United States District Court, N.D. Illinois, Eastern Division
LAWRENCE S. BRODSKY, individually and as the representative of a class of similarly-situated persons, Plaintiff,
HUMANADENTAL INSURANCE COMPANY d/b/a HUMANA SPECIALTY BENEFITS, Defendant.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Lawrence S. Brodsky filed an amended class action complaint against HumanaDental Insurance Company ("HDIC") that included three counts: violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 ("Count I"); common law conversion ("Count II"); and violation of the Illinois Consumer Fraud and Deceptive Practices Act ("ICFA"), 815 ILCS 505/2 ("Count III"). R. 33. HDIC has moved for summary judgment on all three counts. R. 118. For the reasons that follow, the motion is granted as to Counts II and III but denied as to Count I.
Brodsky is a "wholesaler of insurance" who does business as a sole proprietorship known as the Lawrence S. Brodsky Agency, Inc. (the "LSB Agency"). R. 144 ¶ 5. The company was originally called "Brodsky Ingrassia Life Organization, Inc. ("Brodsky Ingrassia Life"), but was later changed to the LSB Agency in the late 1980s. R. 156 ¶ 5. HDIC is a Wisconsin corporation that insures certain dental plans, including the HumanaDental Preventative Plus plan, and the HumanaDental PPO and Traditional Preferred plans. Id. ¶¶ 6-7. "Humana Specialty Benefits, " a group within Humana Inc.,  markets "specialty products"- including dental, vision, life insurance, and disability products. Id. ¶ 8; R. 144 ¶ 54. HDIC insures dental products under the umbrella of products marketed by Humana Specialty Benefits. R. 144 ¶ 54; R. 156 ¶ 9.
The LSB Agency has "market agreements" with numerous insurance companies. Id. Working for Brodsky and the LSB Agency are insurance agents/independent contractors who sell the products of the companies that the LSB Agency represents through those agreements. Id. At least seven of the insurance agents-Chris Degen, Tom Dressman, Arno Filerman, Cliff Kirksey, Nick Pettite, Terry Tomaso, and Dave Williams-had permission to use Brodksy's office space and fax machine (assigned the number (847) 991-0152) during the time period at issue, and indeed used the fax machine. Id. ¶¶ 31-32. Faxes received by Brodksy's machine that are addressed to one of his insurance agents "belong to" the insurance agent. Id. ¶ 33. Brodsky does not consider them to be "his" faxes. Id.
Included in Brodksy's agreements with insurance companies is one with "Humana Insurance Company, Humana Health Plan, Inc., and all of their affiliates, " known as a "Group Producing Agent or Agency Contract" ("GPA" contract), with an effective date of October 30, 2006 (the "2006 LSB Contract"). R. 146-3. That agreement was signed by Brodsky. Id. The 2006 Contract includes a paragraph regarding communication between the parties:
H. GPA understands and agrees that the Company and GPA through the established business relationship by this agreement may choose to communicate with GPA through the use of mail, email, or facsimile to the address(es) and facsimile number(s) of the GPA. In addition, Company may begin immediately using any changes to such contact information.
R. 144 ¶ 8. "The Company" referred to Humana Insurance Co. and all of its affiliates, id. ¶ 7; "GPA" referred to Brodsky or the LSB Agency. The 2006 Contract also contained a paragraph regarding prior contracts:
E. Prior Contracts superceded. This Contract shall supercede any and all prior contracts other than "Single Case Agreement" for Commission on Group and/or Individual policies or contracts between the parties thereto, whether written or oral, regarding the services of the GPA performed for the Company with respect to such products.
R. 156 ¶ 18. In connection with the 2006 LSB Contract, Brodsky provided his fax number, (847) 991-0152. R. 144 ¶¶ 10-11. There is no dispute that HDIC is an affiliate of Humana Insurance Co. There is also no dispute that the name "Brodsky Ingrassia Life" does not appear in the 2006 LSB Contract. R. 156 ¶ 16.
The insurance agents working for Brodsky also have their own contracts with insurance companies whose products they sell. Id. ¶ 28. Brodsky receives overrides on commissions that the insurance agents generate. Id. at 29. They do not have written contracts with Brodsky, though Brodsky is often required to sign their contracts with the insurance companies "as the general agent." Id.
On June 22, 2003, the LSB Agency entered into a GPA contract with Humana and its affiliates (the "2003 LSB-Degen Contract"), but the contract was signed by Christopher Degen, who was identified as the GPA. Id. ¶¶ 10-11. The 2003 LSB-Degen Contract had an identical communication paragraph to the communication paragraph contained in the 2006 LSB Contract, and (847) 991-0152 was provided as the fax number for future correspondence. Id. ¶ 13. "Brodsky Ingrassia Life" did not appear anywhere in the contract. R. 156 ¶ 12.
Benefit Marking Services, Inc. ("BMS") entered into the third relevant GPA contract with Humana and its affiliates; it had an effective date of May 5, 2003 (the "2003 BMS Contract"). R. 144 ¶¶ 21-22. The signature of Arno Filerman, who has been associated with Brodsky and the LSB Agency for more than ten years and had permission to send and receive faces on Brodsky's fax machine, was on the 2003 BMS Contract. Id. ¶¶ 38-39. Filerman was signing on behalf of and as President of BMS, as he conducted his business through BMS. Id. ¶ 38. The contract contained the same communication paragraph as the 2003 LSB-Deger Contract and the 2006 LSB Contract. Id. ¶ 23. In conjunction with the contract, BMS provided (847) 272-3828 and (847) 991-0152 as its fax numbers. Id. ¶ 25.
On May 14, 2008, Brodsky's fax machine assigned to the number (847) 991-0152 received two identical one-page fax messages. R. 156 ¶ 20; R. 33 at 15-16. A copy of the first fax can be seen here:
R. 33 at 15. The first fax has a received timestamp of "5/14/2008 8:48:21 PM, " Id. ; the second says "5/14/2008 8:48:42 PM." Id. at 16. The bottom of the faxes demonstrates that they were sent by "Humana Specialty Benefits." Id. at 15-16. There is no dispute that the faxes were sent to (847) 991-0152, but the faxes themselves do not list the number they were sent to or to what individual or entity to which they were sent. R. 144 ¶ 48; R. 156 ¶ 23. The fax was created by the Marketing Department of Humana Inc. R. 144 ¶ 42. A spreadsheet from the Marketing Department, which it received from the Information Management Group (also a division of Humana Inc.), that was produced during discovery contains the names and fax numbers of the "producing agents and agencies" that received a copy of the fax sent to Brodsky's fax machine. R. 144 ¶ 47; see, e.g., R. 122-14 at 14. An unredacted portion of the spreadsheet reveals that one fax was sent to "BENEFIT MARKETING SERVICE, " at (847) 991-0152, and a second fax was sent to "BRODSKY INGRASSIA LIFE OR, " also at (847) 991-0152. R. 122-14 at 14.
Brosky claims that approximately six to eight weeks before his fax machine received the two faxes on May 14, 2008, he called a telephone number listed on a previous Humana fax that he had received. R. 156 ¶ 21. He claims to have spoken to a female representative of "Humana" and asked that his fax number, (847) 991-0152, be removed from Humana's fax advertising broadcast list. Id. According to Brodsky, "[t]he woman at Humana laughed, said it's only a fax, and then said they would take care of it." Id.
After receiving the two faxes on May 14, 2008, Brodsky filed a class action lawsuit in July 2008 in the Circuit Court of McHenry Count, Illinois, against Humana. R. 22 at 2. He alleged that Humana Inc. transmitted unsolicited fax advertisements to Brodsky and other class members without consent and absent an established business relationship, which was a violation of the TCPA and the ICFA, and committed the tort of common law conversion. Id. That suit was removed to the Northern District of Illinois on August 25, 2008. Brodsky later admitted that he did not have a claim against Humana Inc. and sought to amend his complaint in order to substitute HDIC as the defendant. Id. at 3. The magistrate judge denied Brodsky's motion, and the district court dismissed the case because of Brodsky's admission that he did not have a claim against Humana deprived the court of subject matter jurisdiction. Id.
Brodksy subsequently initiated this class action suit against HDIC in the Circuit Court of Cook County, Illinois, in March 2010. R. 1. HDIC removed the case to the Northern District of Illinois on May 26, 2010, id., where the case was assigned to then-Chief Judge James F. Holderman. Brodsky filed his amended complaint on August 5, 2011, which included three counts. R. 33. HDIC filed an amended motion for summary judgment on December 12, 2012, R. 118, which the parties were briefing when the case was transferred to the undersigned Judge on January 14, 2013. R. 134.
Summary judgment under Federal Rule of Civil Procedure 56 is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary judgment, the non-moving party must produce more than a "mere scintilla of evidence, " meaning "evidence on which [a] jury could reasonably find for the non-moving party." Harris N.A. v. Hershey, 711 F.3d 794, 798 (2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In ruling on the motion, the Court considers the entire evidentiary record and "view[s] all facts and draw[s] all inferences in the light most favorable to the non-moving party." Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013); Egan Marine Corp. v. Great Am. Ins. Co., 665 F.3d 800, 811 (7th Cir. 2011).
HDIC contends that it is entitled to summary judgment because the case is barred by the doctrine of res judicata and, alternatively, because Brodsky has not put forth sufficient evidence to demonstrate there is a genuine issue of material fact as to any of the three ...