SECOND DIVISION Date Filed: April 29, 2008
NO. 1-06-2994
RICKY D. COMPTON, on Behalf of ) Appeal from the Himself and All Others Similarly ) Circuit Court of Situated, ) Cook County. ) Plaintiff-Appellant, ) ) v. ) No. O5 CH 3207 ) COUNTRY MUTUAL INSURANCE COMPANY, ) Honorable ) Peter Flynn, Defendant-Appellee. ) Judge Presiding.
JUSTICE HALL delivered the opinion of the court:
The plaintiff, Ricky Compton, filed an action against the
defendant, Country Mutual Insurance Company (Country Mutual), for
declaratory judgment, breach of contract and consumer fraud on
behalf of himself and similarly situated individuals. In his
complaint, the plaintiff maintained that Country Mutual's
practice of placing liens on insurance proceeds due insureds
breached its contract of insurance with its insureds and violated
the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). The circuit
court dismissed the plaintiff's third amended complaint and
denied leave to amend. The plaintiff filed a timely notice of
appeal.
On appeal, the plaintiff raises the following issues: (1)
whether the circuit court erred when it dismissed the third
amended complaint; (2) whether the circuit court erred when it
refused to vacate the order of dismissal or grant reconsideration No. 1-06-2994
of the dismissal order; and (3) whether the circuit court erred
when it denied the plaintiff's motion for leave to file an
amended complaint. The pertinent factual allegations are taken
from the plaintiff's third amended complaint.
The plaintiff was insured by Country Mutual. After being
injured in an automobile accident, the plaintiff filed a claim
with the defendant for medical expenses, which Country Mutual
paid, "at least in part." Country Mutual filed a lien with Founders Insurance Company (Founders), the tortfeasor's insurance
company, "to recover, inter alia, payments it made" to the
plaintiff's medical providers. The plaintiff settled with the
tortfeasor. Pursuant to the settlement, Founders issued a check
payable to the plaintiff, the plaintiff's attorney and Country
Mutual.
On information and belief, the plaintiff alleged that
Founders included Country Mutual on the check because Country
Mutual previously provided it with "a notice of lien on payments
received by Plaintiff for, inter alia, subrogation for [Country
Mutual's] medical payments on [the plaintiff's] behalf." The
plaintiff further alleged that Country Mutual refused to
extinguish the lien, denying the plaintiff access to funds to
which he was entitled.
Attached to the third amended complaint were the following
exhibits: a copy of the check from Founders, dated August 15,
2004, in the amount of $1,050 and payable to the plaintiff, his
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attorney and Country Mutual; a copy of a December 18, 2002,
letter from Tim Woollen, Country Mutual's claims specialist, to
Founders seeking recovery of $2,391.70 paid out by Country Mutual
for property damage related to the plaintiff's accident; and
certain provisions of Country Mutual's insurance policy. The
language of the plaintiff's policy with Country Mutual at issue
here is as follows:
"9. Our Right to Recover Payment (Subrogation).
a. If we make a payment under this policy, other
than Death Benefit, Coverage C-1, and the person to or
from whom payment was made has a right to recover
damages, we will be subrogated to that right (have that
right transferred to us). That person must do whatever
is necessary to enable us to exercise our rights and
must do nothing after the loss to prejudice our rights.
b. If we make a payment under this policy, other
for whom payment was made recovers damages from
another, that person must hold the proceeds of the
recovery in trust for us and must reimburse us to the
extent of our payment." (Emphasis in original.)
The plaintiff maintained that the above language did not
authorize Country Mutual to place liens on the proceeds due the
plaintiff and other policyholders because "it is only subrogated
to the right to recover medical payments from a person 'to whom
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or from whom' it made the payment." The plaintiff sought a
declaration that Country Mutual's practice of imposing liens on
proceeds due its insureds improperly prevented the insureds from
receiving the monies due them. The plaintiff further maintained
that Country Mutual's action breached the contract of insurance
because the lien practice was not authorized by the policy.
Finally, the plaintiff maintained that Country Mutual's lien
practice violated the Consumer Fraud Act. Country Mutual filed a motion to dismiss the third amended
complaint pursuant to section 2-615 of the Code of Civil
Procedure (the Code) (735 ILCS 5/2-615 (West 2004)). Country
Mutual maintained that it exercised its right to reimbursement as
provided for by section 9(b) of the policy, not subrogation under
section 9(a) of the policy as argued by the plaintiff.
Therefore, Country Mutual asserted that the plaintiff failed to
state a cause of action for breach of contract or consumer fraud.
In his response to the motion to dismiss, the plaintiff
argued that section 9(b) did not authorize reimbursement via the
lien procedure utilized by Country Mutual. Under the section 9(b)
reimbursement, if the insured recovered damages, the proceeds
must be held in trust and repaid to the insurer to the extent of
the insurer's payment. The plaintiff reasoned that he could not
recover the damages because Country Mutual's lien "tied up" the
proceeds and prevented him from holding them in trust.
On August 21, 2006, the circuit court dismissed the third
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amended complaint with prejudice. On September 28, 2006, the
plaintiff filed a combined motion to vacate, or, in the
alternative, to reconsider the dismissal order and for leave to
file an amended complaint. On October 4, 2006, the circuit court
denied the combined motion. This timely appeal followed.
ANALYSIS
I. Section 2-615 Dismissal
A. Standard of Review The granting of a motion to dismiss pursuant to section 2-
615 of the Code is reviewed under the de novo standard of review.
Carroll v. Faust, 311 Ill. App. 3d 679, 725 N.E.2d 764 (2000).
B. Applicable Principles
A section 2-615 motion to dismiss attacks the legal
sufficiency of the complaint based upon defects appearing on the
face of the complaint. Guinn v. Hoskins Chevrolet, 361 Ill. App.
3d 575, 586, 836 N.E.2d 681 (2005). "When reviewing the
sufficiency of a complaint, the court must accept as true all
well-pleaded facts and all reasonable inferences that can be
drawn from those facts." Guinn, 361 Ill. App. 3d at 586. Legal
and factual conclusions, unsupported by allegations of fact, may
be disregarded. Guinn, 361 Ill. App. 3d at 586. "It is the
court's duty to determine, considering the allegations of the
complaint in the light most favorable to the plaintiffs, whether
the allegations are sufficient to state a cause of action upon
which relief may be granted." Guinn, 361 Ill. App. 3d at 586.
5 No. 1-06-2994
"The complaint should not be dismissed unless it is clearly
apparent that the plaintiffs could prove no set of facts that
would entitle them to relief." Guinn, 361 Ill. App. 3d at 586.
C. Discussion
The circuit court's order dismissing the third amended
complaint did not specify its reasoning for the dismissal. While
the plaintiff has included a transcript of the hearing on the
motion to dismiss in the appendix to his brief, the transcript is not included in the record on appeal and therefore is not
properly before this court. See Carroll, 311 Ill. App. 3d at 683
(attachments to briefs not included in the record are not
properly before the reviewing court and cannot be used to
supplement the record). Nonetheless, both parties agree that the
circuit court dismissed the case based on its finding that the
plaintiff could not prove damages inasmuch as Country Mutual was
entitled to the entire proceeds check issued by Founders.
The plaintiff contends, first, that it was error for the
circuit court to conclude from the exhibits to the third amended
complaint that the plaintiff could not prove damages. He further
contends that at the very least there is a question of fact as to
whether the amount owed to Country Mutual exceeded the proceeds
from Founders.
Both breach of contract actions and violations of the
Consumer Fraud Act require that the plaintiff allege damages.
See Gore v. Indiana Insurance Co., 376 Ill. App. 3d 282, 286, 876
6 No. 1-06-2994
N.E.2d 156 (2007) (breach of contract); Guinn, 361 Ill. App. 3d
at 588 (Consumer Fraud Act). In this case, the plaintiff pleaded
that liens were placed against him and that he was deprived of
the use of the proceeds check including the right to earn
interest on the money.
"[E]xhibits attached to a complaint become part of the
pleadings, and factual matters in such exhibits which are at odds
with a complaint's allegations control over those conflicting allegations." Abbott v. Amoco Oil Co., 249 Ill. App. 3d 774,
778-79, 619 N.E.2d 789 (1993). The complaint acknowledged that
the Country Mutual had paid part of the plaintiff's medical
expenses, though it failed to state an exact figure. Attached to
the third amended complaint was a copy of the Founders' proceeds
check in the amount of $1,050.
Also attached was a copy of a letter from Country Mutual to
Founders. The letter provided in pertinent part as follows:
"You had sent a letter on 11/4/02 to my attention
advising that you were negotiating COUNTRY Mutual Insurance
subrogation interest for the property damages we paid out
with our insureds attorney. *** I would appreciate an
immediate reply regarding our subrogation interest recovery
and settlement of the $2,391.70 in damages we submitted
10/7/02." (Emphasis added.)
According to the letter, the $2,391.70 represented the amount
that Country Mutual had already paid out on the property damage
7 No. 1-06-2994
claim. Based on the exhibits to the third amended complaint,
Country Mutual was entitled to reimbursement in excess of the
amount of the Founders' proceeds check and therefore the exhibits
negated the plaintiff's allegations of damages.
The plaintiff argues that the $2,391.70 was for property
damage and therefore should not be considered in calculating
whether Country Mutual was owed any reimbursement from the
Founders' proceeds check. However, section 9(b) of the policy does not make any distinction between types of damages recovered
in allowing Country Mutual to be reimbursed for payments made on
behalf of its insured.
The plaintiff then argues that section 9(b) did not permit
Country Mutual to exercise its right to reimbursement by
asserting a lien with Founders. He points out that section 9(b)
requires that he hold the proceeds in trust for Country Mutual
and to reimburse Country Mutual. He asserts that the language
does not put the insured on notice that the insurer will place a
lien on the proceeds.
In Pearson v. Stedge, 309 Ill. App. 3d 807, 723 N.E.2d 773
(1999), the insurance policy provided that "'[w]hen a person has
been paid damages by us under this policy and also recovers from
another, the amount recovered from the other will be held by that
person in trust for us and reimbursed to us to the extent of our
payment.'" (Emphasis in original.) Pearson, 309 Ill. App. 3d at
809. The plaintiff settled with the tortfeasor and then moved to
8 No. 1-06-2994
adjudicate the medical pay subrogation lien his insurer filed for
the medical expenses the insurer had paid on the plaintiff's
behalf. The trial court agreed with the plaintiff that the
policy did not create a subrogation lien for the medical expenses
paid by the insurer. Pearson, 309 Ill. App. 3d at 808-09.
The reviewing court reversed. After determining that
"damages" included medical expenses, the court concluded that the
reimbursement provision was not ambiguous, and the trial court's ruling that the policy did not create a subrogation right for the
medical expenses was in error. Pearson, 309 Ill. App. 3d at 810-
11.
Subsequently, in Nesby v. Country Mutual Insurance Co., 346
Ill. App. 3d 564, 805 N.E.2d 241 (2004), the reviewing court
found that the policy reimbursement language, identical to the
policy reimbursement language in the present case, "clearly
states that if the plaintiff recovers from another, Country
Mutual obtains the right to be reimbursed to the extent of its
payment. It is the unambiguous language that controls, not
equitable considerations." Nesby, 346 Ill. App. 3d at 567.
The plaintiff then argues that his third amended complaint
could be read as alleging that Country Mutual asserted its right
to the proceeds based on its subrogation rights under section
9(a) of the policy. The plaintiff points out that, for purposes
of a section 2-615 motion, the circuit court was required to
accept the allegation as true.
9 No. 1-06-2994
In Pearson, the court addressed the insurer's alternative
argument, whether the insurer had a right to recover from the
settlement based on the following policy language: "'[i]f any
person to or for whom we make payment under this policy has
rights of recovery from another, those rights are transferred to
us.'" Pearson, 309 Ill. App. 3d at 811. Noting that the
plaintiff had sought reimbursement of his medical expenses in his
suit against the tortfeasor, the court concluded that the "right to recover the medical costs is, under the plain language of the
subrogation provision in the policy, transferred to [the
insurer]." Pearson, 309 Ill. App. 3d at 811.
The plaintiff relies on Garcia v. Gutierrez, 331 Ill. App.
3d 127, 770 N.E.2d 1227 (2002). In Garcia, William Garcia and
his daughter, Krista, were injured in an automobile accident.
Country Companies, the Garcias' insurer, paid $5,000 to the
medical providers who treated Krista. The Garcias sued the
tortfeasor seeking, inter alia, reimbursement for sums they paid
for Krista's medical expenses. After the Garcias settled with
the tortfeasor, County Companies filed a lien on the proceeds of
Krista's settlement of $55,000, and the Garcias moved to
adjudicate the lien. Ultimately, the circuit court held that
Country Companies had no valid lien on any portion of Krista's
recovery. Garcia, 331 Ill. App. 3d at 128-29.
At issue was the following language from the insurance
policy: "'[i]f we make a payment *** and the person to whom or
10 No. 1-06-2994
from whom payment was made *** has a right to recover damages,
Country Companies is subrogated to that right' (emphasis added)."
Garcia, 331 Ill. App. 3d at 130. The reviewing court determined
that the above-quoted language was ambiguous, explaining as
follows:
"The contract language suggests Country Companies'
subrogation rights only attach to parties to whom Country
Companies made payment or from whom payment was made. Such an interpretation would exclude Country Companies from
subrogating an insured's recovery whenever Country Companies
paid medical providers directly and would contravene the
essence of subrogation. Accordingly, we hold that Country
Companies had no subrogation right to recover for payments
it made for Krista's medical expenses." Garcia, 331 Ill.
App. 3d at 130.
The plaintiff's reliance on Garcia is misplaced. In the
present case, Country Mutual's argument is that it has a right to
reimbursement under section 9(b) whereas the language found
ambiguous in Garcia was the subrogation language in section 9(a).
Unlike section 9(a), section 9(b) states "to or for whom."
Moreover, we do not agree that Country Mutual's assertion of an
interest in the proceeds recovered by the plaintiff via a lien
means that it was exercising its rights exclusively under section
9(a).
Neither Nesby nor Pearson addressed directly whether placing
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a lien on insurance proceeds as a means to enforce the right of
reimbursement is authorized by the insurance policy. However, in
Pearson, where the insurer had asserted its rights by filing a
medical lien, the reviewing court held that the trial court erred
when it found that the policy did not create a subrogation lien
for medical expenses. Pearson, 309 Ill. App. 3d at 811. While
Nesby does not mention the term "lien," the court noted that
"Country Mutual asserted an interest in the proceeds recovered by the plaintiff." Nesby, 346 Ill. App. 3d at 566. The term "lien"
is defined as "[a] legal right or interest that a creditor has in
another's property, lasting usu. until a debt or duty that it
secures is satisfied." Black's Law Dictionary 933 (7th ed.
1999). Even assuming that under Garcia County Mutual had no
subrogation lien under section 9(a), guided by the decisions in
Nesby and Pearson, we conclude that Country Mutual's use of a
lien to secure its right to reimbursement was authorized by
section 9(b) of the policy.
Finally, the plaintiff argues that since actual title of
section 9 of the policy is "Our Right to Recover Payment
(Subrogation)" (emphasis in original), both sections 9(a) and
9(b) involve subrogation. We disagree. The two subparagraphs of
section 9 deal with different forms of recovery by Country
Mutual. Section 9(a) specifically refers to subrogation in
connection with the right to recover damages. In contrast,
section 9(b) refers to reimbursement in the situation where the
12 No. 1-06-2994
insured has recovered damages. Section 9(b) clearly does not
involve subrogation since it does not require Country Mutual to
"step into the shoes of, or be substituted for," its insured (Dix
Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 319, 597
N.E.2d 622 (1992)) and look to a third party in order to assert
its right to repayment. The construction of section 9 urged by
the plaintiff ignores the principle that a contract should be
construed as a whole and that such construction should be a natural and reasonable one. Smith v. Allstate Insurance Co., 312
Ill. App. 3d 246, 253, 726 N.E.2d 1 (1999).
We conclude that the third amended complaint was properly
dismissed for failure to state a cause of action in that the
plaintiff failed to plead a viable damages claim. The dismissal
of the third amended complaint was also proper because Country
Mutual's lien against the Founders' proceeds check was authorized
under section 9(b) of the insurance policy. See Guinn, 361 Ill.
App. 3d at 586 (appellate court may affirm on any ground in the
record for which there is a factual basis, regardless of the
trial court's reasoning).
II. Denial of Motion to Vacate or Reconsider
A. Standard of Review
The plaintiff asserts that the standard of review applicable
to the denial of the motion to vacate or reconsider is de novo.
Muhammad v. Muhammad-Rahmah, 363 Ill. App. 3d 407, 415, 844
N.E.2d 49 (2006) (review of the denial of a motion to reconsider
13 No. 1-06-2994
based only on the circuit court's application of existing law is
de novo). However, where the denial of a motion to reconsider is
based on new matters, such as additional facts or new arguments
or legal theories that were not presented during the course of
the proceedings leading to the issuance of the order being
challenged, the abuse of discretion standard applies. Muhammad,
363 Ill. App. 3d at 415 (abuse of discretion standard applied
where motion to reconsider was based on a new legal theory). In his motion to reconsider, the plaintiff alleged that he
could plead facts establishing that the Founders' settlement
check exceeded the amount of Country Mutual's lien. Since the
motion for reconsideration rested on new factual allegations, the
applicable standard of review is abuse of discretion.
B. Discussion
The record on appeal does not contain a transcript of the
hearing on the motion for reconsideration. The circuit court's
October 4, 2006, order provided that "due notice having been
given and the Court having been fully advised in the premises,"
the plaintiff's motion was denied.
The appellant bears the burden of presenting a record that
is adequate for a determination of the issues. In re Estate of
Hayden, 361 Ill. App. 3d 1021, 1030, 838 N.E.2d 93 (2005). "When
a transcript is not included in the record on appeal, the
reviewing court has no basis for holding that a trial court
abused its discretion in denying the motion." Hayden, 361 Ill.
14 No. 1-06-2994
App. 3d at 1030. In such cases, unless the record indicates
otherwise, the reviewing court presumes that the trial court
heard sufficient evidence to support its decision. Webster v.
Hartman, 195 Ill. 2d 426, 433, 749 N.E.2d 958 (2001); but see
Muellman-Cohen v. Brak, 361 Ill. App. 3d 52, 836 N.E.2d 678
(2005) (even though the plaintiff failed to provide a transcript,
the court would not presume the trial court's disqualification of
her attorney was in conformance with the law). The record in this case does not indicate otherwise.
"'The intended purpose of a motion to reconsider is to bring
to the court's attention newly discovered evidence, changes in
the law, or errors in the court's previous application of
existing law.'" North River Insurance Co. v. Grinnell Mutual
Reinsurance Co., 369 Ill. App. 3d 563, 572, 860 N.E.2d 460
(2006), quoting Landeros v. Equity Property & Development, 321
Ill. App. 3d 57, 65, 747 N.E.2d 391 (2001). In his motion to
reconsider, the plaintiff argued that he could allege facts
showing that the Founders' proceeds check exceeded the amount
owed to Country Mutual. However, these "facts" do not qualify as
"newly discovered evidence." Newly discovered evidence is
evidence that was not available prior to the first hearing.
Gardner v. Navistar International Transportation Corp., 213 Ill.
App. 3d 242, 248, 517 N.E.2d 1107 (1991). "Trial courts should
not allow litigants to stand mute, lose a motion, and then
frantically gather material to show that the court erred in its
15 No. 1-06-2994
ruling." Gardner, 213 Ill. App. 3d at 248. The plaintiff did
not allege that he was unaware of those facts he proposed to
allege.
Moreover, the plaintiff's argument that the Founders'
proceeds check contains nonliened funds does not protect it from
Country Mutual's reimbursement right. As previously noted, for
purposes of reimbursement under the policy, it made no difference
that the proceeds check was for bodily injury and Country Mutual's lien was for property damage.
We conclude that the denial of the motion to vacate or to
reconsider was not an abuse of discretion.
III. Denial of Leave to File an Amended Complaint
"Whether to allow an amendment of a complaint is a matter
within the sound discretion of the trial court, and, absent an
abuse of that discretion, the court's determination will not be
overturned on review." Village of Wadsworth v. Kerton, 311 Ill. App. 3d 829, 842, 726 N.E.2d 156 (2000). "An abuse of discretion
will be found only where no reasonable person would take the view
adopted by the trial court." Keefe-Shea Joint Venture v. City of
Evanston, 364 Ill. App. 3d 48, 61, 845 N.E.2d 689 (2005).
Section 2-616(a) of the Code (735 ILCS 5/2-616(a)(West
2004)) provides that at any time before final judgment, the court
may permit amendments on just and reasonable terms to enable the
16 No. 1-06-2994
plaintiff to sustain the claim brought in the suit. In
considering whether a circuit court abused its discretion in
ruling on a motion for leave to file an amended complaint, the
reviewing court considers the following factors: "(1) whether the
proposed amendment would cure the defective pleading; (2) whether
other parties would sustain prejudice or surprise by virtue of
the proposed amendment; (3) whether the proposed amendment is
timely; and (4) whether previous opportunities to amend the pleadings could be identified." Loyola Academy v. S & S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211 (1992).
Given the broad discretion a trial court exercises in ruling on
motions to amend pleadings prior to final judgment, a court
should not find that the denial of a motion to amend is
prejudicial unless there has been a manifest abuse of discretion.
Loyola Academy, 146 Ill. 2d at 273-74.
The above factors apply to amendments proposed prior to
final judgments. After final judgment, pleadings may be amended
to conform the pleadings to the proof. See 735 ILCS 5/2-616(c)
(West 2004). In this case, the circuit court dismissed the
plaintiff's third amended complaint with prejudice. Where a
complaint is dismissed with prejudice and does not include a
statement allowing the plaintiff leave to amend, an involuntary
dismissal order is final. DeLuna v. Treister, 185 Ill. 2d 565,
573, 708 N.E.2d 340 (1999). Where the trial court's dismissal of
the plaintiff's third amended complaint constituted a final
17 No. 1-06-2994
judgment, the plaintiff had no statutory right to amend, and the
court committed no error in denying the plaintiff's postjudgment
motion to vacate/motion for leave to file a fourth amended
complaint. Folkers v. Drott Manufacturing Co., 152 Ill. App. 3d
58, 68, 504 N.E.2d 132 (1987).
The plaintiff's reliance on Ruklick v. Julius Schmid, Inc.,
169 Ill. App. 3d 1098, 523 N.E.2d 1208 (1988), is misplaced.
There the reviewing court acknowledged that once a final judgment of dismissal with prejudice was entered on the plaintiffs'
complaint, there was no authority under section 2-616 to allow
the amendment of their complaint. However, because the judgment
of dismissal was entered improperly, the court should have
vacated the judgment as the plaintiffs requested, and there then
would have been no impediment to allowing the filing of the
amended complaint. Ruklick, 169 Ill. App. 3d at 1111. In the
present case, no error occurred in the dismissal of the third
amended complaint.
Even if the application of the Loyola Academy factors was
appropriate, review of this issue is hampered by the failure of
the plaintiff to provide a transcript of the proceeding in which
the circuit court denied leave to amend. In the absence of a
transcript, we must assume that the circuit court heard
sufficient evidence to support its decision, unless the record
indicates otherwise. Webster, 195 Ill. 2d at 433. Again, the
record does not so indicate.
18 No. 1-06-2994
The fourth amended complaint alleged that the plaintiff's
medical expenses were $724.76 and that he settled his bodily
injury claims with the tortfeasor for $1,050. The exhibit
alleging the $2,391.70 in property damage was not included in the
fourth amended complaint. Even in the absence of an allegation
that the amount owed to Country Mutual exceeded the Founders'
proceeds check, since the procedure utilized by Country Mutual to
protect its reimbursement rights did not breach the insurance contract, the fourth amended complaint did not cure the defective
pleading. See Rudlick, 169 Ill. App. 3d at 111 ("leave to amend
a complaint should be granted unless it is apparent that even
after amendment no cause of action can be stated").
We conclude that the denial of leave to amend was not a
manifest abuse of the circuit court's discretion. Since the
plaintiff was unable to prove his claim, the request for class
certification must fail as well. See Jensen v. Bayer AG, 371
Ill. App. 3d 682, 693, 862 N.E.2d 1092 (2007) (for class
certification, the named representative of a class action must
have a valid cause of action).
The judgment of the circuit court is affirmed.
Affirmed.
SOUTH and KARNEZIS, JJ., concur.