dissenting:
I respectfully dissent.
We are to consider, as a matter of law, whether the trial court was correct in granting the defendant’s motion to dismiss. The proper and controlling standard we must follow on review is the standard rather recently recited by Justice Stamos, “A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] *** All well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.” (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) In 1991 Justice Clark said, “and all reasonable inferences therefrom [well-pleaded facts] should be construed in plaintiffs’ favor.” (Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, 111.) Most recently Justice Bilandic repeated the standard in Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314, 318, 597 N.E.2d 622, 624.
I would find that the trial court erred and abused its discretion in granting the motion to dismiss. I find that there were sufficient well-pleaded allegations to withstand the motion even without considering reasonable inferences that may be drawn.
Here the plaintiff filed a 28-page complaint which included allegations that defendant Gilmore as a broker was engaged to procure and did procure a master surety agreement from USF&G for the plaintiffs and their associates. When the relationship between the plaintiffs and their associates ended, the plaintiffs, on April 13, 1984, consulted with defendant Gilmore, notified him that the relationship with the others had terminated and inquired as to what procedural steps were needed to be taken to procure future bonding and bond indemnification solely for the plaintiffs’ company. Two nonparties were in attendance at this most significant meeting, Mr. Larry Mackin and Mr. Denny Rowlette. Dining this meeting, defendant Gilmore contacted USF&G by telephone and inquired about future bonding and bond indemnification for the plaintiffs. Plaintiffs have asserted that as a result of this meeting and the defendants’ affirmative actions the defendants were aware that the plaintiffs would rely upon the defendants to fulfill their fiduciary duties in providing the plaintiffs’ insurance-related needs.
Further, paragraph 22 of the complaint recited that the bonds were procured by defendants for plaintiffs’ former associates more than 30 days subsequent to April 13, 1984. Plaintiffs state that this is contrary to the notice and purpose of the meeting of April 13, 1984, and that the liability of the plaintiffs was the result. Obviously, plaintiffs claim notice to USF&G through defendant broker Gilmore.
At paragraph 18 of the complaint, plaintiffs indicate that they became obligated to finish certain identified construction projects and “that as a result of the aforementioned” suffered financial loss. In the ad damnum, plaintiffs pray for judgment in an amount in excess of $500,000.
Although the posture of this case would suggest that extended discovery has yet to be accomplished, it appears to me that by the plaintiffs’ complaint the defendants have been informed much more than in a general way, by sufficient well-pleaded facts and logical inferences flowing from them to the extent necessary to defeat a motion to dismiss. I would further observe that it does not appear that the trial court was willing to consider any reasonable inferences.
Yet to be determined is whether the defendant broker owed a duty to the plaintiffs given that the case law suggests that a broker is to provide care, skill and diligence under the circumstances presented. Whether proper insurance-related services were provided is the important question to be decided.
As I see it, the trial court’s decision here resulted from the trial court’s failure to infer anything from the allegations of the complaint. As aforesaid, I find that the allegations and reasonable inferences are surficient as a matter of law to state a cause of action for breach of fiduciary duty and breach of contract. In my opinion, the trial court’s failure to draw reasonable inferences to sustain a cause of action at this stage of the pleadings constitutes an abuse of discretion and requires reversal on review.
I would remand this cause with directions to deny the motion to dismiss and allow plaintiffs to proceed with discovery. Obviously, if the facts as developed during discovery fail to sustain the elements of plaintiffs’ cause of action, then a motion for summary judgment may be appropriate. However, at this juncture and tested by the proper standard of review, I do not find that the harsh result of a dismissal is required.