The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
International Administrators, Inc. ("IAI") and its President
Sheldon Harrison ("Harrison") initially sued Life Insurance
Company of North America ("LINA"), claiming interference with
IAI's contractual relationships, interference with prospective
advantage, breach of contract and defamation. LINA in turn
filed a two-count counterclaim. IAI has moved to dismiss the
Counterclaim, apparently (though not specifically designated)
under Fed.R.Civ.P. ("Rule") 12(b)(6) for failure to state a
cause of action. For the reasons stated in this memorandum
opinion and order, IAI's motion is denied.
Count I depicts the following version of events*fn2:
Insurance broker IAI, acting for the Iowa Department of the
American Legion ("Iowa
Legion"), solicited LINA to underwrite various group insurance
policies for members of the Iowa Legion (Ans. ¶ 11). As
administrator of those insurance programs IAI assertedly
maintained records*fn3 "for the benefit of and in trust for
the policyholder, the insureds, and . . . LINA" (Count I ¶ 4).
For several months after its termination as administrator, IAI
refused to turn over its records to the Iowa Legion, LINA or a
successor administrator (Count I ¶ 7). Without the information
in those records, LINA (or the successor administrator) could
not have billed the individual subscribers, jeopardizing their
continued coverage. To avoid that prospect, LINA expended more
than $26,000 to generate its own substitute list.
In LINA's view those allegations disclose actionable
fiduciary and contractual improprieties by IAI. IAI's
infractions assertedly stem from its role as LINA's agent or
alternatively as trustee of an express trust whose
beneficiaries included the Iowa Legion, the individual
subscribers and LINA.
Without offering any legal support for its own motion,*fn4
IAI contends LINA's cited authorities do not transmute its
legal theories into a cognizable claim. IAI also assails Count
I on factual grounds*fn5 — arguments wholly inappropriate at
the pleading stage.
Standards governing complaints (or counterclaims) are
On a motion to dismiss, a complaint must be
construed in the light most favorable to the
plaintiff, the allegations thereof being taken as
true; and, if it appears reasonably conceivable
at trial the plaintiff can establish a set of
facts entitling him to some relief, the complaint
should not be dismissed.
Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir.
1977). Nor is this Court limited by the theories advanced by
the pleading's author. See Craft v. Board of Trustees,
516 F. Supp. 1317, 1323 (N.D.Ill. 1981).
Under those liberal criteria Count I withstands scrutiny
— at least under Illinois principles of agency law.*fn6 Both
parties agree IAI acted as an insurance broker in obtaining
LINA-underwritten insurance coverage for the Iowa Legion. See
Complaint ¶ 3 and Answer ¶ 11. Galiher v. Spates,
129 Ill. App.2d 204, 206, 262 N.E.2d 626, 628 (4th Dist. 1970)
defined such a broker:
An insurance broker is one who procures insurance
and acts as middleman between the insured and the
insurer, and solicits insurance business from the
public under no employment from any special
company, but, having secured an order, places the
insurance with the company selected by the
insured, or, in the absence of any selection by
him, with the company selected
by such broker. 22 ILP Insurance § 71, at 102.
And as the Illinois Supreme Court characterized the difference
between the insurance broker and agent relationships over 30
years ago, City of Chicago v. Barnett, 404 Ill. 136, 142,
88 N.E.2d 477, 481 (1949) (emphasis added, citation omitted):
A broker is distinguished from an agent in that a
broker sustains no fixed and permanent employment
by, or in relation to, any principal, but holds
himself out for employment by the public
generally, his employment in each instance being
that of a special agent for a single
object . . ., whereas an agent sustains a fixed
and permanent relation to the principal he
represents and owes a permanent and continued
allegiance. A broker does not cease ...