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Dolmage v. Combined Insurance Co. of America

United States District Court, N.D. Illinois, Eastern Division

November 8, 2017

ANNE DOLMAGE, Plaintiff,
v.
COMBINED INSURANCE COMPANY OF AMERICA, Defendant.

          MEMORANDUM OPINION & ORDER

          Ruben Castillo, Chief Judge.

         Anne Dolmage ("Plaintiff) filed this action against Combined Insurance Company of America ("Defendant") alleging breach of contract for failing to keep her personal information private. (R. 36, Am. Compl.) Presently before the Court is Defendant's motion for summary judgment. (R. 141, Mot.) For the reasons stated below, the motion is granted.

         FACTS

         The following facts are undisputed unless otherwise stated. Plaintiff is a citizen of Missouri, (R. 149, Pl.'s Resp. to Facts ¶ 1.) In early 2011, she applied for and was issued supplemental insurance coverage by Defendant, an insurance company headquartered in Illinois. (Id. ¶¶ 1-2.) At that time, Plaintiff was employed by the department store Dillard's and lived and worked in Iowa. (Id. ¶ 1.) From 2009 to 2011, Defendant offered a variety of insurance products to Dillard's employees, including group or individual supplemental insurance policies underwritten by Defendant, group insurance products underwritten by ACE American Insurance Company ("ACE"), and various medical, vision and dental insurance products underwritten by third parties. (Id. ¶ 8.) During this period, Defendant administered the open enrollment period for Dillard's each year, during which time Dillard's employees could enroll in the various products offered by Defendant. (Id. ¶ 9.) Defendant used a third-party vendor, Enrolltek, to provide enrollment services for Dillard's employees who enrolled in an ACE-underwritten product offered by Defendant. (Id. ¶ 22.)

         On or about April 18, 2011, Plaintiff placed a telephone call to Defendant's representatives to apply for certain insurance benefits. (Id. ¶ 10.) Specifically, Plaintiff applied for and obtained a supplemental life insurance policy underwritten by Defendant. (Id. ¶ 11.) Shortly thereafter, Defendant mailed Plaintiff a package containing the policy and various other "fulfillment materials." (Id. ¶ 12.) The fulfillment materials consisted of 15 different documents, including a cover letter, a brochure with instructions for using Defendant's website to manage account information, an accelerated payment rider, Plaintiffs completed application for life insurance coverage, several blank forms, and-at issue here-a document entitled, "Our Privacy Pledge To You" ("Privacy Pledge"). (Id., ¶ 13.) The Privacy Pledge makes certain statements about the handling of insureds' personal data, including as follows:

We want you to know that we maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your personal information. And, we restrict access to your personal information to those employees who need to know such information.
Sometimes, we may share your information with other companies affiliated with [Defendant], particularly if they support our efforts to provide you with service and product information.
[I]f we do provide your information to any party outside of [Defendant] we require them to abide by the same privacy standards as indicated here.

(R. 150, Def.'s Resp. to Add'l Facts ¶ 1 (emphasis in original.) Defendant sends the Privacy Pledge to all new enrollees, although the parties dispute whether it is technically part of the insurance policy.[1] (R. 149, Pl.'s Resp. to Facts ¶ 20.)

         The policy mailed to Plaintiff includes the following definition: "Policy means this policy with any attached application(s), and any riders and endorsements[.]" (Id. ¶ 14.) The policy further provides: "The policy is a legal contract. It is the entire contract between you and us. Any change to it must be in writing and approved by us. Only our President or one of our Vice-Presidents can give our approval." (Id.; R. 150, Def.'s Resp. to Add'l Facts ¶ 2.) The policy also includes a table of contents, which states at the bottom, "A copy of the application and any riders and endorsements follow page 17." (R. 149, Pl.'s Resp. to Facts ¶ 15.) Following page 17 are various documents, including the Privacy Pledge. (Id. ¶ 13.) Some of the fulfillment materials Plaintiff received contain the following disclaimer: "THIS IS A PROPOSAL AND IS NOT PART OF THE INSURANCE CONTRACT." (R. 150, Def.'s Resp. to Add'l Facts ¶ 5.) The Privacy Pledge does not contain such a statement. (Id.)

         In March 2012, after Plaintiff applied for and obtained her insurance policy, Defendant's third-party vendor, Enrolltek, placed two files containing the personal information of Plaintiff and other Dillard's employees and their dependents on an unsecured location on Enrolltek's website. (R. 149, Pl.'s Resp. to Facts ¶ 23.) These files were readily available online through a routine internet search from March 2012 until early July 2013. (R. 150, Def.'s Resp. to Add'l Facts ¶ 3.) The data was later taken down from Enrolltek's website, although the parties dispute whether Defendant acted quickly enough when it learned that the data was unsecured. (R. 149, Pl.'s Resp. to Facts ¶ 24.) In July 2013, Defendant notified affected individuals, including Plaintiff, that their data may have been compromised and offered them free credit monitoring services and other protections. (Id.) A fraudulent tax return was filed with the Internal Revenue Service in Plaintiffs name for tax year 2013 by unknown identity thieves. (R. 150, Def.'s Resp. to Add'l Facts ¶ 4.)

         PROCEDURAL HISTORY

         In May 2014, Plaintiff filed this action on behalf of herself and a putative class of similarly situated individuals alleging a host of federal and state law claims. (R. 1, Compl.) After two rounds of motions to dismiss, various amendments to the pleadings, and two substantive opinions from this Court, what is left of the case is one claim for breach of contract premised on Defendant's alleged breach of the Privacy Policy. See Dolmage v. Combined Ins. Co. of Am., No. 14 C 3809, 2016 WL 754731, at *4-6 (N.D. Ill. Feb. 23, 2016).

         In November 2016, Plaintiff moved for class certification. (R. 111, Pl.'s Mot. for Class Cert.) The Court denied the motion, finding that the requirements of Federal Rule of Civil Procedure 23 were not satisfied. Dolmage v. Combined Ins. Co. of Am., No. 14 C 3809, 2017 WL 1754772, at *3-10 (N.D. Ill. May 3, 2017). Plaintiff filed a petition with the U.S. Court of Appeals for the Seventh Circuit seeking leave to appeal under Rule 23(f), but the petition was denied. (R. 137, 7th Cir. Order.)

         In August 2017, Defendant filed the present motion seeking summary judgment on Plaintiffs remaining claim. (R. 141, Mot.) Defendant argues that Plaintiffs breach of contract claim fails as a matter of law because it is premised on violations of the Privacy Pledge and, in Defendant's view, that document is not pail of the insurance policy. (See R. 142, Def.'s Mem.; R. 143, Def.'s Facts; R. 150, Def.'s Reply.) Plaintiff opposes the entry of summary judgment, arguing that the Privacy Pledge is part of the insurance policy for all intents and purposes and that it supports a valid breach of contract claim. (R. 148, Pl.'s Opp'n; R. 149, Pl.'s Resp. to Facts.) In Plaintiffs view, the Privacy Pledge is a "rider or endorsement" that was specifically incorporated by reference into the policy. (R. 148, Pl.'s Opp'n at 7-8.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that "[f]he court shall grant summary judgment 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. Crv. P. 56(a). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). "A genuine dispute as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks omitted). In deciding whether a dispute exists, the Court must ...


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