Garrick v. Mesirow Fin. Holdings, Inc.
| Decision Date | 26 July 2013 |
| Docket Number | Docket No. 1–12–2228. |
| Parties | George GARRICK and Lainie Garrick, Plaintiffs–Appellants, v. MESIROW FINANCIAL HOLDINGS, INC., and Mesirow Insurance Services, Inc., Defendants–Appellees. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Robert A. Chapman and Shannon T. Smith, both of Chapman Spingola, LLP, of Chicago, for appellants.
Michael J. Meyer and Jeremy N. Boeder, both of Tribler, Orpett & Meyer, P.C., of Chicago, for appellees.
OPINION
¶ 1 Plaintiffs George Garrick and his wife, Lainie Garrick, brought a professional negligence action against their previous insurance producers, 1 defendants Mesirow Financial Holdings, Inc., and Mesirow Insurance Services, Inc. Defendants moved to dismiss plaintiffs' complaint pursuant to section 2–615 of the Code of Civil Procedure ( 735 ILCS 5/2–615 (West 2004)). The trial court granted the motion to dismiss for failure to state a cause of action with leave to replead. Plaintiffs then filed their “First Amended Complaint” (amendedcomplaint), and defendants filed a second motion to dismiss for failure to state a cause of action pursuant to section 2–615, which the trial court granted with prejudice. Plaintiffs now appeal the trial court's order dismissing the case with prejudice.
¶ 2 Plaintiffs claim that the trial court erred in dismissing the amended complaint, which alleges that defendants' negligence in excluding a pair of expensive earrings from coverage in a previous insurance policy proximately caused their damages. For the following reasons, we affirm.
¶ 5 Plaintiffs are individuals who now reside in California but previously resided in Illinois. Defendant Mesirow Financial Holdings, Inc. (MFH), a Delaware corporation, is a diversified financial insurance services firm with its headquarters in Chicago, Illinois. Defendant Mesirow Insurance Services, Inc. (MIS), is a wholly owned subsidiary of MFH.2 According to plaintiffs' amended complaint, MIS's website states that MIS is one of Chicago's largest independent insurance consultants and is among the top 25 in the nation.
¶ 7 Plaintiffs' amended complaint alleges that, between approximately 2002 and 2005, plaintiffs procured the services of defendants-insurance producers to obtain personal property insurance coverage. During that time, Beverly Thomas, assistant vice president of Mesirow, provided insurance consulting and brokerage services to plaintiffs. Among the coverage procured on plaintiffs' behalf during this period of time was private collections coverage obtained from American International Insurance Company (AIG). Among the items of valuable personal property listed on a schedule of covered items was a set of diamond earrings valued at approximately $80,000. The total number of items listed on the schedule of personal property was approximately 100 or more items.
¶ 9 Plaintiffs' amended complaint alleges that, in late 2004, plaintiffs informed defendants that they had lost one of the covered earrings. As a result, defendants submitted a claim to AIG under the private collections coverage in the policy and that claim was paid. Plaintiffs then purchased a replacement earring identical to the lost earring.
¶ 10 Plaintiffs further allege that, in 2005, through the acts of Thomas, defendants directed AIG to remove the covered earrings from the schedule of covered items without plaintiffs' knowledge or consent. Plaintiffs later obtained a renewal policy with AIG through another producer. At that time, plaintiffs were under the belief that the earrings were covered. Plaintiffs further allege that defendants did not inform them that, when they used the insurance proceeds to purchase an identical replacement earring, the earring would constitute a new “item” that would require a separate listing on a schedule in order for the earrings to have continued coverage.
¶ 11 Plaintiffs allege that, when they renewed the AIG policy, they took reasonable steps to verify that the items they had subsequently acquired were added to a new schedule and the items that they no longer possessed were removed from the schedule.3
¶ 13 Plaintiffs' amended complaint alleges that, in 2009, approximately four years after the relationship between plaintiffs and defendants had terminated, 4 plaintiffs lost both earrings, including the replacement earring. In connection with that loss, plaintiffs submitted a claim to AIG through their new insurance producer. AIG denied the claim on the basis that the earrings were not covered because they were not listed on a schedule of covered items under the 2009 policy. Plaintiffs further allege that it was only in connection with the preparation and submission of the 2009 claim that they learned for the first time that the earrings were not covered.
¶ 16 When the trial court granted the motion to dismiss plaintiffs' original complaint for failure to state a cause of action, the trial court found in pertinent part:
¶ 17 As noted, the trial court dismissed the original complaint without prejudice and granted plaintiffs leave to replead.
¶ 19 In plaintiffs' amended complaint, they allege that defendants breached their duty to plaintiffs in that, defendants:
“a. Caused and/or directed the earrings to be deleted as a covered item from the schedule without first informing [plaintiffs] that because of the loss of one of the Earrings, the Earrings would no longer be a covered item, even if [plaintiffs] obtained a replacement that appeared to be a replica of the lost Earring and had the same replacement value as the lost Earring;
b. Failed to inform [plaintiffs] that if they obtained a replacement Earring, that they would need to take the necessary steps, including informing their insurance broker of that acquisition, so that the new set of Earrings would be included on the Schedule to which the Coverage was to apply; and
c. Failed to verify with [plaintiffs] that they had received from AIG an endorsement to their existing Coverage informing them that the Earrings, as originally listed on the Schedule, had been removed as a covered item.”
¶ 20 Plaintiffs further allege that, “[b]ut for [defendants'] breach of its duty of care, the Earrings (including the replacement Earring) would have remained an item for which insurance was provided under the Coverage.”
¶ 21 After briefing by both parties, defendants moved to dismiss plaintiffs' amended complaint. When the trial court granted the motion with prejudice for failure to state a cause of action, the trial court found the following:
¶ 22 Plaintiffs filed this timely appeal.
¶ 24 On appeal, plaintiffs argue that the trial court erred in granting the motion to dismiss with prejudice because the amended complaint alleges facts sufficient to demonstrate that defendants owed a duty to plaintiffs and that defendants' breach proximately caused plaintiffs' damages.
¶ 25 Defendants argue that, even if the factual allegations of the amended complaint are taken as true and viewed in the light most favorable to plaintiffs, the amended complaint does not state a cause of action. Defendants argue that the scope of their duty was not so broad as to include future policies not procured by them.
¶ 27 In reviewing the propriety of a dismissal for failure to state a cause of action pursuant to section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2004)), we must determine whether the complaint, when viewed in the light most favorable to plaintiffs, alleges sufficient facts to establish a cause of action upon which relief could be granted. Ziemba v. Mierzwa, 142 Ill.2d 42, 47, 153 Ill.Dec. 259, 566 N.E.2d 1365 (1991). In reviewing the sufficiency of a complaint, all well-pled facts and reasonable inferences that may be drawn from those facts are accepted as true. Brewster v. Rush–Presbyterian–St. Luke's Medical Center, 361 Ill.App.3d 32, 35, 296 Ill.Dec. 884, 836 N.E.2d 635 (2005). A cause of action will be dismissed on the pleadings only where it clearly appears that the plaintiff cannot prove any set of facts that would entitle it to relief. Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997). Further, if the complaint does not state a cause of action, a court may dismiss only if that deficiency may not be cured. Beckman v. Freeman United Coal Mining Co., 123 Ill.2d 281, 287, 122 Ill.Dec. 805, 527 N.E.2d 303 (1988).
¶ 28 When we review a circuit court's ruling on defendants' section 2–615 motion to dismiss, we apply a de novo standard of review. Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman Group, Inc., 186 Ill.2d...
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