Country Mutural Insurance Company v. Carr

NO. 4-05-0796 Filed: 7/14/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

COUNTRY MUTUAL INSURANCE COMPANY, ) Appeal from
Plaintiff, ) Circuit Court of
v. ) Piatt County
STEVE CARR, d/b/a CARR CONSTRUCTION; ) No. 04L15
JON SEEVERS; SEEVERS FARM DRAINAGE, )
INC.; RUTH ROLLINGS; and DANA BOWYER, )
Defendants, )
and )
STEVE CARR, d/b/a CARR CONSTRUCTION, )
Defendant and Third-Party )
Plaintiff-Appellant, )
v. ) Honorable
HAROLD VOGELZANG, ) John P. Shonkwiler,
Third-Party Defendant-Appellee. ) Judge Presiding.
_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

Steve Carr, d/b/a Carr Construction, purchased a com-

mercial general liability insurance policy issued by Country

Mutual Insurance Company (Country Mutual) from Harold Vogelzang.

After Carr purchased the policy, he was sued for alleged damage

to a home he constructed; the allegations claimed Carr placed

inappropriate backfill in and around the residence's basement

walls and then operated heavy equipment near those walls, causing

damage to those walls. Carr filed a claim with Country Mutual

for the defense of that lawsuit. Country Mutual followed by

filing a declaratory-judgment action, in which it asserted it

owed no duty to indemnify or defend Carr in the lawsuit, as the

property damage was caused by his own work which was excluded

from the commercial general liability coverage.
 In May 2005, Carr filed his amended third-party com-

plaint against Vogelzang. In his complaint, Carr alleged

Vogelzang breached the statutory duty to provide ordinary care in

selling and procuring insurance (see 735 ILCS 5/2-2201(a) (West

1998)). On August 31, 2005, the trial court dismissed with prej-

udice the negligence counts of Carr's third-party complaint, upon

finding Vogelzang owed Carr no duty and the Moorman doctrine

barred those claims.

Carr appeals and argues (1) he stated a claim for neg-

ligence because section 2-2201(a) of the Code of Civil Procedure

(Code) (735 ILCS 5/2-2201(a) (West 1998)) required Vogelzang to

exercise ordinary care in procuring the insurance policy Carr

requested, and (2) the Moorman doctrine (Moorman Manufacturing
Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982))

does not apply. We agree with Carr and reverse and remand.

I. BACKGROUND

On an unspecified date, Carr, d/b/a Carr Construction,

filed an insurance claim with Country Mutual. Carr's claim

sought coverage for a lawsuit filed against Carr "for damages

alleged to have occurred to property during [Carr's] work at"

that property. Country Mutual denied coverage of the claim. On

May 7, 2004, Country Mutual filed a declaratory-judgment action,

seeking a court ruling it had no duty under the policy to defend

or indemnify Carr.

In response, Carr filed a counterclaim against Country

Mutual, asserting Country Mutual was responsible for the actions

of its agent and employee, Vogelzang. Specifically, the counter-

claim asserted Vogelzang improperly procured an insurance policy

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that did not cover the risks Carr sought to protect against. In

May 2005, Carr filed an amended third-party complaint against

Vogelzang. This complaint asserted two counts of negligence

based on a statutory duty and one count of breach of contract.

The breach-of-contract claim, count III, is not at issue on ap-

peal.

In count I, Carr alleged Vogelzang was an agent of

Country Mutual. According to count I, Vogelzang "held himself

out as a qualified insurance agent for Country" Mutual and pro-
cured insurance policies from Country Mutual to the general pub-

lic. Carr purchased a business policy from Vogelzang for "lia-

bility coverage relative to jobs performed by him in his

construction business." Vogelzang told Carr the "policy issued

would provide general and complete coverage for all matters and

usual, customary, and obvious risks associated with being a gen-

eral contractor." The complaint asserted, under section 2-

2201(a), Vogelzang owed Carr the duty of exercising ordinary

care, competence, and skill in procuring insurance coverage.

Vogelzang breached this duty by issuing Carr a policy that did
not provide general and complete coverage for "the most obvious

risks associated with being a general contractor." As a result

of the breach, Country Mutual denied Carr coverage.

In count II, Carr alleged a second count of negligence

based on a statutory duty of care. In this count, the allega-

tions were the same as in count I, except Carr alleged Vogelzang

was an independent insurance agent or broker.

In June 2005, Vogelzang moved to dismiss counts I and

II pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West

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2004)). In his motion, Vogelzang argued count I of the complaint

alleges Vogelzang was Country Mutual's agent. As an agent of

Country Mutual, according to Vogelzang, Vogelzang owed a duty of

care only to the insurance company--not to Carr. Vogelzang ar-

gued that count II states he was an independent insurance agent

or broker. Vogelzang disputed this legal conclusion by attaching

exhibits to show he was an agent of Country Mutual. Vogelzang

further argued both counts were barred by the Moorman doctrine.

In August 2005, the trial court dismissed counts I and

II with prejudice. The court concluded Vogelzang owed no duty to

Carr and the Moorman doctrine barred the negligence claims. This

appeal followed.

II. ANALYSIS

A. The Propriety of the Section 2-619 Motion To Dismiss

On appeal, Carr first argues Vogelzang improperly moved

to dismiss count I under section 2-619 of the Code (735 ILCS 5/2-

619 (West 2004)). Carr contends because Vogelzang argues the

allegations do not give rise to a claim, the motion to dismiss

count I on this ground should have been brought under section 2-

615 (735 ILCS 5/2-615 (West 2004)). In response, Vogelzang con-

tends he properly filed the claim under section 2-619 and, in the

alternative, if he did not, Carr suffered no prejudice by the

improper designation.

A section 2-615(a) motion to dismiss "tests the legal

sufficiency of the plaintiff's claim, while a motion to dismiss

under section 2-619(a) [citation] admits the legal sufficiency of

the plaintiff's claim, but asserts certain defects or defenses

outside the pleading which defeat the claim." Wallace v. Smyth,

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203 Ill. 2d 441, 447, 786 N.E.2d 980, 984 (2002). Vogelzang's

motion to dismiss, as a whole, touches on both section 2-615 and

section 2-619. As to count I, Vogelzang asserts Carr did not

state a claim for negligence in that the facts do not establish a

duty. Vogelzang is not asserting Carr sufficiently pleaded neg-

ligence, including a duty, but that negligence is defeated by a

certain defect or defense. Vogelzang=s argument should have been

brought under section 2-615.

As to count II, Vogelzang does not dispute the legal

sufficiency of the claim but emphasizes affirmative matters out-

side of the record to defeat the claim. Vogelzang contends Carr

improperly pleaded him to be an insurance broker. To support his

claim, Vogelzang attached exhibits. This is a section 2-619

argument. See Wallace, 203 Ill. 2d at 447, 786 N.E.2d at 984.

Moreover, Vogelzang's argument that both of Carr's claims are

barred by the Moorman doctrine was properly brought under section

2-619. As to the Moorman doctrine, Vogelzang asserts even if

Carr stated a claim, that claim is barred by an affirmative mat-

ter, the Moorman doctrine.
Vogelzang's error does not require a reversal. Carr

has not argued nor does the record establish Carr was prejudiced

by the improper designation. See Wallace, 203 Ill. 2d at 447,

786 N.E.2d at 984.

B. Section 2-2201(a)

We turn now to Carr=s argument the third-party

complaint stated a claim of negligence. Carr argues count I

alleges Vogelzang owed him a duty of ordinary care in procuring

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an insurance policy for his business. While Carr agrees the

common law did not recognize a duty between an insurance agent

and an insured, he maintains the legislature created a statutory

duty in section 2-2201(a) (735 ILCS 5/2-2201(a) (West 1998)) that

requires insurance agents to act with ordinary care in procuring

insurance policies for their customers. Carr, however, concedes

he could not find any published case since the enactment of sec-

tion 2-2201(a) that supports his claim.

Vogelzang contends he owed no duty to Carr. Vogelzang
does not dispute the language of section 2-2201(a) but asserts

that since its enactment, no case has held as Carr suggests.

Moreover, Vogelzang cites four cases that postdate 1997 that, he

alleges, held insurance agents owe no duty to the insureds in

procuring adequate insurance: Moore v. Johnson County Farm Bu-

reau, 343 Ill. App. 3d 581, 585, 798 N.E.2d 790, 793 (2003);

Pekin Life Insurance Co. v. Schmid Family Irrevocable Trust, 359

Ill. App. 3d 674, 834 N.E.2d 531 (2005); AYH Holdings, Inc. v.

Avreco, Inc., 357 Ill. App. 3d 17, 826 N.E.2d 1111 (2005); and

Young v. Allstate Insurance Co., 351 Ill. App. 3d 151, 812 N.E.2d
741 (2004).

We review de novo a trial court=s decision to dismiss a

complaint under section 2-615. Malcome v. Toledo, Peoria & West-

ern Ry. Corp., 349 Ill. App. 3d 1005, 1006, 811 N.E.2d 1199, 1201

(2004). We will affirm the dismissal only when, upon considering

the allegations in the light most favorable to the nonmovant, it

is clear no set of facts can be proved to entitle the nonmovant

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to relief. Malcome, 349 Ill. App. 3d at 1006, 811 N.E.2d at

1201.

Historically, Illinois treated insurance brokers, or

agents of the insured, differently than it treated insurance

agents, or agents of the insurer. See Browder v. Hanley Dawson

Cadillac Co., 62 Ill. App. 3d 623, 629, 379 N.E.2d 1206, 1210

(1978) ("An insurance broker is distinguished from an insurance

agent in that he is not permanently employed by any principal,

but holds himself out to employment by the public"). The dis-

tinction was significant in that it affected tort liability:

"Whereas the insured's agent or broker has a

duty of care, competence, and skill in per-

forming all aspects of the insurance transac-

tion, no such duty is imposed upon the in-

surer's agent regarding its duties toward a

customer of the insurer." Bellmer v. Charter
Security Life Insurance Co., 105 Ill. App. 3d

234, 239, 433 N.E.2d 1362, 1366 (1982).

In 1996, the General Assembly enacted section 2-2201 of

the Civil Practice Law, which addressed liability of insurance

producers in the placement of insurance. See Pub. Act 89-638,

'5, eff. January 1, 1997 (1996 Ill. Laws 3361, 3361) (adding 735

ILCS 5/2-2201 (West 1998)). Carr's claims hinge on the interpre-

tation of section 2-2201.

When interpreting a statute, the goal of this court is

to ascertain the legislature's intent. Department of Public Aid
ex rel. Schmid v. Williams, 336 Ill. App. 3d 553, 556, 784 N.E.2d

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416, 418 (2003). To achieve this goal, we begin with the lan-

guage of the statute, which is "the surest indicator" of legisla-

tive intent. Williams, 336 Ill. App. 3d at 556, 784 N.E.2d at

418. In interpreting the statute's language, we are limited to

the language before us and may not "'depart from the plain mean-

ing'" of those words. Williams, 336 Ill. App. 3d at 556, 784

N.E.2d at 418, quoting In re Marriage of Beyer, 324 Ill. App. 3d

305, 310, 753 N.E.2d 1032, 1036 (2001).

Section 2-2201(a) states the following:

"An insurance producer, registered firm,

and limited insurance representative shall

exercise ordinary care and skill in renewing,

procuring, binding, or placing the coverage

requested by the insured or proposed

insured." 735 ILCS 5/2-2201(a) (West 1998).

Section 2-2201 does not define "insurance producer."

The term, however, is defined by the Illinois Insurance Code as

"a person required to be licensed under the laws of this State to

sell, solicit, or negotiate insurance." 215 ILCS 5/500-10 (West

2002).

A plain reading of the statute, combined with section

500-10, is that any "person required to be licensed *** to sell,

solicit, or negotiate insurance" had a duty to "exercise ordinary

care" in procuring insurance. We find no distinction in either

of these sections between an insurance agent or an insurance

broker.

Vogelzang neither disputes the plain language of sec-

tion 2-2201 or section 500-10, nor attempts to explain the plain

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meaning of the text. Instead, Vogelzang emphasizes the case law

existing before the effective date of section 2-2201(a) and ar-

gues no case since its inception has found section 2-2201(a)

creates a duty. Vogelzang cites four decisions that, he

contends, held insurance agents owed no duty to their customers.

The four post-section 2-2201(a) cases Vogelzang cites,

however, are distinguishable. Neither Pekin Life Insurance, 359

Ill. App. 3d at 676-84, 834 N.E.2d at 532-39, AYH Holdings, 357

Ill. App. 3d 17, 826 N.E.2d 1111, nor Young, 351 Ill. App. 3d at

153-72, 812 N.E.2d at 745-59, addresses section 2-2201(a). In-

terestingly, in AYH Holdings and in Young, the insurance at issue
was sold and procured before the January 1, 1997, effective date

of section 2-2201(a). See AYH Holdings, 357 Ill. App. 3d at 19-

20, 826 N.E.2d at 1115; see Young, 351 Ill. App. 3d at 154, 812

N.E.2d at 745.

Moreover, in Moore, while the dissent discussed section

2-2201(a), the majority did not consider this section. In Moore,

the plaintiffs were involved in an automobile collision with a

tractor insured by Country Mutual. See Moore, 343 Ill. App. 3d
at 582-83, 798 N.E.2d at 791. Because others not named in the

suit were believed to have also suffered injuries, Country Mutual

began an interpleader action and deposited an amount equal to its

policy limits. The court found the actual damages exceeded the

deposit and distributed the funds. See Moore, 343 Ill. App. 3d

at 583, 798 N.E.2d at 791-92. Plaintiffs later filed suit

against Country Mutual. In their complaint, plaintiffs asserted

Country Mutual failed to procure "'the proper type and amount of

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insurance coverage'" for the type of business done. Moore, 343

Ill. App. 3d at 583, 798 N.E.2d at 792.

The Moore plaintiffs urged the court to find no ratio-

nal basis for distinguishing between agents and brokers. Country

Mutual responded it had no duty to provide "adequate" insurance.

Moore, 343 Ill. App. 3d at 584-85, 798 N.E.2d at 793. The

majority did not consider section 2-2201(a). Instead, the court

construed plaintiffs' claim as one alleging a duty to provide

adequate insurance. The court found "Country Mutual owed no duty

to the insured to determine what would constitute 'adequate'

insurance coverage and to provide coverage in that amount."

Moore, 343 Ill. App. 3d at 586, 798 N.E.2d at 794.
The dissent disagreed, not by concluding an insurance

producer is under a duty to provide adequate coverage, but upon

finding the complaint could be read as asserting a duty to pro-

vide the coverage requested. See Moore, 343 Ill. App. 3d at 588,

798 N.E.2d at 795-96 (Goldenhersh, J., dissenting). The dissent-

ing justice focused on section 2-2201(a) and concluded the sec-

tion allowed a claim that the insurance producer failed to pro-

vide the insurance requested. See Moore, 343 Ill. App. 3d at
587, 798 N.E.2d at 795 (Goldenhersh, J., dissenting).

Moore is distinguishable. Unlike Moore, this case does

not deal with "inadequate" insurance. Carr did not have inade-

quate insurance such that the coverage applied but the dollar

amount of that coverage was insufficient to pay for all damages.

Instead, a fair reading of the complaint is Carr was denied all

coverage and Carr pleaded Vogelzang breached the duty to procure

the type of insurance necessary to cover the activities of his

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business. The Moore court did not hold, as Vogelzang contends,

an insurance producer has no duty to provide the type of insur-

ance coverage requested. The majority simply construed the com-

plaint as one asserting the coverage applied to the incident but

provided less money than necessary to cover the damages. See

Moore, 343 Ill. App. 3d at 586, 798 N.E.2d at 794.

The failure of the majority in Moore to analyze section

2-2201(a) is troubling. With no reference to the plain language

of section 2-2201(a), Moore concluded "Illinois law recognizes a

distinction between brokers and captive agents" by finding bro-

kers had "a duty to procure adequate insurance," but "captive

agents" did not. See Moore, 343 Ill. App. 3d at 585, 798 N.E.2d
at 793.

Further supporting Carr's argument section 2-2201(a)

creates a duty of care for insurance agents are the sections that

follow. Section 2-2201(d) anticipates negligence actions against

"insurance producers":

"(d) While limiting the scope of liabil-

ity of an insurance producer, *** the provi-

sions of this [s]ection do not limit or re-

lease an insurance producer *** from liabil-

ity for negligence concerning the sale,

placement, procurement, renewal, binding,

cancellation of, or failure to procure any

policy of insurance." 735 ILCS 5/2-2201(d)

(West 1998).

In addition, section 2-2201(b) removes the common-law basis for

distinguishing between insurance brokers, who owed a fiduciary

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duty to their customers (see Kanter v. Deitelbaum, 271 Ill. App.

3d 750, 755, 648 N.E.2d 1137, 1140 (1995)), and insurance agents,

who owed the fiduciary duty to the insurers (see Economy Fire &

Casualty Co. v. Bassett, 170 Ill. App. 3d 765, 771, 525 N.E.2d

539, 543 (1988)), by barring breach-of-fiduciary-duty claims

against insurance producers:

"No cause of action brought by any per-

son or entity against any insurance producer

*** concerning the sale, placement, procure-

ment, renewal, binding, cancellation of, or

failure to procure any policy of insurance

shall subject the insurance producer *** to

civil liability under standards governing the

conduct of a fiduciary or a fiduciary rela-

tionship except when the conduct upon which

the cause of action is based involves the

wrongful retention or misappropriation by the

insurance producer *** of any money that was

received as premiums, as a premium deposit,

or as payment of a claim." 735 ILCS 5/2-

2201(b) (West 1998).

Accordingly, we hold section 2-2201(a) places a duty on

insurance producers, including brokers and agents, to act with

ordinary care in procuring insurance for insureds.

We further hold Carr's third-party complaint stated a

claim for breach of the duty created in section 2-2201(a). Ac-

cording to the complaint, Carr sought an insurance policy from

Vogelzang that would cover the jobs he performed in his construc-

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tion business, and Vogelzang told Carr he sold him a policy that

would do so. The complaint further alleges Vogelzang breached

his duty of ordinary care by issuing Carr a policy that did not

provide general coverage for "the most obvious risks associated

with being a general contractor," and as a result of the breach,

Country Mutual denied Carr coverage of a claim arising from

Carr's work on a property. As to count II, Vogelzang moved to

dismiss that count by challenging Carr's designation of him as an

insurance broker and then by asserting Vogelzang, as an insurance
agent, owed Carr no duty of care. As we stated above, this was

properly designated as a section 2-619 argument.

A trial court may dismiss a complaint under section 2-

619(a)(9) "when the asserted claim is barred by other affirmative

matter that defeats the claim or voids its legal effect." Turner

v. Fletcher, 302 Ill. App. 3d 1051, 1055, 706 N.E.2d 514, 517

(1999). On appeal, we review de novo a dismissal under section

2-619 to ascertain "whether a genuine issue of material fact

exists and whether the defendant is entitled to judgment as a

matter of law." Saichek v. Lupa, 204 Ill. 2d 127, 134, 787
N.E.2d 827, 832 (2003).

Carr emphasizes a factual dispute exists over whether

Vogelzang is properly characterized as an insurance broker.

While Vogelzang relied on an agent's agreement to show he was an

agent of Country Mutual, Carr points to other language within

Vogelzang's attachments that describes Vogelzang as an "independ-

ent contractor." Carr further stresses Country Mutual denied

Carr's allegation in his counterclaim that Vogelzang was an agent

or employee of Country Mutual.

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 The factual dispute is not dispositive of the issue

because it is not over a material fact. It is irrelevant whether

Vogelzang is an agent or a broker under section 2-2201(a). Both

fall within the definition of insurance producer, a conclusion

Vogelzang does not dispute. Because both are insurance produc-

ers, both brokers and agents owe the duty of care set forth in

section 2-2201(a). We find dismissal of count II on this ground

inappropriate.

C. The Moorman Doctrine

Carr next argues the trial court erred in finding

counts I and II barred by the Moorman doctrine. Carr contends

the Moorman doctrine does not apply for two reasons. First, Carr

maintains because Vogelzang's duty to him arises by statute, it

is an extracontractual duty to which the Moorman doctrine does

not apply. In the alternative, Carr contends the fraudulent-

misrepresentation exception to the Moorman doctrine applies.

Vogelzang argues the court properly concluded the

Moorman doctrine bars Carr's claims. Vogelzang responds to

Carr's arguments by asserting he owed no duty to Carr and by

contending, under First Midwest Bank, N.A. v. Stewart Title Guar-
anty Co., 218 Ill. 2d 326, 843 N.E.2d 327 (2006), the fraudulent-

misrepresentation exception to the Moorman doctrine is inapplica-

ble because Vogelzang is not in the business of supplying infor-

mation.

The economic-loss doctrine, or Moorman doctrine, has
its Illinois roots in Moorman, 91 Ill. 2d 69, 435 N.E.2d 443. In

Moorman, the plaintiff sued to recover damages under various tort

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causes of action resulting from "an alleged crack in a grain-

storage tank." Moorman, 91 Ill. 2d at 72, 435 N.E.2d at 444.

The Supreme Court of Illinois reasoned the plaintiff could not

recover under the tort theories upon finding "at common law,

purely economic loss was generally not recoverable in tort."

First Midwest Bank, 218 Ill. 2d at 337, 843 N.E.2d at 333, citing

Moorman, 91 Ill. 2d at 81, 435 N.E.2d at 448. The court

concluded that contract law, protecting expectation interests,

provided "'the proper standard when a qualitative defect [was]

involved.'" First Midwest Bank, 218 Ill. 2d at 337, 843 N.E.2d
at 333, quoting Moorman, 91 Ill. 2d at 81, 435 N.E.2d at 448.

The Moorman doctrine, however, does not apply when a

duty arises that is extracontractual. See Congregation of the

Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d

137, 162, 636 N.E.2d 503, 514 (1994) ("Where a duty arises out-

side of the contract, the economic[-]loss doctrine does not pro-

hibit recovery in tort for the negligent breach of that duty").

For instance, in Kanter, the First District rejected the argument

the Moorman doctrine barred a claim against an insurance broker
who failed to procure the health-insurance coverage as agreed.

Kanter, 271 Ill. App. 3d at 754-55, 648 N.E.2d at 1140. The

court reasoned the broker, who had a fiduciary duty to the in-

sured, had a duty that arose outside the contract. Kanter, 271

Ill. App. 3d at 755, 648 N.E.2d at 1140. While it is true Kanter

was decided before the effective date of section 2-2201(a), its

analysis is consistent with our earlier holding because section

2-2201 removed the broker-agent distinction in this context.

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 Vogelzang does not dispute the proposition the Moorman

doctrine does not apply when an extracontractual duty is present.

Vogelzang contends he owed no extracontractual duty to Carr. As

we determined above, that proposition is incorrect.

For this reason, too, Vogelzang's and the trial court's

reliance on Nielsen v. United Services Automobile Ass'n, 244 Ill.

App. 3d 658, 612 N.E.2d 526 (1993), is misplaced. In Nielsen,

the plaintiffs purchased $40,000 in fire-insurance coverage from

the insurer. When a fire destroyed the plaintiffs' home, plain-

tiffs learned they were underinsured. Nielsen, 244 Ill. App. 3d
at 660-61, 612 N.E.2d at 528. In their amended complaint, the

plaintiffs sued their insurer, alleging, in part, the insurer,

"as the vendor of fire insurance to plaintiffs," had a common-law

duty to sell only full coverage to the plaintiffs. Nielsen, 244

Ill. App. 3d at 666, 612 N.E.2d at 531-32. The trial court dis-

missed the plaintiffs' complaint upon finding no duty to support

the negligence claim. Nielsen, 244 Ill. App. 3d at 666, 612

N.E.2d at 532.

The appellate court agreed. The court did so upon

recognizing Illinois case law that found insurers have "an im-

plied duty of good faith and fair dealing with respect to an

insured. [Citation.] But this duty does not include the burden

of reviewing the adequacy of an insured's policy when the policy

is renewed." Nielsen, 244 Ill. App. 3d at 667, 612 N.E.2d at

532.

In dicta, the court then considered whether the Moorman
doctrine barred the plaintiffs' negligence claim. Nielsen, 244

Ill. App. 3d at 667, 612 N.E.2d at 532. The court found, "[t]he

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Moorman doctrine applies in this case precisely because count V

of plaintiffs' complaint was rooted in disappointed contractual

expectations even though count V sounded in negligence." Niel-

sen, 244 Ill. App. 3d at 668, 612 N.E.2d at 533.

Before finding the Moorman doctrine barred the Nielson

plaintiffs' claims, the court already determined the insurer owed

the plaintiffs no extracontractual duty to ascertain the amount

of insurance coverage needed. Nielsen, 244 Ill. App. 3d at 668,

612 N.E.2d at 533. Because Vogelzang owed Carr an

extracontractual duty, as legislated in section 2-2201(a), the

Moorman doctrine does not bar Carr's tort-based claim. To rule

otherwise would be to render ineffective not only section 2-

2201(a), but also section 2-2201(d), which expressly provides for

negligence actions against insurance producers.

We conclude Vogelzang owed Carr a duty of care in pro-

curing insurance. We find that duty is extracontractual and the

Moorman doctrine does not prohibit Carr's claim. We need not

determine whether the fraudulent-misrepresentation exception to

the Moorman doctrine applies.
III. CONCLUSION

We reverse the trial court's order dismissing counts I

and II with prejudice and remand for further proceedings.

Reversed and remanded.

TURNER, P.J., and MYERSCOUGH, J., concur.

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