specially concurring:
I concur in the majority opinion, except that I disagree with the majority’s observation “In order for plaintiff’s claim against Couch to be worth anything the plaintiff must make a prima facie showing of negligence and establish the amount with a reasonable degree of certainty.” A trial on the merits at this stage is both barred by the statute of limitations and would contravene the policy against direct actions against insurance companies.
I have recently expressed my views on this subject in my dissent to Richardson v. Economy Fire & Casualty Co. (1984), 126 Ill. App. 3d 520, 467 N.E.2d 317, appeal allowed (1984), 101 Ill. 2d 582, in which I stated
“[WJhere the election has been made to seek damages for fraud and deceit, the damages so recoverable are necessarily related to and restricted to those caused by the misrepresentation. The damages recoverable are not those which might have been recovered in an action against the tortfeasor, but only those which are proximately caused by the false misrepresentation.” (126 Ill. App. 3d 520, 527, 467 N.E.2d 317, 323.)
Here, plaintiff has obviously elected to seek damages for common law fraud and deceit rather than asking for a rescission of the settlement agreement and proceeding with a trial of the underlying personal injury claim. Count II of plaintiff’s amended complaint alleges a misrepresentation by the State Farm agent which resulted in settlement of the plaintiff’s claim for less than its full value. As damages for fraud and deception, plaintiff asks for $27,500, the difference between the settlement amount, $72,500, and the amount authorized for settlement of plaintiff’s claim, $100,000. No damages prayed for in the plaintiff’s complaint require a determination of liability, nor is the success of the underlying personal injury claim in any way related to the damages sustained in a common law fraud action based upon the fraudulent procurement of a settlement agreement.
I would have held that the plaintiff need only prove the insurance adjuster induced him to accept a lesser settlement by misrepresenting the facts knowing them to be false. The proper measure of damages is, therefore, as plaintiff’s complaint states, the difference between the value of the settlement at the time the fraud was perpetrated and the actual value of the settlement. The plaintiff’s claim was obviously worth at least $72,500 in the eyes of both parties. The only question is was the settlement diminished by the misrepresentation of the insurance agent? Litigating the underlying personal injury claim to establish liability does nothing to answer this question and is, therefore, both unnecessary and costly to all parties.
I, therefore, cannot agree with the reasoning of the majority in this respect, although I do agree that compensatory damages must be limited to $100,000.