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Gilliland v. Allstate Insurance Co.

OPINION FILED FEBRUARY 27, 1979.

LARRY E. GILLILAND, PLAINTIFF-APPELLANT,

v.

ALLSTATE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order of the circuit court of Cook County dismissing his action against Allstate Insurance Company and its parent company, Sears, Roebuck & Company. The following issues are presented for review: (1) whether plaintiff's action for breach of an alleged oral contract of employment is barred by the Statute of Frauds; (2) whether plaintiff's action for fraudulent misrepresentation is barred by the statute of limitations; and (3) whether plaintiff's action for wrongful discharge is barred by the doctrine of preemption.

We affirm in part and reverse in part.

On December 16, 1975, plaintiff, Larry E. Gilliland, filed a four-count complaint in which he alleged that on March 15, 1954, he entered into an oral contract of employment with defendants, Allstate Insurance Company and Sears, Roebuck & Company, and pursuant to the contract commenced working with Allstate. Plaintiff alleged that defendants agreed to employ him until the time of his retirement at age 62 as long as plaintiff substantially complied with all lawful directions of defendants. Plaintiff further alleged that defendants agreed to give plaintiff notice or warning if he was not fulfilling his duties so that plaintiff would have an opportunity to correct any deficiencies. After one year of employment, plaintiff commenced participation in profit sharing, pension and savings plans and continued participating until his termination. Allstate terminated plaintiff's employment on June 22, 1972, allegedly without good cause and without prior notice or warning.

Plaintiff alleged in count I of the complaint that defendants breached the oral contract of employment by terminating plaintiff, and that as a result plaintiff suffered a loss of profits and earnings and the amount which would have accumulated in the pension fund had he remained employed until retirement.

In count II plaintiff alleged that at the time he accepted employment with defendants, defendants fraudulently represented to plaintiff that they would employ plaintiff until retirement and he would receive all the benefits of the profit sharing, pension and savings plans as long as he substantially complied with all lawful directions of defendants. Plaintiff alleged that at the time the statements were made, defendants knew the statements were false but made the representations to induce plaintiff to become employed for a limited period of time; plaintiff believed the representations to be true and accepted employment in reliance thereon.

In count III plaintiff alleged that defendants breached the oral contract by wrongfully terminating plaintiff's employment in retaliation of plaintiff's attempts to have defendants comply with the Equal Employment Opportunity Act and the National Labor Relations Act.

Plaintiff alleged in count IV that defendants had a specific policy of terminating a large percentage of their employees who would soon qualify to receive the benefits of the profit sharing pension and savings plans.

Pursuant to a motion by defendant Sears, counts I and III of the complaint were dismissed as against Sears, and plaintiff was granted leave to amend counts II and IV. Pursuant to defendant Allstate's motion to dismiss, all counts of the original and amended complaint were dismissed. The court stated that counts I and III were dismissed because the alleged oral contract for employment set forth in those counts was subject to the Statute of Frauds; counts II and IV were dismissed because the action for fraudulent misrepresentation alleged therein was barred by the statute of limitations; and count III was dismissed also because the conduct alleged therein was arguably an unfair labor practice and it fell within the doctrine of preemption.

I.

Plaintiff initially contends that enforcement of the alleged oral contract of employment is not barred by the Statute of Frauds because the contract was capable of being performed within one year.

• 1 The Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 1) provides in pertinent part:

"* * * no action shall be brought, * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

The Statute of Frauds has been interpreted as rendering an oral contract unenforceable only if it is impossible of performance within one year from the time the contract is made. (Stein v. Malden Mills, Inc. (1st Dist. 1972), 9 Ill. App.3d 266, 271-72, 292 N.E.2d 52.) To be outside the statute, the contract must be capable of being fully performed within one year and not simply terminated by some contingency such as death or bankruptcy. Sinclair v. Sullivan Chevrolet Co. (3d Dist. 1964), 45 Ill. App.2d 10, 195 N.E.2d 250, aff'd ...


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