United States District Court, S.D. Illinois
SUZANNE HALLIHAN and MICHAEL HALLIHAN, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
PROGRESSIVE DIRECT INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL, United States District Judge.
matter is before the Court on Defendant Progressive Direct
Insurance Company's Motion to Dismiss Plaintiffs'
Complaint (Doc. 25).
& Procedural Background
Progressive Direct Insurance Company
(“Progressive”) offers Underinsured Motorist
(“UIM”) coverage in the State of Illinois in
various amounts (Doc. 1-2, ¶10). Prior to January 1,
2015, the minimum amount of UIM coverage a consumer could
purchase was $20, 000 per person/$40, 000 per accident
(Id.). On January 1, 2015, the minimum coverage
increased to $25, 000 per person/$50, 000 per accident
(Id.). The minimum UIM coverage available is
equal to the minimum limits required in Illinois for bodily
injury liability under its Financial Responsibility Law
(Id., ¶9). See 625 ILCS 5/7-203.
Hallihan and Michael Hallihan (“Plaintiffs”)
purchased an insurance policy through Progressive that
included the minimum UIM coverage with limits of $20, 000 per
person/$40, 000 per accident (Id., ¶18). The
Policy defines “underinsured motor vehicle” as a
“vehicle … to which a bodily injury liability
bond or policy applies at the time of the accident, but the
sum of all applicable limits of liability for bodily injury
is less than the coverage limit for Uninsured/Underinsured
Motorist Bodily Injury Coverage shown on the declarations
page.” (Id., ¶ 12).
25, 2014, Suzanne Hallihan submitted a formal written demand
for UIM coverage arising out of an accident on November 14,
2011 (Id., ¶21). The written demand stated that
“[t]he underinsured motorist's insurer State Farm
paid their entire policy limit of $100, 000 to Ms.
Hallihan.” (Doc. 25-3). On July 29, 2014, Progressive
denied Suzanne Hallihan's claim, stating: “Since
the Bodily Injury liability coverage available exceeds the
Underinsured Motorist Coverage available, the vehicle
occupied by Suzanne Hallihan would not meet the definition of
an ‘Underinsured motor vehicle' as defined.”
(Doc. 1-2, ¶ 22).
30, 2015, Plaintiffs, on behalf of themselves and all others
similarly situated, filed a three-count class action
complaint (“Complaint”) (Doc. 1-2) against
Progressive in the Circuit Court of St. Clair County,
Illinois, alleging fraudulent misrepresentation and/or
omission, unjust enrichment, and a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act in
relation to Progressive's sale of policies containing
minimum UIM coverage. (Doc 1-2, p. 7-10). Plaintiffs assert
that Progressive's minimum UIM coverage is “wholly
illusory” since the coverage limits are equal to the
bodily injury liability coverage required in Illinois.
Plaintiffs' claim hinges on the argument that a
Progressive customer with the minimum UIM coverage
“would necessarily be excluded from making an
Underinsured claim under the policy” because another
driver would have either the same minimum coverage, such that
the UIM provision would not be triggered, or the driver would
be considered “uninsured” and would instead
trigger the “uninsured motor vehicle” language of
the policy. (Id., ¶ 14). As a result,
Plaintiffs claim, in no circumstance could a customer with
the minimum UIM coverage ever actually trigger his or her
coverage (Id., ¶ 15). Nevertheless, according
to the Complaint, Progressive continues to sell UIM coverage
equal to the minimum coverage for bodily injury liability
required in Illinois, thereby charging customers for coverage
that is “wholly illusory” (Id., ¶
Complaint seeks to certify a class of “[a]ll persons in
the State of Illinois who purchased Minimum Underinsured
Motorist Coverage offered by Progressive, its subsidiaries,
agents and affiliates which use policies containing the
language, or substantially similar language, set forth
herein.” (Id., ¶ 23). Plaintiffs request
statutory and common law damages, punitive damages, attorney
fees, disgorgement of revenues gained from the sale of the
contested UIM policies and funds not paid on claims made
against the policies, and an order permanently enjoining
Progressive from continuing to offer UIM coverage in its
filed this Motion to Dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, arguing the Complaint fails
as a matter of law because Progressive's minimum UIM
coverage is not illusory, Progressive properly denied
Plaintiff Suzanne Hallihan's UIM claim, and Progressive
did not engage in any deceptive or unfair practice.
Progressive also argues Plaintiffs have failed to allege
facts stating a claim for fraudulent misrepresentation and/or
omission, for unjust enrichment, or for a violation of the
Illinois Consumer Fraud Act.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint for failure to state a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). Dismissal of an action under this motion is
warranted if the plaintiff can prove no set of facts in
support of its claims that would entitle it to relief.
Gen. Elec. Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1080 (7th Cir. 1997).
survive a Rule 12(b)(6) motion, a complaint must “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). While a complaint need not include detailed factual
allegations, there “must be enough to raise a right to
relief above the speculative level.” Id. at
555. The plaintiff must “plead  factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
McReynolds v. Merrill Lynch & Co., 694 F.3d 873,
885 (7th Cir. 2012) (quoting Ashcroft v. Iqbal, 556
U.S. 662 (2009)). “In reviewing the sufficiency of a
complaint under the plausibility standard, [a court must]
accept the well-pleaded facts in the complaint as true, but
[it] ‘need not accept as true legal conclusions, or
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.'” Alam
v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir.
2013) (quoting Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009)).
ruling on a motion to dismiss, a federal court may consider
documents attached to the pleadings without converting the
motion to dismiss into a motion for summary judgment, as long
as the documents are referred to in the complaint and central
to the plaintiff's claims. See Adams v. City of
Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014);