Rule 9(b). Aetna is correct in its claim that under the
Consumer Fraud Act, Impex must plead fraud with particularity.
Barr, 583 F. Supp. at 258. However, Impex has met Rule 9(b)'s
standards in this complaint. See id. at 258-59. Further specifics
can be obtained through discovery.
Count V — Equitable Estoppel
Count V must be dismissed because it does not allege all the
elements of equitable estoppel. The factual predicates of Impex's
estoppel claim are (1) Aetna's amendment of its policy to include
coverage of the shrimp until FDA acceptance, pursuant to Aetna's
discussions with Impex and Channelwise; and (2) Aetna's alleged
agent's Survey Report on Channelwise's freezing and shipping of
The first allegation cannot support an estoppel claim because
Impex is arguing that a part of the policy itself calls for
coverage, not that Aetna took action outside the policy
precluding denial of coverage. Therefore, the first allegation is
subsumed within Count I's claim for breach of the insurance
The second allegation also fails to plead grounds for estoppel
because Impex has not alleged that it relied on the Survey Report
to its detriment. In order to claim estoppel, a plaintiff must
prove that he detrimentally relied on defendant's conduct. See
National Tea Co. v. Commerce & Industry Insurance, 119 Ill. App.3d 195,
74 Ill.Dec. 704, 456 N.E.2d 206 (1st Dist. 1983); Kennedy v.
Hospital Service Corp., 118 Ill.App.3d 584, 74 Ill.Dec. 176, 455
N.E.3d 206 (1st Dist. 1983); Ames v. Crown Life Insurance Co. of
Toronto, Canada, 85 Ill.App.3d 203, 40 Ill.Dec. 521,
406 N.E.2d 222 (3d Dist. 1980); G. Couch, 18 Cyclopedia of Law 2d, s 71.16
at 233, s 71.17 at 233, s 71.19 at 235 (1983). See also Sur v.
Glidden-Durkee, 681 F.2d 490 (7th Cir. 1982) (applying Indiana
The only reliance pleaded by Impex in the complaint is its
decision to contract to pay Channelwise prior to obtaining FDA
acceptance of the shrimp. At the time the Survey Report was
written, Impex had already contracted with Channelwise. Impex has
not even alleged that it ever received this report, and, if it
did not receive or otherwise acquire knowledge of the report, it
is obvious there could have been no reliance.
It may be that Impex can allege that Aetna waived its rights
under the policy, since waiver does not require reliance. See
National Tea, 119 Ill.App.3d at 204-05, 74 Ill.Dec. at 711, 456
N.E.2d at 213; Ames, 85 Ill.App.3d at 206, 40 Ill.Dec. at 523,
406 N.E.2d at 224. In order to allege waiver, however, Impex must
be prepared to demonstrate that Aetna voluntarily and
intentionally relinquished a known and existing right. Ames, 85
Ill.App.3d at 204, 40 Ill.Dec. at 523, 406 N.E.2d at 224. Waiver
can occur either through express language or by conduct. When the
plaintiff seeks to prove waiver by conduct, he must demonstrate
a clear, unequivocal and decisive act of waiver. National Tea,
119 Ill.App.3d at 205, 74 Ill.Dec. at 712, 456 N.E.2d at 214. The
plaintiff must also demonstrate that the insurer had knowledge of
all material facts before it deliberately waived its rights.
Kennedy, 118 Ill.App.3d at 588, 74 Ill.Dec. at 706, 455 N.E.2d at
208. If Impex can in good faith allege such an act or expression
of waiver, or can allege its own detrimental reliance on Aetna's
conduct outside of the language of the policy itself, then Impex
may amend Count V to include either a waiver or estoppel
Count III is dismissed with prejudice; defendant's motion to
dismiss Count IV is denied; and Count V is dismissed without
prejudice. Plaintiff has until July 1, 1985, to amend Count V.
Defendant has until July 22, 1985, to answer or otherwise plead
to amended Count V.