Appeal from the Circuit Court of Cook County. The Honorable Albert Green, Judge Presiding.
The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j., and Zwick, J., concur.
The opinion of the court was delivered by: Egan
JUSTICE EGAN delivered the opinion of the court:
In April 1992 the named plaintiff, Berenice Griffin, bought an automobile insurance policy from the defendant, Universal Casualty Company, through Lincoln Insurance Agency ("Lincoln"). On October 5, 1992, her car was severely damaged in an accident, and the defendant declared it a total loss. In settlement of her claim, the defendant offered the plaintiff a replacement vehicle or an amount equal to the cost of a replacement vehicle. The plaintiff refused these offers and filed a class action complaint. With leave of court, the plaintiff filed a four-count amended complaint.
Pursuant to the defendant's motions, the judge dismissed all fourcounts of the amended complaint. The plaintiff appeals the dismissal of the first three counts of her amended complaint but not the dismissal of the fourth count. The judge did not address the propriety of the plaintiff's complaint as a class action complaint, and this also is not an issue on appeal.
In the first count of her amended complaint, the plaintiff alleged that the defendant was guilty of unfair and deceptive practices in violation of the Consumer Fraud and Deceptive Practices Act (735 ILCS 505/1 et. seq. (West 1992)) ("Consumer Fraud Act"). Specifically, she claimed that the defendant charged her and the other class members *fn1 for more insurance than it provided under the policy, sold an actual cash value policy "under the label or designation of a stated value insurance policy," concealed the' policy provisions under which it had the option to offer her a replacement vehicle or the cost thereof and concealed the fact that it settles 95% of its claims this way. In support of these claims, the plaintiff alleged the following facts.
On or about April 16, 1992, the plaintiff purchased a Universal insurance policy to insure her 1984 Chevrolet automobile. As an exhibit to her amended complaint, she attached this policy, which is identified as a "stated value policy" and which has an initial declarations page followed by eight printed pages.
The declarations page lists Lincoln Insurance Agency as the "Producer" of the policy, lists the "value" of the plaintiff's car at $2,150 and lists the deductible as $250. Directly underneath the blank on the declarations page where the value of the car is typed, there is the following printed sentence: "The stated value described above for each vehicle is subject to reduction as set forth in Part V, physical damage[,] of the policy provisions." Part V appears on page five of the policy and contains information under several bold subheadings, including "Total Loss" and "Depreciation."
Under the "Total Loss" heading, the policy provides in relevant part: "In the event of a loss *** wherein the physical damages sustained or the destruction to the owned automobile approximates the stated value of the owned automobile as listed on the Declaration Page minus a deduction for depreciation as hereinafter set forth and minus the deductible amount and minus a deduction for the cost to replace missing equipment and/or repair any old, unrepaired physical damage that occurred after the inceptionof the policy, and prior to the subject loss to the owned automobile, the Company shall have the following options: (1) Prepayment to the Insured of the stated value of the owned automobile as listed on the Declaration Page minus a deduction for depreciation as hereinafter set forth minus the deductible amount and minus a deduction for the cost to replace missing equipment and/or repair any old, unrepaired physical damage that occurred after the inception of the policy and prior to the subject loss to the owned automobile; or (2) Replacement of the owned automobile with other like kind and quality as of the date of the subject loss, taking into consideration depreciation and minus any deductible amount and minus any missing equipment and/or old, unrepaired physical damage which occurred after inception of the policy and prior to the subject loss; or (3) Payment of the amount the Company would have paid for a replacement vehicle under Option (2); or (4) Repair or rebuild the owned automobile." (Emphasis in original.)
Under the "Depreciation" heading, the policy provides:
"Depreciation shall be computed at the rate of 2% per month of the stated value of the owned automobile as listed on the Declaration Page for every month or part thereof that the policy shall have been in force. The total percentage deduction for depreciation shall be computed on the whole amount in one sum and not by monthly deductions."
The plaintiff further alleged that, on October 5, 1992, her car was damaged in an accident, and, because of the extent of the damage, the defendant declared her car a total loss in November 1992. If the defendant had decided to settle her claim using Option (1) of the "Total Loss" section of the policy, it would have owed her $1,642: the stated value ($2,150) minus $258 for depreciation (2% x six months x $2,150) minus the $250 deductible. Instead, the defendant offered her a replacement car valued at $1,050. After the plaintiff refused the replacement car, the defendant offered her $1,050 in cash "pursuant to technical terms contained in fine print on page five of the policy, under which [the defendant] had the option of offering [the plaintiff] a replacement car or the value of the replacement car." The plaintiff also did not accept this offer, and, instead, filed a complaint against the defendant.
In addition, she alleged:
"S. At the time [the plaintiff] purchased the [stated value] policy, her automobile was not worth $2,150.00, which was the stated value on the policy.
T. At the time [the plaintiff] purchased the [stated value] policy, her automobile was worth not more than $1,550.00.
U. [The defendant] knew, or should have known, that the actual value of [the plaintiff's) eight[-]year[-]old Chevrolet automobile was not more than $1,550, considerably less than $2150.00 at the time the [stated value] policy was purchased.
V. At the time [the plaintiff] purchased the [stated value] policy, the maximum liability of [the defendant] for a total loss was not more than $1,550, the maximum value of a replacement vehicle, not the $2,150.00 stated value.
W. [The defendant] charged [the plaintiff] for at least $600.00 of insurance that was not provided.
X. [The defendant] pays over 95% of claims for a total loss under a stated value policy by either a replacement vehicle or the value of the replacement vehicle.
Y. In all of these claims the replacement vehicle or value thereof is used because it is less than the stated value under a [stated value] policy with a depreciation schedule.
Z. [The defendant] bases or calculates the [insured's] premium charge on the stated value set forth in the policy."
In Count II of her amended complaint, the plaintiff alleged alternatively that the defendant violated the Consumer Fraud Act by failing to pay the amount due under the policy in the event of a ...