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Hoffman v. Allstate Insurance Co.





APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.


This is an appeal from an order granting the motion of defendant, Allstate Insurance Co., to dismiss counts II through V of a complaint filed by plaintiff, Roger T. Hoffman. The complaint states that plaintiff's car, which was insured by defendant, was damaged in an accident on September 18, 1978. The car was towed to a nearby service station and was thereafter removed by defendant to an unknown location. On September 26, 1978, one of defendant's adjusters, Jack Dooley, informed plaintiff that defendant deemed the car a total loss; he tendered and plaintiff accepted a check for $116.37 in full payment for the loss pursuant to the collision coverage portion of the insurance policy. Dooley explained the computation used to reach this figure; included in the calculation was a deduction of $55 which Dooley said was for "dealer preparation and shampoo," and which the adjuster's worksheet showed as a deduction in a category termed "condition prior to loss (am't needed to bring car to avg retail condition)." When plaintiff asked Dooley why such a deduction was made on a totally destroyed car, Dooley responded with words to the effect that "Allstate always does that." The check was returned uncashed to defendant on October 20, 1978. Plaintiff twice requested the location of the car for the purpose of having it appraised and apparently was never given this information.

In considering the dismissal of each count, we bear in mind that in determining the legal sufficiency of a complaint on a motion to dismiss, all facts well pleaded are to be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. App.2d 179, 380 N.E.2d 790.) A reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App.3d 404, 365 N.E.2d 721.) Mere allegations of legal conclusions are insufficient and such conclusions need not be accepted by a court. Morse v. Nelson (1977), 48 Ill. App.3d 895, 363 N.E.2d 167.

Count II alleges a conversion of a car by defendant. While the basis of an action for conversion is the wrongful deprivation of property from the person entitled to possession (Hobson's Truck Sales, Inc. v. Carroll Trucking, Inc. (1971), 2 Ill. App.3d 978, 276 N.E.2d 89), a party claiming a conversion must allege the following factors in his complaint:

"(1) an unauthorized and wrongful assumption of control, dominion or ownership by a person over the personalty of another;

(2) his right in the property; (3) his right to the immediate possession of the property, absolute and unconditional; and (4) a demand for possession thereof."

Farns Associates, Inc. v. Sternback (1979), 77 Ill. App.3d 249, 252, 395 N.E.2d 1103.

• 1 Although he did request the location of the car so as to make an independent appraisal, plaintiff does not allege that he ever made a demand for possession; we do not believe that a request for location equals a demand for possession. Plaintiff pointed out that in Landfield Finance Co. v. Feinerman (1972), 3 Ill. App.3d 487, 279 N.E.2d 30, a First District case, a conversion was shown without a demand for possession. However, in a more recent case, Farns Associates, Inc. v. Sternback, the First District has included the requirement of a demand for possession, and the Third District has set forth the same requirement. (See Hobson's Truck Sales, Inc. v. Carroll Trucking, Inc.) In our view, an action for conversion must include a demand for possession, or it cannot be said that there has been a deprivation. For these reasons, count II was properly dismissed.

Count III sounds in tort for fraud, alleging that defendant made "spurious" deductions from the retail value of the car and induced the plaintiff to accept the $116.37 check by representing those deductions as being legitimate.

An action for fraud has the following elements:

"(1) [There] must be a statement of material fact, as opposed to opinion;

(2) [the statement] must be untrue;

(3) the party making the statement must know or believe it to be untrue;

(4) the person to whom the statement is made must believe and rely on it, and ...

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