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Charles Hester Enter. v. Ill. Found. Ins. Co.

OPINION FILED AUGUST 22, 1985.

CHARLES HESTER ENTERPRISES, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS FOUNDERS INSURANCE CO. ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County; the Hon. Howard Lee White, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal a judgment and post-judgment order of the trial court that denied certification of a class for a class action suit and dismissed their 32-count third amended complaint with prejudice.

Plaintiffs' action was brought to recover actual and punitive damages, interest, court costs and attorney fees, and to obtain injunctive relief concerning premiums charged by defendant insurance companies in the sale of dramshop liability insurance providing coverage in excess of statutory limitations upon the liability of dramshops for bodily injury to one person. The named plaintiffs purport to represent themselves and all similarly situated persons that constitute a class as described in the several counts. The defendant companies are authorized to sell, and do sell, dramshop liability insurance to dramshops and owners of dramshop premises and insure against liability imposed by section 14 (now section 6-21) of the Liquor Control Act of 1934 (Dramshop Act) (Ill. Rev. Stat. 1983, ch. 43, par. 135). That section of the statute limits the liability it imposes to $15,000 for bodily injury to any one person. Plaintiffs alleged in their several counts that they had purchased dramshop liability insurance from the defendants that purported to insure plaintiffs from liability for personal injury in amounts in excess of $15,000 and paid a premium for such excess coverage. The premiums paid for the insurance coverage in amounts in excess of the maximum statutory liability furnish the basis for plaintiffs' action.

Plaintiffs seek recovery against defendants on four separate theories involving differing types of relief. First, they seek imposition of a constructive trust upon the premiums paid for the excessive coverage because of the unjust enrichment of defendants that occurred when they collected premiums for coverage beyond their liability exposure, together with an injunction against future sales of excessive coverage. Next, they allege fraud committed in selling coverage beyond the limits of legal liability, for which they seek only punitive damages and injunctive relief against future sales of excessive coverage. The plaintiffs further allege partial failure of consideration, an action sounding in contract that entitles them to a refund of the premiums paid for the excessive coverage and injunctive relief. Finally, the plaintiffs allege violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 263 et seq.), for which they seek an injunction against future sales of excessive coverage and a refund of the excessive premiums, punitive damages and attorney fees as provided in that Act.

Having before it the complaint, affidavits of the plaintiffs and their attorneys, answers to interrogatories and depositions of the plaintiffs, and following a course of procedural maneuvers that are unimportant here, the trial court denied plaintiffs' motion for certification of the plaintiffs' class and granted defendants' motions to dismiss the complaint. In its order denying class certification, the court let stand a previous order upholding the element of numerosity but found that questions of fact and law were not common to the class and that the common questions did not predominate questions affecting individual numbers, that the representative parties would not fairly or adequately protect the interests of the class, and that the class action was not an appropriate method for the fair and efficient adjudication of the controversy. In granting final dismissal of plaintiffs' third amended complaint (hereinafter complaint), no further findings were made by the trial court. Motion for rehearing was denied and plaintiffs' appeal.

Plaintiffs' complaint does not allege any facts with respect to any particular purchase and sale of a dramshop insurance policy by any party plaintiff. Rather, the gravamen of all counts and forms of action turns upon the conceded fact that defendants sold dramshop liability insurance coverage for personal injury in excess of the statutory limit of liability of $15,000 and collected premiums therefor. Plaintiffs contend that their third amended complaint states a cause of action as to each of the theories of action mentioned and that the complaint, affidavits, answers to interrogatories and depositions made showing sufficient to indicate that the trial court erred in refusing to grant class certification.

The defendants argue that the third amended complaint does not state a cause of action in any of its counts and that there was sufficient information before the trial court to require the denial of class certification. The defendants' motions to dismiss were advanced with the inclusion of the following arguments:

a. The dramshop liability insurance policies issued by defendant companies provided that the issuer would indemnify the insured against all sums they might be required to pay by reason of sections 14 and 15 of the Liquor Control Act and "all laws amendatory thereof" (defendants' emphasis). All policies provide, and plaintiffs' third amended complaint even alleges, that defendant companies would pay amounts for which the insureds might become liable under the Dramshop Act "in force February 1, 1934, and all laws amendatory thereof." (Defendants' emphasis.) Accordingly, if the legislature increases the liability of the insureds for personal injury, as they are asked to do in practically every session, the plaintiffs-insureds would have coverage to the extent of the "excess" amounts purchased. Insurance against this possible increased exposure the defendants term "sleep safe" insurance.

b. The third amended complaint contains no allegation of any misrepresentation of any fact made by any defendant.

c. No one compelled any plaintiff to purchase dramshop liability insurance in any amount; plaintiffs were free to purchase coverage in any amount equal to, greater than or less than the $15,000 amount or not at all.

d. The plaintiffs dealt with insurance brokers, not agents of the defendant companies, and the defendants made no representations at all to the plaintiffs.

e. Some dramshop operators have possession of their premises under leases that require them to carry policies of dramshop liability insurance that afford coverage for personal injury in excess of the statutory limitation of $15,000, and instances of this are cited in the record.

f. Some of the plaintiffs purchased excess coverage for personal injury liability while knowing of the $15,000 limitation contained in the Dramshop Act.

g. The premiums charged for coverage in excess of the $15,000 limitation for personal injury were nominal.

Our initial concern must be with the judgment that dismissed the complaint as failing to state a cause of action. No findings were made or reason for its ruling were given by the trial court in its judgment. In our consideration of the case on appeal we follow the course suggested by Schlessinger v. Olsen (1981), 86 Ill.2d 314, 427 N.E.2d 122, and Landesman v. General Motors Corp. (1978), 72 Ill.2d 44, 377 N.E.2d 813, and first consider whether plaintiffs' third amended complaint states a cause of action in any of its counts. If plaintiffs' complaint does not state a cause of action, then, of course, there would be no occasion to consider any alleged error with regard to the refusal of the trial court to certify the class. In our consideration of the sufficiency of the complaint to state a cause of action, all well-pleaded allegations will be taken as true.

• 1 The underlying factual allegations of all counts in plaintiffs' complaint are substantially the same, varying only to the extent necessary to assert separately the four different theories of recovery upon which plaintiffs rely. It should be said at this point that in considering the sufficiency of the complaint to state a cause of action we may consider only the allegations of the complaint, together with such exhibits or other materials it incorporates, and the relevant law. We may not test the sufficiency of the complaint by reference to evidentiary matters that may be elsewhere of record, such as depositions, affidavits, answers to interrogatories or other discovery materials. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605; Mutual Tobacco Co. v. Halpin (1953), 414 Ill. 226, 111 N.E.2d 155; O.K. Electric Co. v. Fernandes (1982), 111 Ill. App.3d 466, 444 N.E.2d 264; Louis v. Barenfanger (1967), 81 Ill. App.2d 104, 226 N.E.2d 85.) We have included these remarks and citations because the parties have used factual matters from affidavits, answers to interrogatories and depositions in addressing arguments to the sufficiency of the complaint. Factual matters outside of the complaint are properly left to a consideration of a motion for summary judgment. Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605.

Eight counts of plaintiffs' complaint seek the imposition of a constructive trust, restitution for premiums paid for coverage sold in excess of $15,000 and an injunction against future sales. Plaintiffs' basis or theory of action for these counts is the "unjust enrichment" of the defendants by the collection of premiums for coverage where there was no exposure to liability.

• 2 The supreme court of this State has often set forth the criteria for imposition of a constructive trust:

"Constructive trusts are divided into two general classes: one in which actual fraud is considered as equitable grounds for raising the trust, and the other, where there exists a fiduciary relationship and a subsequent abuse of such relationship." (Ray v. Winter (1977), 67 Ill.2d 296, 303, 367 N.E.2d 678, 682, citing Cunningham v. Cunningham (1960), 20 Ill.2d 500, 504, 170 N.E.2d 547, 550; Mortell v. Beckman (1959), 16 Ill.2d 209, 212, 157 N.E.2d 63; Carroll v. ...


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