Iverson v. Scholl Inc.

• Decision Date: 30 July 1985
• Docket Number: No. 84-1893,84-1893
• Citation: 136 Ill.App.3d 962,483 N.E.2d 893,91 Ill.Dec. 407
• Parties: , 91 Ill.Dec. 407 April IVERSON, f/k/a April Polachek, Plaintiff-Appellant, v. SCHOLL INC., Plough, Inc., Bankers Life and Casualty Company and Alexander Polachek, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 893

483 N.E.2d 893

136 Ill.App.3d 962, 91 Ill.Dec. 407

April IVERSON, f/k/a April Polachek, Plaintiff-Appellant, v.SCHOLL INC., Plough, Inc., Bankers Life and Casualty Company and Alexander Polachek, Defendants-Appellees.

No. 84-1893.

Appellate Court of Illinois First District, Second Division.

July 30, 1985.

Rehearing Denied Oct. 15, 1985.

Dimitri & Mlade, Ltd., Berwyn, for plaintiff-appellant.

Burke, Griffin, Chomicz & Wienke, P.C., Chicago (Michael P. Mullen, Stephen C. Voris, Chicago, of counsel), Tyrrell & Flynn, Chicago (Michael A. Tyrrell, Timothy J. Murphy and Marcia L. Cohen, Chicago, of counsel), for defendants-appellees.

STAMOS, Presiding Justice:

This action was brought by plaintiffApril Iverson, formerly known as April Polachek, to recover the proceeds of a life insurance policy under which she was the named beneficiary.

In 1973, John Polachek, formerly an employee of defendantScholl Inc.(Scholl) obtained a life insurance policy under Group PolicyNo. 573-A, ID No. A-5457, and named plaintiff, his niece, the beneficiary.The policy was issued by defendantBankers Life and Casualty Company(Bankers).In her original unverified complaint, filed April 22, 1983, plaintiff contended that when John Polachek died, Scholl negligently and carelessly neglected to inform Bankers that plaintiff was an 11-year-old minor.Plaintiff alleged that Bankers then mailed the $10,000 death benefit check to plaintiff without making any inquiry as to plaintiff's age and without demanding that a guardian be established for plaintiff prior to mailing the check.As a consequence, plaintiff claimed that her father, defendantAlexander Polachek, who is not a party to this appeal, induced plaintiff to endorse the check and then misappropriated the proceeds.Plaintiff thus contended that Scholl and Bankers were liable for the amount of the proceeds to plaintiff.

On June 7, 1983, Bankers moved to dismiss the complaint.On July 14, 1983, Scholl and Plough, Inc.(Plough had purchased all of Scholl's assets) filed an amended motion to dismiss.On December 7, 1983, the trial court struck plaintiff's complaint and gave plaintiff leave to file a first amended complaint instanter.The court continued Bankers' motion to dismiss and allowed it to stand as directed against the first amended complaint.Plaintiff's first amended complaint was identical to the original complaint except that in paragraph four of the amended complaint, plaintiff alleged that "Bankers and/or Scholl mailed" the check; in the original complaint, plaintiff had alleged that Bankers mailed the check.

On March 14, 1984, the trial court held a hearing on Bankers' motion to dismiss the first amended complaint.Bankers' motion was originally brought as a section 2-619 motion, but at the hearing, Bankers acknowledged that its motion should be treated as a section 2-615 motion, alleging that plaintiff's negligence claim was insufficient as a matter of law.At the hearing, plaintiff contended that the Illinois Facility of Payment to Minors Act(Ill.Rev.Stat.1981, ch. 110 1/2, par. 25-2) was controlling and imposed a duty upon Scholl and Bankers to determine that plaintiff was a minor and to pay the sum to an appointed guardian.Failure of defendants to do so, plaintiff argued, was negligence.Defendants argued that the statute was immaterial because it does not affirmatively require an entity to investigate and determine whether it is dealing with a minor.Additionally, defendants argued that plaintiff did not allege any facts indicating that defendants knew or should have known that she was a minor.The trial court dismissed the first amended complaint with leave to amend.The court stated that it did not believe that the statute stood for the proposition asserted by plaintiff.Rather, the court believed that the statute meant only that if a claim was paid by way of affidavit under the statute, the entity so paying would be discharged and not required to see to the application or disposition of the property.The court stated that it believed the only thing plaintiff could do on leave to amend was to show facts as to why defendants were careless, as if, for instance, defendants had knowledge of plaintiff's minority.

On April 11, 1984, plaintiff filed a three count second amended complaint.Count I was virtually identical to the first amended complaint, alleging essentially that plaintiff was incapable of negotiating the check received or of effecting a valid discharge of said check.Count I further alleged that defendants negligently and carelessly failed to determine that plaintiff was a minor and then negligently and carelessly sent the check to plaintiff without inquiring as to her age and demanding that a guardian be established.There was no allegation that defendants knew or should have known that plaintiff was a minor.Count II alleged that defendants breached a provision of the insurance policy.The provision gave the insurance company the option of paying money owed to a person supporting or caring for a payee deemed incapable of giving a valid receipt and discharge for payment.Count III alleged a violation of section 25-2 and of section 11 of the Probate Code.Defendants Scholl and Bankers moved to dismiss under section 2-615.The court dismissed the second amended complaint on July 3, 1984, for the same reasons given when the first amended complaint was dismissed.It is from the order dismissing her second amended complaint that plaintiff appeals.

The standard of review employed when a complaint is dismissed pursuant to section 2-615 is that an action should not be dismissed for failure to state a cause of action or for insufficiency at law unless, clearly, no set of facts could be proven under the pleadings which would entitle plaintiff to relief.(Samuels v. Checker Taxi Co., Inc.(1978), 65 Ill.App.3d 63, 65, 22 Ill.Dec. 104, 382 N.E.2d 424.)The section 2-615 motion admits all well pleaded facts and all reasonable inferences able to be drawn from those facts.(65 Ill.App.3d 63, 65, 22 Ill.Dec. 104, 382 N.E.2d 424.)Lastly, the reviewing court is to interpret the allegations of the complaint in a light most favorable to the non-movant.65 Ill.App.3d 63, 65, 22 Ill.Dec. 104, 382 N.E.2d 424.

Plaintiff's second amended complaint consisted of three counts.Count II alleged a violation of a provision in the insurance policy which gave Bankers the option of making monthly installments when paying a minor payee.There is, however, no set of facts which would sustain an action under Count II in that the specific contractual provision gave Bankers an option to pay proceeds in a certain manner.That they chose to pay in a different manner does not render them liable under the policy.The provision in the policy explicitly gave Bankers discretion in the manner of payment.

Count III alleged a violation of section 25-2 of the Probate Act of 1975, (Ill.Rev.Stat.1981, ch. 110 1/2, par. 25-2), which provides for payment by affidavit when an obligation is owed to a ward and the personal estate of the ward does not exceed $5,000.That section provides in full as follows:

" § 25-2.When appointment of representative of ward unnecessary.Upon receiving an affidavit that the personal estate of a ward does not exceed $5,000 in value, that no representative has been appointed for his estate and that the affiant is a parent or a person standing in loco parentis to the minor or is the spouse of the ward or, if there is no spouse of the ward, that affiant is a relative having the responsibility of the support of the incompetent or ward, any person or corporation indebted to or holding personal estate of the ward may pay the amount of the indebtedness or deliver the personal estate to the affiant.In the same manner and upon like proof, any person or corporation having the responsibility for the issuance or transfer of stocks, bonds or other personal estate may issue or transfer the stocks, bonds or other personal estate to or in the name of the affiant.Upon the payment, delivery, transfer or issuance pursuant to the affidavit, the person or corporation is released to the same extent as if the payment, delivery transfer or issuance had been made to the legally qualified representative of the ward and is not required to see to the application or disposition of the property."

Plaintiff alleges that since the sum involved here exceeded $5,000, the statute created a duty on defendants to pay the sum to a duly appointed guardian or representative.Though the statute is without the benefit of decisional law, it is clear that the statute becomes operational only upon receipt of an appropriate affidavit by the indebted entity.At that point, the indebted entity may pay to the affiant the amount owed to the ward.The statute is permissive in nature in that the indebted party may pay either by affidavit or to the legal representative.Equally so, the statute suggests and presupposes that the indebted party has knowledge that the payee is a ward, knowledge specifically denied by defendants herein.Plaintiff's argument that when the sum owed exceeds $5,000 the payor must pay the legal representative is correct to the extent the payor has knowledge that it is dealing with a ward.Most payors would seemingly have such knowledge, or would seek to acquire it, before making payment.Whether the statute creates an affirmative duty to inquire and then pay either the affiant or the legal representative is an unsettled question.In our opinion, however, the statute is not operational when the payor has no knowledge, or any reason to know, that it is dealing with a ward.Consequently, the only principles available to evaluate and adjudicate the manner in which the defendants here paid plaintiff are those established at common law, and that focuses the inquiry on Count I of plaintiff's second amended complaint.

Count I alleged the following: the existence of the...