decision on the fact that the plaintiff had ample opportunity and resources to investigate the contract at issue. The same, arguably, is true here. However, the Central States case is distinguishable, however. A decision in plaintiff's favor there would have permitted the plaintiff to assign its duty of due care to another, without the other agreeing to do so. The parties were dealing at arm's length. Here, in contrast, the Defendant essentially represented that reliance on it was due care, thereby accepting what would have been the Plaintiff's duty. PWI's representations regarding its expertise are sufficient bases for the Plaintiff to place its trust in PWI such that the Court must permit an exception to the general rule that a party may not rely on misrepresentations when the party has ample opportunity and resources to ascertain the truth. See Commercial Nat'l Bank of Peoria v. F.D.I.C., 476 N.E.2d at 814.
The case of Greycas, Inc. v. Proud, 826 F.2d 1560 (7th Cir. 1987), provides a persuasive rational for permitting an exception here. There, the plaintiff made a loan to the defendant's brother-in-law, without knowing of the relation. As a condition to making the loan, the plaintiff required an attorney's letter stating that the brother-in-law's collateral was not impaired. The defendant, an attorney, wrote a letter so stating, without properly investigating the facts upon which the opinion letter was based. When the brother-in-law defaulted, the plaintiff learned that the collateral had been impaired. In affirming a judgment for plaintiff, the Seventh Circuit recognized that the plaintiff might have investigated the collateral's impairment on its own and that a failure to do so was arguably negligent. Rejecting that view, however, the Court explained that "Due care is the care that is optimal given that the other party is exercising due care." Greycas, Inc., 826 F.2d at 1566. The law does not require potential tort victims to assume, beforehand, that the eventual tort feasors will be negligent. Id. Otherwise, there would be an inefficient allocation of resources toward preventing torts. See id.
Here, as in Greycas, Inc., the Plaintiff was entitled to expect the Defendant to use due care in evaluating the bonds. Unlike the Central States case perhaps, Plaintiff had no duty to expect that the Defendant would be negligent. Other cases cited by Defendant, Seefeldt v. Millikin Nat'l Bank of Decatur, 154 Ill. App. 3d 715, 506 N.E.2d 1052, 107 Ill. Dec. 161 (Ill. App. Ct. 1987) (affirming trial court's grant of summary judgment to real estate sellers where buyers were not entitled to rely on statements of sellers); Costello v. Liberty Mut. Ins. Co., 38 Ill. App. 3d 503, 348 N.E.2d 254 (Ill. App. Ct. 1976) (reversing trial court decision permitting employee to sue former employer for fraud where employee said it relied on statements of employer that were easy for the employee to investigate), may similarly be distinguished. Chicago Export Packing Co. v. Teledyne Indus., Inc., 207 Ill. App. 3d 659, 566 N.E.2d 326, 152 Ill. Dec. 639 (Ill. App. Ct. 1990). In neither case did the defendant undertake the obligation of providing the plaintiff with information which was otherwise available. Applying Greycas Inc. to those cases, no inefficiency was created by requiring the plaintiff to do its own investigation. Here, in contrast, the Defendant deliberately undertook the obligation of providing the defendant with accurate information. Requiring the Plaintiff to do more investigation would have been inefficient.
Accordingly, as to Count One, Defendant's Motion for Summary Judgment is denied.
3. Promissory Estoppel
In Count Two, Plaintiff seeks to recover on a promissory estoppel theory. To state a claim for promissory estoppel, a plaintiff must demonstrate: (1) that the defendant made an unambiguous promise; (2) that the plaintiff relied on the promise; (3) that such reliance was foreseeable; and (4) that the plaintiff relied to its detriment. Quake Const., Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 565 N.E.2d 990, 1004, 152 Ill. Dec. 308 (Ill. 1990). As a matter of law, Plaintiff has failed to satisfy the first of these conditions.
Plaintiff correctly points out that a promise may either be express or implied. Here, Defendant made no express promise. The only implied promise that is arguably attributable to the Defendant is a promise to use due care in reviewing the bonds. Such a manufactured promise does not support a claim for promissory estoppel, however. It only supports a claim for negligent misrepresentation. To hold otherwise would permit plaintiffs to turn all sorts of torts into claims for promissory estoppel. Promissory estoppel is not a means for recasting negligence actions as actions for recovery on an implied promise to use due care.
Plaintiff does not create a "promise" by showing that the Defendant gave a professional opinion as to the bonds' authenticity. It is well settled that an opinion does not create a promise sufficient to give rise to a cause of action for estoppel. See, e.g., Stringer Const. Co. v. Chicago Housing Authority, 206 Ill. App. 3d 250, 563 N.E.2d 819, 825, 150 Ill. Dec. 692 (Ill. App. Ct. 1990). Moreover, Plaintiff has failed to demonstrate the terms of any implied promise. It cannot, therefore, show an "unambiguous" promise.
Accordingly, as to Count Two, Defendant's motion for summary judgment is granted.
4. Breach of Fiduciary Duty
In Count Three, Plaintiff attempts to recast its claim as one for breach of fiduciary duty. Such a claim requires the establishment of fiduciary relationship. No such relationship existed between the Defendant and Plaintiff.
As a general rule: "If a person solicits another to trust him in matters in which he represents himself to be expert as well as trustworthy and the other is not expert and accepts the offer and reposes complete trust in him, a fiduciary relation is established." Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992). However, not every expert is a fiduciary. Id. A trusted expert does not become a fiduciary unless he gains "influence and superiority" over his advisee. See id.; see also Pommier v. Peoples Bank Marycrest, 967 F.2d 1115, 1119 (7th Cir. 1992) (indicating, citing several cases, that in order to establish a fiduciary relationship, a plaintiff must show that it was subject to the defendant's domination, or influence and superiority). A relationship of trust between a plaintiff and defendant does not necessarily establish a fiduciary relationship. See Pommier, 967 F.2d at 1119; Jackson Nat'l Life Ins. Co. v. Gofen & Glossberg, 1993 U.S. Dist. LEXIS 9569, 1993 WL 266548 at *2 (N.D. Ill. July 15, 1993) (stating: "In the absence of dominance and influence, there is no fiduciary relationship between the parties, no matter what the level of trust . . . .").
As indicated in the Court's discussion of Count One, Plaintiff was entitled to "trust" Defendant to use reasonable care in evaluating the bonds. However, that level of trust does not, by itself, justify an action for breach of fiduciary duty. Plaintiff has failed to provide the Court with any evidence establishing an ongoing relationship exhibiting PWI's domination, influence, or superiority. Although PWI must be considered a fiduciary with respect to the Plan, no such relationship existed between PWI and CLC itself.
Citing Martin v. Heinold Commodities, Inc., 117 Ill. 2d 67, 510 N.E.2d 840, 109 Ill. Dec. 772 (Ill. 1987), Plaintiff contends that PWI may be its fiduciary prior to CLC actually opening an account there. In Martin, the Illinois Supreme Court refused to conclude that "a fiduciary duty can never be imposed upon a prospective agent prior to the formal creation of an agency relationship." Martin, 510 N.E.2d at 845. However, the Court did not elaborate on the circumstances where a fiduciary relationship would be deemed to exist. In the opinion of the Court, such is not the case here.
One could reasonably conclude that PWI solicited CLC's trust and held itself out as an expert with respect to CLC's bonds. One could also conclude that CLC trusted PWI and that PWI hoped to open an account for CLC. These conclusions do not mandate the finding of a fiduciary relationship. Because Plaintiff has failed to produce evidence demonstrating PWI's domination or influence and superiority,
PWI's motion, with respect to this claim, is granted.
Accordingly, as to Count Three, Defendant's Motion for Summary Judgment is granted.
For the foregoing reasons, Defendant's Motion for Summary Judgment is denied as to Count One and granted as to Counts Two and Three.
JOHN A. NORDBERG
United States District Judge
DATED: July 13, 1994