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March 13, 2026 Get Citation Alerts Download PDF Add Note

Sterigenics U.S., LLC v. National Union Fire Insurance Company of Pittsburg

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 24-1223

• Judges: Scudder

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

                        by [Michael Yale Scudder Jr.](https://www.courtlistener.com/person/8633/michael-yale-scudder-jr/)

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 24-1217 and 24-1223
GRIFFITH FOODS INTERNATIONAL INC., et al.,
Plaintiffs-Appellees,
v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA,
Defendant-Appellant.

Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
Nos. 1:21-cv-06403 & 1:21-cv-04581 — Mary M. Rowland, Judge.

ARGUED SEPTEMBER 25, 2024 — DECIDED MARCH 13, 2026

Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
SCUDDER, Circuit Judge. These appeals are back before us
following our certification to the Illinois Supreme Court of an
important question of Illinois law about the meaning and
scope of a pollution exclusion in standard-form commercial
general liability insurance policies. The insurance dispute
arose in the broader context of highly publicized tort litigation
stemming from substantial injuries, including cancer,
2 Nos. 24-1217 & 24-1223

allegedly caused by emissions of ethylene oxide over the
thirty-five-year period of 1984 through 2019 by Griffith Foods
International and later Sterigenics U.S. in the Chicago suburb
of Willowbrook, Illinois.
Our prior opinion provides more fulsome background
and, before certifying the question of state law to the Illinois
Supreme Court, reached a series of conclusions on various is-
sues raised in these appeals. See Griffith Foods Int’l Inc. v. Nat’l
Union Fire Ins. Co. of Pittsburgh, PA, 134 F.4th 483, 485–92 (7th
Cir. 2025). We reaffirm each of those conclusions and stand
fully by all reasoning in our prior opinion. Today’s opinion
buttons up the appeals following the Illinois Supreme Court’s
decision resolving the certified question.
I
The Illinois Supreme Court answered our certified ques-
tion in unequivocal terms: “a permit or regulation authoriz-
ing emissions (generally or at any particular levels) has no rel-
evance in assessing the application of a pollution exclusion
within a standard-form commercial general liability policy.”
Griffith Foods Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
PA, 2026 WL 181277, at *1 (Ill. Jan. 23, 2026). That resolves this
case. We now know that the pollution exclusion applies. See
Griffith Foods, 134 F.4th at 490–93. Griffith and Sterigenics
therefore “have no claim to coverage and no basis for requir-
ing National Union to defend them against the allegations in
the Master Complaint.” Id. at 486.
Griffith and Sterigenics resist this conclusion. They urge
us to hold that ambiguity predominated before the Illinois Su-
preme Court answered our certified question, thereby render-
ing the pollution exclusion inapplicable at the time they
Nos. 24-1217 & 24-1223 3

tendered their defense in the underlying litigation. See Ins. Co.
of Ill. v. Markogiannakis, 544 N.E.2d 1082, 1094 (Ill. App. Ct.
1989) (“[I]f an exclusionary clause is relied upon to deny cov-
erage, its applicability must be clear and free from doubt at
the time the insurer is requested to defend, because any
doubts as to coverage will be resolved in the insured’s fa-
vor.”). They add that Erie Insurance Exchange v. Imperial Marble
Corporation, 957 N.E.2d 1214 (Ill. App. Ct. 2011), controlled
this case until the Illinois Supreme Court overruled it in re-
sponse to our certified question. On this view, the State High
Court’s response marked a watershed moment in Illinois law
by eliminating prior ambiguity—legal uncertainty that, as
Griffith and Sterigenics would have it, obligated National Un-
ion to defend them in the underlying tort cases.
Not so in our respectful view. We emphasized throughout
our prior opinion that the best reading of Illinois law, espe-
cially in light of the State Supreme Court’s 1997 decision in
American States Insurance Company v. Koloms, 687 N.E.2d 72
(Ill. 1997), was that the pollution exclusion applied to bar both
coverage and any duty to defend. See, e.g., Griffith Foods, 134
F.4th at 484 (“Our own reading of Koloms suggests that the
pollution exclusion applies.”); id. at 491 (“This type of gradual
and repeated discharge of hazardous substances into the en-
vironment, in our view, stands in stark contrast to the types
of routine commercial hazards the Koloms Court thought ab-
surd to include within the pollution exclusion.” (cleaned up));
id. at 492 (describing an analogous case holding the exclusion
applied as being “in line with our own natural reading of Ko-
loms”). To be sure, we acknowledged that Imperial Marble
“could be read” to foreclose that holding, making the oppo-
site conclusion “possible.” Id. at 491–92. But our decision to
certify the question to the Illinois Supreme Court out of
4 Nos. 24-1217 & 24-1223

respect for its authority on this issue should not be read as a
declaration that Imperial Marble somehow controlled in the
meantime.
And even on the view that Imperial Marble revealed at least
some degree of ambiguity in Illinois law, the Illinois Supreme
Court reached the opposite conclusion. We see not an ounce
of uncertainty or equivocation in its holding that “the dis-
charge of EtO emissions into the atmosphere at issue in this
case fits squarely within” the “plain language” of the pollu-
tion exclusion. Griffith Foods, 2026 WL 181277, at *5. Put an-
other way, the Illinois Supreme Court confirmed our own in-
stinct that “the emissions fit squarely within the plain and or-
dinary meaning of ‘traditional environmental pollution,’”
triggering the pollution exclusion. Id. (quoting Koloms, 687
N.E.2d at 82). Leaving nothing to doubt, the Court punctu-
ated its conclusion further by declining “to find an ambiguity
where none exists.” Id. (quoting Hobbs v. Hartford Ins. Co. of the
Midwest, 823 N.E.2d 561, 564 (Ill. 2005)). So do we.
II
In a final effort to save its position, Griffith and Sterigenics
contend there must have been ambiguity before the Illinois
Supreme Court weighed in because National Union agreed to
defend them during the pendency of this appeal. They attach
four exhibits to their Rule 52(b) position statement and im-
plore us to exercise our inherent authority to supplement the
record. See United States v. Miller, 832 F.3d 703, 704 (7th Cir.
2016). We decline this invitation and instead follow the gen-
eral rule disallowing “a party to add materials to the record
on appeal which were not before the district court.” United
States v. Elizalde-Adame, 262 F.3d 637, 640 (7th Cir. 2001) (citing
Fed. R. App. P. 10(e)). Resisting late-breaking
Nos. 24-1217 & 24-1223 5

supplementation allows us to “review the decision that the
trial court made in light of the information that was actually
before it.” Id. at 641. We reach no conclusions and offer no
view on any aspect of the correspondence or arrangements
between the parties during the pendency of this appeal.

For these reasons, and based on the conclusions reached
and reasons supplied in our prior opinion of April 11, 2025,
we REVERSE the district court’s entry of judgment for Grif-
fith and Sterigenics and REMAND with instructions to enter
judgment for National in both cases before us in these ap-
peals.