Bilek v. Fed. Ins. Co.

• Decision Date: 10 August 2021
• Docket Number: No. 20-2504,20-2504
• Citation: 8 F.4th 581
• Parties: Christopher BILEK, Plaintiff-Appellant, v. FEDERAL INSURANCE COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

8 F.4th 581

Christopher BILEK, Plaintiff-Appellant,

v.FEDERAL INSURANCE COMPANY, et al., Defendants-Appellees.

No. 20-2504

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2021

Decided August 10, 2021

Alexander H. Burke, Daniel J. Marovitch, Attorneys, Burke Law Offices, LLC, Evanston, IL, Neil Sawhney, Matthew Wessler, Attorneys, Gupta Wessler PLLC, Washington, DC, for Plaintiff-Appellant.

Arthur J. McColgan, Jeremy D. Kerman, Christopher A. Wadley, Attorneys, Walker Wilcox Matousek LLP, Chicago, IL, for Defendant-Appellee Federal Insurance Company.

Timothy Hudson, Attorney, Tabet, Divito & Rothstein LLC, Chicago, IL, John H. Pelzer, Attorney, Greenspoon Marder LLP, Fort Lauderdale, FL, for Defendant-Appellee Health Insurance Innovations, Inc.

Before Wood, Hamilton, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Christopher Bilek received two unauthorized robocalls soliciting health insurance that he alleged violated the Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialing Act. Bilek sued Federal Insurance Company and Health Insurance Innovations on a vicarious liability theory, claiming that defendants’ agents generated the unauthorized robocalls.¹ To support his agency allegations, Bilek alleged a web of business relationships: Federal Insurance Company contracted with Health Insurance Innovations to sell its insurance; Health Insurance Innovations hired lead generators to effectuate telemarketing; and the lead generators made the unauthorized robocalls that form the basis of Bilek's claims here.

Though neither Federal Insurance Company nor Health Insurance Innovations initiated the robocalls, Bilek sought to hold defendants vicariously liable for the lead generators’ unauthorized calling under three agency theories: actual authority, apparent authority, and ratification. The district court dismissed Bilek's complaint, holding that Bilek failed to plausibly allege agency on any of these grounds. For that reason, the district court dismissed Bilek's claims against Federal Insurance Company for failure to state a claim under Rule 12(b)(6), and it dismissed Health Insurance Innovations for lack of personal jurisdiction under Rule 12(b)(2). We disagree. While we express no view on whether Bilek will ultimately succeed in proving an agency relationship between the lead generators and either Federal Insurance Company or Health Insurance Innovations, Bilek alleges enough at the pleading stage for his complaint to move forward. For the reasons explained below, we reverse and remand.

I

In our review of a district court's Rule 12(b)(6) dismissal, we accept the allegations in the plaintiff's complaint as true and draw all reasonable inferences in plaintiff's favor. See Taha v. Int'l Brotherhood of Teamsters, Loc. 781 , 947 F.3d 464, 469 (7th Cir. 2020). The same is true in our review of a district court's dismissal for lack of personal jurisdiction under Rule 12(b)(2), where, as here, the district court decides that motion without conducting an evidentiary hearing. See Tamburo v. Dworkin , 601 F.3d 693, 700 (7th Cir. 2010). Thus, for the purposes of this appeal, we accept as true Bilek's well-pleaded factual allegations discussed below.

On December 21, 2019, Bilek filed a three-count complaint against Federal Insurance Company and Health Insurance Innovations, alleging claims under the Telephone Consumer Protection Act and Illinois Automatic Telephone Dialing Act. See 47 U.S.C. § 227 ; 815 ILCS § 305/30(a)(b). Bilek alleged that he received two unauthorized robocalls as a part of a telemarketing campaign initiated by Federal Insurance Company and Health Insurance Innovations to advertise and solicit Federal Insurance Company's health insurance. Federal Insurance Company contracted with Health Insurance Innovations to generate business. Health Insurance Innovations, in turn, contracted with lead generators to conduct telemarketing for Federal Insurance Company's health insurance. Against this backdrop, the lead generators initiated the two robocalls to Bilek's cellphone. On September 20, 2019, Bilek received the first such call on his cellphone. A pre-recorded message solicited health insurance and instructed Bilek to press 1 to be connected to a representative. Bilek pressed 1. Bilek was connected to a live agent who provided a quote for health insurance underwritten by Federal Insurance Company and facilitated by Health Insurance Innovations. Bilek alleged that the live agent he spoke with on the phone identified the insurance as "Chubb" health insurance, and that Chubb insurance as referenced by the agent was "for Federal Insurance Company," a member of the Chubb family of companies.²

Bilek received a second call on his cellphone on September 26, 2019. This second call played the same pre-recorded message. Bilek again pressed 1 and became connected to a live agent who provided a quote for Federal Insurance Company's health insurance. Bilek alleged that he did not consent to either call—both of which Bilek alleged used an automated dialing system and prerecorded voice in violation of the TCPA, 47 U.S.C. § 227, and the Illinois Automatic Telephone Dialing Act, 815 ILCS § 305/30(a)(b).

In his complaint, Bilek alleged that the lead generators acted with Federal Insurance Company's and Health Insurance Innovations’ actual and apparent authority, and that defendants ratified the lead generators’ unauthorized robocalling. Specifically, Federal Insurance Company gave Health Insurance Innovations and its lead generators authority to use its tradename, approved scripts, and proprietary pricing and product information. Health Insurance Innovations then provided these scripts to its lead generators. It also participated in calls directly by pairing lead generators with quotes through its online portal and emailing quotes to call recipients. Both defendants accepted benefits from the lead generators’ robocalls—Federal Insurance Company through the advertisement and sales of its health insurance products, and Health Insurance Innovations through payments for generating leads.

Defendants each moved to dismiss Bilek's complaint. Federal Insurance Company brought a motion to dismiss for failure to state a claim under Rule 12(b)(6), arguing that Bilek failed to plausibly allege an agency relationship between itself and the lead generators. Making the same agency arguments, Health Insurance Innovations moved for dismissal for lack of personal jurisdiction under Rule 12(b)(2). It argued that without alleging a plausible agency relationship, Bilek failed to connect Health Insurance Innovations to Illinois through the lead generators’ conduct.³

The district court agreed with both defendants, finding that Bilek failed to plausibly allege that the lead generators acted pursuant to a valid agency theory—actual authority, apparent authority, or ratification. On Bilek's actual authority claim, the district court reasoned that Bilek failed to plausibly allege agency because his complaint lacked allegations of defendants’ control over the timing, quantity, and geographic location of the lead generators’ unauthorized robocalls. It next found Bilek's apparent authority claims insufficient because he alleged only that the purported agents—not the principals—made manifestations to Bilek. Finally, the district court reasoned that Bilek failed to allege agency under its ratification theory because Bilek did not allege that he purchased health insurance from the robocalls, so according to the district court, defendants accepted no benefits from the lead generators’ unauthorized calling.

In light of its determinations on Bilek's three agency theories, the district court held that Bilek neither stated a claim against Federal Insurance Company, nor established a prima facie case of personal jurisdiction over Health Insurance Innovations. Accordingly, the district court dismissed Bilek's complaint and entered final judgment in defendants’ favor. This appeal followed.

II

A

We begin our analysis with the district court's Rule 12(b)(6) dismissal of Federal Insurance Company before turning to its dismissal of Health Insurance Innovations for lack of personal jurisdiction. We review a district court's dismissal under Rule 12(b)(6) de novo, "construing the complaint in the light most favorable to the plaintiff[ ], accepting as true all well-pleaded facts and drawing reasonable inferences in the plaintiff[’]s favor." Yeftich v. Navistar, Inc. , 722 F.3d 911, 915 (7th Cir. 2013). Yet "we need not accept as true statements of law or unsupported conclusory factual allegations." Id.

Federal Rule of Civil Procedure 8(a)(2) prescribes a plaintiff's pleading standards, and it requires only that a complaint plead "a short and plain statement of the claim showing that the pleader is entitled to relief." If a complaint fails to meet this standard, it may be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead facts to "state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible where a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We have considered that " Twombly and Iqbal require the plaintiff to ‘provid[e] some specific facts’ to support the legal claims asserted in the complaint." McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011) (quoting Brooks v. Ross , 578 F.3d 574, 581 (7th Cir. 2009) ). While the required level of specificity "is not easily quantified," a plaintiff must allege "enough details about the subject-matter of the case to present a story that holds together." Id. (quotation omitted). Fundamentally, "the plausibility...