misrepresentations. Id. This he may have done by attaching a
copy of a letter from Mr. Wold to Mr. Pappas to the complaint,
but he has yet to address the other allegations in his complaint.
He must notify Hartford of the circumstances surrounding the
alleged misrepresentations in the "policy illustrations,"
"marketing materials," and "sales presentations." Therefore, I
grant Hartford's motion to dismiss Counts I-III but grant Mr.
Asad leave to amend his complaint to cure these defects if he can
Hartford also argues that Mr. Asad cannot bring Counts II and
III because Illinois' promissory fraud doctrine prevents a
plaintiff from recovering for misrepresentations of intention to
perform future conduct, even if they are made without a present
intention to perform. See HPI Health Care Servs., Inc. v. Mount
Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19,
545 N.E.2d 672, 682 (1989). Misrepresentations regarding "existing facts"
are required for fraud. Id. Here, the plaintiff asserts that he
was induced to purchase a policy different from the one actually
purchased. Misleading the plaintiff as to the meaning of the
policy he was considering is a misrepresentation about present,
not future, facts. Nepomoceno v. Knights of Columbus, No. 96 C
4789, 1999 WL 66570, at *14 (N.D.Ill. Feb. 8, 1999). In addition,
Hartford fails to mention that the promissory fraud rule does not
bar a claim if "the false promise or representation of future
conduct is alleged to be the scheme employed to accomplish the
fraud." HPI Health Care Services, 137 Ill.Dec. 19, 545 N.E.2d
at 683. Mr. Asad alleges that "[d]efendant embarked on a
nationwide scheme to maintain or increase premium income by
encouraging its agents to engage in fraudulent sales practices."
This denotes a scheme to defraud sufficient for this exception to
IV. Unjust Enrichment
Hartford next argues that I should dismiss Mr. Asad's unjust
enrichment claim (Count IV) because an express contract governs
their relationship. In First Commodity Traders, Inc. v. Heinold
Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985), the
Seventh Circuit stated held that a plaintiff may not state a
claim for unjust enrichment when a contract governs the
relationship between the parties. However, First Commodities
Traders involved a motion for summary judgment, and later cases
have limited this holding to the summary judgment, not the
pleading stage where these theories may be pled alternatively.
See e.g. Quadion Corp. v. Mache, 738 F. Supp. 270, 278 (N.D.Ill.
1990); Citicorp Leasing, Inc. v. Meridian Leasing Corp., 1992
WL 211050 (N.D.Ill. 1992). Therefore, Mr. Asad may go forward
with his contract and unjust enrichment claims. Moreover, Mr.
Asad claims that he brings his unjust enrichment claim under a
tort theory, as an alternative to his fraud claims. See, e.g.,
Peddinghaus v. Peddinghaus, 295 Ill. App.3d 943, 230 Ill.Dec.
55, 692 N.E.2d 1221, 1225 (1998); HPI Health Care Servs., Inc.,
137 Ill.Dec. 19, 545 N.E.2d at 679-680 (1989). In any event, Mr.
Asad makes the necessary allegations, so I deny Hartford's motion
V. Negligent Misrepresentation and Breach of Fiduciary Duty
I now consider Mr. Asad's negligent misrepresentation claim and
breach of fiduciary duty claim. For negligent misrepresentation,
Mr. Asad must allege facts establishing a duty owed by the
defendant to communicate accurate information. Brogan v.
Mitchell Int'l, Inc., 181 Ill.2d 178, 229 Ill.Dec. 503,
692 N.E.2d 276, 278 (1998). This duty arises (1) when conveying false
information results in physical injury to a person or harm to a
property, or (2) where the defendant is in the business of
supplying information for the guidance of others in the business.
See id. Because Mr. Asad does not allege physical injury, the
issue is whether an insurance company is in the business of
supplying information under Illinois law. According to Illinois
law, insurance carriers are not in the business of supplying
have no duty to do so. University of Chicago v. United Parcel
Service, 231 Ill. App.3d 602, 173 Ill.Dec. 64, 596 N.E.2d 688,
691 (1992), followed by Decatur Memorial Hosp. v. Connecticut
General Life Ins. Co., 990 F.2d 925, 928 (7th Cir. 1993). The
outcome might be different if Mr. Wold was an insurance broker,
but here the only broker was Mr. Asad. See Gerdes v. John
Hancock Mutual Life Ins. Co., 712 F. Supp. 692, 699-700 (N.D.Ill.
1989). However, Mr. Wold is an insurance agent for Hartford and
not a broker, so no duty exists. I therefore dismiss Count V for
failure to state a claim. Furthermore, because Illinois does not
characterize Mr. Wold as a fiduciary, I also dismiss Count VIII.
See Nepomoceno v. Knights of Columbus, No. 96 C 4789, 1999 WL
66570 at *10 (N.D.Ill. 1999); Nielsen v. United Services Auto.
Ass'n, 244 Ill. App.3d 658, 183 Ill.Dec. 874, 612 N.E.2d 526, 531
VI. Contract and Anticipatory Breach Claim
Hartford next requests that I dismiss Counts VI and VII because
the contract is an integrated agreement consisting solely of the
policy and the application. They allege that nowhere in the
policy is there a limitation of the premium payments to a period
of ten years. Rather, the policy shows the premiums payable for
forty-six years. They therefore claim that Mr. Asad cannot allege
that the policy has been breached based on presentation materials
that are not part of the policy which contradict its terms. They
argue that there can be no anticipatory breach under similar
Illinois follows the four corners doctrine, so I look only to
the contract to determine if it is susceptible to more than one
meaning. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457,
236 Ill.Dec. 8, 706 N.E.2d 882, 885 (1999). If it is,
ambiguity is present and I use parole evidence to interpret the
contract's meaning. Id. While Hartford correctly states that the
policy reveals that premiums are to be paid for 46 years, "[t]he
crux of the dispute between the parties is not whether the
premiums are payable [for 46 years], but from what source the
premiums should be derived." Nepomoceno, No. 96 C 4789, 1999 WL
65570 at *8-9. To this the contract is silent and susceptible to
more than one meaning. Therefore, the contract is ambiguous as a
matter of law. Its construction becomes a question of fact, which
I do not decide on a motion to dismiss. Conley v. Gibson, 355
U.S. at 45-46, 78 S.Ct. 99.
VII. Breach of Good Faith and Fair Dealing
Finally, Hartford moves to dismiss Count IX of the First
Amended Complaint arguing that Illinois does not recognize an
independent cause of action for breach of the duty of good faith
and fair dealing. Mr. Asad cites Langendorf v. Travelers State
Ins. Co., 625 F. Supp. 1103, 1108 (N.D.Ill. 1985), but Judge
Gettleman has more recently decided that § 155 of the Illinois
Insurance Code preempts common law claims for breach of the
implied covenant of good faith and fair dealing. See Ginocchio
v. American Bankers Life Assurance Co. of Florida, 889 F. Supp. 1078,
1084 (N.D.Ill. 1995) (citing Kush v. American States
Insurance Co., 853 F.2d 1380, 1384-1386 (7th Cir. 1988)). I
agree. Count IX is dismissed.
Accordingly, Hartford's motion to dismiss the fraud claims in
Counts I, II, III is GRANTED without prejudice. Mr. Asad has
twenty-one days to file an amended complaint. Hartford's motion
to dismiss is also GRANTED as to Counts V, VIII, and IX but
DENIED as to the remaining counts.
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