FILED

6/28/2021 3:23 PM
IRIS Y. MARTINEZ
CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

2021CH03148

13809769
Chancery Division Civil Cover Sheet
General Chancery Section (12/01/20) CCCH 0623

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

Continental Casualty Company

Plaintiff
v. Case No:  
401 North Wabash Venture, LLC et al
Defendant

CHANCERY DIVISION CIVIL COVER SHEET

GENERAL CHANCERY SECTION
A Chancery Division Civil Cover Sheet - General Chancery Section shall be filed with the initial complaint in all actions filed in the General
Chancery Section of Chancery Division. The information contained herein is for administrative purposes only. Please check the box in
front of the appropriate category which best characterizes your action being filed.
Only one (1) case type may be checked with this cover sheet.
0005    Administrative Review 0017    Mandamus
0001    Class Action 0018    Ne Exeat
0002  ✔   Declaratory Judgment 0019   Partition
0004    Injunction 0020    Quiet Title
0021    Quo Warranto
0007    General Chancery 0022    Redemption Rights
0010    Accounting 0023    Reformation of a Contract
0011   Arbitration 0024    Rescission of a Contract
0012   Certiorari 0025    Specific Performance
0013    Dissolution of Corporation 0026    Trust Construction
0014    Dissolution of Partnership 0050    Internet Take Down Action (Compromising Images)
0015    Equitable Lien
0016    Interpleader   Other (specify)  ____________________________

60645
  Atty. No.:  ________________    Pro Se 99500
Pro Se Only:    I have read and agree to the terms of the Clerk’s
Atty Name:  Scott E. Turner Clerk’s Office Electronic Notice Policy and
choose to opt in to electronic notice from the
Atty. for:  Continental Casualty Company Clerk’s office for this case at this email address:
Address:  151 N. Franklin St., 14th Floor
Email:  
Chicago
City:  ____________________________ State: IL
____
60606
Zip:  ________
312-822-4571
Telephone:  ________________________

Primary Email:  [email protected]

Iris Y. Martinez, Clerk of the Circuit Court of Cook County, Illinois
cookcountyclerkofcourt.org
Page 1 of 1
 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

CONTINENTAL CASUALTY COMPANY,

Plaintiff,

v. Case No.

401 NORTH WABASH VENTURE LLC,

d/b/a TRUMP INTERNATIONAL HOTEL COMPLAINT FOR DECLARATORY
AND TOWER; ACE AMERICAN JUDGMENT
INSURANCE COMPANY; ILLINOIS
UNION INSURANCE COMPANY; QBE
INSURANCE CORPORATION; STATE OF
ILLINOIS; SIERRA CLUB; FRIENDS OF
THE CHICAGO RIVER,

Defendants.

Plaintiff Continental Casualty Company (“Continental”) brings this action for

Declaratory Judgment against Defendant 401 North Wabash Venture LLC d/b/a Trump

International Hotel and Tower (“Trump International” or “Insured”) and alleges as follows:

NATURE OF THIS ACTION

1. Continental brings this action pursuant to 735 ILCS § 5/2-701 to obtain a judicial

determination and declaration with respect to the rights and obligations of the parties under

insurance policies issued to Trump International.

2. An actual controversy exists because the dispute between the parties is a concrete

dispute that is ripe for an immediate and definitive determination of the parties’ rights.

3. Continental issued Policy No. GL2070997913 to the Insured for five annual

periods from May 30, 2015 to May 30, 2020 (“Policies”). True and correct copies of the Policies

are attached as Exhibits 1-5.

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 4. An actual, ripe, and justiciable controversy has arisen between the parties in

regard to their respective rights and obligations under the Policies.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

PARTIES

5. Plaintiff Continental is a corporation organized and existing under the laws of the

State of Illinois and maintains its principal place of business in Chicago, Illinois. Continental

legally transacts insurance business in the State of Illinois and within the geographical

jurisdiction of this Court.

6. Defendant 401 North Wabash dba Trump International is a Delaware Limited

Liability Company with its principal place of business in New York, New York and conducts

business in Chicago, Illinois.

7. On information and belief, Defendant ACE American Insurance Company (“ACE

American”) is a Pennsylvania corporation authorized to do, and doing, business in Illinois.

8. On information and belief, Defendant Illinois Union Insurance Company

(“Illinois Union”) is an Illinois corporation with its principal place of business in Philadelphia,

Pennsylvania and a statutory home office in Chicago, Illinois. Collectively, ACE American and

Illinois Union are referred to herein as “Chubb.” On information and belief, Chubb provided

coverage to 401 Wabash/Trump International from 2008 to 2011.

9. On information and belief, Defendant QBE Insurance Corporation (“QBE”) is a

corporation organized and existing under the laws of the State of Pennsylvania with its principal

place of business in New York, New York; and is authorized to conduct business in Illinois. On

information and belief, QBE provided primary, excess and/or umbrella coverage to 401

Wabash/Trump International from 2011to 2015.

10. Defendant the State of Illinois is the Plaintiff in the Underlying Action.

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 11. Defendant Sierra Club is Plaintiff-Intervenor in the Underlying Action. On

information and belief, Sierra Club is a not-for-profit corporation organized and existing under
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

the laws of the State of California, and is a national environmental organization with offices and

programs authorized and doing business in the State of Illinois, including Chicago, Illinois.

12. Friends of the Chicago River is a Plaintiff-Intervenor in the Underlying Action.

On information and belief, Friend of the Chicago River is a not-for-profit corporation organized

and existing under the laws of the State of Illinois.

13. On information and belief, Defendants do, or may, dispute Plaintiff Continental’s

request for declaratory judgment.

JURISDICTION AND VENUE

14. The Court has jurisdiction over the parties pursuant to 735 ILCS § 5/2-209.

15. Venue is proper in Cook County, Illinois because the Facility/property at issue is

located within Cook County, the Underlying Action is venued in Cook County and the alleged

conduct that forms the basis of the Underlying Action took place in Cook County.

FACTUAL BACKGROUND

16. The Illinois Attorney General and the Intervenor Sierra Club and the Friends of

the Chicago River filed complaints against Trump International generally alleging unpermitted

discharges of thermal process wastewater into the Chicago River from the Facility.

17. On information and belief, the Facility is a mixed-use building that houses the

Trump International Hotel & Tower, which includes a luxury hotel, condominiums and retail

space, and is located next to the Chicago River.

Underlying Action

18. The Underlying Action is captioned People of the State of Illinois v. 401 N.

Wabash Venture, LLC d/b/a Trump International Hotel and Tower; Cook County Circuit Court,

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 IL 2018-CH-10229, filed 08/13/2018. A true and correct copy of the operative pleading in the

Underlying Action is attached as Exhibit 6.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

19. The Illinois Attorney General (“the State”), at the request of the Illinois

Environmental Protection Agency (IEPA), brought the Underlying Action and alleges, inter alia,

that Trump International is discharging pollutants from the Facility into the Chicago River

without a permit.

20. The State’s Complaint filed in the Underlying Action specifically alleges that (a)

the Facility’s HVAC system contains a cooling water intake/discharge system that withdraws

river water through an intake and discharges thermal process wastewater into the Chicago River;

(b) the Facility’s National Pollutant Discharge Elimination System (“NPDES”) permit expired

on August 31, 2017; (c) the Facility has continued operating its water intake and discharge

structures in violation of State Law and Board of Water Pollution Regulations; (d) the State

seeks a preliminary and permanent injunction, findings of violations, a cease and desist order and

civil penalties ($10,000 per day) against Trump International; (e) the injunctive relief sought by

the State also seeks an Order requiring Trump International to immediately take the necessary

actions that will result in a final and permanent abatement of the violations, and also seeks all

costs, including attorney fees and expert costs. The State asserts the following counts in the

State’s Complaint: (1) discharge without a National Pollutant Discharge Elimination System

permit, (2) Violation of NPDES permit conditions, and (3) Violation of Board Regulations.

21. The Sierra Club and Friends of the Chicago River (the Intervenors) filed an

Intervenor complaint (hereinafter, the Intervenor Complaint) in the Underlying Action on August

20, 2018. The Intervenor Complaint is attached as Exhibit 7.

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 22. The Intervenors seek to stop Trump International’s ongoing violations of the

Clean Water Act 33 U.S.C. §1251 et seq., and violations of a modified NPDES permit.
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

23. The Intervenor Complaint alleges that the Facility’s cooling water

intake/discharge system withdraws approximately 19.7 million gallons of water per day from the

Chicago River and returns approximately the same volume in the form of heated water through a

discharge back into the Chicago River.

24. The Intervenors allege that heated water discharge is considered a “pollutant”

under the Clean Water Act and that discharge of a pollutant is illegal unless the discharger

obtains a NPDES permit and is permissible only to the extent the discharger acts in compliance

with such properly issued NPDES permit. Intervenors’ count for violations of the Clean Water

Act was dismissed.

25. The Intervenors allege that Trump International is violating Public Nuisance

statutes by operating a 20 MGD intake and discharge system for years (since 2008) in violation

of permit conditions and regulations designed to protect aquatic life.

26. The Intervenors further allege that (a) the IEPA issued a Notice of Violation to

Trump International for discharging pollutants and had constructed a discharging facility without

a required NPDES permit; (b) Trump International resolved those violations by, among other

things, agreeing to pay a $46,000 fine in 2013; (c) in September 2012, Trump International

received a permit to discharge an average of 13,644 gallons per day of water; (d) in October

2012, a consultant employed by Trump International wrote to the IEPA to inform the agency that

Trump Tower was discharging 19.7 MGD on average; (e) thereafter, the IEPA issued a modified

permit to discharge an average flow of 19.7 MGD; (f) In January 2018, IEPA gave notice of a

new draft permit for the Facility, which required certain data and information to be submitted

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 prior to the permit renewal; and (g) Trump International did not provide the necessary

information in violation of the permit conditions.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

27. The Intervenors allege that, since 2017, the Facility is continuing to operate said

intake without obtaining permits containing appropriate limits or minimizing its impact on

aquatic life. The Facility has operated since at least 2008 and is interfering with the Intervenors’

right to fish and otherwise recreate in the Chicago River. The Intervenors claim to have been

injured to a currently unknown degree and in an amount to be determined through discovery and

at trial and reflective of the extent of harms to aquatic life, ecosystems, and economic and other

interests in the Chicago River.

28. The Intervenors seek an award of attorneys’ fees and costs and a permanent

injunction against Trump International from operating its facility in a manner creating a public

nuisance; and any other relief deemed appropriate by the Court.

INSURANCE POLICIES

29. Continental issued the Policies for annual, successive policy periods from May

30, 2015 to May 30, 2020. (See Exhibits 1-5.)

30. The Policies, as amended by the New York Changes Endorsement, Form CG0163

04 09, contain Insuring Agreements with language which is the same as or similar to the

language set forth below.

SECTION I – COVERAGES

COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE

LIABILITY

1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to
pay as damages because of “bodily injury” or “property damage” to which
this insurance applies. We will have the right and duty to defend the
insured against any “suit” seeking those damages even if the allegations of

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 the “suit” are groundless, false or fraudulent. However, we will have no
duty to defend the insured against any “suit” seeking damages for “bodily
injury” or “property damage” to which this insurance does not apply. We
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

may, at our discretion, investigate any “occurrence” and settle any claim
or “suit” that may result.

b. This insurance applies to “bodily injury” and “property damage” only

if:

(1) The “bodily injury” or “property damage” is caused by an

“occurrence” that takes place in the “coverage territory”;

(2) The “bodily injury” or “property damage” occurs during the policy
period; and

(3) Prior to the policy period, no insured listed under Paragraph 1. of

Section II – Who Is An Insured and no “employee” authorized by you to
give or receive notice of an “occurrence” or claim, knew that the “bodily
injury” or “property damage” had occurred, in whole or in part. If such a
listed insured or authorized “employee” knew, prior to the policy period,
that the “bodily injury” or “property damage” occurred, then any
continuation, change or resumption of such “bodily injury” or “property
damage” during or after the policy period will be deemed to have been
known prior to the policy period.

c. “Bodily injury” or “property damage” which occurs during the policy

period and was not, prior to the policy period, known to have occurred by
any insured listed under Paragraph 1. of Section II – Who Is An Insured or
any “employee” authorized by you to give or receive notice of an
“occurrence” or claim, includes any continuation, change or resumption of
that “bodily injury” or “property damage” after the end of the policy
period.

d. “Bodily injury” or “property damage” will be deemed to have been

known to have occurred at the earliest time when any insured listed under
Paragraph 1. of Section II – Who Is An Insured or any “employee”
authorized by you to give or receive notice of an “occurrence” or claim:

(1) Reports all, or any part, of the “bodily injury” or “property damage” to
us or any other insurer;

(2) Receives a written or verbal demand or claim for damages because of

the “bodily injury” or “property damage”; or

(3) Becomes aware by any other means that “bodily injury” or “property
damage” has occurred or has begun to occur.

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 31. The Policies contain the following definitions:
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

3. “Bodily injury” means bodily injury, sickness or disease sustained by a

person, including death resulting from any of these at any time. [Pursuant
to a Real Estate General Liability Extension Endorsement: “Bodily
injury” means physical injury, sickness or disease sustained by a person,
including death, humiliation, shock, mental anguish or mental injury
sustained by that person at any time which results as a consequence of the
physical injury, sickness or disease.]

* * * *

13. “Occurrence” means an accident, including continuous or repeated

exposure to substantially the same general harmful conditions.

* * * *

17. “Property damage” means:

a. Physical injury to tangible property, including all resulting loss of use of

that property. All such loss of use shall be deemed to occur at the time of
the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such
loss of use shall be deemed to occur at the time of the “occurrence” that
caused it[.]

18. “Suit” means a civil proceeding in which damages because of “bodily

injury” or “property damage. . . to which this insurance applies is alleged.
“Suit” includes:

a. An arbitration proceeding in which such damages are claimed and to

which the insured must submit or does submit with our consent; or

b. Any other alternative dispute resolution proceeding in which such

damages are claimed and to which the insured submits with our consent.

32. Each of the Policies contains the following exclusionary language:

2. Exclusions

This insurance does not apply to:

a. Expected Or Intended Injury

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 “Bodily injury” . . . expected or intended from the standpoint of the
insured. This exclusion does not apply to “bodily injury” resulting from
the use of reasonable force to protect persons or property.
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

The policies preclude coverage for property damage which is expected or

intended from the standpoint of the insured. Even assuming that there was
an “occurrence” or “property damage” as defined in the policies, if it is
ultimately determined that the alleged damages in the above-referenced
claim are classified as expected or intended, under the terms of the
policies, coverage is precluded.

* * * *

A “Total Pollution Exclusion with a Hostile Fire Exception”

Endorsement” provides:

It is understood and agreed that under COVERAGES, Coverage A –

Bodily Injury And Property Damage Liability, the paragraph entitled
Exclusions is amended to delete the exclusion entitled Pollution, in its
entirety, and replace it with the following:

This insurance does not apply to:

Pollution
(1) Bodily injury or property damage which would not have occurred in
whole or in part but for the actual, alleged or threatened discharge,
dispersal, seepage, migration, release or escape of pollutants at any time.
This exclusion does not apply to bodily injury or property damage arising
out of heat, smoke or fumes from a hostile fire, unless that hostile fire
occurred or originated:

(a) At any premises, site or location which is or was at any time used by or
for any Insured or others for the handling, storage, disposal, processing or
treatment of waste; or

(b) At any premises, site or location on which any Insured or any

contractors or subcontractors working directly or
indirectly on any Insured’s behalf are performing operations if the
operations are to test for, monitor, clean up, remove, contain, treat,
detoxify, neutralize, or in any way respond to or assess the effects of,
pollutants.

(2) Any loss, cost or expense arising out of any:

(a) Request, demand, order or statutory or regulatory requirement that any

Insured or others test for, monitor, clean up, remove, contain, treat,

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 detoxify or neutralize, or in any way respond to or assess the effects of,
pollutants; or
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

(b) Claim by or on behalf of a governmental authority for damages

because of testing for, monitoring, cleaning up, removing, containing,
treating, detoxifying or neutralizing, or in any way responding to or
assessing the effects of, pollutants.

33. Because of a NEW YORK CHANGES—COMMERCIAL GENERAL

LIABILITY COVERAGE FORM endorsement, the 2015-16, 2016-17 and 2017-18 Policies.

amend the insuring agreement to provide that, where a loss continues over multiple policy

periods, an authorized insured must first know of property damage, in whole or in part, during

the policy period to implicate the policy’s coverage:

(3) With respect to “bodily injury” or “property damage” that

continues, changes or resumes so as to occur during more than one
policy period, both of the following conditions are met:

(i) Prior to the policy period, no Authorized Insured knew that

the “bodily injury” or “property damage” had occurred, in
whole or in part; and

(ii) During the policy period, an Authorized Insured first knew

that the “bodily injury” or “property damage” had
occurred, in whole or in part.

For purposes of this Paragraph 1.b.(3) only, if (a) “bodily injury” or

“property damage” that occurs during this policy period does not continue,
change or resume after the termination of this policy period; and (b) no
Authorized Insured first knows of this “bodily injury” or “property
damage” until after the termination of this policy period, then such first
knowledge will be deemed to be during this policy period.

c. “Bodily injury” or “property damage” which occurs during the policy

period and was not, prior to the policy period, known to have occurred by
any Authorized Insured includes any continuation, change or resumption
of that “bodily injury” or “property damage” after the end of the policy.

d. “Bodily injury” or “property damage” will be deemed to have been known

to have occurred at the earliest time when any Authorized Insured:

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 (1) Reports all, or any part, of the “bodily injury” or “property
damage” to us or any other insurer;
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

(2) Receives a written or verbal demand, claim or “suit” for damages

because of the “bodily injury” or “property damage”; or

(3) Becomes aware by any other means that “bodily injury” or

“property damage” has occurred or has begun to occur.

34. The 2018-19 and 2019-20 Policies similarly provide, by New York endorsement,

that they provide potential coverage only where the property damage occurs during the policy

period and “Prior to the policy period, no [Authorized Insured] knew that the . . . property

damage had occurred, in whole or in part.”

35. The Policies all require prompt notice of occurrences, claims and suits: The

insured must “[n]otify [Continental] as soon as practicable” of any claim or suit; and “must see

to it that we are notified as soon as practicable of an ‘occurrence’ or an offense which may result

in a claim.” The Real Estate Extension endorsement provides:

4. BROAD KNOWLEDGE OF OCCURRENCE/ NOTICE OF OCCURRENCE

Under CONDITIONS, the condition entitled “Duties in The Event of Occurrence,
Offense, Claim or Suit” is amended to add the following provisions:

A. BROAD KNOWLEDGE OF OCCURRENCE

The “Named Insured” must give the Insurer or the Insurer’s authorized
representative notice of an “occurrence”, offense or “claim” only when the
“occurrence”, offense or claim is known to the “Named Insured’s” Risk
Management Department.

B. NOTICE OF OCCURRENCE
The “Named Insured’s” rights under this “Coverage Part” will not be prejudiced if
the “Named Insured” fails to give the Insurer notice of an occurrence, offense or
“claim” and that failure is solely due to the “Named Insured’s” reasonable belief
that the “bodily injury” or “property damage” is not covered under this Coverage
Part. However, the “Named Insured” shall give written notice of such
“occurrence”, offense or “claim” to the Insurer as soon as the “Named Insured” is
aware that this insurance may apply to such “occurrence”, offense or “claim”.

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 36. The Policies further require cooperation with respect to any claim or suit, and

prohibit the insured from voluntarily making a payment, assuming any obligation, or incurring
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

“any expense, other than for first aid, without [Continental’s] consent.”

37. Other material terms from the Policies are incorporated herein by reference.

38. Continental received notice of the above-captioned matters from AON via e-mail

dated February 6, 2020.

FIRST CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify Trump
International Because the Complaints Do Not Seek Damages)

39. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 38 of this Complaint as though fully restated herein.

40. The claims asserted in the Underlying Action seek injunctive relief, civil

penalties, costs, attorneys’ fees and expert costs, which are not sums Continental is “legally

obligated to pay as damages” as required by the Policies.

41. There is no potential coverage under the Policies for the Underlying Action.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that the claims asserted in the Underlying Action do not
seek damages as required by the Continental policies; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

SECOND CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify Trump
International Because the Complaints Do Not Allege “Bodily Injury” or “Property
Damage”)

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 42. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 41 of this Complaint as though fully restated herein.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

43. The Complaints filed in the Underlying Action do not allege facts potentially

seeking damages because of “bodily injury” or “property damage.” The claims asserted in the

Underlying Action, which seek injunctive relief, civil penalties, attorneys’ fees and costs, do not

seek damages for “bodily injury” (which is defined as “physical injury, sickness or disease

sustained by a person, including death, humiliation, shock, mental anguish or mental injury

sustained by that person at any time which results as a consequence of the physical injury,

sickness or disease”) or damages for “property damage,” which is defined as (a) “Physical injury

to tangible property, including all resulting loss of use of that property. All such loss of use shall

be deemed to occur at the time of the physical injury that caused it; or (b) “Loss of use of

tangible property that is not physically injured. All such loss of use shall be deemed to occur at

the time of the “occurrence” that caused it[.]”

44. There is no potential coverage for the Underlying Action under the Policies.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that the claims asserted in the Underlying Action do not
seek damages because of “bodily injury” or “property damage” “”as required by
the Continental policies; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

THIRD CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify
Trump International Because the Complaints Do Not Allege an “Occurrence”)

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 45. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 44 of this Complaint as though fully restated herein.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

46. The Complaints filed in the Underlying Action do not seek damages because of

“bodily injury” or “property damage” caused by an “occurrence,” as that term is defined by the

Policies.

47. The Policies define “occurrence” as an “accident, including continuous or

repeated exposure to substantially the same general harmful conditions.”

48. The Complaints filed in the Underlying Action does not concern an “accident.”

49. There is no potential coverage for the Underlying Action under the Continental

policies.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare the claims asserted in the Underlying Action do not seek
damages for “property damage” or “bodily injury” caused by an “occurrence” as
required by the Continental policies; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate in the interests of justice.

FOURTH CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify Because
Trump International Had First Knowledge of Property Damage
Prior to Any Policy Period)

50. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 49 of this Complaint as though fully restated herein.

51. By endorsement, each of the Policies amends the insuring agreement to provide

that, where a loss continues over multiple policy periods, an authorized insured must first know

of property damage, in whole or in part, during the policy period to implicate coverage; and/or

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 that such coverage does not apply where an authorized insured knows of such property damage,

in whole or in part, prior to the policy period.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

52. In the event the Court finds the Complaints potentially seek damage for “property

damage,” which Continental does not admit, the Policies do not provide coverage for the

Underlying Action because any alleged “property damage” was first known by Trump

International prior to the inception of any Continental Policy and/or was known in whole or in

part, prior to such policy period(s).

53. There is no potential coverage for the Underlying Action under the Policies.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that the claims asserted in the Underlying Action are for
“property damage” which Trump International first knew of, in whole or in part,
prior to any of the Policies’ effective periods, thereby precluding any potential
coverage; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

FIFTH CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify
Trump International Because of its Failure to Timely Notify Continental of an Occurrence,
Claim, or Suit)

54. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 53 of this Complaint as though fully restated herein.

55. The Policies all require prompt notice of occurrences, claims and suits: The

insured must provide notice as soon as the Trump International was “aware that this insurance

may apply to such “occurrence”, offense or “claim”.

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 56. To the extent that Trump International alleges it first knew of any alleged damage

during any of the Policies’ effective periods, it failed to provide timely notice of such claim or
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

“suit,” as required by the Policies.

57. The state complaint in the Underlying Action was filed August 13, 2018 and the

Intervenor’s complaint was filed August 18, 2018.

58. Trump International did not provide notice to Plaintiff Continental until February

6, 2020.

59. There is no potential coverage under the Continental policies for the Underlying

Action.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that, to the extent that Trump International alleges it first
knew of property damage during any of the Continental policies, it failed to
provide timely notice of such property damage, as required by the policies; and
also failed timely to notify Plaintiff of the Underlying Action, to the prejudice of
Plaintiff.

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

SIXTH CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify
Trump International in the Underlying Action Because the Total Pollution Exclusion
Precludes Any Potential Coverage)

60. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 59 of this Complaint as though fully restated herein.

61. Plaintiff in the Underlying Action alleges that the Facility is discharging

pollutants into the Chicago River without a permit.

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 62. The Intervenors allege that the heated water discharge by the Facility is

considered a “pollutant” under the Clean Water Act.

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

63. Even if there were alleged “property damage,” it necessarily would have occurred

in whole or in part from the discharge, dispersal, seepage, migration, release or escape of

“pollutants” as defined within the Policies, the allegations in the Underlying Action squarely fall

within the Policies’ Total Pollution Exclusion.

64. The pollution exclusion bars coverage such that Continental has no obligation to

defend and/or indemnify Trump International in the Underlying Action.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that, to the extent that Trump International the pollution
exclusion bars coverage with respect to the Underlying Action, which arises from
alleged violations of environmental regulations; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

SEVENTH CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Defend or Indemnify
Trump International in the Underlying Action Because the Expected or Intended Injury
Exclusion Precludes Any Potential Coverage)

65. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 64 of this Complaint as though fully restated herein.

66. Plaintiff in the Underlying Action alleges that the Insured intentionally and

expectedly discharged water into the Chicago River intentionally without a permit.

67. The Intervenors allege that the Insured intentionally and expectedly discharged

water into the Chicago River intentionally without a permit.

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 68. Because the alleged “property damage” occurred intentionally and expectedly the

allegations in the Underlying Action squarely fall within the Policies’ Expected or Intended
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

Injury Exclusions.

69. The Expected or Intended Injury Exclusion bars coverage such that Continental

has no obligation to defend and/or indemnify Trump International in the Underlying Action.

WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty to defend or indemnify Trump

International in the Underlying Action;

b. Determine and declare that, to the extent that Trump International the Expected or
Intended Injury Exclusion bars coverage with respect to the Underlying Action,
which arises from alleged intentional and expected violations of environmental
regulations; and

c. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.

EIGHTH CAUSE OF ACTION

(For a Determination that Continental Has No Duty to Reimburse
Pre-Tender Costs Incurred by the Insured)

70. Continental incorporates by reference and re-alleges the allegations set forth in

Paragraphs 1 through 69 of this Complaint as though fully restated herein.

71. The Policies require cooperation with respect to any claim or suit, and prohibit the

insured from voluntarily making a payment, assuming any obligation, or incurring “any expense,

other than for first aid, without [Continental’s] consent.”

72. Trump International incurred costs in response to the state and Intervenor actions

before tendering those actions to Plaintiff Continental.

73. The Policies preclude coverage for such pre-tender costs.

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 WHEREFORE, Plaintiff Continental respectfully prays that this Court:

a. Declare that Continental has no duty pay costs incurred pre-tender, or

FILED DATE: 6/28/2021 3:23 PM 2021CH03148

before February 6, 2020; and

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 b. Award Continental its litigation costs and all such other and further relief as the
Court may deem necessary or appropriate.
FILED DATE: 6/28/2021 3:23 PM 2021CH03148

Respectfully submitted,

DATED: June 28, 2021 /s/ Scott E. Turner

CNA COVERAGE LITIGATION GROUP
151 North Franklin Street – 14th Floor
Chicago, IL 60606
Firm I.D. 60645
(312) 822-4571
[email protected]

Of counsel:
Edward J. Tafe
CNA COVERAGE LITIGATION GROUP
555 Mission Street, Suite 200
San Francisco, CA 94105
Phone: (415) 932-7408
[email protected]

Counsel for Continental Casualty Company

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