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 premise that NIHL is an occupational disease.’ ” 286 Ill. App. 3d at 136, 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 under 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.