dissenting:
I respectfully dissent. Although an insurer does not have a duty to provide an adequate amount of insurance, an insurance producer still has a duty to exercise ordinary care in providing insurance that is requested by an insured. Section 2 — 2201(a) of the Code of Civil Procedure provides:
“(a) 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 2000).
The majority states that under Illinois law Country Mutual owed no duty to the insured to determine what would constitute “adequate” insurance and to provide coverage in that amount. The cases relied upon by Country Mutual and cited by the majority hold that an insurance agent has no duty to an insured to procure adequate coverage. A review of those cases reveals that the amount of coverage was at issue. See Nielsen v. United Services Automobile Ass’n, 244 Ill. App. 3d 658, 662, 612 N.E.2d 526, 529 (1993) (the fire policy was not for the “ ‘full, fair insurable value’ ” of the plaintiffs residence); Connelly v. Robert J. Riordan & Co., 246 Ill. App. 3d 898, 899, 617 N.E.2d 76, 78 (1993) (the insureds requested and received an amount of coverage comparable to their previous policy); Shults v. Griffin-Rahn Insurance Agency, Inc., 193 Ill. App. 3d 453, 457, 550 N.E.2d 232, 235 (1990) (holding that an agreement calling for a “reasonable amount” of coverage was unenforceable); cf. Friederich v. Board of Education of Community Unit School District No. 304, 59 Ill. App. 3d 79, 84, 375 N.E.2d 141, 146 (1978) (dealt with the duty of the school board, not the insurer).
As the majority’s review of Shults and Nielsen reveals, the policy reasons for not placing a duty on an insurance agent to determine an adequate amount of insurance are twofold. The holding in Shults was due to the vagaries involved in predicting what constitutes a “reasonable amount” and an unwillingness to place a burden on an insurer in light of those vagaries. Shults, 193 Ill. App. 3d at 457, 550 N.E.2d at 235. Nielsen, on the other hand, reveals a reluctance to remove the choice of an amount of coverage from an insured by statutorily requiring full coverage. Nielsen, 244 Ill. App. 3d at 667, 612 N.E.2d at 532.
This does not preclude a claim that the insurer failed to provide “adequate” insurance by not providing insurance as requested by the insured. Neither of these policy concerns arises if the question of “adequate” insurance is not a matter of the amount of coverage but, rather, a matter of whether the insurer provided the type of insurance as requested by the insured. Requiring insurance to be provided as requested by an insured does not invite the vagaries of mandating an “adequate” amount, nor does it limit an insured’s choice. The policy reasons for not placing a duty on an insurance producer or an insurer to provide an “adequate” amount of insurance are not disturbed by placing a duty to provide the requested insurance. See Lewis v. Royal Globe Insurance Co., 170 Ill. App. 3d 516, 521, 524 N.E.2d 1126, 1130 (1988) (discussing how an insurer may be liable for the action of its agent).
If the notion of adequacy refers to what the insured requested, in contrast to a vague concept of an “adequate” amount, the plaintiff states a cause of action. An insurance agent or an insurer does not have a duty to provide an adequate amount to cover what an insured might need. An insurance agent, however, does have a duty to provide insurance that represents what the insured requested.
The plaintiffs’ complaint can be read as stating a claim for the failure to provide requested insurance. To determine whether a cause of action has been stated, the whole complaint must be considered, rather than taking a view of a disconnected part. Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 438, 546 N.E.2d 580, 585 (1989). The complaint describes the Tiltmaster and states that it was used to transport fruit and vegetable produce from St. Louis, Missouri, to Stonefort, Illinois, using Interstate 64 — a trip in excess of 140 miles. According to the complaint, Harold Harper described the Tiltmaster and “the nature of its use” to the agents of Country Mutual and “relied” on them “to get [him] the proper type and amount of insurance coverage for the Tiltmaster and the type of business he was doing.” The Tiltmaster was then involved in an accident on Interstate 64 while Mark Harper was driving it to St. Louis to get produce for the business.
The breach was described as:
“a) failed to procure proper and adequate insurance coverage for a vehicle that carried cargo in interstate traffic in a commercial enterprise.”
Counts IX and X, for negligence, described the duty as one to provide the requested insurance:
“[P]ursuant to the description of the Tiltmaster and its uses by Mr. Harold Harper and/or Mark T. Harper, and his request for proper and adequate coverage and his reliance upon Country Mutual Insurance Company’s agents and/or employees to select and determine proper and adequate coverage and periodic reviews of the coverage and conversations with Mr. Harper about the nature of his business, [Country Mutual] voluntarily assumed a duty to act with due care, competence [,] and skill in the procurement of the insurance policy on the Tiltmaster.”
In counts XI and XII, for breach of contract, the complaint alleges that as a result of the interactions between Country Mutual and the Harpers, they entered into a contract “which required the Defendant to procure a policy of vehicular insurance on the Tiltmaster.” In the context of the facts alleged by the plaintiffs, the complaint is a claim that Country Mutual, through its agents, failed to provide requested insurance.
The trial court dismissed the counts against Country Mutual on the ground that Illinois does not recognize a claim by an insured against an insurer for a failure to provide adequate insurance. In the sense that the insurer has no duty to provide the best available insurance to meet an insured’s need, the trial court was correct. See Nielsen, 244 Ill. App. 3d at 662, 612 N.E.2d at 529; Connelly, 246 Ill. App. 3d at 899, 617 N.E.2d at 78; Shults, 193 Ill. App. 3d at 457, 550 N.E.2d at 235. The plaintiffs’ complaint, however, can be read as alleging that the defendants were negligent and breached a contract by not providing the insurance requested by the insured. This supports a viable cause of action. Thus, the dismissal was premature.
A complaint should be dismissed for the failure to state a claim only when it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Michael Nicholas, Inc. v. Royal Insurance Co. of America, 321 Ill. App. 3d 909, 913, 748 N.E.2d 786, 789 (2001). The cause should not be dismissed unless it clearly appears that no set of facts can be proved that would entitle the plaintiff to relief. Allen v. Berger, 336 Ill. App. 3d 675, 677, 784 N.E.2d 367, 369 (2002). Only one factually sufficient allegation supporting a cause of action is necessary for a count to withstand a motion to dismiss; any other allegations contained in the same count which do not support that cause of action are surplusage which may be stricken on motion, but they do not provide a basis for the dismissal of a pleading. Straub v. City of Mt. Olive, 240 Ill. App. 3d 967, 978, 607 N.E.2d 672, 679 (1993); Johnson v. Town of the City of Evanston, 39 Ill. App. 3d 419, 423, 350 N.E.2d 70, 73 (1976).
Accordingly, I respectfully dissent.