THIRD DIVISION
Date Filed:

JUSTICE HALL delivered the opinion of the court:

The plaintiff, Han Mutlu, filed a three-count complaintagainst the defendant, State Farm Fire and Casualty Company,alleging a breach of contract (count I), a violation of section155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2000))(count II) and a breach of the common law duty of good faith andfair dealing (count III). The plaintiff voluntarily dismissedcount III. The circuit court granted summary judgment to thedefendant on both counts of the complaint. The plaintiffappeals.

On appeal, the plaintiff raises the following issues:whether the circuit court erred when it entered partial summaryjudgments for the defendant and whether the circuit court abusedits discretion when it failed to compel the defendant to complywith discovery prior to ruling on the defendant's motions forpartial summary judgment. We affirm the judgment of the circuitcourt.

The plaintiff purchased from the defendant a condominiumunit owners insurance policy, which provided coverage betweenNovember 24, 1997, and November 24, 1998. The policy providedcoverage for claims made against the plaintiff because of bodilyinjury or property damage due to an occurrence. The policydefined "occurrence" as meaning:

"an accident, including exposure to conditions, whichresults in:

a. bodily injury; or

b. property damage;

during the policy period."

Property damage is defined as:

"physical damage to or destruction of tangible property,including loss of use. Theft or conversion of property byan insured is not property damage."

In addition, the policy also provided that policy did notprovide coverage for:

"a. bodily injury or property damage:

(1) which is either expected or intended by an insured;or

(2) to any person or property which is the result ofwillful and malicious acts of the insured."

The plaintiff filed the instant lawsuit on April 9, 2001. The following facts are taken from the allegations contained inthe complaint.

On October 6, 1997, the plaintiff filed suit against the1550 Lakeshore Drive Condominium Association (the Association)(Mutlu v. 1550 Lake Shore Drive Condominium Ass'n, No. 97 CH12528). The Association filed a counterclaim against theplaintiff seeking injunctive relief and alleging that hecontinuously ran the hot water in his unit to the detriment ofhis neighbors and in violation of Illinois law. On or aboutMarch 12, 1998, the plaintiff tendered the defense of theAssociation's counterclaim to the defendant. On May 8, 1998, thedefendant denied coverage and refused to defend the plaintiff onthe Association's counterclaim. As a result, the plaintiffexpended in excess of $100,000 in defense and investigationexpenses in connection with the Association's counterclaim.

In another suit filed by the plaintiff (Mutlu v. Brodny, 97L 10292), Phyllis Brodny, a resident of the condominium buildingin which the plaintiff resided, filed a counterclaim against theplaintiff. After initially agreeing to defend the plaintiffagainst Ms. Brodny's counterclaim, the defendant subsequentlynotified the plaintiff that it did not have a duty to indemnifyhim and declined to defend him against any of the counterclaimsfiled against him by Ms. Brodny.

Eventually, the Association paid the plaintiff $700,000 andissued a letter explaining that the plaintiff was not responsiblefor the hot water deficiencies and apologizing to the plaintiff.

After the suit in this case was filed, the plaintiff servedinterrogatories and a production of documents request on thedefendant. However, State Farm refused to answer them.

On September 14, 2001, the defendant filed a motion forpartial summary judgment as to count I of the complaint. Insupport of its motion, the defendant argued that the plaintifffailed to allege that any property damage had occurred or thatany physical damage was the result of an occurrence as defined bythe insurance policy in this case because it was the result ofdeliberate, intentional and malicious acts by the plaintiff.

In response, on October 11, 2001, the plaintiff filed amotion to stay summary judgment proceedings and to compeldiscovery. On October 24, 2001, the circuit court entered anorder continuing generally the plaintiff's motion to stay andcompel discovery. On November 26, 2001, the plaintiff filed aresponse to the defendant's motion for partial summary judgmentand a cross-motion for partial summary judgment.

On February 1, 2002, the circuit court issued a memorandumand order granting the defendant's motion for partial summaryjudgment as to count I of the complaint.

On February 7, 2002, the defendant filed a motion forpartial summary judgment as to count II of the complaint. Themotion was granted by the circuit court on February 19, 2002.

The plaintiff filed a timely notice of appeal.

The court reviews the granting of motions for summaryjudgment de novo. Outboard Marine Corp. v. Liberty MutualInsurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).

The construction of an insurance policy and a determinationof the rights and obligations thereunder are questions of law forthe court that are appropriate subjects for disposition by way ofsummary judgment. Crum & Forster Managers Corp. v. ResolutionTrust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073, 1077 (1993).

In construing an insurance policy, the primary function ofthe court is to ascertain and enforce the intention of theparties as expressed in the agreement. Crum & Forster ManagersCorp., 156 Ill. 2d at 391, 620 N.E.2d at 1078. To ascertain theintent of the parties and the meaning of the words used in theinsurance policy, the court must construe the policy as a whole,taking into account the type of insurance for which the partieshave contracted, the risks undertaken and purchased, the subjectmatter that is insured and the purposes of the entire contract. Crum & Forster Managers Corp., 156 Ill. 2d at 391, 620 N.E.2d at1078. If the words of the policy are plain and unambiguous, thecourt will afford them their plain, ordinary meaning and willapply them as written. Crum & Forster Managers Corp., 156 Ill.2d at 391, 620 N.E.2d at 1078. The court will not search forambiguity where there is none. Crum & Forster Managers Corp.,156 Ill. 2d at 391, 620 N.E.2d at 1078.

The plaintiff contends that the circuit court erred ingranting the defendant's motions for partial summary judgmentbecause the defendant had an obligation to defend him against theAssociation's counterclaim under the terms of the liabilitypolicy the defendant issued to him.⁽¹⁾

To determine an insurer's duty to defend its insured, thecourt must look to the allegations of the underlying complaint,and if the complaint alleges facts within or potentially withinpolicy coverage, an insurer is obliged to defend its insured evenif the allegations are groundless, false or fraudulent. UnitedStates Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 73, 578 N.E.2d 926, 930 (1991). An insurer may notjustifiably refuse to defend an action against its insured unlessit is clear from the face of the underlying complaint that theallegations fail to state facts which bring the case within, orpotentially within, the policy's coverage. United StatesFidelity & Guaranty Co., 144 Ill. 2d at 73, 578 N.E.2d at 930. Moreover, if the underlying complaint alleges several theories ofrecovery against the insured, the duty to defend arises even ifonly one such theory is within the potential coverage of thepolicy. United States Fidelity & Guaranty Co., 144 Ill. 2d at73, 578 N.E.2d at 930. The underlying complaint and theinsurance policy must be liberally construed in favor of theinsured. 144 Ill. 2d at 74, 578 N.E.2d at 930.

Under the terms of the policy at issue in this case, thedefendant was required to defend the plaintiff if theAssociation's counterclaim alleged an occurrence resulting inproperty damage. The defendant would not be required to defendthe plaintiff if the property damage was either expected orintended by the plaintiff or caused maliciously or willfully bythe plaintiff. We turn first to the question of whether therewas property damage in this case.

The Association's counterclaim and exhibits thereto allegedthat the plaintiff, who resided in unit 12A, had caused hot watershortages affecting the lower half (floors 2 through 14) of thecondominium building by continually running the hot water in hisunit. The Association alleged that the problem first manifesteditself on the weekend of November 14, 1997. After residentsreported hearing water running in the plaintiff's unit, theplaintiff explained that he was washing his bathtub. The hotwater shortages continued. Finally, on the weekend of February21, 1998, after residents had reported a lack of hot water, itwas determined that hot water was running into the plaintiff'sbathtub. Failing to rouse the plaintiff, Association members,with the help of a locksmith and accompanied by a police officer,entered the plaintiff's unit. The plaintiff denied he had beenrunning water in his unit.

Under the policy in this case, "property damage" meansphysical damage to or destruction of tangible property, includingloss of use.

In Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197Ill. 2d 278, 312, 757 N.E.2d 481, 502 (2001), our supreme courtaddressed the meaning of the term "physical injury." In thatcase, the policies defined property damage as "'physical injuryto *** tangible property which occurs during the policy period.'(Emphasis added.)" Eljer Manufacturing, Inc., 197 Ill. 2d at298, 757 N.E.2d at 494. After examining the various dictionarydefinitions, the court concluded that "to the average, ordinaryperson, tangible property suffers a 'physical' injury when theproperty is altered in appearance, shape, color or in othermaterial dimension." Eljer Manufacturing, Inc., 197 Ill. 2d at301, 757 N.E.2d at 496.

The Association's counterclaim did not allege any physicaldamage to the hot water system in the condominium building as aresult of the plaintiff's alleged continuous running of the hotwater. However, relying on Eljer Manufacturing, Inc., theplaintiff argues that since water, hot or cold, constitutestangible property, the allegation that the continuous running ofthe hot water altered the material dimensions of the hot watersupply alleges physical damage to the water.

But the water supply is not the tangible property; the wateris. The plaintiff fails to explain how the water itself is"damaged" by being either hot or cold. The appearance of wateris not altered by whether it is hot or cold; neither its shapenor its color is changed by its temperature. While less hotwater might not be desirable, as the supreme court explained, "tothe average mind, tangible property does not experience'physical' injury if that property suffers intangible damage,such as diminution in value as a result from the failure of acomponent." Eljer Manufacturing, Inc., 197 Ill. 2d at 301-02,757 N.E.2d at 496. In the present case, the "hot" component ofthe water was diminished, resulting in "intangible" damage. Therefore, the plaintiff's argument fails.

However, the plaintiff then points out that under thepolicy's definition of "property damage," he was entitled tocoverage if his conduct caused a "loss of use" of tangibleproperty. Since the Association's counterclaim alleged the "lossof use" of the hot water, the plaintiff maintains that thecounterclaim alleged property damage by the plaintiff for whichhe was entitled to coverage.

The parties acknowledge that Illinois courts have notaddressed this precise issue and cite to several out-of-statecases as authority for their respective positions.

In the absence of an Illinois determination on a point oflaw, the courts of this state will look to other jurisdictions aspersuasive authority. Atwood Vacuum Machine Co. v. ContinentalCasualty Co. of Chicago, 107 Ill. App. 2d 248, 263, 246 N.E.2d882, 890 (1969).

The plaintiff urges this court to follow the decisions in American Home Assurance Co. v. Libbey-Owens-Ford Co., 786 F.2d 22(1st Cir. 1986), and Gibson v. Farm Family Mutual Insurance Co.,673 A.2d 1350 (Me. 1996).

In American Home Assurance Co., "property damage" wasdefined in the policy at issue as "'physical injury to, orphysical destruction of, tangible property, including loss of usethereof.'" American Home Assurance Co., 786 F.2d at 24.

In that case, the court of appeals first noted that the 1973revision of the comprehensive general liability policy (CGL),used by most insurance companies, added the modifier "'physical'"injury to the definition of "'property damage'" in order torestrict recovery for intangible losses. Therefore, under thispolicy language, some physical injury to tangible property mustbe shown to trigger coverage. American Home Assurance Co., 786F.2d at 25.

The court agreed with the district court's finding that thepolicy did not require tangible property to suffer physicalinjury in order for a loss of use claim to be covered, stating asfollows:

"Because the American Home policy explicitly definedproperty damage as 'physical injury' to tangible property,and because none of Hancock's claims entailed or resultedfrom physical damage to the Hancock Building, the districtcourt concluded that none of Hancock's claims forconsequential damages resulting from the breakage of [thedefendant's] windows were covered under the policy. Thecourt did find coverage for the loss of use claim becausethe policy defined property damage as 'physical injury to...tangible property, including the loss of use thereof'(emphasis added). The court noted that, although the word'including' could suggest that loss of use must be traced tosome physical injury, it was more reasonable to view theadditional phrase 'loss of use thereof' as including any'loss of use of tangible property', independent of physicalinjury to that property. The court also noted that theAmerican Home policy was significantly different from otherpolices that explicitly cover only 'physical injury totangible property ... including loss of use thereofresulting therefrom' (emphasis added). [Citation.]" AmericanHome Assurance Co., 786 F.2d at 25.

In Gibson, the policy defined "property damage" as "physicalinjury to or destruction of tangible property, including the lossof use of this property." Gibson, 673 A.2d at 1353. Interpreting the language of the policy against the insurer, thecourt concluded that the policy included loss of use of tangibleproperty with no accompanying physical injury to that property. Gibson, 673 A.2d at 1353.

The defendant maintains that other jurisdictions haveinterpreted the same policy language to require "physical injury"to the tangible property before there is coverage for loss ofuse. See Coulter v. Cigna Property & Casualty Cos., 934 F. Supp.1101 (N.D. Iowa 1996); Continental Insurance Co. v. Bones, 596N.W.2d 552 (Iowa 1999); Ehlers v. Johnson, 164 Wis. 2d 560, 476N.W.2d 291 (App. 1991); Dixon v. National American Insurance Co.,411 N.W.2d 32 (Minn. App. 1987).

In Dixon, the policy at issue defined "property damage" as"physical injury to or destruction of tangible property,including loss of use of this property." Dixon, 411 N.W.2d at33. The reviewing court held that buyers' claims against thesellers-insureds that a septic system was inadequate and outsidethe property's boundary lines did not constitute property damage.The court noted that there were no allegations that the propertywas injured or damaged in any way, the only damage being to thebuyers and their interest in the property. Dixon, 411 N.W.2d at33-34.

In Ehlers v. Johnson, the insurance company refused todefend its insureds against a suit alleging that they hadmisrepresented the lot lines in a real estate transaction. Thepolicy in that case defined property damage to mean "physicalinjury to or destruction of tangible property, including loss ofuse of this property." (Emphasis in original.) Ehlers, 164 Wis.2d at 562, 476 N.W.2d at 292.

The reviewing court rejected the insureds' argument that nophysical injury to the property was required in order to triggercoverage. The court reasoned as follows:

"The loss of use clause is introduced by the verb'including.' The dictionary defines 'including' as 'to takein or comprise as part of a whole ...,' [Citation.] Theloss of use clause is thus introduced as a subset of'physical injury to or physical destruction of tangibleproperty.' If the loss of use clause were interpreted asthe [insureds] would have it, i.e., as any nonphysicalinjury to tangible property, the definition of propertydamage would effectively read: 'physical injury to ...tangible property, including non-physical injury.' Wereject such a contradictory reading." Ehlers, 164 Wis. 2dat 564, 476 N.W.2d at 293.

In Coulter, the policy at issue defined "property damage" as"'physical damage or destruction to tangible property, includingthe loss of the use of that property.'" (Emphasis in original.) Coulter, 934 F.Supp. at 1118.

Because the Iowa courts had not directly addressed whethersuch policy language required that the tangible property bephysically damaged or destroyed for there to be coverage for lossof its use, the district court reviewed cases from otherjurisdictions.

The Coulter court noted that the definitions in both Ehlersand Dixon were virtually identical to the definition of "propertydamage" in the policy before it. The court ultimately followedthe rationale in those cases. However, the Coulter court alsodiscussed American Family Assurance Co. in some detail. Thecourt's reasons for rejecting the rationale of that case provideguidance.

The Coulter court first questioned the American FamilyAssurance Co. court's reliance on the 1973 revision of the CGLpolicy. The Coulter court noted that the 1973 revision defined"property damage" as either "(1) 'physical injury to ordestruction of tangible property which occurs during the policyperiod, including the loss of use thereof at any time resultingtherefrom;' or (2) 'loss of use of tangible property which hasnot been physically injured or destroyed provided such loss ofuse is caused by an occurrence during the policy period.'[Citation.]" Coulter, 934 F. Supp. at 1120. After furthernoting that American Home Assurance Co. cited the revision butadvocated an exception to the language requiring a physicalinjury or damage to accompany the loss of use damages, theCoulter court stated as follows:

"The court, however, fails to see how the 1973 revisionlends itself to an interpretation that loss of use damagesunaccompanied by physical damage or injury are covered as'property damage,' where the second prong of the CGLdefinition is not given as an alternative to the firstprong. Clearly, the second prong was added in 1973 to coverloss of use damages to tangible property that areunaccompanied by physical damage or destruction. Thus,because the drafters found a second prong was necessary forloss of use damages unaccompanied by physical damage, thefirst prong defining property damage as 'physical injury toor destruction of tangible property ..., including loss ofuse thereof at any time resulting therefrom' must requireloss of use damages to be accompanied by physical injury ordestruction." Coulter, 934 F. Supp. at 1121.

The policy in Coulter resembled the first prong of the CGLdefinition and did not provide the alternative definition forloss of use damages unaccompanied by physical damage. TheCoulter court concluded that the decisions in Ehlers and Dixonadvocated a more logical approach to analyzing the issue. Construing the language as a whole and giving the words theirordinary meaning, the court determined that the policy'sdefinition of "property damage" was not susceptible to twointerpretations, and held that there was no coverage becausethere were no allegations that the loss of use of tangibleproperty was accompanied by physical damage or destruction. Coulter, 934 F. Supp. at 1122.

Finally, in Continental Insurance Co. v. Bones, 596 N.W.2d552 (Iowa 1999), the insureds were sued for their refusal tohonor a guarantee, which had resulted in the eviction of atenant. The insurance policy at issue defined property damage as"'physical injury to or destruction of real property or tangiblepersonal property including loss of use of the property.'(Emphasis added.)" Bones, 596 N.W.2d at 556. The insuredsclaimed that the tenant's eviction from the premises resulted inhis loss of use of the real estate, and therefore, there was anallegation of property damage for which the policy providedcoverage.

Noting that this was a case of first impression, the IowaSupreme Court reviewed prior decisions from other jurisdictions,including Coulter, Gibson, Ehlers and American Home Assurance Co. The court rejected the reasoning in Gibson, stating as follows:

"The Maine court's analysis was very abbreviated; withoutany discussion of the policy language, the court merelycited as support for its holding the general principle thatpolicies of insurance are interpreted '"most strongly"against the insurer.' [Citation.] Unless there are tworeasonable meanings from which to choose, however, the rulethat a contract must be construed against the party whodrafted it does not come into play. [Citations.] The Mainecourt failed to explain why the interpretation it adoptedwas a reasonable meaning based upon the language of thepolicy. [Citation.]" Bones, 596 N.W.2d at 558.

The Bones court also criticized the decision in AmericanHome Assurance Co. for that court's reliance on the differencesin the language of the standard insurance form and theabbreviated form used in that case. The Bones court pointed outthat the difference in the language was important only if thedifference gave rise to a contrary, reasonable interpretation. The Bones court concluded that the alternative interpretation wasneither reasonable nor consistent with the policy language.

In accord with Ehlers, the Bones court concluded thatdamages for loss of use of tangible property were covered by thepolicy in that case only if the property had been physicallyinjured or destroyed.

The definition of "property damage" in the case before us isslightly different from the cases relied on by the parties. Thedefinition in the present case omits the phrases found in otherpolicies in the cases cited, such as "this property" or "thatproperty" or "thereof" which follow immediately "including lossof use." However, in common with Bones, Coulter, Ehlers andDixon, the definition of "property damage" in this case does notprovide an alternative definition for loss of use damagesunaccompanied by physical damage.⁽²⁾ Therefore, we are unpersuadedby the analysis in American Home Assurance Co.

We also reject the analysis provided by the Gibson court. In Gibson, the court stated that it "interpreted a standardpolicy of insurance, however, 'most strongly' against theinsurer. [Citation.]" Gibson, 673 A.2d at 1353.⁽³⁾ However, thewords in an insurance policy will be construed in favor of theinsured and against the insurer that drafted the policy if thewords are susceptible of more than one reasonable interpretationrendering them ambiguous. Outboard Marine Corp., 154 Ill. 2d at108-09, 607 N.E.2d at 1217. Otherwise, courts will afford thewords in the policy their plain, ordinary and popular meaning. Crum & Forster, 156 Ill. 2d at 391, 620 N.E.2d at 1078.

Despite the differences in the policy language, we agreethat the analysis provided in Coulter, Bones, Ehlers and Dixon isnot only logical in a grammatical sense but is consistent withthe changes made in the CGL polices regarding the definition of"'property damage.'" Coulter, 934 F. Supp. at 1122.

From our examination of the definition of "property damage"set forth in the policy in this case, we determine that it is notsusceptible to more then one reasonable interpretation. In theabsence of any ambiguity and affording the words their plain,ordinary and popular meaning, we conclude that there can be nocoverage for the loss of use of tangible property unaccompaniedby physical damage or destruction.

In the absence of any allegations in the Association'scounterclaim that the loss of use of the hot water in this casewas accompanied by physical damage or destruction, there is nocoverage for Associations's claims against the plaintiff, andtherefore, the defendant had no duty to defend the plaintiff.

See Lexmark International, Inc. v. Transportation Insurance Co.,327 Ill. App. 3d 128, 142, 761 N.E.2d 1214, 1226 (2001).

The plaintiff then raises the argument that the defendant'sfailure to defend him under a reservation of rights or to file adeclaratory judgment action to determine its obligations to theplaintiff under its policy estops the defendant from raising anycoverage defenses.

Where an insurer takes the position that a complaintpotentially alleging coverage is not covered under a policy thatincludes a duty to defend, an insurer must either defend the suitunder a reservation of rights or seek a declaratory judgment thatthere is no coverage. Employers Insurance of Wausau v. EhlcoLiquidating Trust, 186 Ill. 2d 127, 150, 708 N.E.2d 1122, 1134-35(1999). If the insurer fails to take either of these steps andis later found to have wrongly denied coverage, the insurer isestopped from raising policy defenses to coverage. EhlcoLiquidating Trust, 186 Ill. 2d at 150-51, 708 N.E.2d at 1135. However, the application of the estoppel doctrine is notappropriate if the insurer had no duty to defend or if theinsurer's duty to defend was not properly triggered. EhlcoLiquidating Trust, 186 Ill. 2d at 151, 708 N.E.2d at 1135. Thesecircumstances include where, when the policy and the complaintare compared, there is clearly no coverage or potential forcoverage. Ehlco Liquidating Trust, 186 Ill. 2d at 151, 708N.E.2d at 1135.

In this case, given the absence of coverage, there was noduty to defend, and the defendant was not estopped from raisingits coverage defenses.

Since the policy in this case requires both "propertydamage" and an "occurrence" before coverage exists, ourdetermination that there was no "property damage' in this casealleviates the need to determine whether there was an"occurrence" under the terms of the policy.

We conclude that the trial court did not err in granting thedefendant's motions for partial summary judgment. As we havedetermined that there was no duty to defend, we need not addresswhether the trial court erred in dismissing count II of thecomplaint, alleging a violation of section 155 of the InsuranceCode (215 ILCS 5/155 (West 2000)).

A reviewing court will not disturb a trial court's ruling ondiscovery matters unless there is a manifest abuse of discretion. Atlantic Mutual Insurance Co. v. American Academy of OrthopaedicSurgeons, 315 Ill. App. 3d 552, 567, 734 N.E.2d 50, 62 (2000).

The plaintiff contends that the circuit court erred when itgranted partial summary judgment to the defendant without rulingon his motion to compel discovery.

The plaintiff argues that his discovery requests weredesigned to discover documents and information related to thedefendant's decision to deny coverage and specifically requestedproduction of documents generated by the defendant's claimsadjusters in the handling of the plaintiff's claims as well asthe documents the defendant relied on in denying coverage. Theplaintiff submits that the circuit court's action severelyprejudiced him in his defense of the defendant's motion forpartial summary judgment.

The general rule is that "'it is only the allegations in theunderlying complaint, considered in the context of the relevantpolicy provisions, which should determine whether an insurer owesa duty to defend an action brought against an insured.'[Citations.]" Lexmark International, Inc., 327 Ill. App. 3d at136, 761 N.E.2d at 1221. However, in the insurance context,generally, extrinsic facts, gathered in the discovery process,may be considered in determining whether a duty to defend isshown as long as they do not bear upon issues in the underlyinglitigation. Atlantic Mutual Insurance Co., 315 Ill. App. 3d at567, 734 N.E.2d at 62.

In Atlantic Mutual Insurance Co., the court relied onMillers Mutual Insurance Ass'n of Illinois v. Ainsworth Seed Co.,Inc., 194 Ill. App. 3d 888, 552 N.E.2d 254 (1989). In that case,the trial court found the duty to defend despite the insurancecompany's production of an affidavit in response to a motion forsummary judgment which showed the existence of facts establishingan exclusion under the policy.

On review, the court determined that the allegations of theunderlying complaint, the terms of the policy and the affidavitwere all relevant in determining whether a duty to defendexisted, relying on the decision in Fidelity & Casualty Co. ofNew York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 461N.E.2d 471 (1983). In that case, the court held that the trialcourt could properly consider extrinsic evidence of the nature ofservices performed by an engineering firm to determine if theservices were of an entirely consulting nature, where the policyexcluded coverage for liability arising from consulting services.

The defendant points out that in Eljer Manufacturing, Inc.,our supreme court held that where the words of the policy areunambiguous, it is unnecessary for this court to considerextrinsic evidence of the policies' purported meaning. EljerManufacturing, Inc., 197 Ill. 2d at 301, 757 N.E.2d at 496. Nonetheless, the plaintiff asserts that the meaning,interpretation, custom and usage of policy terms are discoverablewithout any initial showing of ambiguity, relying on AmericanStates Insurance Co. v. Koloms, 177 Ill. 2d 473, 687 N.E.2d 72(1997). However, in Eljer Manufacturing, Inc., the courtrejected the policyholders' argument that the decision in Kolomsrequired the court to examine the relevant insurance industrydrafting history of the definition of "property damage." EljerManufacturing, Inc., 197 Ill. 2d at 300-01, 757 N.E.2d at 495-96. Supreme Court Rule 201(b)(1) allows a party to obtain bydiscovery full disclosure regarding any relevant matter, evenwhere the discovery "'relates to the claim or defense of theparty seeking disclosure.'" Yuretich v. Sole, 259 Ill. App. 3d311, 317, 631 N.E.2d 767, 772 (1994), quoting 166 Ill. 2d R.201(b)(1). A discovery request may properly be quashed where thetrial court has before it sufficient information upon which todecide the defendant's motion to dismiss. Yuretich, 259 Ill.App. 3d at 317, 631 N.E.2d at 772. However, a trial court shouldnot refuse a discovery request and grant a motion to dismisswhere it reasonably appears discovery might assist the partyresisting the motion. Yuretich, 259 Ill. App. 3d at 317, 631N.E.2d at 772.

A trial court is afforded great latitude in ruling onmatters of discovery. Atlantic Mutual Insurance Co., 315 Ill.App. 3d at 567, 734 N.E.2d at 62. The trial court will be deemedto have abused its discretion only where its ruling is arbitrary,fanciful, or unreasonable or where no reasonable person wouldtake the view adopted by the trial court. People v. Hall, 195Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000). The decision in thiscase turned on the meaning of policy terms that were unambiguous,and therefore, the court was required to give them their plainand ordinary meaning, regardless of what extrinsic evidence theplaintiff's discovery requests might have produced. Therefore,the failure of the circuit court to order compliance with theplaintiff's discovery requests prior to ruling on the defendant'smotion for partial summary judgment was not arbitrary orunreasonable.

We conclude that the circuit court did not abuse itsdiscretion when it ruled on the defendant's motion for summaryjudgment without compelling the defendant to answer theplaintiff's discovery requests.

The judgment of the circuit court of Cook County isaffirmed.

HOFFMAN and WOLFSON, JJ., concur.

1. The plaintiff does not raise the defendant's failure todefend him against the Brodny counterclaims in this appeal.

2. For an example of a policy containing the alternativedefinition, see Bituminous Casualty Corp. v. Gust K. NewbergConstruction Co., 218 Ill. App. 3d 956, 960, 578 N.E.2d 1003,1006 (1991).

3. Both Outboard Marine Corp. and the case the Gibson courtrelied on, Massachusetts Bay Insurance Co. v. FerraioloConstruction Co., 584 A.2d 608 (Me. 1990), noted that reasonbehind the construction of policy language against the insurerwas because there was so little bargaining power, and the insurerhas control in the drafting process. However, like Illinoiscourts, the Maine court in Ferraiolo Construction Co. alsorequired ambiguous terms before construing policy languageagainst an insurer. The Gibson court did not identify anyambiguous terms before employing the rule against the insurer inthat case.