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Moore v. Johnson County Farm Bureau

October 15, 2003

SONYA R. MOORE, AS GUARDIAN FOR EVA R. MOORE, AND EVA D. MOORE, PLAINTIFFS-APPELLANTS,
v.
JOHNSON COUNTY FARM BUREAU, DEFENDANT, AND COUNTRY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Saline County. No. 01-L-38 Honorable Bruce D. Stewart, Judge, presiding.

The opinion of the court was delivered by: Justice Maag

PUBLISHED

The plaintiffs, Sonya R. Moore, as the guardian for Eva R. Moore, and Eva D. Moore, filed a suit against the defendants, Johnson County Farm Bureau (Farm Bureau) and Country Mutual Insurance Company (Country Mutual), in the circuit court of Saline County. The court entered an order dismissing all the counts of the amended complaint against Country Mutual with prejudice and expressly finding no just reason to delay an appeal, pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). On appeal, the plaintiffs contend that the circuit court (1) improperly drew a distinction between a broker and a captive agent and (2) erred in dismissing all the counts of the amended complaint against Country Mutual for the failure to state a cause of action.

FACTS

On July 21, 1999, the plaintiffs suffered injuries from an automobile accident involving a vehicle driven by Mark Harper. Harper was driving a 1991 Tiltmaster tractor owned by his father, Harold Harper. Harold Harper had entered into an insurance contract on the vehicle with Country Mutual.

The plaintiffs filed a suit against the Harpers in the United States District Court for the Southern District of Illinois. Sonya R. Moore, as Guardian of Eva R. Moore, and Eva D. Moore v. Harold Harper d/b/a Harper's Red Barn Fruit Market, a Proprietorship, and Brad Pavelonis, as Administrator of the Estate of Mark T. Harper, No. 99-4240-JLF. Other persons not named in the suit were believed to have been injured in the accident, and therefore, Country Mutual filed an interpleader action and deposited with the clerk of that court its policy limits of $50,000 per person and $100,000 per occurrence. Country Mutual Insurance Company v. Sonya R. Moore, Individually, and as Guardian for Eva R. Moore et al., No. 00-4001-JLF. The district court found that the actual damages exceeded the deposit, and the court ordered a distribution of the funds.

On July 19, 2001, the plaintiffs filed a complaint against the defendants in the circuit court of Saline County. The plaintiffs alleged that Harold Harper and Brad Pavelonis, as the administrator of the estate of Mark T. Harper, had assigned them their rights against the defendants. The complaint contained 12 counts. Counts I through VI were directed against the Farm Bureau. Counts VII through XII were directed against Country Mutual.

In their complaint, the plaintiffs alleged that Mark Harper had been driving the Tiltmaster on behalf of Harper's Red Barn Fruit Market. The Tiltmaster was allegedly used to transport produce between Saline County, Illinois, and St. Louis, Missouri. This trip was more than 140 miles one way and involved travel on interstate highways. The plaintiffs alleged that upon his purchase of the Tiltmaster, Harold Harper approached the Farm Bureau about providing coverage for the Tiltmaster. Harold Harper "described the vehicle and the nature of its use" to the Farm Bureau and relied upon the Farm Bureau to get him "the proper type and amount of insurance coverage for the Tiltmaster and the type of business he was doing." Each of the first six counts allegs that the Farm Bureau "failed to procure proper and adequate insurance coverage for a vehicle that carried cargo in interstate traffic in a commercial enterprise." Each of the last six counts made this allegation regarding Country Mutual.

The plaintiffs allege that an insurance policy was issued by the defendants. The insurance policy described the Tiltmaster as a "FARM TRUCK NOT-FOR-HIRE OVER 1 TON, LIGHT, 0-50 MILE RADIUS HIGH." The bodily injury coverage was $50,000 per person and $100,000 per occurrence. The policy was reissued every six months. The plaintiffs allege that their damages exceed these policy limits.

The defendants each filed a motion to dismiss (735 ILCS 5/2-615 (West 2000)), which the court granted. The court dismissed counts I through VI against the Farm Bureau without prejudice: "Plaintiffs have failed to allege that said Defendant was acting as the agent or broker of *** (Plaintiffs' assignor) ***." The court dismissed counts VII through XII against Country Mutual with prejudice: "[S]aid [c]ounts fail[] to state a cause of action because Illinois does not recognize a claim by an insured against an insurance carrier for failure to provide adequate insurance coverage ***."

The court granted leave to file an amended complaint. The plaintiffs filed an amended complaint. They also sought leave to refile their claims against Country Mutual (counts VII through XII) to avoid waiving their objections to the trial court's prior ruling. That request was granted. The plaintiffs amended counts I through VI to include an allegation that the Farm Bureau "was an agent and/or insurance broker for Harold Harper and/or Mark T. Harper." Each defendant filed a motion to dismiss the amended complaint. On June 6, 2002, the court entered an order finding that, for the same reasons stated in the order of February 4, 2002, counts VII through XII were dismissed with prejudice. The court found no just reason for delaying an appeal. The plaintiffs appeal.

ANALYSIS

The issue presented by a motion to dismiss is whether, when all well-pleaded facts are taken as true and are considered in the light most favorable to the plaintiff, the plaintiff has alleged sufficient facts that, if proved, would entitle the plaintiff to relief. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9-10, 689 N.E.2d 205, 211 (1997). A motion to dismiss on the pleadings should not be granted unless it clearly appears that no set of facts can be proved that will entitle the plaintiff to recover. First Bank of Roscoe v. Rinaldi, 262 Ill. App. 3d 179, 182-83, 634 N.E.2d 1204, 1207 (1994). Review is de novo. Wood v. Wabash County, 309 Ill. App. 3d 725, 727, 722 N.E.2d 1176, 1179 (1999).

The plaintiffs argue that the trial court erred in finding that an insured cannot have a claim against an insurance carrier's captive agents for the failure to provide adequate insurance coverage. They contend that agents should be held to the same standard as brokers and that there is no rational basis to hold agents to a lesser duty than that owed by brokers. In support of this contention they cite Sobotor v. Prudential Property & Casualty Insurance Co., 491 A.2d 737, 739 (N.J. Super. A.D. 1984); M. Schlag, The Case for Expanded Insurance Producer Duties, 16 N. Ill. U. L. Rev. 433 (1996); and ...


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