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Plaintiffs, Atlantic Mutual Insurance Company (Atlantic Mutual)and Centennial Insurance Company (Centennial), filed a complaint fordeclaratory judgment seeking a determination of whether they oweddefendants, the American Academy of Orthopaedic Surgeons (AAOS) andthe Scoliosis Research Society (SRS) (collectively, defendants), aduty to defend or indemnify them for civil conspiracy and concert ofaction claims brought against them in underlying mass productliability litigation. Defendants filed a motion to dismissplaintiffs' complaint for failure to name necessary parties which thetrial court denied. The trial court also denied defendants' motion to compel discovery ofvarious documents and witnesses. Subsequently, plaintiffs filed amotion for summary judgment and argued that they had no duty todefend or indemnify defendants in the underlying suit. The trialcourt granted summary judgment in favor of plaintiffs and ruled thatthe causes of action contained in the underlying suit were notcovered under the insurance policies issued to AAOS and SRS;therefore, plaintiffs had no duty to defend or indemnify AAOS andSRS. On appeal, defendants contend that: (1) Atlantic Mutual andCentennial have a duty to defend AAOS and SRS where the underlyingcomplaint does not allege that AAOS and SRS "expected or intended" toinjure the underlying plaintiffs; (2) the trial court erred indenying defendants' motion to dismiss for failure to join necessaryparties; and (3) the trial court abused its discretion in ruling onplaintiffs' motion for summary judgment without allowing defendantsto complete written discovery and depose witnesses. For the reasonsthat follow, we affirm.

The underlying litigation involves numerous cases broughtagainst AAOS, SRS and others as a result of complications from theimplantation of pedicle screw fixation devices. The complaints havebeen consolidated into a multidistrict litigation action entitled, Inre: Orthopaedic Bone Screw Products Liability Litigation, which iscurrently pending in the United States District Court for the EasternDistrict of Pennsylvania.⁽¹⁾

Pedicle screw fixation devices are designed to be used in spinalfusion surgery. These devices are used to fuse two or more vertebraetogether in order to correct various spinal conditions. According tothe underlying complaint, pedicle screw fixation devices areclassified by the Food and Drug Administration (FDA) as Class IIIdevices, which means that they "present a potential unreasonable riskof illness or injury" and therefore must receive premarket approvalfrom the FDA before they may be commercially sold or distributed. Inorder to generate the required scientific evidence to allow approval,the FDA granted pedicle screw manufacturers permission to conductnumerous clinical trials from 1986 through 1993. According to theunderlying complaint, these clinical trials failed to providesufficient evidence to support a successful application for premarketapproval. The underlying complaint alleges that, despite the lack ofpremarket approval for these devices, pedicle screw manufacturerspromoted, marketed, distributed, and sold devices that were intendedfor use as pedicle screw fixation devices. The complaint furtheralleges that hundreds of thousands of individuals were surgicallyimplanted with these devices despite a lack of adequate evidence thatthese devices were safe and effective when used in this manner.

AAOS is a professional organization comprised of orthopaedicsurgeons, some of whom specialize in spine surgery. SRS is aprofessional organization comprised of spine surgeons who areadmitted to membership by invitation only. AAOS and SRS are nameddefendants in approximately 500 of these pedicle screw fixationdevice cases. Civil conspiracy and concert of action claims werespecifically brought against AAOS and SRS.

The civil conspiracy claim alleges that from the middle of 1988through early 1989 pedicle screw manufacturers and various medicalsocieties, including AAOS and SRS, "reached an agreement,understanding, and a meeting of the minds" to pursue an"intercompany/association conspiracy" which was described as follows:

"The purpose of the intercompany/association conspiracy, to which each member of the conspiracy agreed,was to promote, market, distribute, and sell medicaldevices intended for use as pedicle screw fixation devices,to do so through deceptive and misleading means and therebyto:

a) cause pedicle screw fixation devices to be introduced, delivered and/or received in interstatecommerce as Class III devices without premarket approval***;

b) promote such devices as pedicle screw fixation devices and represent to spine surgeons that suchdevices were safe and effective when used as pedicle screwfixation devices, even though such devices were'investigational devices' *** and pedicle screw fixationsurgery was an 'investigational use' under FDA regulations;and

c) engage in deception."

The underlying complaint further alleges that AAOS and SRS, alongwith other professional associations, participated in the conspiracybecause "they recognized that they could capitalize on themanufacturers' interest in promoting pedicle screw fixation devicesthrough the associations by obtaining significant financialcompensation and remuneration from manufacturers for doing so."

The underlying complaint then alleges the following:

"The participating manufacturers and sellers of pedicle screw fixation devices would provide theparticipating professional associations and others withgrants, contributions, fees, and other remuneration tosponsor or conduct seminars, workshops, conferences andsymposia which were directed to spine surgeons and whichpromoted pedicle screw fixation surgery.

* * *

***[U]nder the scheme adopted and implemented pursuant to the intercompany/association conspiracy, theseseminars, workshops, conferences and symposia were reallysales events where those who participated in theintercompany/association conspiracy attempted to create orexpand a market for the sale of pedicle screw fixationdevices and to obtain from the participants sales of thedevices for use in pedicle screw fixation surgery."

The complaint alleges that, by engaging in such deceptive conduct,defendants acted in reckless disregard of the risk that the acts infurtherance of the conspiracy would result in the distribution ofmedical devices that were untested and unproven for their intendeduse and exposed numerous plaintiffs in the underlying complaints tosubstantial and serious risks of painful and disabling injuries.

Regarding causation and injury, the complaint alleges that thepurpose of the intercompany/association conspiracy was "to cause ***pedicle screw fixation devices to be placed into commerce and to beused in patients" and that "as a direct, proximate and reasonablyforeseeable result, *** plaintiff has suffered and will continue tosuffer physical harm."

The concert of action claim realleges the allegations in theconspiracy claim and further alleges that the participants in theintercompany/association conspiracy knew that the conduct of thepedicle screw manufacturers "constituted a breach of such duties andnonetheless provided substantial assistance or encouragement for suchconduct" and that "the participants in the intercompany/associationconspiracy committed tortious acts in concert with [the pedicle screwmanufacturers] and pursuant to a common design."

According to the complaint, AAOS received approximately $815,562in workshop, exhibit, registration and other fees and conductedapproximately 13 symposia on pedicle screw fixation. SRS receivedapproximately $440,000 from manufacturers and distributors of pediclescrew fixation devices through donations and payment for seminars andconducted at least nine national symposia on pedicle screw fixation.

Plaintiffs Atlantic Mutual and Centennial issued comprehensivegeneral liability (CGL) insurance policies to defendants from August23, 1984, to August 25, 1991. It is undisputed that SRS was not aninsured under the Centennial policy in effect from August 25, 1984,to August 25, 1985. It is further undisputed that none of theCentennial or Atlantic Mutual policies provide coverage for claimsasserted against AAOS or SRS where the pedicle screw device wasimplanted after August 25, 1991. AAOS and SRS did not dispute theentry of summary judgment in the trial court on these two issues andthey do not appeal this aspect of the trial court's order. FederalInsurance Company, also named as a defendant in the declaratoryjudgment action as an interested party, issued general liabilitypolicies to AAOS and SRS during the relevant time period. OnApril 21, 1997, Atlantic Mutual and Centennial filed a complaint fordeclaratory judgment and alleged, inter alia, that the complaintspending against AAOS and SRS failed to allege an "occurrence" asdefined in the insurance policies of Atlantic Mutual and Centennialand that the Atlantic Mutual policy contains a bodily injuryexclusion which precludes coverage.

On June 20, 1997, AAOS and SRS filed a motion to dismissplaintiffs' complaint for declaratory judgment. Defendants' motionto dismiss is not a part of the record. Defendants' memorandum insupport of their motion to dismiss, which is contained in the record,argued that plaintiffs failed to name all insurance carriersproviding coverage for the products liability litigation and thatthese "absent insurers" were necessary and indispensable partiespursuant to section 2-405(a) of the Code of Civil Procedure. 735 ILCS5/2-405(a) (West 1996). Therefore, defendants requested that theseabsent insurers be joined as defendants or, in the alternative, thatplaintiffs' complaint for declaratory judgment be dismissed.

In response, plaintiffs argued that these "absent insurers" didnot satisfy the definition of necessary parties because the coveragethat they provided was not the same type of coverage as that providedby plaintiffs. These absent insurers did not provide defendants withCGL policies. Rather, according to plaintiffs, these absent insurersprovided "Media/Special Perils" policies and "Non-Profit/ProfessionalLiability" insurance policies, which are of a highly specializednature and therefore different in kind from CGL policies. Followinga hearing, the trial court denied defendants' motion to dismissplaintiffs' complaint for failure to name necessary and indispensableparties.

Plaintiffs filed a motion for summary judgment and argued thatsummary judgment was proper because the underlying civil conspiracyand concert of action claims did not constitute "occurrences" and/orwere excluded from coverage by the intentional act exclusionprovision in the policy. Plaintiffs further asserted that theinjuries were expected as a matter of law.

Defendants then filed a motion to compel the production ofreinsurance documents and argued that these documents couldpotentially reveal information plaintiffs disclosed to theirreinsurers regarding plaintiffs' assessment of their coverage underthe policies. These documents were submitted to the trial court forin camera review.

Defendants also sought to compel the production oforganizational charts and a claims manual. The trial court conductedan in camera review of the claims manual. Defendants additionallysought to depose an Atlantic Mutual employee regarding a letter hehad written to an insurance producer in which he stated that AtlanticMutual's insurance policies were "filled with inconsistencies." Defendants also sought to depose the Atlantic Mutual employee who hadresponsibility to review the underlying claims. Subsequently, eachof defendants' discovery requests was denied.

Following a hearing, the trial court granted plaintiffs' motionfor summary judgment. The court found that the conspiracy andconcert of action claims against AAOS and SRS were not covered underthe Atlantic Mutual or Centennial policies; therefore, plaintiffs hadno duty to defend or indemnify them. Defendants' timely appealfollowed.

Defendants first contend that the trial court erred in grantingsummary judgment in favor of plaintiffs because according to theallegations contained in the underlying complaint, plaintiffs have aduty to defend AAOS and SRS.

Initially, we note that a reviewing court conducts a de novoreview of the evidence in summary judgment cases. Espinoza v. Elgin,Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323(1995). The reviewing court must construe all evidence strictlyagainst the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill. 2d at 113. Where the pleadings, depositions andaffidavits show that there is no genuine issue of material fact, themoving party is entitled to judgment as a matter of law. First ofAmerica Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d276, 283, 685 N.E.2d 351 (1997). If reasonable persons could drawdifferent inferences from undisputed facts, summary judgment shouldbe denied. Smith v. Armor Plus Co., 248 Ill. App. 3d 831, 839, 617N.E.2d 1346 (1993).

An insurer's duty to defend its insured is broader than its dutyto indemnify. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,154 Ill. 2d 90, 125, 607 N.E.2d 1204 (1992). In determining whetheran insurer owes its insured a duty to defend, the court must look tothe allegations of the underlying complaint in comparison to therelevant insurance policy provisions. Country Mutual Insurance Co.v. Hagan, 298 Ill. App. 3d 495, 500, 698 N.E.2d 271 (1998). If theunderlying complaint alleges facts within or potentially withinpolicy coverage, the insurer is obligated to defend its insured, evenif the allegations are groundless, false or fraudulent. UnitedStates Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill. 2d64, 73, 578 N.E.2d 926 (1991). In order for the insurer tojustifiably refuse to defend the insured, it must be "clear from theface of the underlying complaint that the allegations fail to statefacts" which bring the cause within or potentially within coverage. United States Fidelity & Guaranty Co., 144 Ill. 2d at 73. Furthermore, if the insurer relies on an exclusionary provision, itmust be "clear and free from doubt" that the policy's exclusionprevents coverage. Bituminous Casualty Corp. v. Fulkerson, 212 Ill.App. 3d 556, 564, 571 N.E.2d 256 (1991). Additionally, we mustliberally construe the underlying complaint and the insurance policyin favor of the insured. United States Fidelity & Guaranty Co., 144Ill. 2d at 74.

In accordance with the above propositions of law, we mustanalyze the underlying complaint in light of the applicable policyprovisions to determine whether the claim is within or potentiallywithin coverage. Both Atlantic Mutual and Centennial rely onportions of their CGL policies that provide coverage only for bodilyinjury caused by an "occurrence" as defined in their respectivepolicies.

Centennial's CGL policy provides the following:

"This company will pay on behalf of the insured all sums which the insured shall become legallyobligated to pay as damages because of A. personal injuryor B. property damage to which this insurance applies,caused by an occurrence, and the Company shall have theright and duty to defend any suit against the insuredseeking damages on account of such personal injury orproperty damage, even if any of the allegations of the suitare groundless, false or fraudulent, and may make suchinvestigation and settlement of any claim or suit as itdeems expedient ***."

The Centennial CGL policy defines "occurrence" as follows:

"[A]n accident, including continuous or repeated exposure to conditions which results in personalinjury or property damage neither expected nor intendedfrom the standpoint of the insured." (Emphasis added.)

The Centennial CGL policy definition of "personal injury" includes"bodily injury."

The Atlantic Mutual CGL policy provides the following:

"[W]e will pay those sums that the insured becomes legally obligated to pay as damages because of'bodily injury' or 'property damage' to which thisinsurance applies.

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This insurance applies only to 'bodily injury' and 'property damage' which occurs during the policyperiod. The 'bodily injury' or 'property damage' must becaused by an 'occurrence.'"

Under the Atlantic Mutual CGL policy "occurrence" is defined as:

"[A]n accident, including continuous or repeated exposure to substantially the same general harmfulconditions."

The Atlantic Mutual CGL policy defines "bodily injury" asfollows:

"'Bodily injury' means bodily injury, sickness or disease sustained by a person, including death resultingfrom any of these at any time."

The definition of "bodily injury" provides an exclusion for "'bodilyinjury' or 'property damage' expected or intended from the standpointof the insured." (Emphasis added.)

We note that neither the Atlantic Mutual policy nor theCentennial policy defines "accident." We therefore look to Illinoiscase law for guidance as to the interpretation of this term. Illinois courts have defined "accident" as follows:

"[A]n unforeseen occurrence, usually of an untoward or disastrous character or an undesigned suddenor unexpected event of an inflictive or unfortunatecharacter." Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App. 3d 617, 619, 411 N.E.2d 1157 (1980).

Citing this language, in State Farm Fire & Casualty Co. v. Watters,268 Ill. App. 3d 501, 644 N.E.2d 492 (1994), appeal denied, 161 Ill.2d 540, 649 N.E.2d 425 (1995), this court held that "an occurrencewhich is defined as an accident involves the consideration of whetherthe injury was expected or intended from the standpoint of theinsured." State Farm Fire & Casualty Co., 268 Ill. App. 3d at 506.

Under Illinois law addressing the definition of "occurrence,"the issue that must be determined is whether the injury was expectedor intended, not whether the acts were performed intentionally. BayState Insurance Co. v. Wilson, 96 Ill. 2d 487, 493-494, 451 N.E.2d880 (1983). The terms "expected" and "intended" cannot be treated assynonymous since if they were, there would be no reason to includeboth of them in the clause. Bay State Insurance Co., 96 Ill. 2d at494. A greater degree of proof is required to establish intent thanto establish expectation. Bay State, 96 Ill. 2d at 494. If theactor expects or intends the injury to follow from the act, there isno coverage under the policy. However, even an intentional act willbe covered under the policy language at issue if it causes anunexpected or unintended result. See Country Mutual Insurance Co.,298 Ill. App. 3d at 508.

Defendants specifically assert that the trial court erred infinding that defendants intended or expected the pedicle screws toharm the underlying plaintiffs. Defendants argue that the underlyingcomplaint does not allege that they conspired or acted in concert toinjure patients receiving pedicle screws. Plaintiffs respond thatdefendants did intend that pedicle screws be implanted in patients inviolation of FDA regulations and that by the very nature of a civilconspiracy and/or concerted action claim, defendants' actions wereintentional and therefore coverage is precluded.

Plaintiffs urge this court to adopt the reasoning of theCalifornia Court of Appeals as enunciated in Fibreboard Corp. v.Hartford Accident & Indemnity Co., 16 Cal. App. 4^th 492, 510-11, 20Cal. Rptr. 2d 376, 387 (1993). In that case, numerous plaintiffssued Fibreboard, a manufacturer of asbestos products, under a theoryof civil conspiracy. The manufacturer then brought a declaratoryjudgment action against several insurers seeking coverage for theclaims. The California Court of Appeals held:

"[T]here is a conscious, decisionmaking element that takes civil conspiracies out of the range of behaviorencompassed within the meaning of an 'occurrence.' Aninsured who participates in a conspiracy, even if theagreed upon behavior or course of conduct is to actnegligently, cannot expect coverage for 'an accident.' Inits plain, ordinary sense, an accident is 'an unforeseenand unplanned event or circumstance.' (Webster's NewCollegiate Dict. (9th ed. 1984) p.49.)

As a matter of law, a civil conspiracy cannot occur by accident; therefore, the policies afford no coverage forthese claims." [citations omitted.] Fibreboard, 16 Cal.App. 4^th at 510-11, 20 Cal. Rptr. 2d at 387.

Our supreme court considered the nature of a civil conspiracyaction in Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 64, 645 N.E.2d888 (1994), holding:

"[W]e reject Owens-Corning's claim that a cause of action for civil conspiracy does not arise unless one ofthe conspirators commits an intentional tort in furtheranceof the conspiracy. While a civil conspiracy is based uponintentional activity, the element of intent is satisfiedwhen a defendant knowingly and voluntarily participates ina common scheme to commit an unlawful act or a lawful actin an unlawful manner. (See Illinois Farmers Insurance Co.v. Preston (1987), 153 Ill. App. 3d 644; Jones v. City ofChicago (7th Cir. 1988), 856 F.2d 985, 992.) There is nosuch thing as accidental, inadvertent or negligentparticipation in a conspiracy. (Jones v. City of Chicago(7th Cir. 1988), 856 F.2d 985, 933.) A defendant whoinnocently performs an act which happens to fortuitouslyfurther the tortious purpose of another is not liable underthe theory of civil conspiracy. (Restatement (Second) ofTorts