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Illinois Bell Telephone Company v. Plote

October 21, 2002

ILLINOIS BELL TELEPHONE COMPANY, D/B/A AMERITECH ILLINOIS, AN ILLINOIS CORPORATION, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
PLOTE, INC., AN ILLINOIS CORPORATION, DEFENDANT (PLOTE, INC., AN ILLINOIS CORPORATION, ALLIED ASPHALT PAVING COMPANY, AN ILLINOIS CORPORATION, AND MILBURN BROTHERS, INC., AN ILLINOIS CORPORATION, AN ILLINOIS JOINT VENTURE, COUNTERPLAINTIFFS-APPELLANTS).



Appeal from the Circuit Court of Cook County, Nos. 98 L 2870 Honorable James F. Henry, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gordon

UNPUBLISHED

Counterplaintiffs, Plote, Inc., Allied Asphalt Paving Company and Milburn Brothers, Inc. (collectively Plote or plaintiff), appeal from the judgment of the circuit court of Cook County granting a motion pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) in favor of counterdefendant Illinois Bell Telephone Company, d/b/a Ameritech Illinois (Bell or defendant), dismissing counts II, III, IV and V of Plote's lawsuit against Bell. On appeal, Plote contends that its suit is not barred by the Moorman doctrine (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E. 2d 443 (1982)); that it has a cause of action under both the Illinois Underground Utility Facilities Damage Prevention Act (220 ILCS 50/1 et seq. (West 1996)) and the Illinois Highway Code (605 ILCS 5/1-101 et seq.; and that it properly stated a cause of action for tortious interference with a contract. We affirm in part, reverse in part and remand for further proceedings.

BACKGROUND

Plote's first amended counterclaim makes the following general allegations. Plote entered into a contract with the Illinois Department of Transportation (IDOT) to make improvements to Arlington Heights Road in the city of Arlington Heights, Illinois. Prior to accepting bids for the above-described contract, IDOT submitted the proposed plans for the construction project to Bell so that Bell could locate conflicts between the project and Bell's underground telephone facilities. Bell, however, did not respond to IDOT's request that it identify the anticipated conflicts. Alternatively, Plote alleges that Bell did not fully respond to IDOT's requests to identify anticipated conflicts. On August 8, 1995, a preconstruction conference was held at IDOT's offices. At this conference a representative of Bell was informed of the date on which the construction project was expected to start.

Beginning on December 13, 1995, a series of "utility meetings" was held at which various conflicts relating to Bell's facilities were identified. As a result of Bell's failure to identify the location of its facilities, or alternatively as a result of Bell's failure to adequately identify those facilities, the construction project was delayed. Pursuant to the contract, Plote was to complete the project by October 31, 1996; however, due to the delays, it was not completed until May 31, 1997. Plote sustained increased expenses as a result of these delays.

The first amended counterclaim alleges three counts pertinent to this appeal. Count II purports to state a claim for a violation by Bell of the Illinois Underground Utility Facilities Damage Prevention Act (Underground Facilities Act) (220 ILCS 50/9 (West 1996)). Count III purports to state a claim for common law negligence. Count IV purports to state a claim for a violation by Bell of the Illinois Highway Code (605 ILCS 5/9-113(f) (West 1996)). Count V purports to state a claim for tortious interference with contract. *fn1

On June 16, 1999, Bell filed a motion to dismiss Plote's first amended counterclaim in its entirety pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)). Bell argued that counts II, III and IV were barred under the Moorman doctrine. Bell further argued that count V failed to state a cause of action because it failed to allege that Bell intended to interfere with Plote's contract with IDOT. The trial court subsequently granted Bell's section 2-615 motion and dismissed counts I, II, III, IV and V.

Plote filed its second amended counterclaim on December 1, 1999. This counterclaim made changes to count I and V, and added counts VI and VII. *fn2 The second amended counterclaim realleged the general allegations made in the first amended counterclaim. It also realleged counts II, III and IV verbatim. Bell subsequently filed a motion to dismiss pursuant to sections 2-619 (735 ILCS 5/2-619 (West 2000)) and 2-615. Bell again argued that count V failed to make allegations that its interference with Bell's contract was intentional. Bell's motion does not address counts II, III and IV, except to note in a footnote that "although not so noted in its counterclaim, the undersigned counsel has confirmed with *** counsel for Plote, that counts II, III and IV were re-pled solely for the purpose of preserving Plote's appellate rights." The court granted Bell's motion and dismissed counts I, V, VI and VII. This appeal followed.

ANALYSIS

Plote first argues that the trial court erred in dismissing count II of the complaint, which purports to state a claim for a violation by Bell of the Illinois Underground Utility Facilities Damage Prevention Act. 220 ILCS 50/9 (West 1996). Plote contends that it is not barred by the Moorman doctrine from recovering economic losses for Bell's alleged failure to properly mark the location of its underground facilities, which delayed Plote's construction project. We agree.

The Moorman doctrine, promulgated by our supreme court in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982), established the rule known as the economic loss doctrine as the law in Illinois. The Moorman doctrine provides that "a plaintiff cannot recover solely economic losses in tort." Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 176, 441 N.E.2d 324, 326 (1982); Moorman, 91 Ill. 2d at 86, 435 N.E.2d at 451. Our supreme court, however, has defined several exceptions to the Moorman doctrine. These exceptions include the "information provider" exception, which allows recovery in tort for economic losses "where the plaintiff's damages are a proximate result of a negligent misrepresentation by a defendant in the business of supplying information for the guidance of others in their business transactions." In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233, 240-241, 641 N.E.2d 440, 443-44 (1994). *fn3 See Moorman, 91 Ill. 2d at 89, 435 N.E.2d at 452 (allowing recovery for economic losses against those who are "in the business of supplying information for the guidance of others," thereby upholding the right of recovery under Rozny v. Marnul, 43 Ill. 2d 54, 250 N.E.2d 656 (1969), which allowed recovery of economic damages against a surveyor).

Plote urges that the information provider exception applies to Bell in this case because all Bell was required to do in this situation was provide information about the location of its facilities. Plote contends that the determination of whether Bell is an information provider is made by looking to the context of the specific transaction involved and not on the basis of Bell's general business. Bell contends that it does not fall within the information provider exception because its primary business is to supply telephone service and not information, even ...


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