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Allianz Insurance Co. v. Guidant Corp.1/28/2005
ensue due to the [conduct] for which it is seeking coverage." Outboard Marine Corp., 154 Ill. 2d at 107; see also Missouri Pacific R.R. Co. v. American Home Assurance Co., 286 Ill. App. 3d 305, 309 (1997). Thus, in order to prevail on their known loss theory, the Insurers need demonstrate to the trial court only that Guidant knew or had reason to know that claims related to the Ancure Device had been made or would be made and the likely extent of that exposure. In contrast, aside from the separable fraud claims discussed above, the plaintiffs in the underlying claims allege various theories of recovery including strict product liability, negligence, breach of warranty, and wrongful death. In other words, the issues in the underlying claims concern whether Guidant is legally responsible for the injuries allegedly suffered by the plaintiffs as a result of the implantation or attempted implantation of the Ancure Device. To prevail on their known loss claims, the Insurers need not demonstrate whether the Ancure Device was unsafe or even whether Guidant knew whether the Ancure Device was unsafe. Instead, the Insurers need show only that there was some exposure as a result of the Ancure Device.
Guidant claims that it will suffer substantial prejudice if the trial court's ruling is allowed to stand. For instance, relying on Old Republic Insurance Co. v. Chuhak & Tecson, P.C., 84 F.3d 998 (7th Cir. 1996), Guidant asserts that, when overlapping factual issues exist, discovery in the coverage litigation could undermine the insured's defenses in the underlying claims. This could be a concern if there were, in fact, overlapping factual issues. However, for the reasons discussed above, the issues in the coverage litigation and the issues in the underlying claims are separable. Therefore, we fail to see the import of this claim of prejudice. Moreover, to the extent that the discovery sought in this case overlaps with the discovery sought by the plaintiffs in the underlying claims, we believe that a carefully crafted protective order will serve the parties' interests. We note that the parties have been working toward such a goal and that it appears that, on October 14, 2004, the trial court ordered the parties to "prepare the Protective Order consistent with the Court's rulings following arguments on Guidant's Motion for Protective Order."
Guidant also claims prejudice in the form of collateral estoppel. However, we agree with the Insurers that Guidant cannot be collaterally estopped by any of the trial court's findings with respect to the issues here, because they are either separate and distinct from the issues raised by the plaintiffs in the underlying claims or they relate to intentional conduct already admitted to by Guidant or its subsidiaries. See United States Fidelity & Guaranty Co., 265 Ill. App. 3d at 537 (noting that collateral estoppel does not apply where issue to be resolved in coverage litigation is wholly separable from any of the issues raised by the plaintiff in the underlying claim); Illinois State Medical Insurance Services, Inc., 258 Ill. App. 3d at 809.
III. CONCLUSION
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying Guidant's motion for a partial stay. Accordingly, we affirm the order of the circuit court of Du Page County.
Affirmed.
HUTCHINSON and KAPALA, JJ., concur.
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