Illinois School District Agency v. St. Charles Community Unit School District 303, 971 N.E.2d 1099

ISDA provided CGL coverage to the District from 1995–2001; prior primary policies existed from 1971–1995 with multiple carriers.
Mold lawsuits were filed 2001–2002; ISDA reserved rights and district initially tendered defense to multiple insurers.
District later settled with Hartford, Indiana, and General Casualty for payments that covered defense and remediation costs; ISDA’s defense continued separately.
Hartford and Indiana settlements included confidentiality terms; District deactivated tenders as part of settlements.
ISDA filed suit in 2003 seeking coverage and alleged breach for secret settlements and improper deactivations; District answered with counterclaims seeking reimbursement and setoffs.
Circuit court ruled on several counts in 2006–2010, including denial of reimbursement for certain Woods invoices; the ISDA appeal challenged these rulings; the court ultimately reversed on the selective tender issue and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether selective tender extends to consecutive policies	ISDA contends selective tender cannot apply to consecutive policies	District argues selective tender is valid and can apply	Selective tender cannot extend to consecutive policies; reversed on counts II–IV
Whether the District breached by settling with other insurers	ISDA claims settlements violated policy and caused double recoveries	District asserts right to tender and settle; no breach proven	Court remanded; no clear breach established under established doctrine
Whether disputed Woods invoices were largely defense costs	Invoices should be reimbursed if duties were to defend; District controlled timing	Invoices largely remediation; not at ISDA’s request; not reimbursable	Invoices for certain dates were defense-related and reimbursable; others were not
Standard of review for cross-appeal regarding burden of proof	District argues trial court improperly enhanced burden	ISDA maintains standard was appropriate; de novo review	De novo review applied to burden issue; findings reviewed for manifest weight where applicable
Whether the ‘other insurance’ clause defeats selective tender/Equitable contribution	ISDA claims right to equitable contribution despite tender	District argues other-insurance clause does not override insured’s tender rights	Court declines broad ruling; avoids extending selective tender to consecutive policies

Kajima Construction Services, Inc. v. St. Paul Fire & Marine Insurance Co., 368 Ill. App. 3d 665 (Ill. App. 1st Dist. 2006) (selective tender applies only to concurrent primary coverage; not to consecutive policies (reaffirmed later))
John Burns Construction Co. v. Indiana Insurance Co., 189 Ill. 2d 570 (2000) (recognizes insured may selectively tender; distinctions on concurrent vs. non-concurrent coverage)
Cincinnati Insurance Co. v. West American Insurance Co., 183 Ill. 2d 317 (1998) (insured may forego coverage to avoid premium effects; selective tender requires concurrent coverage)
Marker v. Pekin Insurance Co., 318 Ill. App. 3d 1137 (2001) (discusses voluntary forego of coverage; limited applicability to selective tender)
River Village I, LLC v. Central Insurance Cos., 396 Ill. App. 3d 480 (2009) (refuses selective tender for excess/umbrella contexts; supports non-extension to non-concurrent)
Richard Marker Associates v. Pekin Insurance Co., 318 Ill. App. 3d 1137 (2001) (addressed selective tender in a factual context similar to sequential policies)
CFM Construction Co. v. American States Insurance Co., 398 Ill. App. 3d 994 (2010) (explains equitable contribution framework among insurers)