Compton v. Country Mutual Insurance

SECOND DIVISION
Date Filed: April 29, 2008

NO. 1-06-2994

RICKY D. COMPTON, on Behalf of ) Appeal from the
Himself and All Others Similarly ) Circuit Court of
Situated, ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. O5 CH 3207
)
COUNTRY MUTUAL INSURANCE COMPANY, ) Honorable
) Peter Flynn,
Defendant-Appellee. ) Judge Presiding.

JUSTICE HALL delivered the opinion of the court:

The plaintiff, Ricky Compton, filed an action against the

defendant, Country Mutual Insurance Company (Country Mutual), for

declaratory judgment, breach of contract and consumer fraud on

behalf of himself and similarly situated individuals. In his

complaint, the plaintiff maintained that Country Mutual's

practice of placing liens on insurance proceeds due insureds

breached its contract of insurance with its insureds and violated

the Consumer Fraud and Deceptive Business Practices Act (Consumer
Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). The circuit

court dismissed the plaintiff's third amended complaint and

denied leave to amend. The plaintiff filed a timely notice of

appeal.

On appeal, the plaintiff raises the following issues: (1)

whether the circuit court erred when it dismissed the third

amended complaint; (2) whether the circuit court erred when it

refused to vacate the order of dismissal or grant reconsideration
No. 1-06-2994

of the dismissal order; and (3) whether the circuit court erred

when it denied the plaintiff's motion for leave to file an

amended complaint. The pertinent factual allegations are taken

from the plaintiff's third amended complaint.

The plaintiff was insured by Country Mutual. After being

injured in an automobile accident, the plaintiff filed a claim

with the defendant for medical expenses, which Country Mutual

paid, "at least in part." Country Mutual filed a lien with
Founders Insurance Company (Founders), the tortfeasor's insurance

company, "to recover, inter alia, payments it made" to the

plaintiff's medical providers. The plaintiff settled with the

tortfeasor. Pursuant to the settlement, Founders issued a check

payable to the plaintiff, the plaintiff's attorney and Country

Mutual.

On information and belief, the plaintiff alleged that

Founders included Country Mutual on the check because Country

Mutual previously provided it with "a notice of lien on payments

received by Plaintiff for, inter alia, subrogation for [Country

Mutual's] medical payments on [the plaintiff's] behalf." The

plaintiff further alleged that Country Mutual refused to

extinguish the lien, denying the plaintiff access to funds to

which he was entitled.

Attached to the third amended complaint were the following

exhibits: a copy of the check from Founders, dated August 15,

2004, in the amount of $1,050 and payable to the plaintiff, his

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attorney and Country Mutual; a copy of a December 18, 2002,

letter from Tim Woollen, Country Mutual's claims specialist, to

Founders seeking recovery of $2,391.70 paid out by Country Mutual

for property damage related to the plaintiff's accident; and

certain provisions of Country Mutual's insurance policy. The

language of the plaintiff's policy with Country Mutual at issue

here is as follows:

"9. Our Right to Recover Payment (Subrogation).

a. If we make a payment under this policy, other

than Death Benefit, Coverage C-1, and the person to or

from whom payment was made has a right to recover

damages, we will be subrogated to that right (have that

right transferred to us). That person must do whatever

is necessary to enable us to exercise our rights and

must do nothing after the loss to prejudice our rights.

b. If we make a payment under this policy, other

than Death Benefit, Coverage C-1, and the person to or

for whom payment was made recovers damages from

another, that person must hold the proceeds of the

recovery in trust for us and must reimburse us to the

extent of our payment." (Emphasis in original.)

The plaintiff maintained that the above language did not

authorize Country Mutual to place liens on the proceeds due the

plaintiff and other policyholders because "it is only subrogated

to the right to recover medical payments from a person 'to whom

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or from whom' it made the payment." The plaintiff sought a

declaration that Country Mutual's practice of imposing liens on

proceeds due its insureds improperly prevented the insureds from

receiving the monies due them. The plaintiff further maintained

that Country Mutual's action breached the contract of insurance

because the lien practice was not authorized by the policy.

Finally, the plaintiff maintained that Country Mutual's lien

practice violated the Consumer Fraud Act.
Country Mutual filed a motion to dismiss the third amended

complaint pursuant to section 2-615 of the Code of Civil

Procedure (the Code) (735 ILCS 5/2-615 (West 2004)). Country

Mutual maintained that it exercised its right to reimbursement as

provided for by section 9(b) of the policy, not subrogation under

section 9(a) of the policy as argued by the plaintiff.

Therefore, Country Mutual asserted that the plaintiff failed to

state a cause of action for breach of contract or consumer fraud.

In his response to the motion to dismiss, the plaintiff

argued that section 9(b) did not authorize reimbursement via the

lien procedure utilized by Country Mutual. Under the section 9(b)

reimbursement, if the insured recovered damages, the proceeds

must be held in trust and repaid to the insurer to the extent of

the insurer's payment. The plaintiff reasoned that he could not

recover the damages because Country Mutual's lien "tied up" the

proceeds and prevented him from holding them in trust.

On August 21, 2006, the circuit court dismissed the third

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No. 1-06-2994

amended complaint with prejudice. On September 28, 2006, the

plaintiff filed a combined motion to vacate, or, in the

alternative, to reconsider the dismissal order and for leave to

file an amended complaint. On October 4, 2006, the circuit court

denied the combined motion. This timely appeal followed.

ANALYSIS

I. Section 2-615 Dismissal

A. Standard of Review
The granting of a motion to dismiss pursuant to section 2-

615 of the Code is reviewed under the de novo standard of review.

Carroll v. Faust, 311 Ill. App. 3d 679, 725 N.E.2d 764 (2000).

B. Applicable Principles

A section 2-615 motion to dismiss attacks the legal

sufficiency of the complaint based upon defects appearing on the

face of the complaint. Guinn v. Hoskins Chevrolet, 361 Ill. App.

3d 575, 586, 836 N.E.2d 681 (2005). "When reviewing the

sufficiency of a complaint, the court must accept as true all

well-pleaded facts and all reasonable inferences that can be

drawn from those facts." Guinn, 361 Ill. App. 3d at 586. Legal

and factual conclusions, unsupported by allegations of fact, may

be disregarded. Guinn, 361 Ill. App. 3d at 586. "It is the

court's duty to determine, considering the allegations of the

complaint in the light most favorable to the plaintiffs, whether

the allegations are sufficient to state a cause of action upon

which relief may be granted." Guinn, 361 Ill. App. 3d at 586.

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No. 1-06-2994

"The complaint should not be dismissed unless it is clearly

apparent that the plaintiffs could prove no set of facts that

would entitle them to relief." Guinn, 361 Ill. App. 3d at 586.

C. Discussion

The circuit court's order dismissing the third amended

complaint did not specify its reasoning for the dismissal. While

the plaintiff has included a transcript of the hearing on the

motion to dismiss in the appendix to his brief, the transcript is
not included in the record on appeal and therefore is not

properly before this court. See Carroll, 311 Ill. App. 3d at 683

(attachments to briefs not included in the record are not

properly before the reviewing court and cannot be used to

supplement the record). Nonetheless, both parties agree that the

circuit court dismissed the case based on its finding that the

plaintiff could not prove damages inasmuch as Country Mutual was

entitled to the entire proceeds check issued by Founders.

The plaintiff contends, first, that it was error for the

circuit court to conclude from the exhibits to the third amended

complaint that the plaintiff could not prove damages. He further

contends that at the very least there is a question of fact as to

whether the amount owed to Country Mutual exceeded the proceeds

from Founders.

Both breach of contract actions and violations of the

Consumer Fraud Act require that the plaintiff allege damages.

See Gore v. Indiana Insurance Co., 376 Ill. App. 3d 282, 286, 876

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No. 1-06-2994

N.E.2d 156 (2007) (breach of contract); Guinn, 361 Ill. App. 3d

at 588 (Consumer Fraud Act). In this case, the plaintiff pleaded

that liens were placed against him and that he was deprived of

the use of the proceeds check including the right to earn

interest on the money.

"[E]xhibits attached to a complaint become part of the

pleadings, and factual matters in such exhibits which are at odds

with a complaint's allegations control over those conflicting
allegations." Abbott v. Amoco Oil Co., 249 Ill. App. 3d 774,

778-79, 619 N.E.2d 789 (1993). The complaint acknowledged that

the Country Mutual had paid part of the plaintiff's medical

expenses, though it failed to state an exact figure. Attached to

the third amended complaint was a copy of the Founders' proceeds

check in the amount of $1,050.

Also attached was a copy of a letter from Country Mutual to

Founders. The letter provided in pertinent part as follows:

"You had sent a letter on 11/4/02 to my attention

advising that you were negotiating COUNTRY Mutual Insurance

subrogation interest for the property damages we paid out

with our insureds attorney. *** I would appreciate an

immediate reply regarding our subrogation interest recovery

and settlement of the $2,391.70 in damages we submitted

10/7/02." (Emphasis added.)

According to the letter, the $2,391.70 represented the amount

that Country Mutual had already paid out on the property damage

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No. 1-06-2994

claim. Based on the exhibits to the third amended complaint,

Country Mutual was entitled to reimbursement in excess of the

amount of the Founders' proceeds check and therefore the exhibits

negated the plaintiff's allegations of damages.

The plaintiff argues that the $2,391.70 was for property

damage and therefore should not be considered in calculating

whether Country Mutual was owed any reimbursement from the

Founders' proceeds check. However, section 9(b) of the policy
does not make any distinction between types of damages recovered

in allowing Country Mutual to be reimbursed for payments made on

behalf of its insured.

The plaintiff then argues that section 9(b) did not permit

Country Mutual to exercise its right to reimbursement by

asserting a lien with Founders. He points out that section 9(b)

requires that he hold the proceeds in trust for Country Mutual

and to reimburse Country Mutual. He asserts that the language

does not put the insured on notice that the insurer will place a

lien on the proceeds.

In Pearson v. Stedge, 309 Ill. App. 3d 807, 723 N.E.2d 773

(1999), the insurance policy provided that "'[w]hen a person has

been paid damages by us under this policy and also recovers from

another, the amount recovered from the other will be held by that

person in trust for us and reimbursed to us to the extent of our

payment.'" (Emphasis in original.) Pearson, 309 Ill. App. 3d at

809. The plaintiff settled with the tortfeasor and then moved to

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No. 1-06-2994

adjudicate the medical pay subrogation lien his insurer filed for

the medical expenses the insurer had paid on the plaintiff's

behalf. The trial court agreed with the plaintiff that the

policy did not create a subrogation lien for the medical expenses

paid by the insurer. Pearson, 309 Ill. App. 3d at 808-09.

The reviewing court reversed. After determining that

"damages" included medical expenses, the court concluded that the

reimbursement provision was not ambiguous, and the trial court's
ruling that the policy did not create a subrogation right for the

medical expenses was in error. Pearson, 309 Ill. App. 3d at 810-

11.

Subsequently, in Nesby v. Country Mutual Insurance Co., 346

Ill. App. 3d 564, 805 N.E.2d 241 (2004), the reviewing court

found that the policy reimbursement language, identical to the

policy reimbursement language in the present case, "clearly

states that if the plaintiff recovers from another, Country

Mutual obtains the right to be reimbursed to the extent of its

payment. It is the unambiguous language that controls, not

equitable considerations." Nesby, 346 Ill. App. 3d at 567.

The plaintiff then argues that his third amended complaint

could be read as alleging that Country Mutual asserted its right

to the proceeds based on its subrogation rights under section

9(a) of the policy. The plaintiff points out that, for purposes

of a section 2-615 motion, the circuit court was required to

accept the allegation as true.

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No. 1-06-2994

In Pearson, the court addressed the insurer's alternative

argument, whether the insurer had a right to recover from the

settlement based on the following policy language: "'[i]f any

person to or for whom we make payment under this policy has

rights of recovery from another, those rights are transferred to

us.'" Pearson, 309 Ill. App. 3d at 811. Noting that the

plaintiff had sought reimbursement of his medical expenses in his

suit against the tortfeasor, the court concluded that the "right
to recover the medical costs is, under the plain language of the

subrogation provision in the policy, transferred to [the

insurer]." Pearson, 309 Ill. App. 3d at 811.

The plaintiff relies on Garcia v. Gutierrez, 331 Ill. App.

3d 127, 770 N.E.2d 1227 (2002). In Garcia, William Garcia and

his daughter, Krista, were injured in an automobile accident.

Country Companies, the Garcias' insurer, paid $5,000 to the

medical providers who treated Krista. The Garcias sued the

tortfeasor seeking, inter alia, reimbursement for sums they paid

for Krista's medical expenses. After the Garcias settled with

the tortfeasor, County Companies filed a lien on the proceeds of

Krista's settlement of $55,000, and the Garcias moved to

adjudicate the lien. Ultimately, the circuit court held that

Country Companies had no valid lien on any portion of Krista's

recovery. Garcia, 331 Ill. App. 3d at 128-29.

At issue was the following language from the insurance

policy: "'[i]f we make a payment *** and the person to whom or

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No. 1-06-2994

from whom payment was made *** has a right to recover damages,

Country Companies is subrogated to that right' (emphasis added)."

Garcia, 331 Ill. App. 3d at 130. The reviewing court determined

that the above-quoted language was ambiguous, explaining as

follows:

"The contract language suggests Country Companies'

subrogation rights only attach to parties to whom Country

Companies made payment or from whom payment was made. Such
an interpretation would exclude Country Companies from

subrogating an insured's recovery whenever Country Companies

paid medical providers directly and would contravene the

essence of subrogation. Accordingly, we hold that Country

Companies had no subrogation right to recover for payments

it made for Krista's medical expenses." Garcia, 331 Ill.

App. 3d at 130.

The plaintiff's reliance on Garcia is misplaced. In the

present case, Country Mutual's argument is that it has a right to

reimbursement under section 9(b) whereas the language found

ambiguous in Garcia was the subrogation language in section 9(a).

Unlike section 9(a), section 9(b) states "to or for whom."

Moreover, we do not agree that Country Mutual's assertion of an

interest in the proceeds recovered by the plaintiff via a lien

means that it was exercising its rights exclusively under section

9(a).

Neither Nesby nor Pearson addressed directly whether placing

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No. 1-06-2994

a lien on insurance proceeds as a means to enforce the right of

reimbursement is authorized by the insurance policy. However, in

Pearson, where the insurer had asserted its rights by filing a

medical lien, the reviewing court held that the trial court erred

when it found that the policy did not create a subrogation lien

for medical expenses. Pearson, 309 Ill. App. 3d at 811. While

Nesby does not mention the term "lien," the court noted that

"Country Mutual asserted an interest in the proceeds recovered by
the plaintiff." Nesby, 346 Ill. App. 3d at 566. The term "lien"

is defined as "[a] legal right or interest that a creditor has in

another's property, lasting usu. until a debt or duty that it

secures is satisfied." Black's Law Dictionary 933 (7th ed.

1999). Even assuming that under Garcia County Mutual had no

subrogation lien under section 9(a), guided by the decisions in

Nesby and Pearson, we conclude that Country Mutual's use of a

lien to secure its right to reimbursement was authorized by

section 9(b) of the policy.

Finally, the plaintiff argues that since actual title of

section 9 of the policy is "Our Right to Recover Payment

(Subrogation)" (emphasis in original), both sections 9(a) and

9(b) involve subrogation. We disagree. The two subparagraphs of

section 9 deal with different forms of recovery by Country

Mutual. Section 9(a) specifically refers to subrogation in

connection with the right to recover damages. In contrast,

section 9(b) refers to reimbursement in the situation where the

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insured has recovered damages. Section 9(b) clearly does not

involve subrogation since it does not require Country Mutual to

"step into the shoes of, or be substituted for," its insured (Dix

Mutual Insurance Co. v. LaFramboise, 149 Ill. 2d 314, 319, 597

N.E.2d 622 (1992)) and look to a third party in order to assert

its right to repayment. The construction of section 9 urged by

the plaintiff ignores the principle that a contract should be

construed as a whole and that such construction should be a
natural and reasonable one. Smith v. Allstate Insurance Co., 312

Ill. App. 3d 246, 253, 726 N.E.2d 1 (1999).

We conclude that the third amended complaint was properly

dismissed for failure to state a cause of action in that the

plaintiff failed to plead a viable damages claim. The dismissal

of the third amended complaint was also proper because Country

Mutual's lien against the Founders' proceeds check was authorized

under section 9(b) of the insurance policy. See Guinn, 361 Ill.

App. 3d at 586 (appellate court may affirm on any ground in the

record for which there is a factual basis, regardless of the

trial court's reasoning).

II. Denial of Motion to Vacate or Reconsider

A. Standard of Review

The plaintiff asserts that the standard of review applicable

to the denial of the motion to vacate or reconsider is de novo.

Muhammad v. Muhammad-Rahmah, 363 Ill. App. 3d 407, 415, 844

N.E.2d 49 (2006) (review of the denial of a motion to reconsider

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No. 1-06-2994

based only on the circuit court's application of existing law is

de novo). However, where the denial of a motion to reconsider is

based on new matters, such as additional facts or new arguments

or legal theories that were not presented during the course of

the proceedings leading to the issuance of the order being

challenged, the abuse of discretion standard applies. Muhammad,

363 Ill. App. 3d at 415 (abuse of discretion standard applied

where motion to reconsider was based on a new legal theory).
In his motion to reconsider, the plaintiff alleged that he

could plead facts establishing that the Founders' settlement

check exceeded the amount of Country Mutual's lien. Since the

motion for reconsideration rested on new factual allegations, the

applicable standard of review is abuse of discretion.

B. Discussion

The record on appeal does not contain a transcript of the

hearing on the motion for reconsideration. The circuit court's

October 4, 2006, order provided that "due notice having been

given and the Court having been fully advised in the premises,"

the plaintiff's motion was denied.

The appellant bears the burden of presenting a record that

is adequate for a determination of the issues. In re Estate of

Hayden, 361 Ill. App. 3d 1021, 1030, 838 N.E.2d 93 (2005). "When

a transcript is not included in the record on appeal, the

reviewing court has no basis for holding that a trial court

abused its discretion in denying the motion." Hayden, 361 Ill.

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No. 1-06-2994

App. 3d at 1030. In such cases, unless the record indicates

otherwise, the reviewing court presumes that the trial court

heard sufficient evidence to support its decision. Webster v.

Hartman, 195 Ill. 2d 426, 433, 749 N.E.2d 958 (2001); but see

Muellman-Cohen v. Brak, 361 Ill. App. 3d 52, 836 N.E.2d 678

(2005) (even though the plaintiff failed to provide a transcript,

the court would not presume the trial court's disqualification of

her attorney was in conformance with the law). The record in
this case does not indicate otherwise.

"'The intended purpose of a motion to reconsider is to bring

to the court's attention newly discovered evidence, changes in

the law, or errors in the court's previous application of

existing law.'" North River Insurance Co. v. Grinnell Mutual

Reinsurance Co., 369 Ill. App. 3d 563, 572, 860 N.E.2d 460

(2006), quoting Landeros v. Equity Property & Development, 321

Ill. App. 3d 57, 65, 747 N.E.2d 391 (2001). In his motion to

reconsider, the plaintiff argued that he could allege facts

showing that the Founders' proceeds check exceeded the amount

owed to Country Mutual. However, these "facts" do not qualify as

"newly discovered evidence." Newly discovered evidence is

evidence that was not available prior to the first hearing.

Gardner v. Navistar International Transportation Corp., 213 Ill.

App. 3d 242, 248, 517 N.E.2d 1107 (1991). "Trial courts should

not allow litigants to stand mute, lose a motion, and then

frantically gather material to show that the court erred in its

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No. 1-06-2994

ruling." Gardner, 213 Ill. App. 3d at 248. The plaintiff did

not allege that he was unaware of those facts he proposed to

allege.

Moreover, the plaintiff's argument that the Founders'

proceeds check contains nonliened funds does not protect it from

Country Mutual's reimbursement right. As previously noted, for

purposes of reimbursement under the policy, it made no difference

that the proceeds check was for bodily injury and Country
Mutual's lien was for property damage.

We conclude that the denial of the motion to vacate or to

reconsider was not an abuse of discretion.

III. Denial of Leave to File an Amended Complaint

A. Standard of Review

"Whether to allow an amendment of a complaint is a matter

within the sound discretion of the trial court, and, absent an

abuse of that discretion, the court's determination will not be

overturned on review." Village of Wadsworth v. Kerton, 311 Ill.
App. 3d 829, 842, 726 N.E.2d 156 (2000). "An abuse of discretion

will be found only where no reasonable person would take the view

adopted by the trial court." Keefe-Shea Joint Venture v. City of

Evanston, 364 Ill. App. 3d 48, 61, 845 N.E.2d 689 (2005).

B. Discussion

Section 2-616(a) of the Code (735 ILCS 5/2-616(a)(West

2004)) provides that at any time before final judgment, the court

may permit amendments on just and reasonable terms to enable the

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No. 1-06-2994

plaintiff to sustain the claim brought in the suit. In

considering whether a circuit court abused its discretion in

ruling on a motion for leave to file an amended complaint, the

reviewing court considers the following factors: "(1) whether the

proposed amendment would cure the defective pleading; (2) whether

other parties would sustain prejudice or surprise by virtue of

the proposed amendment; (3) whether the proposed amendment is

timely; and (4) whether previous opportunities to amend the
pleadings could be identified." Loyola Academy v. S & S Roof

Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211 (1992).

Given the broad discretion a trial court exercises in ruling on

motions to amend pleadings prior to final judgment, a court

should not find that the denial of a motion to amend is

prejudicial unless there has been a manifest abuse of discretion.

Loyola Academy, 146 Ill. 2d at 273-74.

The above factors apply to amendments proposed prior to

final judgments. After final judgment, pleadings may be amended

to conform the pleadings to the proof. See 735 ILCS 5/2-616(c)

(West 2004). In this case, the circuit court dismissed the

plaintiff's third amended complaint with prejudice. Where a

complaint is dismissed with prejudice and does not include a

statement allowing the plaintiff leave to amend, an involuntary

dismissal order is final. DeLuna v. Treister, 185 Ill. 2d 565,

573, 708 N.E.2d 340 (1999). Where the trial court's dismissal of

the plaintiff's third amended complaint constituted a final

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No. 1-06-2994

judgment, the plaintiff had no statutory right to amend, and the

court committed no error in denying the plaintiff's postjudgment

motion to vacate/motion for leave to file a fourth amended

complaint. Folkers v. Drott Manufacturing Co., 152 Ill. App. 3d

58, 68, 504 N.E.2d 132 (1987).

The plaintiff's reliance on Ruklick v. Julius Schmid, Inc.,

169 Ill. App. 3d 1098, 523 N.E.2d 1208 (1988), is misplaced.

There the reviewing court acknowledged that once a final judgment
of dismissal with prejudice was entered on the plaintiffs'

complaint, there was no authority under section 2-616 to allow

the amendment of their complaint. However, because the judgment

of dismissal was entered improperly, the court should have

vacated the judgment as the plaintiffs requested, and there then

would have been no impediment to allowing the filing of the

amended complaint. Ruklick, 169 Ill. App. 3d at 1111. In the

present case, no error occurred in the dismissal of the third

amended complaint.

Even if the application of the Loyola Academy factors was

appropriate, review of this issue is hampered by the failure of

the plaintiff to provide a transcript of the proceeding in which

the circuit court denied leave to amend. In the absence of a

transcript, we must assume that the circuit court heard

sufficient evidence to support its decision, unless the record

indicates otherwise. Webster, 195 Ill. 2d at 433. Again, the

record does not so indicate.

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The fourth amended complaint alleged that the plaintiff's

medical expenses were $724.76 and that he settled his bodily

injury claims with the tortfeasor for $1,050. The exhibit

alleging the $2,391.70 in property damage was not included in the

fourth amended complaint. Even in the absence of an allegation

that the amount owed to Country Mutual exceeded the Founders'

proceeds check, since the procedure utilized by Country Mutual to

protect its reimbursement rights did not breach the insurance
contract, the fourth amended complaint did not cure the defective

pleading. See Rudlick, 169 Ill. App. 3d at 111 ("leave to amend

a complaint should be granted unless it is apparent that even

after amendment no cause of action can be stated").

We conclude that the denial of leave to amend was not a

manifest abuse of the circuit court's discretion. Since the

plaintiff was unable to prove his claim, the request for class

certification must fail as well. See Jensen v. Bayer AG, 371

Ill. App. 3d 682, 693, 862 N.E.2d 1092 (2007) (for class

certification, the named representative of a class action must

have a valid cause of action).

The judgment of the circuit court is affirmed.

Affirmed.

SOUTH and KARNEZIS, JJ., concur.

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