Gaston v. Founders Insurance Co.

FIRST DIVISION

March 13, 2006

(Nunc pro tunc February 14, 2006)

No. 1-04-2110

CECELIA GASTON, individually and on ) Appeal from the

behalf of all others similarly ) Circuit Court of

situated, ) Cook County.

)

Plaintiff-Appellant, )

)

v. )

)

FOUNDERS INSURANCE COMPANY, ) Honorable

) Peter J. Flynn,

Defendant-Appellee. ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Plaintiff Cecelia Gaston appeals from the circuit court's

grant of summary judgment in favor of defendant Founders Insurance

Company on plaintiff's complaint, in which plaintiff alleged that

defendant's automobile claims procedures were unreasonable. On

appeal, plaintiff contends that the trial court misconstrued the

insurance policy at issue; misconstrued section 919.80(d)(6) of the

Illinois Department of Insurance Regulations; erred in striking the

testimony of its expert witness; erred in not finding that

defendant's settlement practices violate section 155 of the

Illinois Insurance Code; and erred in denying class action

treatment of her claim. For the reasons set forth below, we

affirm.

STATEMENT OF FACTS

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This case arose as a result of a disagreement concerning

defendant's procedures for handling automobile collision claims.

The relevant portion of plaintiff's policy, issued by defendant, is

as follows:

"Coverage E - Collision. To pay for loss

caused by collision to the owned automobile but

only for the amount of each such loss in excess

of the deductible amount stated in the

declarations as applicable hereto. *** [T]he

company shall have the following options: (1)

Payment to the insured of the actual cash value

of the vehicle minus the deductible stated in

the policy declarations; or (2) Replacement of

the vehicle with other of like kind and

quality; or (3) Payment of the amount the

company would have paid for a replacement

vehicle (including all applicable taxes and

license fees), in the event the insured elects

a cash settlement instead of such replacement

vehicle; or (4) Repair or rebuild the

automobile.

***

Limit of Liability. The Company's limit of

liability for all losses under Part III shall

not exceed the smallest of the following:

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(a) the actual cash value of stolen or

damaged property or part thereof at the time of

the loss;

(b) the amount necessary to repair the

damaged property at the time of the loss;

(c) the amount necessary to replace the

stolen or damaged property at the time of the

loss with like kind and quality property less

depreciation; or,

(d) the applicable value, if any, stated

in the declarations. ***

Condition 11 - Part III: The company may pay

for the loss in money; or may repair or replace

the damaged or stolen property."

On July 13, 2002, plaintiff's car was involved in an accident

and sustained body damage. On the day of the accident, plaintiff

phoned defendant, her insurance company. Defendant informed

plaintiff that it would send its own collision appraiser out to

create an estimate on the amount of repair work her vehicle needed

and that it would not pay any amount above that estimate. Defendant

informed plaintiff that, under her policy, she could take her car to

a body shop that participated in defendant's direct repair program

(DRP) or to any other shop of her liking. If she chose a DRP shop,

she was told, then her only cost for all repairs and storage would

be her $500 deductible. If she chose another shop, she would be

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responsible for her deductible as well as for any cost above what

was deemed necessary by defendant, including daily storage fees.

Defendant then gave plaintiff a list of Chicago-area DRP shops and

suggested Elar Auto Rebuilders, which was nearby.

On July 17, 2000, plaintiff spoke with defendant's claims

adjuster and informed her that she had taken her car to West Loop

Auto Body (West Loop). The claims adjuster informed plaintiff that

West Loop was not a DRP shop and outlined the financial consequences

to plaintiff if she had her car repaired there. She then offered to

arrange to have plaintiff's car towed, free of charge, to Import

Auto, a nearby DRP shop that did body work on all types of cars,

including those from Loeber Motors.

On July 20, 2000, defendant's appraiser inspected plaintiff's

car and prepared an estimate of $610.23. This estimate was made

using a labor rate of $22 per hour for body work, $11 per hour for

paint work, and $35 per hour for mechanical work, which was the rate

defendant had negotiated with its DRP shops. By this time, West

Loop had also prepared an estimate of the damage to plaintiff's car

in the amount of $1,190.93. This estimate was made using a labor

rate of $38 per hour for paint and body work and $79 per hour for

mechanical work.

On July 24, 2000, defendant sent plaintiff a letter to again

explain the costs she would be responsible for if she had the car

repaired at West Loop, including the $50 per day storage fee she was

already incurring. Two days later, defendant called plaintiff, told

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her that defendant would pay only $610.23 toward the repair of her

car and again offered to pay for a tow of her car to a nearby DRP

shop which would store and repair her car without any additional

cost to plaintiff. Plaintiff then informed defendant that she

wished to have her car repaired at West Loop. Defendant told

plaintiff that it should be notified and allowed to re-inspect her

car if West Loop found any damage beyond that contained in its

original estimate.

On August 1, 2000, defendant spoke with Bill Passaglia, an

owner of West Loop, who confirmed that he was charging plaintiff $50

per day in storage fees. During this conversation, Passaglia

demanded that defendant pay the entire amount he was charging for

repairs on plaintiff's car and threatened a lawsuit if payment was

not made. Defendant then called plaintiff again to outline the

consequences of having her car repaired at West Loop as opposed to a

DRP shop.

Records indicate that plaintiff's car was repaired at West Loop

from July 13 to August 2, 2000, and that plaintiff's bill for repair

was $3,097.64, with an additional $900 charged for storage. On

August 22, defendant spoke again with Passaglia and told him that,

by custom, he was required to notify defendant if he found any

additional damage to plaintiff's car and to cease any additional

repairs until defendant's appraiser arrived to create his own

estimate. Defendant was not told that plaintiff's car had already

been repaired or that two additional estimates and repair orders had

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been issued on it. Specifically, West Loop had billed plaintiff for

work on her car's sub-frame, steering components, and transmission

that was not included on either West Loop's or defendant's original

estimates. The record indicates that plaintiff ultimately paid West

Loop $2,993.11 for repairs and storage and that defendant tendered

$110.23 to plaintiff, which represented the amount of defendant's

estimate less plaintiff's $500 deductible.

In September 2000, plaintiff complained to the Illinois

Department of Insurance concerning this matter and was told, in a

letter, that defendant had not violated either the Illinois

1

Insurance Code or any insurance regulations. On December 5,

plaintiff filed a class action complaint against defendant, as well

as a motion for class certification. Plaintiff claimed that

defendant (1) breached the contract of the insurance policy at

issue; (2) violated section 155 of the Illinois Insurance Code (215

ILCS 5/155 (West 2000)); and (3) violated section 505 of the

Consumer Fraud and Deceptive Trade Practices Act (815 ILCS 505/1

(West 1999)). Shortly thereafter, defendant issued a check to

plaintiff in the amount of $3,527.33, which represented the full

amount of plaintiff's West Loop bill, plus interest compounded from

July 13, 2000. Defendant expressed a desire to settle this claim

and any other claims including attorney fees, as a separate matter,

in a letter that accompanied the check. Plaintiff refused the

1

While the response letter from the Department of Insurance

is contained in the record, plaintiff's original correspondence

is not.

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tender.

Defendant then filed a motion to dismiss plaintiff's complaint,

which was granted. In the same order, the trial court also granted

plaintiff leave to file an amended complaint, struck the class

action aspect of the complaint under section 155 of the Insurance

Code, and ordered that the motion to certify the class was to be

held in abeyance.

A series of motions, responses, and replies followed over the

next two years, resulting in an amended class action complaint,

containing the same three causes of action as the original

complaint. Defendant's subsequent motion to dismiss was granted as

to the class action allegations under section 155 of the Insurance

Code and the Consumer Fraud Act claim. Defendant was then directed

to answer the remaining portions of the complaint, which it did.

During the course of this litigation, defendant attempted to

arrange an inspection of the subject car by an independent agency

several times, succeeding only when it obtained a court order. The

independent agency's inspection found several indications that West

Loop may not have performed all of the operations for which it

billed plaintiff. The independent inspector based his findings on

indicia such as tool marks, corrosion, and factory-installed decals

on parts. Defendant also had one of its own employees, an

individual with many years of experience in the auto body field,

inspect the vehicle. Defendant's employee took over 100 photographs

of the vehicle, opined that the extent of the damage claimed on West

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Loop's invoice was not present during defendant's initial inspection

of the vehicle before repairs were made, and concurred with the

independent inspector that there were indications that West Loop did

not perform all the work it claimed to have performed and that the

sub-frame, steering, and transmission repairs were not necessary.

In April 2004, plaintiff filed a motion for summary judgment on

her claims for breach of contract and violation of section 155 of

the Insurance Code. In her motion, plaintiff contended that

defendant implemented a "scheme" by which it systematically adjusted

claims in a manner that constituted a violation of Illinois

insurance statutes, which was a per se breach of contract,

perpetrated through its use of "bogus labor rates to calculate the

cost of necessary automobile repairs." Plaintiff also argued that

the extra-contractual remedy afforded by section 155 of the

Insurance Code should be imposed, claiming that defendant relied on

its significant economic advantage and bargaining power to shift the

obligation to pay for reasonable repairs to the insured by imposing

its "discount estimate" as a bar to collecting full value of the

insurance policies its insureds contracted for. Additionally,

plaintiff contended that defendant violated section 919.80(d)(6) of

the Department of Insurance Regulations, specifically the

requirement that "[t]he estimate prepared by or for the company

shall be reasonable, in accordance with applicable policy

provisions, and of an amount that will allow repairs to be made in a

workmanlike manner." Defendant's estimate, contended plaintiff, was

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not reasonable.

During discovery, plaintiff deposed Louis DiLisio, an

individual with close to 40 years experience in the auto repair and

auto claims industries, and planned on introducing his opinion that

West Loop's $38 per hour labor charge was "reasonable." DiLisio

based his opinion on a "survey" he conducted of Chicago area body

shops, and on his experience in the field, which consisted of many

years of working in body shops in New York and for an auto claims

industry service provider in Chicago. When pressed, DiLisio

explained that his survey consisted of telephone calls to five

Chicago area body shops where he had cordial relationships with the

operators. The trial court granted defendant's subsequent motion to

strike and bar DiLisio's testimony on May 6, 2004.

On May 13, 2004, defendant filed a combined response to

plaintiff's motion for summary judgment and cross-motion for summary

judgment. In its response, defendant pointed out that plaintiff

filed all her actions as class actions despite the fact that no

2

class had been certified; that Passaglia admitted in his deposition

that West Loop's customary procedure would have been to notify

plaintiff's insurer of the additional work it was planning to do to

allow the insurer to re-inspect the vehicle, but that he did not

follow this procedure in this instance; that at the same time West

Loop charged plaintiff $38 per hour for labor, it charged other

customers at rates varying from $21 per hour to $28 per hour as

2

The deposition was not included in the record.

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evidenced by other West Loop estimates; that the Consumer Fraud Act

claim was dismissed at an earlier proceeding; and that plaintiff's

motion relied on the testimony of Louis DiLisio, which had been

barred by the trial court.

In its own motion for summary judgment, defendant stated that

it fully complied with the plain language of the policy when it

issued the check for repair to plaintiff. Defendant relied on the

endorsement given its procedures by the Department of Insurance, as

evidenced by the September 2000 letter sent to plaintiff. Defendant

addressed the issue of violating section 155 of the Insurance Code

by pointing out that (1) plaintiff had not disclosed any information

relating to attorney fees sought, which is a requirement for section

155 claims; (2) plaintiff refused the December 2000 offer of

settlement, which encompassed attorney fees, thus precluding any

further claims for attorney fees; and (3) even if section 155

violations were found, defendant should only be liable for the 25%

amount that was in effect at the time of plaintiff's claim, not the

current 60%, that was enacted during the pendency of this case.

Finally, defendant argued that the striking of DiLisio's testimony

rendered plaintiff's argument, that West Loop's rates should be

considered "reasonable," baseless.

Defendant attached several supporting affidavits to its motion,

including one from the telephone service representative who

initially told plaintiff about the DRP and one from the claims

adjuster who handled plaintiff's claim. A further affidavit, from

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defendant's physical damage manager, included a listing of the

"customs and practices" in the auto repair industry in Chicago and

northern Illinois. The list included observations that many

insurers have agreements with body shops to provide quality repairs

at agreed-upon rates and that, when an insurer recommends an insured

to such a shop, both the shop and the insurer guarantee the work to

the insured. The list also included the physical damage manager's

belief that it is customary for the body shop to notify the insurer

should the need for additional work on the vehicle arise.

Additional customs, according to the physical damage manager,

include insurers notifying insureds of their financial

responsibility should they opt not to use the DRP, and paying to tow

a car to a DRP shop. An affidavit from the owner of a body shop in

defendant's DRP corroborated all of these points and confirmed that

it performed work for defendant at a $22 per hour labor rate.

On June 25, 2004, a hearing was held on the motions for summary

judgment and the motion to bar the testimony of DiLisio. During the

hearing, the court questioned plaintiff's attorney regarding the

quality of repair at issue, as follows:

"THE COURT: Now, there is no direct

evidence as I understand it that the places to

which Founders wanted to direct Mrs. Gaston

couldn't have done the job perfectly well, is

there?

MR. GOLD [Plaintiff's attorney]: No.

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THE COURT: Okay.

MR. GOLD: They could have."

In evaluating the disputed testimony of DiLisio, the trial

court noted that:

"Mr. DiLisio is certainly qualified to talk

about repair costs, and given an appropriate

amount of homework I suppose he might be

qualified to talk about Chicagoland repair

costs. *** [But] the five phone calls made by

Mr. DiLisio in my view provide nothing

remotely approaching an adequate database for

the conclusions that he is asserting, unless

he is defining the terms he is using, like

'reasonable in the marketplace' in a

completely different way than I think the rest

of us are talking about."

The trial court then denied plaintiff's motion for summary

judgment, granted defendant's motion for summary judgment, and

granted the motion to bar the testimony of DiLisio. This appeal

followed.

ANALYSIS

Preliminarily, defendant contends that plaintiff did not

invoke the appraisal provision of the policy and therefore is

barred from raising this issue. Plaintiff makes no reply to this

allegation.

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Generally, issues raised for the first time on appeal are

waived. Daley v. License Appeal Comm'n of City of Chicago, 311 Ill.

App. 3d 194, 200, 724 N.E.2d 214 (1999). A review of the record

reveals that plaintiff failed to raise this issue at any time prior

to her appeal. Accordingly, plaintiff waived this issue for

purposes of this appeal.

A secondary initial matter concerns defendant's attempted

settlement offer early in the proceedings. Defendant contends that,

by virtue of its tender of the entire amount of plaintiff's claim,

plus interest, plaintiff's class action for breach of contract was

rendered moot. Plaintiff counters that it is well settled that a

putative class representative cannot be "bought off."

The tender of a settlement offer to a putative class

representative after class certification is sought, but before class

status is granted, does not deprive the class representative of

standing or moot his or the class members' claims. Deposit Guaranty

National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 332-36,

63 L. Ed. 2d 427, 100 S. Ct. 1166 (1980). In the instant case, the

offer of full payment to plaintiff was not made until after she

sought class certification. Roper is therefore applicable and,

accordingly, we find that defendant's settlement offer did not

deprive plaintiff of standing nor render her claim moot.

Payment of Loss Provision

Plaintiff contends that defendant failed to show that its

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liability for paying the entire claim was not limited or excluded by

the policy and that defendant's failure to pay the entire claim was

a breach of contract. Plaintiff relies on the theory that defendant

failed to exercise its option to repair. Plaintiff points to the

"payment of loss" (POL) provision of the policy in support of her

contention. Plaintiff argues that POL provisions are standard terms

in policies of property damage insurance and give the insurer two

options for settling a claim where the insured's property is damaged

but not destroyed: (1) pay the loss in money so that the insured can

have the repairs done by a contractor of his or her choice, or, (2)

undertake the repairs itself by hiring contractors and otherwise

controlling the repair process.

Plaintiff contends that the record establishes that defendant

never exercised its option to repair her vehicle, which bound it to

pay the entirety of her repairs. Plaintiff also contends that

defendant failed to present any evidence that it ever communicated

to her in a clear, positive, distinct, and unambiguous way that it

wanted to exercise its option to repair the subject vehicle.

Plaintiff points primarily to the lack of any written correspondence

being sent to her, noting that defendant failed to send any sort of

unequivocal notice to her that it was exercising its right to

repair. Plaintiff also notes that defendant told her that she was

free to have her car repaired at West Loop, and that, while

defendant sets forth numerous statements of assurance in its

affidavits and briefs, there is no evidence that such statements

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were ever made directly to her at the outset of the matter.

Plaintiff further contends that the fact that defendant attempted to

settle her claim based on a written estimate is enough to establish

that it opted to pay the loss in money rather than exercise its

option to repair.

Plaintiff also contends that defendant attempted to force her

into choosing between (1) accepting its payment based on the

estimate created by defendant's appraiser, and (2) having her

vehicle repaired by a third-party shop chosen by defendant without

any assurance that the insurer would accept the responsibility for

the repairs performed by that shop. This ongoing tactic, contends

plaintiff, allows defendant to force policyholders to choose a DRP

shop, which then allows defendant to benefit from the lower rates it

has negotiated with the shop while simultaneously distancing itself

from the liability that would have arisen if defendant had properly

exercised its option to repair.

In support of her argument, plaintiff relies heavily on Howard

v. Reserve Insurance Co., 117 Ill. App. 2d 390, 254 N.E.2d 631

(1969), a case involving a building fire and the disagreement

between the parties as to whether the defendant insurance company

exercised its option to repair. The Howard court set forth five

criteria that make the notice of an insurer's election to exercise

its option to repair effective: (1) it must be made within a

reasonable time after the damage or loss has occurred to the

insured; (2) it must be clear, positive, distinct, and unambiguous;

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(3) the repairs or replacements must be made within a reasonable

time; (4) it cannot be coupled with an offer of compromise or be

made for the purpose of forcing a compromise, but it must be an

election made with no alternative; and (5) when the election is

made, the repair or replacement must be suitable and adequate.

Howard, 117 Ill. App. 2d at 399. The Howard court further noted:

"We adopt these criteria, however, with this caution that most legal

controversies present differences which must be decided individually

within the legal and factual bounds therein contained." Howard, 117

Ill. App. 2d at 399.

In summarizing her argument, plaintiff states that defendant

was free to negotiate whatever rates it wanted with the body shops

on its list and, further, to exercise its option to have plaintiff's

vehicle repaired at any one of those shops. Plaintiff maintains,

however, that because defendant failed to comply with the policy's

POL provision in the first instance, it waived its right to raise

the option to repair as grounds to reduce her claim or as a defense

to an action on the policy. Plaintiff contends that the trial court

should have found that once defendant waived its option to repair,

it was required to reimburse her for the amount she actually paid to

have her vehicle repaired.

Defendant contends that the policy in question does not, as

plaintiff argues, require it to indemnify or reimburse plaintiff for

the "amount she paid" to repair her vehicle. The amount paid for

repairs, argues defendant, is irrelevant in that the policy binds it

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to arrange for workmanlike repairs regardless of cost. Defendant

notes that, in her brief, plaintiff agreed that "Founders was free

to negotiate whatever rates it wanted with the body shops on its

list and further, to exercise its option to have [her] vehicle

repaired at any one of those shops."

Defendant further contends that it did all it could or should

to exercise its repair option under the policy, but that plaintiff

refused to allow the designated repair shop to tow or repair the

vehicle, despite several offers and explanations given by defendant.

Defendant argues that the option to pay for repairs or to have the

vehicle repaired did not belong to plaintiff; instead, the policy

expressly reserved those options to defendant. A plaintiff car

owner, contends defendant, cannot insist on payment for repairs

simply by refusing to allow the insurer to repair the vehicle.

Defendant further argues that it did not violate its policy and, in

fact, plaintiff was the party in violation as evidenced by her

refusal to let defendant repair the vehicle. Expounding on this

argument, defendant relies on plaintiff's own in-court admission

that defendant's chosen shop would have done the repair work

perfectly well. Lastly, defendant, citing Home Mutual Insurance Co.

of Iowa v. Stewart, 105 Colo. 516, 100 P.2d 159 (Colo. 1940), argues

that insurers are only obligated to pay the lowest sum for which the

car can be repaired when insureds thwart the insurer's direct repair

efforts.

In response to plaintiff's repeated arguments that defendant

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made no assurance to plaintiff regarding the quality of the repair

work, defendant cites Mockmore v. Stone, 143 Ill. App. 3d 916, 919,

493 N.E.2d 746 (1986), which held that liability is imposed on an

insurer who chooses a body shop by operation of law. It would have

been legally impossible, defendant argues, for it to not guarantee

the work. In support of this argument, defendant relies on (1) the

affidavit of the owner of Elar Auto Rebuilders, who guaranteed his

shop's work, and (2) the affidavit of defendant's physical damage

manager, who guaranteed the work of all the shops in the DRP.

Defendant points to the absence of any counteraffidavits,

admissions, or depositions submitted by plaintiff to rebut these

facts as evidence of plaintiff's failure to raise a genuine issue of

material fact required to defeat a motion for summary judgment.

Defendant further argues, with respect to its labor rates and

final bill, that they are a nonissue and relies on plaintiff's own

words in support of its argument. Defendant quotes from plaintiff's

argument that "[i]f an insurer can get a body shop to do quality

work for which the insurer will assume liability, the shop's labor

rates become a non-issue." Defendant labels this statement as one

that precisely sums up the case before us. Defendant argues that,

because it arranged for a shop to do quality work, and assumed

responsibility for the completeness and quality of the repairs, the

rates plaintiff complains of are immaterial. As to the final bill

and disparity between estimates, defendant points out that plaintiff

never let it re-inspect the vehicle to estimate the additional

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damages West Loop supposedly found during repairs and that an

independent inspector found evidence that the additional work

charged on West Loop's final bill may not have been performed or, if

performed, not necessary.

"Summary judgment is appropriate only where there is no genuine issue of

material fact." State Farm Fire & Casualty Co. v. Moore, 103 Ill.

App. 3d 250, 257, 430 N.E.2d 641 (1981). The standard of review for

the granting or denial of a motion for summary judgment is de novo.

In re Estate of Hoover, 155 Ill. 2d 402, 411, 615 N.E.2d 736

(1993). Bare contentions in the absence of citation of authority do

not merit consideration on appeal and are deemed waived. City of

Highwood v. Obenberger, 238 Ill. App. 3d 1066, 1073-74, 605 N.E.2d

1079 (1992).

Plaintiff's argument wholly rests on her stated belief that if an insurer does not

exercise its option to repair, it must then pay the insured money so that the insured can

have repairs done by a contractor of her choice. Plaintiff fails, however, to cite any case law

or other supporting authority lending credence to such an assumption. A reading of the

actual policy reveals no text granting the insured the option to have such unfettered control

over the repair process when the insurer fails to exercise its direct repair option. Rather, the

actual wording of the policy obligates the insurer to pay "the amount necessary to repair the

damaged property at the time of loss."

A thorough examination of the POL provision issue, then, would

be in order only if the trial court's determination that defendant

complied with the terms of the policy was in error. Put simply, if

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it was found that defendant did indeed exercise its repair option,

notwithstanding plaintiff's refusal to comply with its efforts,

then plaintiff has no claim for breach of contract. On the other

hand, if it were found that defendant did not exercise its repair

option, but did provide plaintiff with what was necessary to repair

her vehicle, there would also be no grounds for breach of contract.

Accordingly, we must turn to the issues of policy interpretation

and defendant's compliance with section 919.80(d)(6) of the

Insurance Regulations.

Policy Interpretation and Section 919.80(d)(6)

of the Department of Insurance Regulations

Plaintiff contends that the trial court erred in its decision

to grant summary judgment in favor of defendant based on its

misinterpretation of section 919.80(d)(6) of the Department of

Insurance Regulations, specifically the sentence: "The estimate

prepared by or for the company shall be reasonable, in accordance

with applicable policy provisions, and of an amount that will allow

repairs to be made in a workmanlike manner."

Plaintiff contends that, by taking the position that the

contract term "necessary" should be construed as limiting the

insurer's liability for paying claims at the rates charged by the

shops with which the insurance company had arranged volume

discounts, all defendant really did was concede that the term has a

hidden or alternative meaning that is not defined in the policy and

that may not have been understood by a layperson; in other words,

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that it is ambiguous and should be construed strongly against the

insurer as the drafter of the policy.

Turning to the term "reasonable estimate" in section

919.80(d)(6) of the Department of Insurance Regulations, plaintiff

contends that it would be absurd to construe that term as anything

other than "the objectively reasonable cost of repairs in the

marketplace." According to plaintiff, by manipulating the labor

rates and leaving a few necessary repairs off of a repair estimate,

unscrupulous insurers can make just about any claim fall just above

or just below the policyholder's deductible and thereby cheat

customers out of benefits that they are legitimately due under their

policy. At a bare minimum, plaintiff argues, there is a genuine

issue of material fact as to whether defendant's repair estimate was

"reasonable" as that term is used in section 919.80(d)(6) of the

Department of Insurance Regulations.

In addressing plaintiff's argument regarding the term

"necessary repairs," defendant posits that plaintiff seeks to impose

upon an insurer a duty to pay for whatever additional damage that

any body shop chosen by an insured may claim to find during the

course of repairs, like the additional damage that was found by West

Loop but hidden from defendant. Defendant contends that the policy

does not obligate it to pay what it would cost plaintiff to have her

car repaired on her own. Defendant points to repeated references to

"the company" in the policy as evidence that the provision refers to

and limits liability to the cost of repairs incurred by the

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insurance company rather than any costs incurred by the insured car

owner. The policy, continues defendant, does not refer to necessary

expenses incurred by "you" or "the insured," but rather clearly

refers to repair costs incurred by "the company."

Defendant also argues that there is no ambiguity in the term

"necessary to repair" because an ordinary layperson would not even

consider the labor rates paid to the repair shop, much less read

certain unspecified labor rates into the policy. Instead, defendant

argues, the ordinary layperson cares only that his or her car is

properly repaired and that he or she is not required to pay any more

than the deductible amount for the repairs, which is exactly what

defendant offered to plaintiff.

In response to plaintiff's contention that defendant should

have disclosed its DRP to plaintiff when she purchased her policy,

defendant argues that, under the terms of the policy, the option to

repair the car lay with defendant, not plaintiff. This arrangement

gave defendant control of the repairs, including the choice of body

shops. Defendant further argues that, since plaintiff admits that

defendant's chosen shops would have performed the repairs perfectly

well, she could not have been harmed in any way by defendant's

choice of shop or the price paid by defendant to the shop.

Defendant maintains that it informed plaintiff four times of the DRP

before she incurred the expenses at West Loop, which she knew were

not going to be paid for by defendant. Defendant labels plaintiff's

claim that she was harmed by any misrepresentation or lack of

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disclosure regarding defendant's agreements with certain body shops

as "disingenuous" because, it claims, she made an informed and

conscious decision to incur the extra charges from West Loop.

Defendant also contends that plaintiff's interpretation of the

policy as requiring payment of high labor rates would only benefit

body shops, which are not even parties to the insurance contract.

Accordingly, defendant argues that since the parties to the

insurance contract clearly did not intend to benefit body shops by

ensuring them higher rates, fees, and payments, it is unreasonable

to interpret the policy provision as requiring those higher,

allegedly "reasonable" body shop rates. Defendant further points

out that plaintiff fails to delineate to whom the labor rates should

be "reasonable" and does not suggest how any labor rate or repair

bill, whether high or low, could be proved to be unreasonable.

Continuing in its argument concerning the term "reasonable,"

defendant relies on the evidence showing that West Loop's rates

varied widely from customer to customer. While West Loop charged

plaintiff as much as $79 per hour, it charged other customers

various other rates as low as $21 per hour. Defendant then couples

that disparity with the uncontradicted affidavits showing more than

30 Chicago area body shops charging the same labor rates as used in

defendant's estimate to illustrate the range of labor rates that

could possibly be deemed "reasonable."

Defendant further contends that, to both the insured and the

insurer, the lowest obtainable rate for the same quality repairs

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would seem reasonable. Defendant argues that any higher rates would

only seem reasonable to the body shops receiving the inflated fees

and that such a scheme would deprive insurance companies, insured

car owners, and individual body shops of their respective abilities

to negotiate better terms for themselves. Such a system, defendant

contends, would benefit only the higher priced body shops because,

while insureds would receive the same quality repairs at any price,

insurers would end up paying more for repairs and lower priced

shops would lose their competitive advantage.

Defendant points to plaintiff's rejection of its offer of

payment of the full amount she claimed under the policy plus

interest as evidence of plaintiff's real motive behind this case,

i.e., to benefit body shops and their attorneys. Defendant notes

that the attorneys who represent plaintiff in this case also

represent West Loop and have brought several class actions like this

one in an effort to compel insurance companies to pay higher labor

rates to body shops.

Defendant bolsters its argument by maintaining that its

practices do not violate public policy, as plaintiff implies, by

pointing out that our legislature focused on this issue in 1997.

Defendant highlights House Bill No. 1502, which, if enacted, would

have prohibited insurance companies from restricting the choice of

an auto body repair facility. The General Assembly's decision not

to bar the practice, contends defendant, demonstrates that it is not

against public policy. The courts, defendant asserts, should not

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carve out new substantive law, as plaintiff requests, which the

legislature has expressly rejected. As further support for its

argument, defendant turns to the Department of Insurance, which

advises consumers on its website that if they choose a repair shop

which charges more than the insurance company's suggested shop, the

consumer may have to pay the difference himself. Also, defendant

points out, the Department of Insurance not only approved the

issuance of the policy and limit of liability at issue in this case,

but also found that defendant did not violate the Insurance Code or

the Department of Insurance Regulations in this particular instance.

Defendant contends that it complied with every aspect of

section 919.80(d)(6) of the Department of Insurance Regulations in

that it provided plaintiff with the names of more than one repair

shop, which admittedly would have made the repairs to her car in a

workmanlike manner. Defendant defends its repair program by

pointing out that it has spared its insureds the time and trouble of

dealing with body shops by inspecting, negotiating with, and

approving quality and price with all the shops in its DRP.

Defendant argues that most insureds lack the knowledge, training, or

resources to do these things and would be at a disadvantage when

dealing with body shops, as evidenced by the high rates imposed on

plaintiff by West Loop.

The court's primary objective in interpreting an insurance

policy is to ascertain and give effect to the intention of the

parties, as expressed in the policy language. Hobbs v. Hartford

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Insurance Co. of the Midwest, 214 Ill. 2d 11, 17, 823 N.E.2d 561

(2005). While ambiguous terms in insurance policies are construed

in favor of the insureds, that rule of construction only applies

when the policy is ambiguous. Hobbs, 214 Ill. 2d at 17. The word

"necessary" is not ambiguous and has a plain, ordinary, and popular meaning of being

essential, indispensable, or requisite. Chatham Corp. v. Dann Insurance, 351 Ill. App. 3d

353, 358, 812 N.E.2d 483 (2004).

An insurer's election to repair an insured's vehicle, together

with its selection of the means by which such repairs are to be

accomplished, imposes a contractual liability for damages resulting

from negligent repairs. Mockmore, 143 Ill. App. 3d at 919. An

attorney's statement in court constitutes a binding admission of the

party which cannot be refuted. Darling v. Charleston Community

Memorial Hospital, 50 Ill. App. 2d 253, 328, 200 N.E.2d 149 (1964).

Unless the terms of a policy are against public policy when applied, the terms

determine the benefits available under the policy. Parish v. Country Mutual Insurance Co.,

351 Ill. App. 3d 693, 699, 814 N.E.2d 166 (2004). "This court has held declaring a policy

provision void as against public policy is an 'extraordinary remedy' which this court finds

'unpalatable.'" Parish, 351 Ill. App. 3d at 699. Illinois courts may not establish

public policy which is contrary to the public policy that the

legislature has deemed appropriate for the state. State Farm Mutual

Automobile Insurance Co. v. Smith, 197 Ill. 2d 369, 376, 757 N.E.2d

881 (2001). Where the Director of Insurance takes no action against

an insurance policy provision, it can be inferred that the Director

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felt the provision did not violate any part of the Insurance Code.

Bernardini v. Home & Automobile Insurance Co., 64 Ill. App. 2d 465,

467-68, 212 N.E.2d 499 (1965).

Section 919.80(d)(6) of the Department of Insurance Regulations states:

"If partial losses are settled on the basis of a written estimate

prepared by or for the company, the company shall supply,

upon request of the insured, a copy of the estimate upon which

the settlement is based. The estimate prepared by or for the

company shall be reasonable, in accordance with applicable

policy provisions, and of an amount which will allow for repairs

to be made in a workmanlike manner. If the insured

subsequently claims, based upon a written estimate which he

obtains, that necessary repairs will exceed the written estimate

prepared by or for the company, the company shall review and

respond promptly to the insured and provide the insured with

the name of a repair shop that will make the repairs in a

workmanlike manner. Failure of the company to so inform the

insured of the name of such a repair shop shall require the

company to provide written notice to the insured that any and all

reasonable costs incurred for repair or replacement related to

the partial loss in excess of the company's estimate will be

reimbursed by the company. The company shall maintain

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documentation of all such communications." 50 Ill. Admin.

Code _919.80(d)(6).

In Chatham Corp., the plaintiff was a company that sterilized

medical equipment at a plant in Virginia. Chatham Corp., 351 Ill.

App. 3d at 354. When an explosion severely damaged the plaintiff's

plant, it turned to its insurance carrier, the defendant, for relief

under its policy, which included the provision that the defendant

would pay the plaintiff the "necessary expenses you incur during the

period of restoration." Chatham Corp., 351 Ill. App. 3d at 355.

The defendant then paid for the reconstruction of the plaintiff's

plant, but refused to pay for a portion of the expenses the

plaintiff incurred in its efforts to maintain the business

relationship it had with its main customer, a corporation known as

Maxxim Medical, Inc. Chatham Corp., 351 Ill. App. 3d at 355. The

business contract the plaintiff had with Maxxim called for the

plaintiff to find alternate sterilization facilities and to pay the

cost of shipping Maxxim's unsterilized goods from the plaintiff's

facility to an alternate sterilization facility. Chatham Corp., 351

Ill. App. 3d at 355. The defendant recognized the plaintiff's

obligation under the Maxxim contract as "necessary" and reimbursed

the plaintiff for the expense of shipping the goods between the

facilities. Chatham Corp., 351 Ill. App. 3d at 355. When the

plaintiff looked to the defendant for reimbursement for the expense

it incurred by shipping the newly-sterilized goods to Maxxim's

customers, the defendant refused to pay, deeming that cost

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"unnecessary." Chatham Corp., 351 Ill. App. 3d at 355.

After proceedings in federal court in Virginia, the plaintiff

filed a complaint in Illinois, alleging, among other things, breach

of contract. Chatham Corp., 351 Ill. App. 3d at 356. After the

trial court granted summary judgment in favor of the defendant, the

plaintiff appealed and this court affirmed, finding that "necessary"

was not an ambiguous term, that it does not encompass expenses that

insureds may have wanted to incur on a voluntary basis, and that a

court cannot add terms to a contract which the parties have not

included in the language of the policy. Chatham Corp., 351 Ill.

App. 3d at 358-59. See also Butwin Sportswear Co. v St. Paul Fire &

Marine Insurance Co., 534 N.W.2d 565 (Minn. App. 1995) (an

appraiser's fee is not a "necessary" expense that an insurer is

obligated to reimburse; "necessary" is not ambiguous).

Smith provides a good example of an insurance policy provision

that violated public policy. In Smith, the defendant passenger was

injured when her vehicle, being driven by a valet parking attendant

of a casino, rolled backward as she (the defendant) was getting into

the car. Smith, 197 Ill. 2d at 370. The insurance policy in

question in Smith contained an exclusion, which stated that there

was no coverage for vehicles being used by any person employed or

engaged in any way in a car business. Smith, 197 Ill. 2d at 372-73.

The plaintiff, the defendant's insurance company, then moved for a

declaratory judgment that it had no duty to defend the casino based on an "automobile

business" exception in the defendant's policy. Smith, 197 Ill. 2d at 371. The trial court held

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that the automobile business exclusion applied, and that the plaintiff had no duty to defend

or indemnify the casino. Smith, 197 Ill. 2d at 371. Accordingly, the trial court granted the

plaintiff's motion for summary judgment. Smith, 197 Ill. 2d at 371.

On appeal, this court reversed, finding that the "business exclusion" provision violated

the Illinois rule that a liability insurance policy issued to the owner of a vehicle must cover

the named insured and any other person using the vehicle with the named insured's

permission and, therefore, was against public policy. Smith, 197 Ill. 2d at 372. On further

appeal, the supreme court affirmed this court, holding that the automobile business

exclusion violated the public policy of Illinois, namely, by violating established case law and

a section of the Vehicle Code. Smith, 197 Ill. 2d at 374. In its holding, the supreme court

adhered to its rule of not establishing public policy which is contrary to the public policy that

the Illinois legislature has deemed appropriate for the State of Illinois. Smith, 197 Ill. 2d at

376.

As discussed above, the POL provision of the policy in the

instant case is rendered irrelevant if it can be shown that

defendant fulfilled its "amount necessary" obligation. Plaintiff's

initial effort to ensure that this court's interpretation of section

919.80(d)(6) of the Department of Insurance Regulations conforms

with the finding in Howard regarding POL provisions, then, should

also be classified as immaterial pending a recommendation on the

"necessary" clause.

Although the trial court here looked to a federal case for its

ruling on the term "necessary," we have no need to look any further

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than this district. The Chatham Corp. court was clear in labeling

"necessary" as an unambiguous term meaning essential, indispensable,

or requisite. It is apparent from the facts of this case that it

was not "essential" that plaintiff's vehicle be repaired at West

Loop. There were several other body shops that could have done the

job, including defendant's two DRP shops that plaintiff's attorney

admitted, in court, would have done the job in a workmanlike manner.

It is important to note that, as defendant points out, the

policy language in Chatham Corp. refers to "necessary expenses you

incur," with "you" clearly referring to the insured. (Emphasis

added.) Chatham Corp., 351 Ill. App. 3d at 355. In this case, the

policy language states "the Company's limit of liability for all

losses *** shall not exceed *** (b) the amount necessary to repair

the damaged property." Illinois case law that has held that policy

language is meant to express the intention of the parties compels

this court to find that the "amount necessary" refers to the amount

the insurer must spend to repair the vehicle, not the amount the

insured decides to spend. Indeed, such an open-ended clause would,

as defendant argues, benefit only the high-rate body shops. See

Chick's Auto Body v. State Farm Mutual Automobile Insurance Co., 168

N.J. Super. 68, 401 A.2d 722 (N.J. Super. L. 1979) (the practice of

insurance companies to calculate reimbursement of insureds based

upon lowest prevailing price in marketplace (and to insure integrity

of that estimate by having an open list of competing shops which

will generally accept it) is the very essence of competition). In

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fact, with the Mockmore rule in effect, compelling all insurers to

assume all liability for repairs made at body shops they chose, it

is unclear how the policy interpretation plaintiff is arguing for

would protect insureds at all. See Williams v. Farm Bureau Mutual

Insurance Co. of Missouri, 299 S.W.2d 587 (Mo. App. 1957) (if the

insurer's chosen shop performs shoddy work, then the insured is

entitled to damages; no claim, however, arises from mere speculation

that the work promised by insurer would not suffice).

It follows then, if the amount "necessary" to repair the

vehicle is the amount defendant would need to spend to have the

vehicle repaired, then a "reasonable estimate" is one reflecting the

defendant's potential costs, not what the insured would incur if she

were negotiating on her own. Accordingly, we find that "reasonable

estimate" is not an ambiguous term and was not grounds for denial of

summary judgment here.

In Smith, the statute and case law presented by the defendant

supported a successful argument that the policy language at issue

was against public policy. In the instant case, plaintiff has not

provided any such support for her argument. It should also be noted

that, as evidenced by the legislature's decision not to enact House

Bill No. 1502, Illinois has found the very practice defendant

implements in this case to not be against public policy. This is

also illustrated in the Department of Insurance letter to plaintiff

and the instructions posted on the Department of Insurance's

website.

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With respect to section 919.80(d)(6) of the Department of

Insurance Regulations, the record here is clear that defendant

complied with each aspect of the section. Defendant supplied

plaintiff with a copy of its estimate, which can accurately be

considered "reasonable" in light of the analysis above, and provided

plaintiff not only with a list of shops where she could have her

vehicle repaired for the total listed on that estimate but also with

the offer of a free tow and storage.

Accordingly, we find that the trial court correctly interpreted

the policy, that there were no ambiguous terms on which to deny

summary judgment for defendant, and that the policy language was not

against public policy.

DiLisio's Testimony

Plaintiff contends that the trial court abused its discretion

in striking DiLisio's testimony and that the court's own comments

reveal the deficiency in its judgment. Specifically, plaintiff

points to the statement of the trial court that "Mr. DiLisio is

certainly qualified to talk about repair costs, and given an

appropriate amount of homework I suppose he might be qualified to

talk about Chicagoland repair costs." Plaintiff contends that this

statement shows that the perceived deficiencies in DiLisio's

research would have gone only to the weight, not the sufficiency, of

his opinions.

Plaintiff contends that, because the trial court was supposed

to consider all of the evidence of record in determining whether a

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factual controversy existed between the parties, but not weigh the

testimony of one deponent against another or make any credibility

determinations, it abused its discretion in refusing to consider

DiLisio's testimony because of a perceived deficiency in the number

of shops which he called to form his opinion.

Defendant contends that DiLisio's affidavit is irrelevant and

immaterial because it exercised its option to repair plaintiff's car

and, as such, was not bound to any specific rates, but rather only

to repairing her car in a workmanlike manner. Defendant argues that

the trial court properly struck DiLisio's testimony because there

was no factual basis for his opinion. To illustrate its contention,

defendant points out that DiLisio did not randomly select the shops

he called, but rather personally selected shops from an incomplete

list of shops he compiled for unspecified reasons.

In addressing plaintiff's contention that the deficiencies in

DiLisio's testimony should only affect the weight, but not the

admissibility of the evidence, defendant argues that the

qualifications of an expert/opinion witness must be established

before he may give any opinion testimony. In support of its

argument, defendant maintains that DiLisio had no statistical

training and did not claim that his five telephone calls, which

posed only one question to shop owners he already knew, produced any

statistically reliable result. Defendant contends that this

"survey" was flawed, both for its size and for lack of appropriate

questions, and that the trial court did not abuse its discretion by

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striking it.

A ruling on the admissibility of expert testimony will not be

reversed absent an abuse of discretion. Copeland v. Stebco Products

Corp., 316 Ill. App. 3d 932, 937, 738 N.E.2d 199 (2000). Testimony

is irrelevant and properly excluded if it has no legitimate bearing

on any fact or issue in the case. Dial v. City of O'Fallon, 81 Ill.

2d 548, 559, 411 N.E.2d 217 (1980).

Defendant is correct in its argument that the labor rates

charged by West Loop and the shops in its DRP are irrelevant to this

case. As established above, defendant fulfilled its obligation to

plaintiff by making arrangements to repair her car with no expense

to her beyond her deductible. It should be noted that, although the

trial court struck DiLisio's affidavit because it found it to be

based on insufficient facts, we need not address that decision

because the issue of labor rates is irrelevant. The opinion of

DiLisio as to the reasonableness of any labor rates has no bearing

on the central issue of this case and, as a result, there is no need

to analyze either his testimony or the court's striking of his

affidavit. Accordingly, we find that, although the trial court

struck DiLisio's affidavit for a different reason, the court did not

abuse its discretion in striking the affidavit.

Section 155 of the Insurance Code

Plaintiff contends that the trial court abused its discretion

in granting defendant summary judgment on plaintiff's claim under

section 155 of the Insurance Code (Code) (215 ILCS 5-155 (West

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2000)). Plaintiff argues that she presented sufficient facts to

support her claim that defendant acted unreasonably and vexatiously

in the handling of her loss. Plaintiff states again that

defendant's interpretation of the POL provision would "force

policyholders like [her] to either accept less than what they were

due under the policy if they had their vehicles repaired at a body

shop of their choice or to assume the risk of having their vehicles

repaired at body shops selected by the insurer without any

assurance" guaranteeing the success of the repairs. Plaintiff

further contends that defendant denied significant portions of her

claim based on its use of labor rates that it knew did not reflect

the objectively reasonable cost of those services in the

marketplace, but, rather, reflected only the discounted rates it had

negotiated with its DRP shops.

Defendant counters that it did not act unreasonably, as

evidenced by its compliance with the terms of the policy, section

919.80(d)(6) of the Department of Insurance Regulations, and the

Department of Insurance website. Defendant maintains that it

promptly offered to tow and repair plaintiff's vehicle for the

amount of its estimate at any of its DRP shops and that any delay in

processing was due to plaintiff's own refusal to allow defendant to

repair the vehicle. Defendant then notes that it complied with

section 919.80(d)(6) of the Department of Insurance Regulations by

promptly providing plaintiff with the name of a shop that would

honor its estimate. Defendant further argues that, in fact, it

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provided plaintiff with the names of all the shops in its DRP,

including two that were very close.

Defendant also argues that the dispute at issue is a bona fide

coverage dispute and, as such, is not the type of dispute section

155 of the Code is designed to remedy. Defendant notes that

plaintiff has not cited a single case awarding costs and sanctions

under section 155 of the Code where the policy gave the insurer the

option to repair or pay for repairs to an insured's vehicle, the

insured refused the insurer's proffered repair of the vehicle, and

the insurer then promptly paid the insured the cost of the insurer's

repairs.

Section 155 of the Code provides, in pertinent part, for the award of attorney fees in

cases where the insurer caused an unreasonable delay in settling a claim, and it appears to

the court that such action or delay was vexatious and unreasonable. Mobil Oil Corp. v.

Maryland Casualty Co., 288 Ill. App. 3d 743, 751-52, 681 N.E.2d 552 (1997). "A court

should consider the totality of the circumstances when deciding whether an insurer's actions

are vexatious and unreasonable. Factors to consider are the insurer's attitude, whether the

insured was forced to sue to recover, and whether the insured was deprived of the use of

his property. If a bona fide dispute existed regarding the scope of the insurance coverage,

an insurer's delay in settling the claim may not violate section 155." Valdovinos v. Gallant

Insurance Co., 314 Ill. App. 3d 1018, 1021, 733 N.E.2d 886 (2000). "While the question of

whether the insurer's action and delay is vexatious and unreasonable is a factual one, it is a

matter for the discretion of the trial court; the trial court's determination will not be disturbed

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unless an abuse of discretion is demonstrated in the record." Dark v. United States Fidelity

& Guaranty Co., 175 Ill. App. 3d 26, 30-31, 529 N.E.2d 662 (1988).

In Valdovinos, which plaintiff here relies on, the plaintiff

insured was involved in an automobile accident and filed a timely

claim with the defendant, his insurer. Valdovinos, 314 Ill. App. 3d

at 1019. The Valdovinos plaintiff hired an independent appraiser to

estimate the damage to his vehicle and then sent the estimate to the

defendant, who told the plaintiff that it would process the claim.

Valdovinos, 314 Ill. App. 3d at 1019. The defendant then failed to

communicate with the plaintiff for two months despite the

plaintiff's efforts to make contact, including calling the defendant

over 20 times. Valdovinos, 314 Ill. App. 3d at 1019. During these

two months, the plaintiff was forced to borrow money for alternative

transportation and to repair his vehicle. Valdovinos, 314 Ill. App.

3d at 1020. When the defendant finally did communicate with the

plaintiff, it did so by submitting a "counteroffer" that was several

thousand dollars lower than his submitted estimate, with no

explanation for the differing estimate amounts. Valdovinos, 314

Ill. App. 3d at 1022. The plaintiff then was forced to take legal

action, and incur the accompanying expenses and fees. Valdovinos,

314 Ill. App. 3d at 1022. At trial, the trial court awarded the

plaintiff his claimed expenses, but denied his petition for fees and

costs under section 155 of the Code. Valdovinos, 314 Ill. App. 3d at

1019. On appeal, the Valdovinos court reversed, noting the

defendant's delay in processing the claim and its lack of

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communication and finding that there was no bona fide dispute over

the cost of repairs. Valdovinos, 314 Ill. App. 3d at 1022. The

case was then remanded to the trial court with directions to award

the plaintiff fees and costs under section 155 of the Code.

Valdovinos, 314 Ill. App. 3d at 1023.

In contrast to the defendant in Valdovinos, defendant's efforts

at communication in this case were prompt and numerous. It is

undisputed that defendant's representatives spoke with plaintiff on

the telephone at least four times in the first few weeks following

the accident. There is also no evidence that defendant failed to

fully and completely explain the limits of plaintiff's policy to

her. Also, unlike Valdovinos, the amount to be paid on the estimate

was in dispute at all times in this case. Further, there is no

evidence that plaintiff had to initiate a lawsuit just to receive

the benefits of her policy, as the offer to fix her car without

additional cost was made several times. The cost-inducing delay in

this case was not caused by the same type of operational breakdown

apparent in Valdovinos. Whether the delay was caused by defendant's

refusal to pay the rates charged by West Loop or plaintiff's refusal

to allow her car to be repaired at one of defendant's DRP shops, the

dispute can be classified as bona fide. As a bona fide dispute,

then, defendant's delay in "settling the claim," such as it was,

cannot be considered vexatious or unreasonable. Accordingly, we

find that the trial court did not abuse its discretion in denying

the award of attorney fees and costs under section 155 of the Code.

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Class Action Treatment Under Section 155 of the Code

Plaintiff contends that the trial court erred in ruling that

the pleadings precluded class action treatment for the claims

asserted under section 155 of the Code. Plaintiff argues that class

action treatment is proper, and has been shown to be proper by case

law, when an insurer uses an arbitrary and unreasonably low payment

schedule to deny legitimate claims. Plaintiff maintains that

defendant has a regular policy and practice of rejecting all or part

of legitimate physical damage claims without regard to the fees

actually charged by repair shops within the applicable geographic

location. In this case, plaintiff argues, the dominant and

persuasive issue is one of contract interpretation, specifically,

whether defendant breaches its contract with its insureds each time

it purports to pay a physical damage claim in money but limits such

payment to an arbitrary and unreasonable amount based on the use of

discounted labor rates charged by the shops that participate in its

DRP. As such, plaintiff contends that her case is precisely the

type of case that is suitable for class action treatment.

Defendant contends that the trial court's dismissal of

plaintiff's claim for class action relief was proper because that

claim was not supported by either the facts or the law. Defendant

notes that plaintiff's argument that "a number of cases" approve

class action status for claims under section 155, "alleging that an

insurer uses an arbitrary and unreasonably low payment schedule to

deny legitimate claims," is not supported by a single case.

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Defendant further contends that a section 155 class action in this

case would require an examination of all the factors and

considerations that go into automobile damage estimates prepared by

a myriad of body shops and adjusters. Defendant maintains that

common sense and experience show that there are variations in every

estimate and that, were a class action to be granted, the court

would have to hold a trial for each individual claim to determine

the bona fides of both the repair shop's and the adjuster's

estimate. The trial court would also, argues defendant, have to

determine whether the damages claimed from each accident to each

vehicle were legitimate or fraudulent. Such a trial to determine

all of those important issues separately for each individual claim,

defendant contends, would be so unwieldily as to defeat the purpose

of a class action.

"Dismissal of a cause of action on the pleadings is only proper

where it is clearly apparent that plaintiff can prove no set of

facts that would entitle him to recover. In ruling on a motion to

dismiss pursuant to Ill. Rev. Stat. ch. 110, para. 2-615 (1991), the

court must accept as true all well-pleaded facts in the complaint

and all reasonable inferences that can be drawn therefrom. The

court reviews a ruling on a motion to dismiss de novo." Sherman v.

Kraft General Foods Inc., 272 Ill. App. 3d 833, 835-36, 651 N.E.2d

708 (1995). Where a predominant and common question of law or fact

exists, requirement of individual proofs, or multiple claims

requiring separate adjudication, do not bar class actions. Puritt

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v. Allstate Insurance Co., 284 Ill. App. 3d 442, 447, 672 N.E.2d 353

(1996).

In Puritt v. Allstate Ins. Co., 284 Ill. App. 3d 442, 443, 672

N.E.2d 353 (1996), which plaintiff relies on, the plaintiff was an

insured who was injured in an automobile accident and was

dissatisfied with the amount her insurer, the defendant, paid for

her medical expenses. Consequently, the plaintiff filed a lawsuit

for individual and class action relief, alleging that the defendant

implemented a practice of rejecting all or part of legitimate

medical claims by using a payment schedule that was unreasonably low

and arbitrarily set. Puritt, 284 Ill. App. 3d at 443. Prior to

trial, the trial court granted the defendant's motions to dismiss

the complaint, contending that the plaintiffs lacked standing and

that the action was not proper for class certification. Puritt, 284

Ill. App. 3d at 443. In making its decision, the trial court relied

on case law that found class actions inappropriate for purported

classes that were dependent on "intervening factors," i.e., a group

of insureds cannot be a class simply because they "may" get into an

accident and be denied coverage. Puritt, 284 Ill. App. 3d at 447.

On appeal, the Puritt court found that the trial court erred

and defined the purported class as consisting of the defendant's

insureds who had been involved in an automobile accident, were

injured, received medical treatment for which they submitted claims

under the medical payments provisions of their policies, and were

tendered less than the amounts billed based on the defendant's

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alleged policy and practice of depriving its insureds of reasonable

payments on their medical claims. Puritt, 284 Ill. App. 3d at 447.

In vacating the order to dismiss the class action count, the Puritt

court explained that instead of an "intervening factor" class

action, the plaintiff had introduced a "common issue of contract

interpretation." Puritt, 284 Ill. App. 3d at 447. The Puritt court

was deliberate in explaining that it was not deeming a class action

appropriate, but rather that it found that the trial court relied on

the wrong type of cases in making its determination. Puritt, 284

Ill. App. 3d at 447. See also Van Vactor v. Blue Cross Ass'n, 50

Ill. App. 3d 709, 721, 365 N.E.2d 638 (1977) (class action upheld

where allegation was that the insurer violated contracts with the

insureds by denying benefits solely on the ground that it disagreed

with honest judgment of treating doctors on need for medical

services).

Applying the reasoning underlying Puritt and Van Vactor to this

case, then, results in a finding that the only way a class action

could have survived a motion to dismiss is if the class members were

found to be joined by a common issue of contract interpretation and

victims of the "scheme" that plaintiff has alleged defendant

implements. It follows, then, that absent a finding of any

"scheme," there can be no class of victims. In accordance with our

finding that there was no "scheme," we therefore affirm the trial

court's denial of class action treatment of plaintiff's claim under

section 155 of the Code.

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CONCLUSION

For the reasons stated, we affirm the judgment of the circuit

court of Cook County.

Affirmed.

GORDON and McBRIDE, JJ., concur.

44