Plaintiff’s Prayer for Coverage is Answered in Illinois

Generally, the duty to defend extends to cases in which the complaint contains several theories or causes of action against the insured and only one of the theories is within the policy’s coverage limits. See, e.g., Country Mutual Ins. Co. v. Bible Pork, Inc., 397 Ill.Dec. 712, 42 N.E.3d 958 (Ill. App. 5th Dist. 2015). This proposition can extend to the prayer for relief of the complaint. As an example, the Illinois Court of Appeals in Country Mutual Ins. Co. v. Bible Pork, Inc., 2015 IL App. (5th) 140211, 397 Ill.Dec. 712, 42 N.E.3d 958 (2015), found that while a lawsuit sought injunctive relief against the insured’s hog farm operation—a claim for equitable relief—it was nevertheless a suit for potentially covered damages because the complaint also sought “other relief deemed appropriate.” The Court found that the plaintiff’s prayer for “other relief” established the lawsuit as a lawsuit for “damages” and one “seeking damages” would be covered under the language of the insurance policy in question.

This finding was consistent with prior Illinois law. See, e.g., B.H. Smith, Inc. v. Zurich Ins. Co., 385 Ill.App.3d 536, 221 Ill.Dec. 700, 676 N.E.2d 221 (1996) where the Court held that the insurance company was obligated to defend its insured notwithstanding the fact that the plaintiff in the underlying lawsuit sought injunctive relief. In B.H. Smith, Inc., the plaintiff not only sought injunctive relief but also asserted in the complaint that the plaintiff was seeking “such other and further relief as [the] Court may deem just and proper.” The Court noted that even if equitable relief was granted, the trial court was empowered to award money damages as well.

Under Illinois law, the term “damages” as used in a CGL policy, covered money that the insured was required to expend to remedy an injury for which the insured was responsible whether such expenditure was compelled by a court of law in the form of compensatory damages or by a court of equity for compliance with a mandatory injunction. Bible Pork, Inc., 397 Ill.Dec. at 718, 42 N.E.3d at 964, citing Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 116, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1216 (1992) (suit seeking damages will be construed to include suits seeking either or both compensatory damages and equitable relief).

In the Bible Pork, Inc. case, the Bible Pork company began the process of seeking regulatory approval from the Illinois Department of Agriculture to construct a new hog factory facility. Construction of the facility required compliance with the Livestock Management Facilities Act and numerous other state regulations and requirements. The Department approved Bible Pork’s plans and construction began on the facility in October 2005. The construction of the facility was completed and began operating as a lawfully permitted facility in June 2006. However, during construction of the facility, 21 plaintiffs filed a nuisance action against Bible Pork seeking to have the facility declared as a nuisance before it became operational. The plaintiffs claimed that Bible Pork’s facility would be a source of disagreeable noises, odors, dust particles, surface water contamination and loss of property values which would interfere with the plaintiffs lives and render the facility a public and private nuisance. Although the plaintiffs amended their complaint twice, in all three complaints the plaintiffs sought not only declarations that the facility constituted a public and a private nuisance, but also sought “such other relief as deemed appropriate.”