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Robacki v. Allstate Insurance Co.

OPINION FILED AUGUST 20, 1984.

WALTER ROBACKI, PLAINTIFF-APPELLANT,

v.

ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Donald J. O'Brien and the Hon. John F. Hechinger, Judges, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 10, 1984.

A three-count complaint filed by Walter Robacki (plaintiff) against Allstate Insurance Company (defendant) alleged that defendant committed fraud, violated the Uniform Deceptive Trade Practices Act (Uniform Act) (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 312), and committed fraudulent concealment, all in connection with the sale of automobile insurance coverage. The trial court dismissed counts I and III and entered summary judgment for defendant on count II. Plaintiff appeals.

I

Counts I and III of the complaint contain similar allegations and are based upon the same facts. Plaintiff alleged he had purchased an automobile insurance policy from defendant which expired August 18, 1975. The policy covered personal injury protection (PIP), comprised of Basic PIP coverage and Excess PIP coverage. Each form of PIP coverage included three types of benefits: (1) medical, funeral and hospital expense; (2) disability; and (3) loss of services.

Shortly before plaintiff's policy expired, defendant mailed to plaintiff certain documents which plaintiff refers to as "Replacement Papers." These papers explained that PIP was to be discontinued, but defendant would make other coverages available. They consist of two letters from defendant: an "Explanatory Pamphlet" outlining the terms of the new coverages, and a brochure listing new death indemnity and disability income provisions. The letters urged plaintiff to replace his PIP coverages with one or more of these three new coverages: (1) personal medical payment coverage; (2) automobile death indemnity coverage; and (3) automobile disability income coverage. Plaintiff alleged he elected to replace his PIP coverage with the three new coverages.

Counts I and III allege that defendant's scheme was accomplished by the use of deceptive and misleading statements contained in these "Replacement Papers." Plaintiff alleged these various statements led him to believe the new coverages would be the same as the old PIP coverages.

Plaintiff also alleged that on October 31, 1976, plaintiff was injured by an automobile. The injuries plaintiff received prevented him from continuing in his employment. Plaintiff alleged his claim for disability benefits of $12,700 was completely denied.

Plaintiff seeks reformation of the policies to include the discontinued coverages and also full payment of plaintiff's claims under the terms of the discontinued provisions.

II

The first problem here is determination of the legal relationship between these parties. Plaintiff cites a number of Illinois cases in support of his contention that a fiduciary relationship existed between defendant and plaintiff. See, e.g., Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 121 N.E.2d 509; Harvey v. Johnson (1975), 30 Ill. App.3d 750, 332 N.E.2d 680; Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App.3d 339, 330 N.E.2d 540, rev'd on other grounds (1976), 64 Ill.2d 338, 356 N.E.2d 75; and Allstate Insurance Co. v. Keller (1958), 17 Ill. App.2d 44, 149 N.E.2d 482.

None of these cases deals with the question of whether a fiduciary relationship exists between an insurance company and its insured. Simmon, Harvey, and Allstate Insurance Co. describe the importance of automobile insurance in the modern world and underscore the degree to which insurance contracts are "cloaked with a public interest." (Allstate Insurance Co. v. Keller (1958), 17 Ill. App.2d 44, 49.) These discussions were all within the context of the duty of the insured to cooperate with an insurance company as distinguished from any duty of the insurance company to its insured.

Only Ledingham discusses the duty of an insurance company to its insured. There, the insured plaintiff brought an action against his insurer based upon wrongful denial of benefits by the company under a health service policy. The plaintiff sought both actual and punitive damages. Proceeding upon a common law theory, the court concluded that, while the insurer did have an implied duty of good faith and fair dealing, the denial of benefits in that case was not in bad faith. Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App.3d 339, 352.

• 1 The duty of good faith and fair dealing described in Ledingham applied within the context of the right of the insured to punitive damages for wrongful denial of benefits under a policy of health insurance. Ledingham does not support plaintiff's contention here that defendant owed him a fiduciary duty. While a fiduciary relationship exists between an insured and a broker who acts as the agent for the insured (see Black v. Illinois Fair Plan Association (1980), 87 Ill. App.3d 1106, 409 N.E.2d 549), our research has revealed no Illinois case holding that such a relationship exists between an insurance company and its insured. An implied duty of good faith and fair dealing has never been held to constitute a fiduciary duty.

Further, there is no basis for concluding that defendant here breached a duty of good faith and fair dealing. As discussed below, the record in this case demonstrates that defendant acted in good faith in providing plaintiff with copies of all of the actual provisions of the new coverages.

Plaintiff also relies upon Fawcett v. Sun Life Assurance Co. of Canada (10th Cir. 1943), 135 F.2d 544. That case dealt with the actionability of representations as to matters of law. No such problem is involved in the case at bar. We conclude there was no fiduciary relationship between the parties hereto.

III

Plaintiff contends that defendant made representations which were intended to deceive and mislead policyholders about new coverage. We find there is no representation of any kind by defendant that the new coverage was identical to or even the same as the previous coverage. The only statement made by defendant in this regard is that the two coverages are "similar." This is a broad statement.

Plaintiff's depositions reveals him to be a person of good intelligence. He is approximately 70 years old, and was born in America. He has a grammar school education and one year of high school. In addition, he lived in Poland for some time, during which he had two more years of high school education. Plaintiff has been employed in the printing business for many years. Prior to plaintiff's disability, he was supervisor of the shipping room of a printing and packaging company.

Plaintiff testified he does not read policies but simply glances over them and files them away. He assumed that the policy which he received from the defendant was the same as his previous policy. There is nothing in the record to show that plaintiff ever sought assistance of ...


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