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Moreno v. Joe Perillo Pontiac

OPINION FILED JANUARY 10, 1983.

MARTIN MORENO, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED, PLAINTIFF-APPELLANT,

v.

JOE PERILLO PONTIAC, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Reginald J. Holzer, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 7, 1983.

Plaintiff Martin Moreno brought this action on his own behalf and on behalf of all others similarly situated, alleging, as against one or more of the defendants, breach of contract, breach of fiduciary duty, violation of certain specified statutes and fraudulent misrepresentation with respect to a policy for credit life insurance purchased by plaintiff and others in conjunction with the installment purchase of automobiles. Defendants filed a hybrid motion to strike and dismiss pursuant to both sections 45 and 48(i) of the Civil Practice Act (now sections 2-615 and 2-619 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, pars. 2-615, 2-619) which were simultaneously granted by the trial court. The court also denied plaintiff's motion for class certification. Plaintiff appeals.

There is no dispute as to the facts giving rise to plaintiff's claim. On April 20, 1979, plaintiff entered into a retail installment contract with defendant Perillo Pontiac for the purchase of a Pontiac Bonneville. In conjunction with his purchase of the automobile, plaintiff purchased decreasing-term credit life insurance which was sold by Perillo pursuant to a group policy between Perillo and defendant Bankers United Life Assurance Company (Bankers). The certificate of insurance was completed by Perillo at the site of the car sale. A premium of $304.86, which was based on a typed-in maximum benefit of $11,725.44, was financed along with the price of the car. The printed certificate, however, contained provisions limiting plaintiff's recovery on the credit life insurance policy to $10,000:

"The Company promises to pay, upon receipt of the proof of the death of the * * * Obligor * * *, the amount of insurance then in force, provided that the amount of insurance * * * in no event shall exceed $10,0000." (Emphasis added.)

The certificate also provided:

"No change in this Policy shall be valid until approved by an executive officer of the Company and unless such approval is endorsed hereon or attached hereto. The Agent has no authority to change the Policy or to waive any of its provisions.

If like certificates previously issued by the Company to the Obligor from all creditors be in force concurrently herewith making the aggregate amount of insurance in excess of $10,000, all such excess insurance shall be void, and the premiums paid for such excess shall be returned to the Obligor or his estate." (Emphasis added.)

The correct premium for a $10,000 policy limit would have been $260. Plaintiff, therefore, brought this action to recover the excess premium paid and for other relief, alleging that defendants each accepted and retained premiums based on a potential recovery in excess of that permitted by the contract and that Bankers failed to honor that contract provision requiring a refund of excess premiums. Plaintiff also alleged that there were others similarly situated and prayed that he be appointed to represent the class.

In its "Motion to Strike and Dismiss," which was later joined in by Perillo, Bankers alleged that as a matter of law plaintiff's maximum recovery was $11,725.44 and that Bankers had waived the policy limit. Bankers attached the affidavit of its assistant vice-president, Robert Warner, which stated that Bankers had waived the $10,000 limit, notwithstanding the fact that such waivers are explicitly forbidden by the contract language.

In response, plaintiff initially raised the argument that defendants' motion was an improper, hybrid motion which should therefore be denied. Plaintiff also contended that a cause of action was stated, that the printed certificate of insurance was clear and unambiguous and must be enforced, that neither Bankers nor Perillo waived the policy provision and that Bankers could not unilaterally waive a contract provision which benefitted plaintiff.

The trial court held that as a matter of law plaintiff had failed to state a cause of action because Bankers was legally responsible for the full typewritten coverage amount and also held "alternatively" that the complaint was subject to a motion for involuntary dismissal because Warner's affidavit was unrebutted and therefore conclusive of the fact that "Bankers intended to be bound by the full benefit amount." Having found that no cause of action existed, the court also denied plaintiff's motion for class certification. We reverse.

• 1, 2 Addressing first plaintiff's contention regarding the hybrid motion, we note that such a procedure was expressly disapproved by our supreme court in Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605. While Janes involved a motion under section 45, combined with a motion for summary judgment, the same reasoning is applicable here. In Janes, the court stated that to combine an inquiry into whether a pleading is sufficient to state a cause of action (section 45) with an examination which almost necessarily assumes that a cause of action has been stated is likely to confuse both the parties and the court. Defendants should have first challenged the legal sufficiency of the complaint, and only when a legally sufficient cause of action had been stated should the court have entertained the motion based on affidavits. (57 Ill.2d 398, 406; see also Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App.3d 1040, 1044, 404 N.E.2d 473; appeal denied (1980), 81 Ill.2d 590; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App.3d 495, 497-98, 396 N.E.2d 34, appeal denied (1980), 79 Ill.2d 625.) Nonetheless, for the sake of expediency and because the appellate court in Janes had reached a determination as to whether a cause of action was stated, the supreme court declined to remand the case for proceedings conforming with the views expressed therein. Similarly, since we have determined that a cause of action was stated in the instant case, we will also consider the motion and evidence presented pursuant to section 48.

The trial court's finding that no cause of action was stated as a matter of law was based upon two rules of contract construction, the first being that the typed portion of a document prevails over a printed one (citing Lambos v. Lambos (1972), 9 Ill. App.3d 530, 292 N.E.2d 587, appeal denied (1973), 53 Ill.2d 608), and the second, pertaining to life insurance cases, that where two inconsistent provisions appear courts> have consistently upheld that provision which is most favorable to the insured. (Stramaglia v. Conservative Life Insurance Co. (1943), 319 Ill. App. 20, 48 N.E.2d 719.) In addition, the court cited Hooker v. Farmers Mutual Reinsurance Co. (1940), 304 Ill. App. 230, 26 N.E.2d 146, for the proposition that an insurer can waive a condition on stipulation made in its own favor, and an agent clothed with the power of soliciting insurance, delivering policies and collecting premiums has the power to waive ...


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