dissenting:
I respectfully dissent. The trial court denied plaintiff’s request for a preliminary injunction because it found no ascertainable right on the part of plaintiff to continue direct billing. It is clear that plaintiff had such a right, as to applications which defendant had accepted, and I would reverse and remand with instructions that the injunction issue.
There is no real dispute as to the facts. Plaintiff is an independent insurance producer who sells defendant’s insurance products to customers in the Champaign area. Since 1976 plaintiff has collected premiums from his customers and remitted those premiums, net of commission, to defendant. This procedure is known as “agency billing.” Plaintiff asserts that his participation in the billing process is important to him in maintaining customer contact and is important to customers in providing policy service — allowing him, for example, to prevent policy lapses or cancellations due to nonpayment of premium. Plaintiff’s involvement also allows him to determine at an early stage whether customers have been furnished the proper policy.
On September 1, 1991, plaintiff and defendant entered into an agency agreement which included a provision that “For premium collection, accounting and payment purposes, the Company shall designate policies as either agency bill or direct bill.” At the time the agreement was entered into, plaintiff made it clear that he expected all policies submitted by him to be designated agency bill. In addendum A to the agreement defendant designated plaintiff as “A Statement Agent,” an agent who engages in a particular type of agency billing. It is clear that defendant originally designated that plaintiff would engage in agency billing under the September 1, 1991, contract, and all policies were in fact so designated for at least two months.
Very quickly after the agency agreement became effective defendant sent a notice to its agents, in November 1991, that it, according to defendant’s brief, intended to “change over all personal lines agency bill policies to a direct bill system, beginning in January 1993.” Plaintiff denies knowledge of this notice until he heard about it from another agent in February 1992. In January 1992, without any prior notice to plaintiff, defendant began to direct bill plaintiff’s customers, who had already been billed by plaintiff. When plaintiff complained, defendant by letter dated February 25, 1992, apologized and stated that it had “profiled the Agency Master File to indicate that you are to remain as an Agency Bill agent and hopefully, you will see nothing come through for your agency other than Agency Bill policies.”
Correspondence was then exchanged regarding whether plaintiff would be allowed to agency bill after January 1, 1993. Plaintiff continued to insist upon agency billing. Defendant refused to change its position. Finally on December 7, 1992, defendant wrote plaintiff it would no longer honor his agency bill status. Plaintiff argues the effective date of notice to him of defendant’s decision was December 7, 1992, and not November 1991 or February 1992, but in my view the date of notice is of no significance.
After February 25, 1992, plaintiff continued to submit new business on applications requesting agency billing. In response defendant usually issued policies indicating agency billing; on some occasions defendant altered the applications by scratching out the request for agency billing and writing in “direct billing.” When plaintiff learned of policies issued which provided other than agency billing he sent in policy change request forms which resulted in defendant reissuing those policies with agency bill designations. Those requests were honored until January 1, 1993, after which time defendant began to direct bill all policies and instructed plaintiff’s customers that premium payments should not be made through the agency.
There is no dispute that for many years the relationship between plaintiff and defendant was one of agency billing. The September 1, 1991, document certainly does not express any agreement that plaintiff’s policies in the future will be direct bill. Nor does the agreement clearly provide that defendant has the absolute right to choose the type of billing. The agreement provides defendant “shall designate” policies as either agency bill or direct bill. The word “shall” does not appear to vest any discretion in defendant, and the word “designate” is not synonymous with “choose.” The language indicates only that defendant shall place appropriate markings on the various policies showing whether they are direct bill or agency bill. Even if the language were interpreted to give defendant the right to choose, there is no language which gives defendant the right to change a choice once made, and under addendum A “The Company designates the Agent as: *** [X] A Statement Agent.”
The Uniform Commercial Code does not apply directly to this case but its provisions provide a useful analogy. (See 810 ILCS 5/1 — 101 et seq. (West 1992).) The years during which plaintiff did agency billing (1976 to September 1, 1991) constitute a course of dealing between the parties which establishes a common basis of understanding for interpreting their expressions and other conduct. (810 ILCS 5/1 — 205(1) (West 1992) .) A course of dealing gives particular meaning to and supplements or qualifies terms of an agreement. (810 ILCS 5/1 — 205(3) (West 1992).) If the parties had intended to abandon their long-standing practice of agency billing by adopting their September 1, 1991, agreement, surely they would have used clearer language than that found in the “shall designate” paragraph. Even after September 1, 1991, a course of performance of agency billing was accepted or acquiesced in without objection by the parties. That course of performance is relevant to determine the meaning of the agreement. (810 ILCS 5/2 — 208(1) (West 1992).) In fact, “The parties themselves know best what they have meant by their words of agreement and their action under that agreement is the best indication of what that meaning was.” (Emphasis added.) (810 ILCS 5/ 2 — 208, Uniform Commercial Code Comment, at 124 (Smith-Hurd 1993) .) Express terms control both course of performance and course of dealing (810 ILCS 5/2 — 208(2) (West 1992)) but there are no express terms in the September 1, 1991, agreement prohibiting plaintiff from agency billing.
The agreement contains a broad provision that:
“This Agreement may be amended by the Company after giving the Agent 90 days advance written notice ***. The amendment is effective after the required notice period, if any, regardless of whether it is signed by the Agent.”
The argument that defendant had the right to make whatever contract changes it wanted to, and that plaintiff was required to accept them, is an amazing one. “An enforceable contract must include a meeting of the minds or mutual assent as to the terms of the contract.” (Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 30, 578 N.E.2d 981, 984, citing Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 313, 515 N.E.2d 61, 65.) An agreement to agree in the future is not an agreement. A contract which one party has complete power to change and bind the other party to is one which no person in his senses would make and which no fair and honest person would accept. See Hartford Fire Insurance Co. v. Architectural Management, Inc. (1990), 194 Ill. App. 3d 110, 116, 550 N.E.2d 1110, 1114.
The only reasonable way to read the amendment provision is that if plaintiff did not agree to any amendments within 90 days (and defendant continued to insist upon them) the contract was terminated. When defendant’s notice to change to direct billing beginning in January 1993 was not agreed to by plaintiff, the existing contract between plaintiff and defendant was terminated. When plaintiff continued to submit additional applications, with insistence upon agency billing, those applications were accepted by defendant on a one-by-one basis, outside the September 1, 1991, agreement. Defendant had no authority to strike language in the applications requesting agency billing and replace those requests with language requesting direct billing. Defendant’s acceptance of the applications had to mirror the terms of the offer before any contract could be made. Defendant’s choice was either to accept the application with its request for agency billing, or to reject the application. Plaintiff has never agreed to direct billing. We should not make a new contract for the parties in which plaintiff agrees to direct billing. See Academy, 144 Ill. 2d at 30-31, 578 N.E.2d at 984.
During oral argument, in response to questioning from the court, defendant’s counsel stated that defendant would be happy for plaintiff to walk away from this agreement. However, defendant would apparently expect plaintiff’s customers to remain behind. One purpose behind section 508.1 of the Code, which authorizes an agent to collect or receive premium payments, is to protect insureds from misappropriation of their premium payments. Another purpose may be to protect local insurance agents from national insurance carriers who seek to divert customer loyalty from the agents to themselves. Certainly defendant could not refuse to accept payments which plaintiff had collected from his customers, nor could defendant require plaintiff to refuse to accept those payments.
Plaintiff possesses a certain and clearly ascertainable interest needing protection. Defendant’s actions threaten plaintiff’s relationship with his customers and therefore the very survival of his business. There is no adequate remedy at law. Once defendant is able to wedge itself between plaintiff and his customers so that the customers look to defendant and not to plaintiff, plaintiff will have suffered an irreparable loss. Plaintiff has a reasonable likelihood of success on the merits. The benefits of granting the injunction outweigh any possible injury to defendant as defendant has been able to live with agency billing for many years. The trial court should issue a preliminary injunction.