Appeal from the Circuit Court of Du Page County. No. 94--MR--0198. Honorable Bonnie M. Wheaton, Judge, Presiding.
As Modified Upon Denial of Rehearing January 24, 1997. Released for Publication February 25, 1997.
The Honorable Justice Rathje delivered the opinion of the court. Doyle, J., concurs. Justice Colwell, dissenting
The opinion of the court was delivered by: Rathje
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, ...