Appeal from the Circuit Court of Cook County. The Honorable Loretta Douglas, Judge Presiding.
As Modified on Denial of Rehearing June 10, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Egan
MODIFIED ON DENIAL OF REHEARING
PRESIDING JUSTICE EGAN delivered the opinion of the court:
Jorja Widegren filed a suit against Steven Golembiewski for injuries sustained in an automobile collision. Golembiewski notified Hallberg Insurance Agency, Inc. (Hallberg) of the suit. Hallberg notified him that he was not covered. Golembiewski filed a third party complaint against Mark Zintak and Hallberg alleging a breach of contract and a consumer fraud claim. Jorja Widegren settled her claim with the plaintiff, and her complaint was dismissed. Golembiewski dismissed Zintak from the case and the only defendant that remained was Hallberg. A jury trial was begun and the Judge ultimately directed verdicts in favor of Golembiewski (hereafter, the plaintiff) on the breach of contract and consumer fraud claims. She entered judgment in the amount of $6,811.03, which included the $4000 amount that the plaintiff paid to Widegren, interest on a loan he took out to pay Widegren, and the cost of repairing his own car. On the consumer fraud claim, the trial Judge did not make any separate award, but she did assess $4,000 in attorney fees against the defendant, based on section 10a(c) of the Consumer Fraud Act. (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 270a(c).) After denying the defendant's post-trial motion, the trial Judge entered judgment against the defendant's law firm for $900, the amount assessed against it as a discovery sanction that remained unpaid.
The defendant contends that the trial Judge erred in directing verdicts against it on both counts; that she abused her discretion in barring James Hallberg, the president of Hallberg, from testifying and in barring Hallberg from presenting a defense; that she erred in making two evidentiary rulings; that she abused her discretion in permitting the plaintiff to amend his complaint to conform to the proofs; that she erred in denying the defendant's motion to dismiss the consumer fraud claim; and finally, that she erroneously denied the defendant's petition for a change of venue. The plaintiff has not filed a brief. *fn1 The defendant waived oral argument in this court. *fn2
In count I, the breach of contract claim, the plaintiff alleged the following: On August 3, 1988, he contacted Mark Zintak, who was associated with Hallberg and "requested that he be bound with automobile insurance coverage." During the conversation, "Mr. Zintak advised the plaintiff that he could consider himself covered immediately and that he should send a check for $225 immediately. * * * At 7 a.m. the very next morning, [Thursday] August 4, 1988, [he] sent the check for $225 to Hallberg Insurance Agency. * * * Two days later, on [Saturday] August 6, 1988, [he] was involved in an automobile accident with Jorja D. Widegren."
The plaintiff further alleged that "on Monday, August 8, 1988, [he] contacted Mark Zintak of Hallberg Insurance Agency * * * and advised him of the accident whereupon he was advised by Mr. Zintak that they had not received his check; therefore, his insurance coverage had not come into effect yet"; that on August 4, 1988, he sent his check to Hallberg and "completed his contract with them"; and that Zintak's remarks to him on August 3, 1988, led him to "believe he was in fact covered by insurance from that moment forward." As a basis for recovery, he alleged that he was entitled to either "insurance coverage or indemnification from Hallberg Insurance Agency."
In count II, the consumer fraud claim, the plaintiff realleged the breach of contract allegations and added that the sale of insurance is a "service"; that he was a "consumer" under the Consumer Fraud Act; that Zintak told him that he was "bound"; and that the "acts and representations made by Mark Zintak of Hallberg Insurance were unfair and deceptive" in violation of the Act. He alleged that he was entitled to "damages, reasonable fees and court costs" under the Act. As relief he requested that he be awarded judgment in an amount equal to Widegren's recovery, attorney fees and costs, and any other relief.
The defendant contends that the trial Judge should have granted its motion to dismiss the consumer fraud claim. The defendant argues that the plaintiff failed to allege "proof of public injury," an element that the defendant maintains was "required" for any consumer fraud claim filed in 1988. The defendant insists that "proof of public injury" is required because courts consistently have held that the consumer fraud remedy was intended to reach practices of the type which "affect consumers generally" and is not available as an additional remedy to redress a purely private wrong.
On January 1, 1990, an amendment to the Consumer Fraud Act became effective which provided: "Proof of public injury, a pattern, or an effect on consumers generally shall not be required." (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 270a(a).) The defendant concedes that proof of public injury was no longer required after the effective date of the amendment, January 1, 1990, but insists that the plaintiff was required to plead this element in 1988 when he originally filed his complaint.
In Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc. (1992), 240 Ill. App. 3d 360, 608 N.E.2d 178, 181 Ill. Dec. 105, this court held that proof of public injury was not required for a consumer fraud claim based on acts committed before 1990 because the 1990 amendment merely clarified, rather than changed, existing law. (See also Zinser v. Rose (1993), 245 Ill. App. 3d 881, 614 N.E.2d 1259, 185 Ill. Dec. 574.) We conclude that the trial Judge correctly denied the defendant's motion to dismiss.
Before trial, the Judge imposed sanctions against the defendant, under Supreme Court Rule 219(c). (134 Ill. 2d R. 219(c).) The Judge barred James Hallberg from testifying; barred Hallberg from presenting a defense; and ordered the defendant's law firm, Moss & Hillison, to pay $900 to the plaintiff's attorney for time spent at a deposition. The defendant contends that the trial Judge abused her discretion in imposing any sanctions and that the sanctions were too harsh. The trial Judge heard arguments on the motion to impose sanctions before entering her order.
As a result of the petition for rehearing we have been required to read the depositions of Mark Zintak, an agent for Hallberg, and James Hallberg. It would unduly lengthen this opinion to repeat in detail all that transpired at those depositions. It is enough to say that the conduct of Robert Hillison, the attorney for the defendant, represented discovery practice at its worst. Both depositions, particularly the deposition of Hallberg, are riddled with frivolous objections by Hillison and his improper instructions not to answer questions. His termination of the deposition of Zintak by telling the court reporter to leave and telling the plaintiff's attorney to "get the hell out of [his] office" was unjustified. His obstructive tactics at the deposition of Hallberg justified the plaintiff's attorney's termination of Hallberg's deposition. We conclude that the trial Judge did not abuse her discretion in imposing the sanctions that she did. The discovery sanctions and judgment for $900 against Moss & Hillison are affirmed.
The defendant next contends that the trial Judge should not have directed verdicts in favor of the plaintiff. The plaintiff testified that he was 19 years old when he called Hallberg in 1988. He purchased a 1985 Chevrolet Camaro in July 1988 for $9,200. He received a loan for the car from USA Consumer Credit Corporation. Before he purchased the car, he thought that he was insured on his father's policy (with Kemper) for the family car. His father procured his policy through Hallberg.
On July 25, 1988, he called Mark Zintak at Hallberg. He received Zintak's phone number from his father. He called Hallberg because he "was previously * * * insured with them under [his] family car policy." When he called, he spoke to Zintak. The plaintiff testified that Zintak took down his "information * * * driver's license number, and [so] forth, address." Zintak sent the plaintiff an application in the mail. Zintak told him to fill in the "markings, the gold, the highlighted areas."
The plaintiff called Zintak on August 3, 1988. He testified that he told Zintak, "The lady from the finance company had called and that I would have to have insurance today. * * * I told him that I must have insurance today, I must be binded. I did not know what binded was"; that he wanted to be affiliated with Kemper; and, that he needed "insurance liability coverage." He told Zintak that he financed the vehicle and that the finance company insisted that he be insured on August 3, 1988. He also told Zintak, "If I was not able to be bound that day, I was supposed to look for another insurance company."
After he told Zintak of his need to become bound, Zintak told him that "he would have to talk to his superiors." Zintak then placed the plaintiff's call on hold. When Zintak returned to the line, Zintak "told [him he] was bound." Zintak then told the plaintiff that he "had to fill in the highlighted areas on the application and send him a check * * * [for] $225." He told Zintak that he would send the application and check to him on the morning of August 4, 1988. The entire phone call lasted 11 minutes.
The plaintiff testified that he sent the check at 7 a.m. on the morning of August 4, 1988. On the application, he only filled in the highlighted portions; he did not know who filled in the rest of the information on it. At trial, he looked at the application and ...