

section 155 of the Illinois Insurance Code (215 ILCS 5/155) (West

2000)).  The majority say this will be an issue "if it is

determined that Underwriters have vexatiously delayed bringing

this case to a close."  As I previously pointed out, Underwriters

filed a declaratory action on November 9, 2001.  Combined filed

its suit in the Federal district court in New York on November

13, 2001.  During the almost two years that Combined's action was pending in federal court, Underwriter's declaratory action was

stayed by agreement of the parties and the court in London. 

After the federal courts dismissed its suit for lack of

jurisdiction, Combined filed the instant suit in Illinois on

September 11, 2003.  To suggest that Underwriters' actions have

vexatiously delayed this case so as to fall under the penumbra of

Rule 155 borders on the absurd.

	The majority do not address the most compelling reason to

affirm the trial court's dismissal: the risk of inconsistent

judgments being issued in the two pending cases.  This case

involves the interpretation of a very narrow issue - the

definition of the phrase "Authorized Business Trip" as that term

is used in the AON policy.  The declaratory action before the

London Commercial Court will certainly determine that definition

and that court will then determine Underwriters' obligations

under the "Reinsurance Contract" between AON and Underwriters. 

The majority reverse the trial court's dismissal but fail to

provide any guidance to the circuit court which will receive this

case on remand.  If the majority believe that the circuit court

may rule on Combined's request for a declaration that it is

entitled to indemnification under the "Reinsurance Contract" -

even though that identical issue has been pending in the London

Commercial Court for more than three years - the majority should

expressly make that holding and explain its reasoning.  This

entire issue is obviated by the trial court's order of dismissal, which I would affirm.