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August 15, 1984


The opinion of the court was delivered by: Aspen, District Judge.


Plaintiff Indiana Insurance Co. ("Indiana") sued defendants Meeker-Magner Insurance Brokers and Consultants ("Meeker-Magner") and James R. Bauers ("Bauers") for breach of contract, breach of fiduciary duty, interference with contractual relations, common law fraud and pursuant to the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961 et seq.*fn1 Presently before the Court is Meeker-Magner's motion to dismiss Counts III, IV and V of Indiana's complaint. For reasons set forth below, Meeker-Magner's motion is granted in part and denied in part.

In considering a motion to dismiss, we must take as true all material allegations of fact in the complaint and must read them in the light most favorable to the plaintiff. Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977). Furthermore, the motion should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). It is with these standards in mind that we turn to the pending motions.

Bauers was the president and sole shareholder of Glenbrook Insurance Agency ("Glenbrook"). An agency agreement dated January 1, 1969, granted Glenbrook authority to sell insurance on behalf of Indiana. Between May 1980 and October 1983, Glenbrook was delinquent in its premium payments to Indiana. Indiana suspended Bauers as an agent in January 1982 and sued Glenbrook for recovery of these premium payments.*fn2 In August of 1982, Bauers entered into agreements with Meeker-Magner to transfer Glenbrook to Meeker-Magner. When a Meeker-Magner representative contacted Indiana in an effort to obtain a contract to write Glenbrook's insurance policies, Indiana advised the representative that Glenbrook owed outstanding premium payments to Indiana, and that Glenbrook could not be sold. The sale nevertheless proceeded.

In Count III, Indiana alleges that Meeker-Magner intentionally interfered with Indiana's contractual relationship with Bauers and Glenbrook by acquiring assets in which Indiana had a vested interest, including Glenbrook's "book of business." Count IV asserts that Meeker-Magner participated in Bauer's scheme to defraud Indiana by acquiring Glenbrook knowing that Indiana had a lawsuit pending against Bauers for unpaid premiums and by conspiring with Bauers to dispose of all Glenbrook assets which could satisfy a judgment for the amount of premium payments owed to Indiana. Count V asserts violations of RICO, 18 U.S.C. § 1961 et seq.

Count III

Meeker-Magner claims that Count III fails to state a claim for interference with contractual relations, since there was no valid contract between Indiana and Bauers or Glenbrook with which Meeker-Magner could have interfered. Meeker-Magner maintains that Indiana's January 1982 termination of Bauers as an agent ended any contractual relationship between Indiana and Glenbrook. In addition, Meeker-Magner asserts that nothing in the complaint supports the claim that Meeker-Magner induced Bauers' breach of his contract with Indiana.

Indiana responds by observing that the obligation for unpaid premiums and its interest in the agent's records pending payment continued to be governed by the contract. Indeed, the agreement between Indiana and Glenbrook supports Indiana's position.*fn3 It adds that by acquiring Glenbrook, Meeker-Magner induced Bauer to breach his contract with Indiana.

The elements of interference with contractual relations include: (1) the existence of a valid and enforceable contract between the plaintiff and a third-party; (2) the defendant's awareness of the contract; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third-party caused by the defendant's conduct; and (5) damage to the plaintiff. J.E.L. Realtors, Inc. v. Mettille, 111 Ill. App.3d 987, 989, 67 Ill.Dec. 514, 515, 444 N.E.2d 750, 751 (3d Dist. 1982). Indiana's complaint adequately sets forth the elements of this tort, and we therefore deny Meeker-Magner's motion to dismiss Count III.

Count IV

Fraud has several elements, including (1) a false statement of material fact; (2) knowledge of falsity on the part of the maker; (3) intent to induce the other party to act; (4) reliance by the other party; and (5) damage to the other party as a result of the reliance. Soules v. General Motors Corp., 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 599, 402 N.E.2d 599, 601 (1980). It is important to note that fraud may also involve the concealment of the truth in addition to false assertion. In re: Marriage of Wanic, 112 Ill. App.3d 740, 68 Ill.Dec. 419, 445 N.E.2d 1272 (1st Dist. 1983).

Review of Indiana's complaint indicates that it has not stated a cause of action for fraud.*fn4 It has not pled, for example, that Meeker-Magner concealed its intention or misrepresented its intentions to acquire Glenbrook's assets. Allegations of a material factual misstatement or concealment of the truth are absent. Count IV is therefore dismissed.

Accordingly, Meeker-Magner's motion to dismiss is granted in part and denied in part. Counts IV and V*fn5 are ...

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