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Lukus Keeling, On His Own Behalf and On Behalf of All Others Similarly Situated v. Esurance Insurance Company*Fn1

March 1, 2012

LUKUS KEELING, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
ESURANCE INSURANCE COMPANY*FN1 , DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM and ORDER

I. Introduction and Background

Pending before the Court is defendant's motion to dismiss (Doc. 12). Defendant contends that plaintiff's complaint rests entirely on the false allegation that the undersigned motorist coverage provided by defendant was illusory; that the allegations involving rates filed with, and regulations promulgated by, the Illinois Department of Insurance are barred by the filed rate doctrine or referred to the Illinois Department of Insurance under the primary jurisdiction doctrine; and that the claims fail as a matter of law. Plaintiff opposes the motion (Doc. 21). Based on the following, the Court grants in part and denies in part the motion to dismiss.

On September 8, 2010, Lukus Keeling, on his own behalf and on behalf of all others similarly situated, filed a four-count class action complaint against defendant in the Madison County, Illinois Circuit Court (Doc. 2-2).*fn2 Count I is a state law claim for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 510/2 ("ICFA"); Count II is a state law claim for fraudulent misrepresentation and/or omission; Count III is a state law claim for negligent misrepresentation and Count IV is a state law claim for unjust enrichment.*fn3 Plaintiff contends that Esurance committed fraud by charging for uninsured or underinsured motorist coverage that is worthless in light of the policy's restrictions. Specifically, plaintiff challenges defendant's "practice of charging its customers for Underinsured Motorist Coverage that is wholly illusory, which is rendered void by the language of the policy itself, and which, upon information and belief, it has no intention of ever using as a basis for paying a claim." (Doc. 2-2, ¶ 1). Plaintiff "seeks damage on his own behalf and on behalf of the classes he represents, and further seeks injunctive relief compelling defendant to change its policy language or otherwise remedy the situation, such that its customers are not purchasing coverage that Defendant has no intention of honoring."

II. Motion to Dismiss

A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir.), cert. denied, ------ U.S. --------, 130 S.Ct. 749, 175 L.Ed.2d 517 (2009). The United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face."

In making this assessment, the district court accepts as true all well-pled factual allegations and draws all reasonable inferences in the plaintiff's favor. See Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007), cert. denied, 553 U.S. 1032, 128 S.Ct. 2431, 171 L.Ed.2d 230 (2008).

Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) retooled federal pleading standards, notice pleading remains all that is required in a complaint. "A plaintiff still must provide only 'enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief.' " Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). The level of detail the complaint must furnish can differ depending on the type of case before the Court. So for instance, a complaint involving complex litigation (antitrust or RICO claims) may need a "fuller set of factual allegations ... to show that relief is plausible." Tamayo, 526 F.3d at 1083, citing Limestone Dev. Corp. v. Village of Lemont, Illinois, 520 F.3d 797, 803--04 (7th Cir. 2008).

The Seventh Circuit Court of Appeals has offered further direction on what (post- Twombly & Iqbal ) a complaint must do to withstand dismissal for failure to state a claim. In Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the Court reiterated: "surviving a Rule 12(b)(6) motion requires more than labels and conclusions;" the allegations must "raise a right to relief above the speculative level." Similarly, the Court remarked in Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010): "It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law."

Judge Posner explained that Twombly and Iqbal: require that a complaint be dismissed if the allegations do not state a plausible claim. The Court explained in Iqbal that "the plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This is a little unclear because plausibility, probability, and possibility overlap....

But one sees more or less what the Court was driving at: the fact that the allegations undergirding a plaintiffs claim could be true is no longer enough to save it. .... [T]he complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as "preponderance of the evidence" connote.... After Twombly and Iqbal a plaintiff to survive dismissal "must plead some facts that suggest a right to relief that is beyond the 'speculative level.' " In re marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009).

Atkins v. City of Chicago, 631 F.3d 823, 831--32 (7th Cir. 2011) (emphasis added). See also Smith v. Medical Benefit Administrators Group, Inc., 639 F.3d 277, 281 2011 (Plaintiff's claim "must be plausible on its face," that is, "The complaint must establish a nonnegligible probability that the claim is valid...."). With these principles in mind, the Court turns to plaintiff's complaint.

Plaintiff alleges: "All drivers in the state of Illinois are required to be covered by a minimal level of automobile insurance when operating a vehicle on Illinois' roads. At all relevant times herein stated, the minimum limit for bodily injury liability specified by Illinois' financial responsibility law, codified at 625 ILCS 5/7-203 was $20,000 per person and $40,000 per accident." (Doc. 2-2, p. 2). Plaintiff also alleges that "[d]efendant offers Underinsured Motorist Coverage in various amounts, including coverage in the amount of $20,000 per person and $40,000 per accident ('$20,000/$40,000 Underinsured Motorist Coverage'). Id. Further, the complaint alleges that the policies sold by Esurance contained the following definition of Underinsured Motorist Vehicle which triggers payment under the Underinsured Motorist Coverage:

"'Underinsured motor vehicle' means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability ...


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