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12/29/89 Theodore Chabraja Et Al., v. Avis Rent A Car System

December 29, 1989

THEODORE CHABRAJA ET AL., INDI

v.

AND ON BEHALF OF ALL OTHER CONSUMERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS AND PLAINTIFFS-APPELLEES,

v.

AVIS RENT A CAR SYSTEM, INC., DEFENDANT-APPELLEE AND, DEFENDANT-APPELLANT

AVIS FILED A MOTION TO DISMISS UNDER SECTION 2-615 OF THE ILLINOIS CODE OF CIVIL PROCEDURE (ILL. RE

v.

STAT. 1987, CH. 110, PAR. 2-615), ARGUING THAT PLAINTIFFS HAVE NO VALID CLAIM AND, THEREFORE, COULD NOT REPRESENT THE CLASS.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

549 N.E.2d 872, 192 Ill. App. 3d 1074, 140 Ill. Dec. 221 1989.IL.2057

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

APPELLATE Judges:

JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA

Plaintiff Theodore Chabraja (Chabraja) brought a class action suit on behalf of persons in Illinois against defendant, Avis Rent A Car System, Inc. (Avis), asserting common-law fraud and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.) and the Illinois Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 311 et seq.). Chabraja contended that Avis committed these acts by offering to persons renting cars from Avis, including himself, a "Collision Damage Waiver" at additional expense, without revealing to the renters that the CDW for rental cars was often included under other coverage the renter might have, and therefore, according to Chabraja, was worthless. Chabraja also contends that the statement on the rental policy that "CDW IS NOT INSURANCE" was incorrect.

Chabraja later moved for permission to file an amended complaint, to clarify the allegations of the original complaint, and add plaintiff Edward T. Custard to bring the suit into a nationwide pool of such suits. The motion was granted.

After a hearing on Avis' motion, the trial court held that the statement "CDW IS NOT INSURANCE" was not a misrepresentation because CDW was a waiver and therefore the printed language was a true statement. The court also found no facts to support plaintiffs' contention that Avis had a duty to inform them of the possibility of coverage under other insurance policies they already possessed. The court granted Avis' motion to dismiss.

Avis then moved under section 2- 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) for an award of sanctions against plaintiffs' counsel on the ground that the complaint was neither well grounded in fact or existing law, nor a good-faith argument for change in existing law. The trial court denied this motion.

Plaintiffs appeal from the trial court's dismissal of their claim against Avis, and Avis appeals the trial court's denial of its motion for sanctions against plaintiffs' counsel. The issues presented in this appeal are whether the CDW contained in the car rental agreement was insurance; whether Avis breached a duty to its customers by not informing them that the CDW might be duplicative of coverage they might already have; and whether the plaintiffs should have been sanctioned under section 2-611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) because the trial court dismissed their complaint. I. PLAINTIFFS' ARGUMENT AGAINST AVIS

Plaintiffs argue that Avis committed common-law fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Uniform Deceptive Trade Practices Act by offering CDWs to persons renting cars from it without informing them that their own insurance or other coverage might contain such protection and by stating that a CDW was not insurance.

The elements of fraud at common law are that the accused party made false representation of a material fact either knowing or believing it to be false or with reckless disregard for the truth of it, that the misrepresentation was made for the purpose of inducing the plaintiff to act and that the plaintiff reasonably believed the misrepresentation and relied upon it to his detriment. Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 249, 483 N.E.2d 1263, 1266; Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 247, 511 N.E.2d 1330, 1335-36.

Plaintiffs contend that Avis misrepresented the nature of the CDW by indicating that it was not insurance. We agree with the trial court that this is not a misrepresentation, but a true statement of fact because the car rental agreement clearly stated that the CDW was a waiver.

Renting a car creates a bailment between the leasing company (bailor) and the customer (bailee). (Galluccio v. Hertz Corp. (1971), 1 Ill. App. 3d 272, 277, 274 N.E.2d 178, 181-82.) Generally, a bailee is responsible for any injury to the bailed property. (Mueller v. Soffer (1987), 160 Ill. App. 3d 699, 704, 513 N.E.2d 1198, 1201.) Thus, the customer would be responsible for damage to ...


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