Missouri Pacific R.R. Co. v. American Re-Insurance Co.
Annotate this Case
No. 2--95--1068
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
MISSOURI PACIFIC RAILROAD ) Appeal from the Circuit Court
COMPANY, on its own Behalf and ) of Du Page County.
as Successor in Interest to )
Chicago and Eastern Illinois )
Railroad Company and to Texas )
and Pacific Railway Company and )
their subsidiary and affiliated )
companies, )
)
Plaintiff-Appellant, )
)
v. ) No. 94--MR--0198
)
AMERICAN RE-INSURANCE COMPANY; )
AMERICAN CASUALTY COMPANY OF )
READING, PENNSYLVANIA; )
CONTINENTAL CASUALTY COMPANY; )
COMMERCIAL UNION INSURANCE )
COMPANY, on Behalf of )
C.E. Health Compensation and )
Liability Insurance Company, )
as Successor to certain )
interests of Employers' Surplus )
Lines Insurance Company; FEDERAL )
INSURANCE COMPANY; FIREMAN'S )
FUND INSURANCE COMPANY; )
NATIONWIDE MUTUAL INSURANCE )
COMPANY; and TRAVELERS )
INDEMNITY COMPANY, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
Modified Upon Denial of Rehearing
JUSTICE RATHJE delivered the opinion of the court:
Plaintiff, Missouri Pacific Railroad Company (Missouri
Pacific), appeals from a trial court order granting partial summary
judgment to the defendants, American Re-Insurance Company and other
named insurance companies (collectively, insurers). On appeal,
Missouri Pacific contends that the trial court erred in granting
the insurers' motion for partial summary judgment. We affirm the
decision of the trial court.
This controversy stems from the purchase by Missouri Pacific
and its predecessors of insurance coverage from the insurers for
third-party liabilities. The policies in question were issued
between 1959 and 1971.
In 1994, Missouri Pacific filed a declaratory judgment and
damages suit against the insurers. In the suit, Missouri Pacific
sought a declaration that it was entitled to indemnification from
the insurers for claims by current and former employees of Missouri
Pacific for hearing losses allegedly sustained as a result of long-
term exposure to unsafe levels of noise while employed by Missouri
Pacific.
The policies at issue in this case contain clauses the same as
or similar to the one set forth below:
"This Policy shall only indemnify the Employer against his
liability to pay compensation for occupational disease in
cases where the employees cessation from work as a result
thereof first occurs during the period of insurance covered by
this Policy." (Emphasis added.)
The policies at issue here do not set forth a definition of
"occupational disease."
The insurers filed a motion for partial summary judgment on
the grounds that (1) noise-induced hearing loss (NIHL) was an
"occupational disease"; and (2) the polices in question limited
coverage of occupational disease claims to claims falling under the
"cessation from work" clause. In addition, the insurers sought a
protective order to prevent Missouri Pacific from proceeding with
certain discovery requests. Missouri Pacific had requested
discovery on (1) the drafting and derivation of key policy terms,
including "occupational disease" and the "cessation from work"
clause as they pertained to hearing loss claims; (2) pleadings and
other court documents in which the insurers took a position
concerning the meaning of key policy terms; (3) marketing and
promotional material concerning insurance coverage or the lack
thereof for hearing loss claims; and (4) the factual bases for the
insurers' affirmative defenses, including the "occupational
disease" term.
The trial court granted the motion for a protective order,
stating as follows:
"At this point in time, I think many of the requests for
discovery are premature. I would prefer to--if I am going to
impose that burden on the various Defendants, I would prefer
to have at least the issues narrowed by the motion for summary
judgment.
I can assure you that if there is a fact question that is
raised by the Plaintiffs, that I will deny any motions for
summary judgment, and I will order discovery to proceed as to
those fact questions and any materials that are raised in any
affirmative defenses."
Following argument, the trial court granted the insurers'
motion for partial summary judgment, stating as follows:
"This is a case of first impression in the State of
Illinois, obviously.
I don't believe that there is any issue of fact as to how
noise induced hearing loss occurs in an individual.
I think the medical documents which were provided and the
brief synopsis by counsel is certainly the generally accepted
explanation of how noise induced hearing loss occurs.
But I believe that the question is not the medical
definition of the disease, but it is the legal definition of
an occupational disease.
And this being a case of first impression, as I stated,
it is incumbent on the Court to look to how other Courts have
defined noise induced hearing loss as an occupational disease
within the context of an insurance coverage case.
I am not solely relying on other cases, although I think
that they are very instructive.
But I believe that occupational diseases have been
defined in many other employment contexts, Workers
Compensation, OSHA, all kinds of situations. But I believe
that as a matter of law, noise induced hearing loss can be
legally defined as an occupational disease, notwithstanding
the fact that it may not meet the criteria for a medical
disease."
The trial court also found that the "cessation from work"
clause was unambiguous.
As part of its order, the trial court made a finding pursuant
to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was
no just reason for delaying the enforcement or appeal of the
judgment. This appeal followed.
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment
is a drastic measure and should only be granted if the movant's
right to judgment is clear and free from doubt. Outboard Marine
Corp., 154 Ill. 2d at 102. In appeals from summary judgment
rulings, the court conducts a de novo review. 154 Ill. 2d at 102.
The construction of an insurance policy's provisions is a
question of law. Outboard Marine Corp., 154 Ill. 2d at 108. In
construing an insurance policy, the court must ascertain the intent
of the parties to the contract. Outboard Marine Corp., 154 Ill. 2d
at 108. If the words in the policy are unambiguous, a court must
afford them their plain, ordinary, and popular meaning. 154 Ill. 2d at 108.
Initially, Missouri Pacific points out that, in rendering its
decision in this case, the trial court used "legal definition" to
define the term "occupational disease" instead of the "plain,
ordinary and popular" meaning as required by the case law. However
taking the trial court's remarks in context, we believe that the
trial court did in fact utilize the correct standard. In any
event, since our review is de novo, we are free to accept or reject
the definition arrived at by the trial court.
Missouri Pacific contends that the circuit court erred by
deciding as a matter of law that NIHL is an occupational disease
within the meaning of the policies at issue in this case. Missouri
Pacific argues that NIHL is neither a disease nor "occupational"
for purposes of construing these policies. Missouri Pacific
maintains that NIHL is a traumatic injury caused by the physical
impact of sound waves on the ear. In support of its argument,
Missouri Pacific cites extensively from medical journals and
treatises all of which support the conclusion that NIHL is caused
by a physical injury rather than disease. Missouri Pacific also
points to the affidavit of Robert Tivnan, a retired vice-president
of an insurance company who brokered certain of the policies at
issue here, in which he stated that, in his experience, NIHL was
not categorized as an occupational disease.
Missouri Pacific also relies on a number of cases from other
jurisdictions in which NIHL is described as resulting from trauma
or injury and not the result of disease. See City & County of
Denver v. Moore, 504 P.2d 367 (Colo. App. 1972); City of Orlando v.
Lemay, 652 So. 2d 850 (Fla. App. 1995); Skowronski v. Ajax Forging
& Casting Co., 220 N.W.2d 725 (Mich. App. 1974); Cisneros v.
Molycorp, Inc., 765 P.2d 761 (N.M. App. 1988); Belcher v. City of
Hampton, 338 S.E.2d 654 (Va. App. 1986); Peabody Galion Corp. v.
Workman, 643 P.2d 312 (Okla. 1982); Hinkle v. H. J. Heinz Co., 337 A.2d 907 (Pa. 1975). We note that these cases all arise in the
context of workers' compensation actions.
Citing another workers' compensation case, Missouri Pacific
further argues that NIHL is not occupational as it can arise from
sources outside the workplace. See Belcher, 338 S.E.2d at 656
("hearing loss *** is an ordinary disease of life suffered by much
of the population for a variety of reasons, including but not
limited to noise exposure both on and off the job, by gradual
injury, by infection, and the aging process. Noise exposure is
inescapably connected to modern living").
While these cases are informative, we question their relevancy
to the issue before us, since they mainly involve interpretations
of a state's particular workers' compensation statute rather than
interpretations of insurance policies.
However, one case relied on by Missouri Pacific not arising in
the context of a workers' compensation action is Winkelman v.
Boeing Airplane Co., 203 P.2d 171 (Kan. 1949), and it requires
careful review by this court. In that case, Winkelman brought a
common-law action for damages against his employer based upon his
loss of hearing while working at the employer's indoor pistol range
from 1943 to 1944 and then one day in 1945. Winkelman testified
that the pistol firing made his ears ring, but the ringing would
then quit after a time; he did not know that it would permanently
impair his hearing until the later part of 1945 or early in 1946.
According to his medical expert, his condition was not a disease
but the result of trauma caused by his employment.
The reviewing court held that Winkelman's loss of hearing was
an accidental injury within the contemplation of the workmen's
compensation act. The decision was based in part on the court's
determination that Winkelman's injury was "of traumatic origin."
However, the reviewing court went on to state as follows:
"It also may be well to state we are not called upon in
this case to discuss the abstract questions whether deafness
may be a disease or whether disease may be caused by trauma.
Assuming traumatic deafness may be a disease, as it appears to
be by some writers, the fact remains that here a portion of
this man's physical structure was definitely broken down by
accidental injury. For that injury recovery could have been
had under our act. We think under such circumstances we would
not be justified in denominating the injury solely and purely
an industrial disease and thereby deny a workman recovery
under our act. To deny recovery in this situation would not,
in our opinion, constitute liberal, but strict and technical,
interpretation of our act against a workman. Under our
repeated decisions we are not permitted to give it such
interpretation." Winkelman, 203 P.2d at 176.
Missouri Pacific also relies on a workers' compensation case,
Belschner v. Anchor Post Products, Inc., 175 A.2d 419 (Md. App.
1961) for the proposition that NIHL is not an "occupational
disease." However, in that case, the employee had continued to
work and the case turned on the interpretation of the Maryland
statute. It did not turn on the distinction between a disease and
an injury.
Most of the arguments raised by Missouri Pacific in this case
have already been addressed and resolved adversely to it. In the
case of Norfolk & Western Ry. Co. v. Accident & Casualty Insurance
Co. of Winterthur, 796 F. Supp. 929 (W.D. Va. 1992), aff'd in part
& appeal dismissed in part, 41 F.3d 928 (4th Cir. 1994), the court
was presented with the similar factual setting and resolved the
same issues raised in this case. In that case, the railroad filed
an action against the insurance companies who provided excess
coverage for the years 1960 to 1986. The railroad filed a motion
for partial summary judgment seeking a declaration, inter alia,
that NIHL was a bodily injury. The insurance companies filed a
cross-motion for summary judgment seeking a declaration that NIHL
was an occupational disease. The policy at issue in Norfolk &
Western Ry. Co. contained an almost identical clause regarding
"occupational disease" and "cessation from work" as the one we are
asked to interpret.
In determining that NIHL was a "occupational disease," the
district court stated as follows:
"After closely examining the arguments that the parties
and their affiants make, the court recognizes that any attempt
that it would make to substitute its analysis for that
provided by the medical experts would be futile. The futility
of the attempt can be readily appreciated through even a brief
consideration of the definitions quoted above. The
application of these definitions to the court's understanding
of the nature of NIHL leads the court to no justifiable
conclusion in favor of either position. Ultimately, the
answer to the injury/disease question must come from an
analysis of the parties' expectations with regard to the
contract rather than the medical analysis provided by the
parties and their affiants.
An examination of the authorities cited by the [insurance
companies] in support of their position that NIHL is an
occupational disease leads the court to conclude that whether
a medical professional would consider NIHL to be an injury or
a disease, the railroad had every reason to believe that NIHL
fell into the category of occupational disease when it entered
into the insurance contracts at issue in this case. The
number and breadth of the sources which refer to NIHL as an
occupational disease put the railroad on notice that its
insurance contracts would be interpreted according to the
premise that NIHL is an occupational disease. Any objectively
reasonable railroad would contract from this premise. This
being the parties' only reasonable expectation with regard to
the issue, the court holds that, for the purpose of
interpreting the polices at issue in this case, NIHL is an
occupational disease." Norfolk & Western Ry. Co., 796 F. Supp. at 935.
On appeal, the United States Court of Appeals for the Fourth
Circuit affirmed the district court's determination, stating,
"[t]he district court declared that noise-induced hearing loss is
an 'occupational disease'. We agree with the district court."
Norfolk & Western Ry. Co., 41 F.3d at 931. The court went on to
state that it had decided the same issue in a Jones Act case under
the Federal Employers' Liability Act (FELA). See Barger v. Mayor
& City Council of Baltimore, 616 F.2d 730 (4th Cir.
1980)(recognizing hearing loss from on-the-job noise as an
occupational disease).
We have quoted extensively from the above case, because it
addresses the majority of arguments raised by Missouri Pacific in
this case and is thus dispositive of those arguments.
We are not persuaded by Missouri Pacific's citation to
Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Insurance Co., No.
94--CV--1464 (Kan. Dist. Ct. September 18, 1995). Like the present
case, that case involved an insurance coverage dispute. In that
case, the district court determined that noise-induced hearing
losses were "accidents" relying on Winkelman. The district court
rejected the insurance companies' characterization of the hearing
loss as an "occupational disease." However, the court went on to
state as follows:
"However, the Court is constrained to observe that even
if such a characterization were valid, Insurors' [sic]
argument based thereon would be moot. The subject contract
language states, '[t]he words "bodily injury" as used in this
policy shall be construed to include but is not limited to
mental injury, sickness, disease, disability ***.' Thus
occupational diseases are included (emphasis in original) in
coverage as a matter of contract. The case cited by Insurors
[sic] in support of the proposition that NIHL is an
occupational disease, and thus not covered, involved insurance
contracts that specifically excluded occupational diseases
from coverage. Norfolk & Western Ry. Co. v. Accident &
Casualty Insurance Co. of Winterthur. et al., 796 F. Supp. 929
(W.D. Va. 1992)." Atchison, Topeka & Santa Fe Ry. Co., slip
op. at 12.
Missouri Pacific maintains that Norfolk & Western Ry. Co. is
distinguishable on its facts. It argues that the decision in that
case was reached only after extensive discovery (Norfolk & Western
Ry. Co., 41 F.3d at 930), which Missouri Pacific has been denied in
this case, and that, in the Norfolk case, the court did not hold
that the plain and ordinary meaning of "occupational disease"
includes noise-induced hearing loss.
Missouri Pacific's arguments are contradictory. On the one
hand, the discovery that was the subject of the protective order
related primarily to the information regarding the insurers'
drafting and meaning of certain terms in the policies at issue.
Yet, it also argues that in construing these terms the trial court
was required to find the "plain and ordinary" meaning of the term
"occupational disease." Thus the additional discovery it sought
would have had a limited bearing on the question of the "plain and
ordinary" meaning of the term "occupational disease."
Generally, words in a contract are to be given their usual and
primary meaning at the time of the execution of the contract.
DuQuoin National Bank v. Vergennes Equipment, Inc., 234 Ill. App.
3d 998, 1003 (1992). Although the court in Norfolk & Western Ry.
Co. did not use the term "plain and ordinary" meaning, it is clear
that it utilized that concept when it determined that, due to the
number of sources that had referred to NIHL as an occupational
disease, the railroad was on notice that its contracts would be
interpreted according to the premise that NIHL was an occupational
disease. Norfolk & Western Ry. Co., 796 F. Supp. at 935.
Missouri Pacific contends that the "cessation of work clause"
contained in the policies at issue in this case confirms that NIHL
is not an "occupational disease." Missouri Pacific argues that,
since NIHL does not cause an individual to cease work as a result,
NIHL is not an "occupational disease." Belschner, 175 A.2d 419
(NIHL not an "occupational disease" because an employee could
continue performing the same work); see also Wilson v. Hart County
Stone Co., 433 S.W.2d 649, 650 (Ky. App. 1968)(condition that did
not result in "cessation or curtailment of performance" was not
"occupational disease"). However, neither of these cases is
persuasive since they are limited to the interpretation of their
respective workers' compensation statutes.
In Norfolk & Western Ry. Co., the district court determined
the "cessation of work" clause to be unambiguous. The district
court then stated as follows:
"The railroad's argument that the interpretation offered
by the court swallows up the indemnity provision of the
contract does not dictate a contrary result. The court is
confident that the parties intended to swallow up the
indemnity provision inasmuch as they intended to limit
coverage with respect to occupational disease to claims which
resulted in the claimant's cessation from work. Paragraph six
[the same language at issue in the present case] is the
product of what appears to the court to be entirely rational
contracting. Like so many provisions, it limits coverage
according to an arbitrary but objectively determinable
criterion." 796 F. Supp. at 936.
We agree with the Norfolk court and the trial court in the present
case that the "cessation from work" clause is unambiguous.
Based upon the above discussion, we conclude as a matter of
law that NIHL is an "occupational disease" for purposes of the
insurance policies at issue in this case. See also Burlington
Northern R.R. Co. v. Aetna Casualty & Surety Co., No. 92--R--64
(Cir. Ct. St. Clair Co.) (holding NIHL is an "occupational
disease").
Missouri Pacific contends that the trial court should have
denied the insurers' motion for partial summary judgment in order
to allow Missouri Pacific to obtain the discovery it had requested.
Initially, Missouri Pacific argues that summary judgment was
improper because the insurers failed to provide a copy of the
policies for the record relying on Anderson v. Dorick, 28 Ill. App.
3d 225 (1975).
In Anderson, the reviewing court found that a motion to strike
a motion for summary judgment should have been granted where the
affidavit attached to the motion for summary judgment contained
several technical defects. Anderson, 28 Ill. App. 3d at 227-28.
However, we note that nothing in that case suggests that the mere
absence of the contract would have been sufficient to strike the
summary judgment motion.
In Otis Elevator Co. v. American Surety Co., 314 Ill. App. 479
(1942), the reviewing court held that the failure to attach copies
of a contract and other exhibits to an affidavit in support of a
motion for summary judgment was not a basis for reversing the
granting of a motion for summary judgment in favor of the
plaintiff. The court noted that some of the exhibits were attached
to the complaint, while another had previously been delivered to
the defendant. In addition, the plaintiff had notified the
defendant that no copies of another exhibit were available but that
the photostatic copy of the original was available for examination
at any time in the plaintiff's attorney's office. Otis Elevator
Co., 314 Ill. App. at 481.
Missouri Pacific's amended complaint alleged that the insurers
were already in possession of the policies, but, in any event,
because the policies were voluminous, they were being kept at the
offices of Missouri Pacific's counsel and would be made available
upon request. There was no factual dispute over the language
quoted from the policies in support of the motion for summary
judgment, nor did Missouri Pacific argue that the failure of the
policies to be physically present in the record somehow prevented
a question of fact from being presented to the trial court that
would have resulted in the denial of the motion for summary
judgment.
We conclude therefore that the failure of the insurers to
include copies of the policies for the record did not render the
granting of the motion for partial summary judgment improper.
Extrinsic evidence is not admissible to demonstrate a meaning
contrary to the terms of an unambiguous contract. Lundberg v.
Church Farm, Inc., 151 Ill. App. 3d 452, 460 (1986). Where the
terms of an agreement are clear and unambiguous, it is error for
the trial court to mandate discovery and allow in extrinsic
evidence regarding the intent of the parties. Jewel Cos. v.
Serfecz, 220 Ill. App. 3d 543, 549-50 (1991); see also Norfolk &
Western Ry. Co., 796 F. Supp. at 934 (additional discovery would
not substantially add to the arguments in support of the opposing
interpretation of the "occupational disease" and "cessation of
work" clause of the policy).
There being no ambiguities in the policy provision at issue in
this case, the trial court did not err in entering the protective
order as to the discovery sought by Missouri Pacific.
We conclude that the trial court did not err in entering
partial summary judgment for the insurers.
The judgment of the circuit court is affirmed, and the cause
is remanded.
Affirmed and remanded.
DOYLE, J., concurs.
JUSTICE COLWELL, dissenting:
I respectfully dissent from the majority's holding. I believe
the trial court abused its discretion when it granted the insurers'
motion for partial summary judgment without allowing Missouri
Pacific to obtain the discovery it had requested.
By focusing on how recent courts have ruled regarding NIHL and
insurance policies in determining whether NIHL is, as a matter of
law, an occupational disease, the majority has misconstrued the
main issue in this case and a fundamental tenet of insurance law.
The rule in Illinois is that terms in an insurance policy must
be accorded their plain and ordinary meaning. National Union Fire
Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122
(1994). The "plain and ordinary meaning," however, is construed at
the time of the execution of the contract. See Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09
(1992) (looking at what each party intended "damages" to mean when
contract signed). Indeed, when construing an insurance policy, a
court must determine the intent of the parties to the insurance
contract. Outboard Marine Corp., 154 Ill. 2d at 108.
Accordingly, whether NIHL is currently viewed as an
occupational disease is irrelevant in the analysis of the present
case. Instead, the issue here is whether Missouri Pacific and the
insurers intended NIHL to be considered an occupational disease
when the policies were administered. Obviously, when looking for
each party's intent, it is necessary to look at what both Missouri
Pacific and the insurers knew about NIHL when the policies were
issued.
The documents Missouri Pacific wishes to discover will serve
this purpose. The purposes of litigation are best served when each
party knows as much about the controversy as is reasonably
practical. Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122,
126-27 (1992). The objectives of pretrial discovery are to enhance
the truth-seeking process, to enable attorneys to better prepare
and evaluate causes, to eliminate surprises, and to ensure that
judgments rest on the merits of the case--not upon the skillful
maneuvering of counsel. Mistler v. Mancini, 111 Ill. App. 3d 228,
231-32 (1982). Indeed, discovery is not a tactical game used to
obstruct the opposing litigant. Ostendorf v. International
Harvester Co., 89 Ill. 2d 273, 282 (1982). Instead, discovery
procedures were designed to be flexible and adaptable to the
infinite variety of cases and circumstances appearing in the trial
court. Mistler, 111 Ill. App. 3d at 232. To limit unduly their
scope would thwart the administration of justice. Mistler, 111
Ill. App. 3d at 232. Therefore, summary judgment should be denied
if it appears from the record that the nonmoving party requires
additional discovery to respond. See 145 Ill. 2d R. 191(b) (the
need for additional discovery precludes the granting of summary
judgment); Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122, 126-
28 (1992); Dobbs v. Safeway Insurance Co., 66 Ill. App. 3d 400,
402-03 (1978). Our review of the trial court's entry of summary
judgment is de novo. Monticello Insurance Co. v. Wil-Freds
Construction, Inc., 277 Ill. App. 3d 697, 701 (1996).
Because additional discovery is needed regarding the insurers'
intent at the time they issued the policies, we should reverse the
trial court's entry of summary judgment. Missouri Pacific requests
documents that will give direct insight as to what the insurers
intended by the term "occupational disease." For example, Missouri
Pacific seeks the insurers' documents concerning the drafting and
derivation of the term "occupational disease," as well as the
insurers' marketing and promotional material concerning insurance
coverage for occupational diseases. These documents bear directly
on what the insurers intended by the term "occupational disease"
when they issued the policies to Missouri Pacific.
The majority erroneously relies on Norfolk & Western Ry. Co.
to show that the railroad should have known that NIHL was an
occupational disease. Quoting Norfolk, the majority states:
" 'The number and breadth of the sources which refer to NIHL
as an occupational disease put the railroad on notice that its
insurance contracts would be interpreted according to the
premises that NIHL is an occupational disease.' " ___ Ill.
App. 3d at ____, quoting Norfolk & Western Ry. Co., 796 F. Supp. at 935.
The record shows, however, that, in the period the policies were
administered, NIHL was not considered an occupational disease.
Instead, when the policies were issued, NIHL was commonly
deemed to be an injury. For example, Missouri Pacific's appellate
brief points out that the Illinois Workmen's Occupational Disease
Act excluded NIHL from 1951 (its initial passage) through 1975.
Rhode Island did not define NIHL as an occupational disease until
1969. New Jersey did not define NIHL as an occupational disease
until 1979. Moreover, 18 other states defined the term
"occupational disease" to include only a limited number of
specified conditions for the period 1959 to 1971. NIHL was absent
from these lists. Finally, Missouri Pacific lists numerous other
sources in its brief which all report that NIHL was considered a
"trauma," not a disease, throughout the 1960s and early 1970s.
Consequently, regardless of whether NIHL is considered an
occupational disease today, it is entirely probable that at the
time the insurers entered into contracts with Missouri Pacific NIHL
was not considered an occupational disease in accordance with the
terms of the policy.
I do not discount the possibility that the requested documents
may not show the insurers' intent, or that they will show that both
parties understood NIHL to be an occupational disease. However, it
also is equally likely that these documents will show that up to a
certain point in time, perhaps even 1971--the date the last policy
was issued--the insurers did not intend NIHL to be covered under
the occupational disease clause. As a result, a decision cannot be
made that NIHL is, as a matter of law, an occupational disease for
this insurance contract until such documents are discovered and
reviewed by Missouri Pacific.
For these reasons, we should reverse the trial court order
granting the insurers' motion for partial summary judgment and
remand the cause to the trial court to allow Missouri Pacific to
obtain the discovery it has requested.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
MISSOURI PACIFIC RAILROAD ) Appeal from the Circuit Court
COMPANY, on its own Behalf and ) of Du Page County.
as Successor in Interest to )
Chicago and Eastern Illinois )
Railroad Company and to Texas )
and Pacific Railway Company and )
their subsidiary and affiliated )
companies, )
)
Plaintiff-Appellant, )
)
v. ) No. 94--MR--0198
)
AMERICAN RE-INSURANCE COMPANY; )
AMERICAN CASUALTY COMPANY OF )
READING, PENNSYLVANIA; )
CONTINENTAL CASUALTY COMPANY; )
COMMERCIAL UNION INSURANCE )
COMPANY, on Behalf of )
C.E. Health Compensation and )
Liability Insurance Company, )
as Successor to certain )
interests of Employers' Surplus )
Lines Insurance Company; FEDERAL )
INSURANCE COMPANY; FIREMAN'S )
FUND INSURANCE COMPANY; )
NATIONWIDE MUTUAL INSURANCE )
COMPANY; and TRAVELERS )
INDEMNITY COMPANY, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
Modified Upon Denial of Rehearing
JUSTICE RATHJE delivered the opinion of the court:
Plaintiff, Missouri Pacific Railroad Company (Missouri
Pacific), appeals from a trial court order granting partial summary
judgment to the defendants, American Re-Insurance Company and other
named insurance companies (collectively, insurers). On appeal,
Missouri Pacific contends that the trial court erred in granting
the insurers' motion for partial summary judgment. We affirm the
decision of the trial court.
This controversy stems from the purchase by Missouri Pacific
and its predecessors of insurance coverage from the insurers for
third-party liabilities. The policies in question were issued
between 1959 and 1971.
In 1994, Missouri Pacific filed a declaratory judgment and
damages suit against the insurers. In the suit, Missouri Pacific
sought a declaration that it was entitled to indemnification from
the insurers for claims by current and former employees of Missouri
Pacific for hearing losses allegedly sustained as a result of long-
term exposure to unsafe levels of noise while employed by Missouri
Pacific.
The policies at issue in this case contain clauses the same as
or similar to the one set forth below:
"This Policy shall only indemnify the Employer against his
liability to pay compensation for occupational disease in
cases where the employees cessation from work as a result
thereof first occurs during the period of insurance covered by
this Policy." (Emphasis added.)
The policies at issue here do not set forth a definition of
"occupational disease."
The insurers filed a motion for partial summary judgment on
the grounds that (1) noise-induced hearing loss (NIHL) was an
"occupational disease"; and (2) the polices in question limited
coverage of occupational disease claims to claims falling under the
"cessation from work" clause. In addition, the insurers sought a
protective order to prevent Missouri Pacific from proceeding with
certain discovery requests. Missouri Pacific had requested
discovery on (1) the drafting and derivation of key policy terms,
including "occupational disease" and the "cessation from work"
clause as they pertained to hearing loss claims; (2) pleadings and
other court documents in which the insurers took a position
concerning the meaning of key policy terms; (3) marketing and
promotional material concerning insurance coverage or the lack
thereof for hearing loss claims; and (4) the factual bases for the
insurers' affirmative defenses, including the "occupational
disease" term.
The trial court granted the motion for a protective order,
stating as follows:
"At this point in time, I think many of the requests for
discovery are premature. I would prefer to--if I am going to
impose that burden on the various Defendants, I would prefer
to have at least the issues narrowed by the motion for summary
judgment.
I can assure you that if there is a fact question that is
raised by the Plaintiffs, that I will deny any motions for
summary judgment, and I will order discovery to proceed as to
those fact questions and any materials that are raised in any
affirmative defenses."
Following argument, the trial court granted the insurers'
motion for partial summary judgment, stating as follows:
"This is a case of first impression in the State of
Illinois, obviously.
I don't believe that there is any issue of fact as to how
noise induced hearing loss occurs in an individual.
I think the medical documents which were provided and the
brief synopsis by counsel is certainly the generally accepted
explanation of how noise induced hearing loss occurs.
But I believe that the question is not the medical
definition of the disease, but it is the legal definition of
an occupational disease.
And this being a case of first impression, as I stated,
it is incumbent on the Court to look to how other Courts have
defined noise induced hearing loss as an occupational disease
within the context of an insurance coverage case.
I am not solely relying on other cases, although I think
that they are very instructive.
But I believe that occupational diseases have been
defined in many other employment contexts, Workers
Compensation, OSHA, all kinds of situations. But I believe
that as a matter of law, noise induced hearing loss can be
legally defined as an occupational disease, notwithstanding
the fact that it may not meet the criteria for a medical
disease."
The trial court also found that the "cessation from work"
clause was unambiguous.
As part of its order, the trial court made a finding pursuant
to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was
no just reason for delaying the enforcement or appeal of the
judgment. This appeal followed.
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment
is a drastic measure and should only be granted if the movant's
right to judgment is clear and free from doubt. Outboard Marine
Corp., 154 Ill. 2d at 102. In appeals from summary judgment
rulings, the court conducts a de novo review. 154 Ill. 2d at 102.
The construction of an insurance policy's provisions is a
question of law. Outboard Marine Corp., 154 Ill. 2d at 108. In
construing an insurance policy, the court must ascertain the intent
of the parties to the contract. Outboard Marine Corp., 154 Ill. 2d
at 108. If the words in the policy are unambiguous, a court must
afford them their plain, ordinary, and popular meaning. 154 Ill. 2d at 108.
Initially, Missouri Pacific points out that, in rendering its
decision in this case, the trial court used "legal definition" to
define the term "occupational disease" instead of the "plain,
ordinary and popular" meaning as required by the case law. However
taking the trial court's remarks in context, we believe that the
trial court did in fact utilize the correct standard. In any
event, since our review is de novo, we are free to accept or reject
the definition arrived at by the trial court.
Missouri Pacific contends that the circuit court erred by
deciding as a matter of law that NIHL is an occupational disease
within the meaning of the policies at issue in this case. Missouri
Pacific argues that NIHL is neither a disease nor "occupational"
for purposes of construing these policies. Missouri Pacific
maintains that NIHL is a traumatic injury caused by the physical
impact of sound waves on the ear. In support of its argument,
Missouri Pacific cites extensively from medical journals and
treatises all of which support the conclusion that NIHL is caused
by a physical injury rather than disease. Missouri Pacific also
points to the affidavit of Robert Tivnan, a retired vice-president
of an insurance company who brokered certain of the policies at
issue here, in which he stated that, in his experience, NIHL was
not categorized as an occupational disease.
Missouri Pacific also relies on a number of cases from other
jurisdictions in which NIHL is described as resulting from trauma
or injury and not the result of disease. See City & County of
Denver v. Moore, 504 P.2d 367 (Colo. App. 1972); City of Orlando v.
Lemay, 652 So. 2d 850 (Fla. App. 1995); Skowronski v. Ajax Forging
& Casting Co., 220 N.W.2d 725 (Mich. App. 1974); Cisneros v.
Molycorp, Inc., 765 P.2d 761 (N.M. App. 1988); Belcher v. City of
Hampton, 338 S.E.2d 654 (Va. App. 1986); Peabody Galion Corp. v.
Workman, 643 P.2d 312 (Okla. 1982); Hinkle v. H. J. Heinz Co., 337 A.2d 907 (Pa. 1975). We note that these cases all arise in the
context of workers' compensation actions.
Citing another workers' compensation case, Missouri Pacific
further argues that NIHL is not occupational as it can arise from
sources outside the workplace. See Belcher, 338 S.E.2d at 656
("hearing loss *** is an ordinary disease of life suffered by much
of the population for a variety of reasons, including but not
limited to noise exposure both on and off the job, by gradual
injury, by infection, and the aging process. Noise exposure is
inescapably connected to modern living").
While these cases are informative, we question their relevancy
to the issue before us, since they mainly involve interpretations
of a state's particular workers' compensation statute rather than
interpretations of insurance policies.
However, one case relied on by Missouri Pacific not arising in
the context of a workers' compensation action is Winkelman v.
Boeing Airplane Co., 203 P.2d 171 (Kan. 1949), and it requires
careful review by this court. In that case, Winkelman brought a
common-law action for damages against his employer based upon his
loss of hearing while working at the employer's indoor pistol range
from 1943 to 1944 and then one day in 1945. Winkelman testified
that the pistol firing made his ears ring, but the ringing would
then quit after a time; he did not know that it would permanently
impair his hearing until the later part of 1945 or early in 1946.
According to his medical expert, his condition was not a disease
but the result of trauma caused by his employment.
The reviewing court held that Winkelman's loss of hearing was
an accidental injury within the contemplation of the workmen's
compensation act. The decision was based in part on the court's
determination that Winkelman's injury was "of traumatic origin."
However, the reviewing court went on to state as follows:
"It also may be well to state we are not called upon in
this case to discuss the abstract questions whether deafness
may be a disease or whether disease may be caused by trauma.
Assuming traumatic deafness may be a disease, as it appears to
be by some writers, the fact remains that here a portion of
this man's physical structure was definitely broken down by
accidental injury. For that injury recovery could have been
had under our act. We think under such circumstances we would
not be justified in denominating the injury solely and purely
an industrial disease and thereby deny a workman recovery
under our act. To deny recovery in this situation would not,
in our opinion, constitute liberal, but strict and technical,
interpretation of our act against a workman. Under our
repeated decisions we are not permitted to give it such
interpretation." Winkelman, 203 P.2d at 176.
Missouri Pacific also relies on a workers' compensation case,
Belschner v. Anchor Post Products, Inc., 175 A.2d 419 (Md. App.
1961) for the proposition that NIHL is not an "occupational
disease." However, in that case, the employee had continued to
work and the case turned on the interpretation of the Maryland
statute. It did not turn on the distinction between a disease and
an injury.
Most of the arguments raised by Missouri Pacific in this case
have already been addressed and resolved adversely to it. In the
case of Norfolk & Western Ry. Co. v. Accident & Casualty Insurance
Co. of Winterthur, 796 F. Supp. 929 (W.D. Va. 1992), aff'd in part
& appeal dismissed in part, 41 F.3d 928 (4th Cir. 1994), the court
was presented with the similar factual setting and resolved the
same issues raised in this case. In that case, the railroad filed
an action against the insurance companies who provided excess
coverage for the years 1960 to 1986. The railroad filed a motion
for partial summary judgment seeking a declaration, inter alia,
that NIHL was a bodily injury. The insurance companies filed a
cross-motion for summary judgment seeking a declaration that NIHL
was an occupational disease. The policy at issue in Norfolk &
Western Ry. Co. contained an almost identical clause regarding
"occupational disease" and "cessation from work" as the one we are
asked to interpret.
In determining that NIHL was a "occupational disease," the
district court stated as follows:
"After closely examining the arguments that the parties
and their affiants make, the court recognizes that any attempt
that it would make to substitute its analysis for that
provided by the medical experts would be futile. The futility
of the attempt can be readily appreciated through even a brief
consideration of the definitions quoted above. The
application of these definitions to the court's understanding
of the nature of NIHL leads the court to no justifiable
conclusion in favor of either position. Ultimately, the
answer to the injury/disease question must come from an
analysis of the parties' expectations with regard to the
contract rather than the medical analysis provided by the
parties and their affiants.
An examination of the authorities cited by the [insurance
companies] in support of their position that NIHL is an
occupational disease leads the court to conclude that whether
a medical professional would consider NIHL to be an injury or
a disease, the railroad had every reason to believe that NIHL
fell into the category of occupational disease when it entered
into the insurance contracts at issue in this case. The
number and breadth of the sources which refer to NIHL as an
occupational disease put the railroad on notice that its
insurance contracts would be interpreted according to the
premise that NIHL is an occupational disease. Any objectively
reasonable railroad would contract from this premise. This
being the parties' only reasonable expectation with regard to
the issue, the court holds that, for the purpose of
interpreting the polices at issue in this case, NIHL is an
occupational disease." Norfolk & Western Ry. Co., 796 F. Supp. at 935.
On appeal, the United States Court of Appeals for the Fourth
Circuit affirmed the district court's determination, stating,
"[t]he district court declared that noise-induced hearing loss is
an 'occupational disease'. We agree with the district court."
Norfolk & Western Ry. Co., 41 F.3d at 931. The court went on to
state that it had decided the same issue in a Jones Act case under
the Federal Employers' Liability Act (FELA). See Barger v. Mayor
& City Council of Baltimore, 616 F.2d 730 (4th Cir.
1980)(recognizing hearing loss from on-the-job noise as an
occupational disease).
We have quoted extensively from the above case, because it
addresses the majority of arguments raised by Missouri Pacific in
this case and is thus dispositive of those arguments.
We are not persuaded by Missouri Pacific's citation to
Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Insurance Co., No.
94--CV--1464 (Kan. Dist. Ct. September 18, 1995). Like the present
case, that case involved an insurance coverage dispute. In that
case, the district court determined that noise-induced hearing
losses were "accidents" relying on Winkelman. The district court
rejected the insurance companies' characterization of the hearing
loss as an "occupational disease." However, the court went on to
state as follows:
"However, the Court is constrained to observe that even
if such a characterization were valid, Insurors' [sic]
argument based thereon would be moot. The subject contract
language states, '[t]he words "bodily injury" as used in this
policy shall be construed to include but is not limited to
mental injury, sickness, disease, disability ***.' Thus
occupational diseases are included (emphasis in original) in
coverage as a matter of contract. The case cited by Insurors
[sic] in support of the proposition that NIHL is an
occupational disease, and thus not covered, involved insurance
contracts that specifically excluded occupational diseases
from coverage. Norfolk & Western Ry. Co. v. Accident &
Casualty Insurance Co. of Winterthur. et al., 796 F. Supp. 929
(W.D. Va. 1992)." Atchison, Topeka & Santa Fe Ry. Co., slip
op. at 12.
Missouri Pacific maintains that Norfolk & Western Ry. Co. is
distinguishable on its facts. It argues that the decision in that
case was reached only after extensive discovery (Norfolk & Western
Ry. Co., 41 F.3d at 930), which Missouri Pacific has been denied in
this case, and that, in the Norfolk case, the court did not hold
that the plain and ordinary meaning of "occupational disease"
includes noise-induced hearing loss.
Missouri Pacific's arguments are contradictory. On the one
hand, the discovery that was the subject of the protective order
related primarily to the information regarding the insurers'
drafting and meaning of certain terms in the policies at issue.
Yet, it also argues that in construing these terms the trial court
was required to find the "plain and ordinary" meaning of the term
"occupational disease." Thus the additional discovery it sought
would have had a limited bearing on the question of the "plain and
ordinary" meaning of the term "occupational disease."
Generally, words in a contract are to be given their usual and
primary meaning at the time of the execution of the contract.
DuQuoin National Bank v. Vergennes Equipment, Inc., 234 Ill. App.
3d 998, 1003 (1992). Although the court in Norfolk & Western Ry.
Co. did not use the term "plain and ordinary" meaning, it is clear
that it utilized that concept when it determined that, due to the
number of sources that had referred to NIHL as an occupational
disease, the railroad was on notice that its contracts would be
interpreted according to the premise that NIHL was an occupational
disease. Norfolk & Western Ry. Co., 796 F. Supp. at 935.
Missouri Pacific contends that the "cessation of work clause"
contained in the policies at issue in this case confirms that NIHL
is not an "occupational disease." Missouri Pacific argues that,
since NIHL does not cause an individual to cease work as a result,
NIHL is not an "occupational disease." Belschner, 175 A.2d 419
(NIHL not an "occupational disease" because an employee could
continue performing the same work); see also Wilson v. Hart County
Stone Co., 433 S.W.2d 649, 650 (Ky. App. 1968)(condition that did
not result in "cessation or curtailment of performance" was not
"occupational disease"). However, neither of these cases is
persuasive since they are limited to the interpretation of their
respective workers' compensation statutes.
In Norfolk & Western Ry. Co., the district court determined
the "cessation of work" clause to be unambiguous. The district
court then stated as follows:
"The railroad's argument that the interpretation offered
by the court swallows up the indemnity provision of the
contract does not dictate a contrary result. The court is
confident that the parties intended to swallow up the
indemnity provision inasmuch as they intended to limit
coverage with respect to occupational disease to claims which
resulted in the claimant's cessation from work. Paragraph six
[the same language at issue in the present case] is the
product of what appears to the court to be entirely rational
contracting. Like so many provisions, it limits coverage
according to an arbitrary but objectively determinable
criterion." 796 F. Supp. at 936.
We agree with the Norfolk court and the trial court in the present
case that the "cessation from work" clause is unambiguous.
Based upon the above discussion, we conclude as a matter of
law that NIHL is an "occupational disease" for purposes of the
insurance policies at issue in this case. See also Burlington
Northern R.R. Co. v. Aetna Casualty & Surety Co., No. 92--R--64
(Cir. Ct. St. Clair Co.) (holding NIHL is an "occupational
disease").
Missouri Pacific contends that the trial court should have
denied the insurers' motion for partial summary judgment in order
to allow Missouri Pacific to obtain the discovery it had requested.
Initially, Missouri Pacific argues that summary judgment was
improper because the insurers failed to provide a copy of the
policies for the record relying on Anderson v. Dorick, 28 Ill. App.
3d 225 (1975).
In Anderson, the reviewing court found that a motion to strike
a motion for summary judgment should have been granted where the
affidavit attached to the motion for summary judgment contained
several technical defects. Anderson, 28 Ill. App. 3d at 227-28.
However, we note that nothing in that case suggests that the mere
absence of the contract would have been sufficient to strike the
summary judgment motion.
In Otis Elevator Co. v. American Surety Co., 314 Ill. App. 479
(1942), the reviewing court held that the failure to attach copies
of a contract and other exhibits to an affidavit in support of a
motion for summary judgment was not a basis for reversing the
granting of a motion for summary judgment in favor of the
plaintiff. The court noted that some of the exhibits were attached
to the complaint, while another had previously been delivered to
the defendant. In addition, the plaintiff had notified the
defendant that no copies of another exhibit were available but that
the photostatic copy of the original was available for examination
at any time in the plaintiff's attorney's office. Otis Elevator
Co., 314 Ill. App. at 481.
Missouri Pacific's amended complaint alleged that the insurers
were already in possession of the policies, but, in any event,
because the policies were voluminous, they were being kept at the
offices of Missouri Pacific's counsel and would be made available
upon request. There was no factual dispute over the language
quoted from the policies in support of the motion for summary
judgment, nor did Missouri Pacific argue that the failure of the
policies to be physically present in the record somehow prevented
a question of fact from being presented to the trial court that
would have resulted in the denial of the motion for summary
judgment.
We conclude therefore that the failure of the insurers to
include copies of the policies for the record did not render the
granting of the motion for partial summary judgment improper.
Extrinsic evidence is not admissible to demonstrate a meaning
contrary to the terms of an unambiguous contract. Lundberg v.
Church Farm, Inc., 151 Ill. App. 3d 452, 460 (1986). Where the
terms of an agreement are clear and unambiguous, it is error for
the trial court to mandate discovery and allow in extrinsic
evidence regarding the intent of the parties. Jewel Cos. v.
Serfecz, 220 Ill. App. 3d 543, 549-50 (1991); see also Norfolk &
Western Ry. Co., 796 F. Supp. at 934 (additional discovery would
not substantially add to the arguments in support of the opposing
interpretation of the "occupational disease" and "cessation of
work" clause of the policy).
There being no ambiguities in the policy provision at issue in
this case, the trial court did not err in entering the protective
order as to the discovery sought by Missouri Pacific.
We conclude that the trial court did not err in entering
partial summary judgment for the insurers.
The judgment of the circuit court is affirmed, and the cause
is remanded.
Affirmed and remanded.
DOYLE, J., concurs.
JUSTICE COLWELL, dissenting:
I respectfully dissent from the majority's holding. I believe
the trial court abused its discretion when it granted the insurers'
motion for partial summary judgment without allowing Missouri
Pacific to obtain the discovery it had requested.
By focusing on how recent courts have ruled regarding NIHL and
insurance policies in determining whether NIHL is, as a matter of
law, an occupational disease, the majority has misconstrued the
main issue in this case and a fundamental tenet of insurance law.
The rule in Illinois is that terms in an insurance policy must
be accorded their plain and ordinary meaning. National Union Fire
Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122
(1994). The "plain and ordinary meaning," however, is construed at
the time of the execution of the contract. See Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09
(1992) (looking at what each party intended "damages" to mean when
contract signed). Indeed, when construing an insurance policy, a
court must determine the intent of the parties to the insurance
contract. Outboard Marine Corp., 154 Ill. 2d at 108.
Accordingly, whether NIHL is currently viewed as an
occupational disease is irrelevant in the analysis of the present
case. Instead, the issue here is whether Missouri Pacific and the
insurers intended NIHL to be considered an occupational disease
when the policies were administered. Obviously, when looking for
each party's intent, it is necessary to look at what both Missouri
Pacific and the insurers knew about NIHL when the policies were
issued.
The documents Missouri Pacific wishes to discover will serve
this purpose. The purposes of litigation are best served when each
party knows as much about the controversy as is reasonably
practical. Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122,
126-27 (1992). The objectives of pretrial discovery are to enhance
the truth-seeking process, to enable attorneys to better prepare
and evaluate causes, to eliminate surprises, and to ensure that
judgments rest on the merits of the case--not upon the skillful
maneuvering of counsel. Mistler v. Mancini, 111 Ill. App. 3d 228,
231-32 (1982). Indeed, discovery is not a tactical game used to
obstruct the opposing litigant. Ostendorf v. International
Harvester Co., 89 Ill. 2d 273, 282 (1982). Instead, discovery
procedures were designed to be flexible and adaptable to the
infinite variety of cases and circumstances appearing in the trial
court. Mistler, 111 Ill. App. 3d at 232. To limit unduly their
scope would thwart the administration of justice. Mistler, 111
Ill. App. 3d at 232. Therefore, summary judgment should be denied
if it appears from the record that the nonmoving party requires
additional discovery to respond. See 145 Ill. 2d R. 191(b) (the
need for additional discovery precludes the granting of summary
judgment); Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122, 126-
28 (1992); Dobbs v. Safeway Insurance Co., 66 Ill. App. 3d 400,
402-03 (1978). Our review of the trial court's entry of summary
judgment is de novo. Monticello Insurance Co. v. Wil-Freds
Construction, Inc., 277 Ill. App. 3d 697, 701 (1996).
Because additional discovery is needed regarding the insurers'
intent at the time they issued the policies, we should reverse the
trial court's entry of summary judgment. Missouri Pacific requests
documents that will give direct insight as to what the insurers
intended by the term "occupational disease." For example, Missouri
Pacific seeks the insurers' documents concerning the drafting and
derivation of the term "occupational disease," as well as the
insurers' marketing and promotional material concerning insurance
coverage for occupational diseases. These documents bear directly
on what the insurers intended by the term "occupational disease"
when they issued the policies to Missouri Pacific.
The majority erroneously relies on Norfolk & Western Ry. Co.
to show that the railroad should have known that NIHL was an
occupational disease. Quoting Norfolk, the majority states:
" 'The number and breadth of the sources which refer to NIHL
as an occupational disease put the railroad on notice that its
insurance contracts would be interpreted according to the
premises that NIHL is an occupational disease.' " ___ Ill.
App. 3d at ____, quoting Norfolk & Western Ry. Co., 796 F. Supp. at 935.
The record shows, however, that, in the period the policies were
administered, NIHL was not considered an occupational disease.
Instead, when the policies were issued, NIHL was commonly
deemed to be an injury. For example, Missouri Pacific's appellate
brief points out that the Illinois Workmen's Occupational Disease
Act excluded NIHL from 1951 (its initial passage) through 1975.
Rhode Island did not define NIHL as an occupational disease until
1969. New Jersey did not define NIHL as an occupational disease
until 1979. Moreover, 18 other states defined the term
"occupational disease" to include only a limited number of
specified conditions for the period 1959 to 1971. NIHL was absent
from these lists. Finally, Missouri Pacific lists numerous other
sources in its brief which all report that NIHL was considered a
"trauma," not a disease, throughout the 1960s and early 1970s.
Consequently, regardless of whether NIHL is considered an
occupational disease today, it is entirely probable that at the
time the insurers entered into contracts with Missouri Pacific NIHL
was not considered an occupational disease in accordance with the
terms of the policy.
I do not discount the possibility that the requested documents
may not show the insurers' intent, or that they will show that both
parties understood NIHL to be an occupational disease. However, it
also is equally likely that these documents will show that up to a
certain point in time, perhaps even 1971--the date the last policy
was issued--the insurers did not intend NIHL to be covered under
the occupational disease clause. As a result, a decision cannot be
made that NIHL is, as a matter of law, an occupational disease for
this insurance contract until such documents are discovered and
reviewed by Missouri Pacific.
For these reasons, we should reverse the trial court order
granting the insurers' motion for partial summary judgment and
remand the cause to the trial court to allow Missouri Pacific to
obtain the discovery it has requested.
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