Carpenter v. Unum Group

Filing 24

WRITTEN Opinion entered by the Honorable Elaine E. Bucklo on 10/12/2012: Defendant's Motion to Dismiss 14 is granted. by the Honorable Elaine E. Bucklo on 10/12/2012. Mailed notice (jdh)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Elaine E. Bucklo

CASE NUMBER

12 C 5128

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

10/12/2012

Carpenter vs. The Paul Revere Life Insurance Co.

DOCKET ENTRY TEXT

Defendant’s motion to dismiss [14] is granted.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Defendant’s motion to dismiss is granted. Count V of plaintiff’s complaint, which asserts a violation
of the Illinois Consumer Fraud and Deceptive Business Practices Act, does not state a claim separate and
independent from his contractual claim. “‘When allegations of consumer fraud arise in a contractual setting,
the plaintiff must prove that the defendant engaged in deceptive acts or practices distinct from any underlying
breach of contract.’”Philadelphia Indem. Ins. Co. v. Chicago Title Ins. Co.,---F. Supp. 2d---, 2012 WL
1658291, at *15 (N.D. Ill. May 11, 2012) (quoting Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399
(7th Cir.2011)). Moreover, even if this claim were not duplicative of plaintiff’s contract claim, it is plagued
with an additional problem: although plaintiff alleges a series of false statements, intentional
misrepresentations, and material omissions by defendant, he does not claim that defendant intended this
conduct to dupe him into taking, or forbearing from, any act. Yet intent to induce reliance is a necessary
element under the ICFA. Philadelphia Indem., at *14. Here, plaintiff does not allege, for example, that
defendant made false representations at the time it sold him the policy in an effort to win plaintiff’s business.
He simply claims that defendant gave sham reasons for denying his claim. There is simply no basis in the
complaint for plaintiff’s conclusory assertion, in his brief. that defendant “engaged in these deceptive acts
with the intent that [plaintiff] rely on them.” Cf. Elder v. Coronet Ins. Co., 558 N.E. 2d 1312, 1320 (Ill. App.
Ct. 1990) (allegations that the defendant engaged in a concealed practice of not paying legitimate claims “in
an effort to negotiate settlements at less than a full and fair value” stated a claim under the ICFA) (emphasis
added).
Counts I and II likewise do not survive defendant’s motion. The first of these, styled “declaratory
judgment of insurance coverage” seeks the same relief (a judgment that defendant breached the policy and
that plaintiff is entitled to benefits), based on the same facts, as his breach of contract claim. Indeed, plaintiff
essentially concedes as much, arguing that a judgment on this count “would settle the controversy.” As for
Count II, the complaint seeks “a decree of specific performance ordering [defendant] to continue to make
Total Disability Benefits as they come due in the future under the Policy,” and an award of costs.
12C5128 Carpenter vs. The Paul Revere Life Insurance Co.

Page 1 of 2

STATEMENT
Acknowledging, as he must, that an order mandating the payment of claims that are predicated upon future
conditions that may or may not come to pass is precluded by Morgan v. Aetna Life Ins. Co., 157 F.2d 527
(7th Cir. 1946) and Trainor v. Mutual Life Insurance Co., 131 F.2d 895 (7th Cir. 1942), plaintiff clarifies that
this count seeks nothing more than an order requiring defendant “to perform its obligations under the terms
of the Policy.” But this appears to be a distinction without a difference. See Shyman v. Unum Life Ins. Co. of
America, No. 01 C 7366, 2002 WL 31133244, at *1 (N.D. Ill. Sept. 20, 2002) (Gottschall, J.) (concluding
that Morgan and Trainor controlled claim seeking an order that the ensured was entitled to future disability
benefits, even with the caveat, “as long as the insured met the terms and conditions for coverage under the
insurance policy.”) In essence, this count asks me to enjoin a hypothetical future violation of the policy, but
to do so would amount to an inappropriate advisory opinion. See Harris v. Quinn, 656 F.3d 692, 700-01 (7th
Cir. 2011).

12C5128 Carpenter vs. The Paul Revere Life Insurance Co.

Page 2 of 2