dissenting:
I respectfully dissent from that portion of the majority opinion affirming summary judgment for Allstate as to count II, which is based upon violation of the Uniform Deceptive Trade Practices Act (Uniform Act) (Ill. Rev. Stat. 1983, ch. 1211/2, par. 312). This court consistently has held that to recover under the Uniform Act a plaintiff need not show any actual confusion or misunderstanding; rather, a plaintiff need only allege and prove that the practices complained of created a “likelihood of confusion.” (Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401; Williams v. Bruno Appliance & Furniture Mart, Inc. (1978), 62 Ill. App. 3d 219, 379 N.E.2d 52.) Clearly, at the very least, a genuine issue of material fact exists in this case as to whether the conduct in question created a “likelihood of confusion.”
In order to appreciate how the confusion in this case not only was likely, but rather inevitable and even intentional, it is helpful to review the conduct complained of in its proper context. The record reveals that Allstate decided that effective January 1, 1976, it would no longer offer PIP coverage, which initially had been written in conformity with no-fault principles. This decision was made after Allstate lost a class action suit concerning its offer of PIP coverages on renewals between July 1972 and July 1973. In a memorandum informing its agents of the litigation, Allstate stated: “That decision was against Allstate on a number of grounds, including the judge’s opinion that the Illinois No-Fault Law never went into effect and that we inadequately described the situation to our renewal customers.” The memorandum warned agents that a possible effect of the law suit might be to return part of the PIP premiums already paid, as well as future premiums collected. Therefore, rather than run the risk of refunding PIP premiums until the appeal of the suit was decided, Allstate opted to discontinue PIP and, to avoid losing customers, the company decided to provide alternative coverages beginning in January 1976. Allstate thereafter sent a letter to its PIP policyholders, signed by its associate vice president Raymond H. Kiefer, informing them of the changeover.
Allstate intercompany memoranda further revealed that renewals for the new alternative or “replacement” coverages were running poorly. Consequently in order to boost sagging renewals,1 Allstate apparently decided to take a new marketing approach that used confusing and ambiguous language to convey the erroneous impression that the broad protection the policyholders enjoyed under PIP would be continued under the new alternative coverages. Allstate subsequently sent PIP policyholders a second, stronger and more persuasive letter signed by Kiefer, accompanied by an explanatory pamphlet. It is this second Kiefer letter and the pamphlet, referred to as replacement papers, which form the crux of plaintiffs complaint.
The second letter from Kiefer, unlike his first letter, contained the following heading in large bold print:
“Personal Injury Protection Is Being Discontinued — Here’s How To Replace It!”
The first paragraph of the letter began:
“When your auto policy is renewed, it will no longer provide any medical, wage loss, or death benefits if you are injured in an auto accident unless you select Option 1 on the enclosed form. Here’s why.”
The letter continued in part as follows:
“Personal Injury Protection, which is now included in your policy is being discontinued ***. This could leave a dangerous gap in your protection. That’s why you should seriously consider replacing PIP with the coverage described in the enclosed insert ‘3 Coverages To Replace Personal Injury Protection.’ ” (Emphasis added.)
Kiefer further warned in the letter:
“As you know, hospital costs, physician fees, and other medical costs have jumped dramatically. That’s why we are anxious to make sure that you are protected and that your policy includes the coverage you want.”
The letter concluded with this postscript:
“P.S. Injuries can be expensive! Why not select Option 1 now and make sure your protection is continued!” (Emphasis added.)
The accompanying explanatory pamphlet, as noted in the letter, was entitled:
“3 Coverages to Replace Personal Injury Protection.”
The introductory paragraph of the pamphlet stated:
“These coverages can provide protection to replace similar benefits provided under Personal Injury Protection, PIP, which is being discontinued ***.”
Hence, the above replacement papers served to alarm Allstate policyholders that without PIP there would be a financially “dangerous gap” in their insurance protection and that this gap could be remedied by purchasing the replacement coverages. However, after comparing the replacement coverages with PIP, there is no question that PIP provided more extensive benefits and less exclusions than its replacement policy. The “dangerous gap” that Allstate was so “anxious” about would still remain, even after policyholders purchased the new coverages from Allstate; plaintiff’s individual claim is ample proof of that fact. As such, contrary to Kiefer’s postscript in his letter, the protection plaintiff enjoyed under PIP was hardly continued.
The majority maintains that the accompanying pamphlet eliminated any misunderstanding. I disagree. The pamphlet, which Kiefer in his letter directs the policyholder to read, is in fact particularly confusing as to the very provision which forms the basis for the claim in the instant case — that pertaining to total disability benefits. The pamphlet describes the total disability benefit as follows:
“Pays $100 a week if you are injured in an auto accident and cannot work at all.”
The misleading nature of the words “cannot work at all” becomes readily apparent when they are read in the context of plaintiff’s coverage under PIP. Total disability under PIP was defined as “inability of the injured person to engage in his ordinary occupation.” Here, the testimony of Allstate’s own physician indicates that plaintiff’s injuries prevented him from engaging in his ordinary occupation. While conceding in its brief that plaintiff may have been entitled to the disability benefits in dispute under PIP, Allstate asserts that he is not entitled to those benefits under the “similar” replacement coverage because the words “cannot work at all,” which appear in the pamphlet referred to in Kiefer’s second letter, actually mean the inability of the injured person to engage “in any occupation or employment for wage or profit.” (Emphasis added.) Allstate makes much of the fact that this latter, far more concise language appears in the new policy itself; however, this fact does not necessarily insulate Allstate from liability given the misleading nature of Kiefer’s letter and the pamphlet which plaintiff allegedly relied upon in deciding to continue his coverage with Allstate. See Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, 410.
It should be noted that the two definitions of total disability under PIP and the replacement coverage can by no means be deemed “similar.” In contrast to PIP, under the definition in the new policy it would be virtually impossible to collect total disability benefits after the first year, unless the insured was rendered completely mentally and physically disabled, i.e., a “vegetable,” as Allstate apparently would argue that the claimant could always perform some work, no matter how menial and demeaning.
The record of the proceedings below reveals that even the trial court found confusion and misunderstanding as to Allstate’s representations in the replacement papers. The court stated that:
“*** there may be some confusion and there may have been some misrepresentation which led to the confusion but I certainly, and I agree with Judge O’Brien, don’t think it was fraud.
* * * Yes, but it says ‘similar benefit.’ There is the confusing word, and you have told me that.”
Despite these findings, the trial court ruled that no issue of material fact existed as to whether count II satisfied the standard of the Uniform Act, which requires only a “likelihood of confusion.” The above comments indicate that the trial court apparently believed it was necessary to show fraud under the Uniform Act. Such a showing, however, is not required under the language of the Act, nor under case law construing the Act.
Finally, plaintiff is not precluded from recovering damages for violations of the Uniform Act. Section 2 of the Uniform Act is incorporated into section 2 of the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262; Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, 408; Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 874-75, 385 N.E.2d 714.) As we noted in Glazewski: “Through the incorporation, the legislature clearly intended to provide consumers with broader protection than initially provided under either act individually and to allow consumers to seek remedies for deceptive practices under the uniform act.” (126 Ill. App. 3d 401, 408.) Specifically, section 10a of the Consumer Fraud and Deceptive Business Practices Act provides the statutory basis for the recovery of damages for violations of the Uniform Act. (Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 874-75; Ill. Rev. Stat. 1983, ch. 1211/2, par. 270(a).) Although plaintiff in this case technically should also have pleaded the Consumer Fraud and Deceptive Business Practices Act as the basis for his monetary relief, Crinkley indicates that this is a mere pleading defect which easily can be remedied by filing an amended complaint. Given Illinois’ liberal pleading rules (Dinn Oil Co. v. Hanover Insurance Co. (1967), 87 Ill. App. 2d 206, 211-12, 230 N.E.2d 702), this minor technical flaw should not prevent plaintiff from seeking damages that he is clearly entitled to claim under the law. Consequently, on remand, I would allow plaintiff to amend his complaint to add the Consumer Fraud and Deceptive Business Practices Act as his basis for relief.
In addition to Allstate’s economic reasons for keeping its renewal customers, the record discloses that its legal department warned that it could not cancel PIP from a policy that had a renewal guarantee.