Scott v. Assurance Co. of America

625 N.E.2d 439, 253 Ill. App. 3d 813, 192 Ill. Dec. 479

• Court: Appellate Court of Illinois
• Decided: December 16, 1993
• Docket: 4-93-0289
• Status: Published

Opinions

JUSTICE GREEN

delivered the opinion of the court:

On December 3, 1992, plaintiff Kenneth H. Scott filed a three-count complaint in the circuit court of Champaign County against various insurance companies, all doing business as Maryland Casualty Companies (hereinafter defendant). In those counts plaintiff sought (1) declaratory relief concerning his rights, under his contract with defendant as its agent, as an “insurance producer” to directly bill for premiums due from defendant’s policyholders on policies issued by his agency; (2) money damages for defendant’s refusal to permit him to do so; and (3) injunctive relief to prevent defendant from refusing to allow him to make such direct billings. Section 491.1(b) of the Illinois Insurance Code (Code) (215 ILCS 5/491.1(b) (West 1992)) defines an insurance producer as one who “solicits, negotiates, effects, procures, renews, continues or binds policies of insurance covering property or risks located in Illinois.”

After an evidentiary hearing on “the issues joined,” as to count III, the count seeking injunctive relief, the circuit court entered an order on March 2, 1993, refusing to grant a preliminary injunction and also dismissing that count in bar of action. Plaintiff has filed in the circuit court a “NOTICE OF INTERLOCUTORY APPEAL” pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307), purporting to be from both aspects of that order. We have no question concerning the appealability of the denial of the request for a preliminary injunction pursuant to Supreme Court Rule 307. We are concerned with the appealability, under Supreme Court Rule 307, of that part of the order dismissing the cause of action.

The issue in a Supreme Court Rule 307 appeal concerning a ruling on a request for preliminary relief is whether the circuit court ruled properly in that regard and the merits of the underlying case are not at issue. (Hill v. Village of Pawnee (1973), 16 Ill. App. 3d 208, 209, 305 N.E.2d 740, 741.) However, in Alfred Engineering, Inc. v. Illinois Fair Employment Practices Comm’n (1974), 19 Ill. App. 3d 592, 312 N.E.2d 61, in a Rule 307 appeal from an order granting interlocutory injunctive relief, this court not only reversed the order granting that relief but also held that the complaint was insufficient to support any type of injunctive relief. Regardless of the possible ramifications of that decision, the issue of the sufficiency of the proof to ultimately decide count III is not before us in passing on an order denying temporary relief. The arguments of the parties are devoted almost entirely to the issue of preliminary relief. We conclude that we must sua sponte dismiss that portion of the appeal which pertains to the dismissal of count III in bar of action. The propriety of that ruling must be decided at a future time even though it is closely related to the issue before us.

In seeking a preliminary injunction in count III, plaintiff alleged that the threatened unilateral action by defendant to require that it, rather than plaintiff, send premium bills to most of defendant’s insureds on policies issued through plaintiff would cause immediate and irreparable harm to plaintiff’s business relationship with his clients, for which no adequate remedy at law existed. Plaintiff further alleged that he was likely to prevail on the merits and that maintenance of the status quo would not cause defendant substantial hardship.

In order for a preliminary injunction to issue properly, the party seeking the injunction must establish (1) that he possesses a certain and clearly ascertainable right or interest needing protection; (2) there is no adequate remedy at law; (3) irreparable harm will result if the injunction is not granted; and (4) there is a reasonable likelihood of success on the merits. (Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1002, 516 N.E.2d 1313, 1317.) In addition, the trial court must conclude the benefits of granting the injunction outweigh the possible injury which defendant might suffer as a result thereof. Lee, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.

The decision to grant or deny preliminary injunctive relief rests within the sound discretion of the trial court. The role of a reviewing court is limited to a determination of whether those findings are contrary to the manifest weight of the evidence. (Lee, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.) The circuit court here concluded that no reasonable likelihood of plaintiff succeeding on the merits was shown because of the lack of an ascertainable right to continue to bill for the premiums. We conclude that determination was not contrary to the manifest weight of the evidence.

Section 2 of the “Personal Insurance Agency Agreement,” signed by the parties, attached to the complaint, and shown by the evidence to have been in force from September 1, 1991, stated as follows: “For premium collection, accounting and payment purposes, the Company shall designate policies as either agency bill or direct bill. The rules governing premium collection, accounting and payment are contained in the attached Addendum A.” Addendum A provides “premium collection, accounting and payment rules (Agency Bill and Direct Bill)” as follows:

“A. Direct Bill

For policies designated by the Company as ‘direct bill’, the Company shall assume responsibility for premium collection. * * *

B. Agency Bill

For policies designated by the Company as ‘agency bill’, the Agent is required to collect premium on the Company’s behalf, pursuant to the Agency Agreement and the following rules:

* * *

2. Reporting of Premium The Company designates the Agent as:

[ ] An Account Current Agent

[X] A Statement Agent[.]”

Note, the box in front of “Statement Agent” is marked with an “X.” The contract then provides rules for reporting premiums by either an “Account Current Agent” or a “Statement Agent.” The former is required to, inter alia, “report all amounts due from Documents which were effective or issued (whichever is later) during the Accounting Month.” For a “Statement Agent,” “[t]he Company will send Statement Agents a statement of premiums charged by the Company to the Agent’s account which are unpaid as of the end of the Accounting Month.” Within 30 days of the statement’s mailing date, the agent is required to provide written notice to the Company of the items on the statement with which the agent disagrees, the reason for the disagreement, and supporting documentation.

Plaintiff’s theory of entitlement for relief begins with the assumption that the 1991 agreement was at least ambiguous as to whether he was to remain as an agent authorized to bill clients on most lines of insurance. He recognizes that the agreement stated that defendant could “designate policies as either agency bill or direct bill.” However, he asserts that the subsequent statement in “Addendum A” designating him as “[a] Statement Agent” gives the agreement the ambiguity for which he contends. He maintains that such ambiguous language must be construed against the drafter, the defendant. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) Plaintiff further maintains that evidence that the course of dealings between the defendant and him was such that he had been given the right to bill his customers prior to 1993 can be shown to indicate the intent of the allegedly ambiguous 1991 contract. Kenny Construction Co. v. Metropolitan Sanitary District (1971), 52 Ill. 2d 187, 198, 288 N.E.2d 1, 7-8; Marathon Plastics, Inc. v. International Insurance Co. (1987), 161 Ill. App. 3d 452, 464, 514 N.E.2d 479, 486.

Plaintiff further maintains that superimposed upon the theories of construing the agreement against the drafter and in accordance with prior dealings is the existence of section 508.1 of the Code (215 ILCS 5/508.1 (West 1992)), which has stated the following at all pertinent times:

“Any insurance company which delivers to any insurance producer in this State a policy or contract for insurance pursuant to the application or request of an insurance producer, authorizes such producer to collect or receive on its behalf payment of any premium which is due on such policy or contract for insurance at the time of its issuance or delivery and any premium which becomes due on such policy or contract not more than 90 days thereafter.” (Emphasis added.)

Plaintiff maintains that the legislation creates a right on the producer (agent) to collect the premium and any agreement to the contrary would be illegal. Moreover, defendant maintains that even if section 508.1 is not to be given such a mandatory effect, it adds further weight to the construction to be given to the agreement he considers ambiguous.

We are not persuaded that section 508.1 of the Code is a substantial factor in the decision in this case. Notably, it merely requires that the “producer” (agent) have authority to collect or receive the premium. We interpret this to be a measure to protect a consumer who pays the agent from any further liability for the premium if the independent producer fails to remit to the insurer. If the legislation prohibited an insurer from determining the billing procedure to be used, the effect would be drastic and no indication of such an interpretation has been called to our attention.

Other aspects of the case are somewhat more complicated. Undisputedly, in November 1991, a written notice was sent out by defendant to its agents stating that beginning January 1, 1993, billing for premiums on the personal line of insurance, those involved here, would be done by defendant. Plaintiff denied original receipt of that notice but admitted he had seen a copy by sometime in February 1992, well more than 90 days prior to the date the change took effect. The agency agreement between plaintiff and defendant provided that it might be amended by defendant on matters of the nature involved here “after giving the Agent 90 days advance written notice.” The circuit court apparently considered this notice sufficient to negate any reasonable likelihood of plaintiff being entitled to the injunctive relief he requested.

James Bertrand, director of billings and collections for defendant, did testify to two letters he wrote to plaintiff in 1992. One, written February 25, 1992, stated that defendant had “concluded conversion of all items from Agency Bill to Direct Bill through May of 1992,” and then stated that plaintiff should “return” future policies that he did not “wish to be Direct Bill.” The letter then stated “[w]e have profiled the Agency Master File to indicate that you are to remain as an Agency Bill agent and hopefully, you will see nothing come through for your agency other than Agency Bill policies.” (Emphasis added.) The letter of October 21, 1992, indicated that three policies were being rewritten as agency bill policies as per “previous agreement.” (Emphasis added.) Bertrand explained these letters as referring to an agreement defendant had with plaintiff to permit personal insurance written by plaintiff in 1992 to be such that plaintiff could bill the clients for the premiums.

Plaintiff’s testimony was supported by considerable documentation that he continuously objected to defendant’s plans to prohibit him from continuing to bill most of his clients. Plaintiff also testified he believed that defendant’s letters of February and October 1992 indicated that defendant was going to make an exception for him and permit him to bill his clients. We also note even without a written contract being ambiguous, a course of dealing between the parties is admissible “to explain, supplement, or add to the agreement (but not contradict it).” J. White & R. Summers, Uniform Commercial Code §2-10, at 85 (2d ed. 1980); see also 810ILCS 5/2-208(2) (West 1992).

Even if all of plaintiff’s testimony was believed by the circuit court, clearly in February 1992 plaintiff saw the written notification that defendant was amending its agreement with its agents to provide that it would do the billing in the personal line of insurance. Any misunderstanding which plaintiff may reasonably have had in regard to defendant’s position on this point was ended by a written letter dated October 21, 1992, from defendant, received by plaintiff in late October 1992. This document clearly told plaintiff he would not be permitted an exception from defendant’s billing rules. Similar information was set forth in a letter from defendant to plaintiff dated December 7, 1992. When, on March 2, 1993, the circuit court ruled on plaintiff’s request for a preliminary injunction, plaintiff had more than 90 days’ written notice of defendant’s modification of the agreement of the parties and, at that time, was not entitled to bill the clients in question and was, therefore, not entitled to injunctive relief to enable him to do so.

We, accordingly, affirm the circuit court’s denial of a preliminary injunction. We dismiss the appeal to the extent that the dismissal of count III is concerned.

Affirmed in part; appeal dismissed in part.

KNECHT, J., concurs.