*1 to show forward with the evidence going a burden contradictory arose because in the statements or not conflict whether did reason. This the defendant mistake or some other valid excusable may be it explanation, of such not undertake to do. the absence People grand jury was false. See testimony concluded that the before v. Mitchell perjury under alleging
I the counts would affirm the convictions 2(b). section 32 — URFER, INSURANCE Plaintiff-Appellant,
DELMAR COUNTRY MUTUAL
CO., Defendant-Appellee. District
Fourth No. Opinion Rehearing denied filed June 1978 . June MILLS, J., concurring P. part dissenting in part.
CRAVEN, J., dissenting. Ltd., Heller, Heller, (Harlan counsel), appellant. Harlan of Mattoon Bemardoni, Meehling William F. Meehling, and Richard & both of Miller J. Marshall, appellee. *2 Mr TRAPP delivered the court: JUSTICE appeals 29, Plaintiff from the order of circuit April court entered 1977, which his complaint, dismissed second amended an oral denied motion for leave to file an complaint, judgment amended and entered in bar.
Plaintiff by was insured issued vehicle. motor complaint alleged a breach of the insurance contract pay hospital defendant’s failure to up medical bills to *2000incurred year within injury the date of and income payments continuation up per to *150 week for 52 weeks. agreement
The insuring coverage recites that was “In provided (“no accordance Article XXXV of the Illinois Insurance Code fault insurance”),” 1, 1971, January 1972. (Ill. effective That article Rev. Stat. 73, ch. par. 1065.150 seq.), et on April declared unconstitutional 1972. v. Grace Howlett N.E.2d 474. 19,1972, Plaintiff injuries September suffered on of a a result collision with a school bus. His to interrogatories answer discloses that he sued the *50,000 school district August he received in settlement 17,1976. and that that February action was dismissed on This action was 5,1976. filed on January Plaintiff’sanswers to interrogatories states that he first tendered a report medical to defendant on December 23,1976, An sought damages amended filed March provisions of (Ill. section 603 of the Illinois Insurance Code Stat. Rev. 73, par. 1065.153), provided payments ch. under which “no coverage days proof fault” within 30 the fact and after “reasonable * *.” expenses provided that: amount of incurred* That statute further due,
“In the event fails when company pay to such benefits person may bring entitled to such benefits an action in contract to them. In the company required by recover the event is such action benefits, must, pay overdue to any company to addition received, required be fees pay benefits to the reasonable party. incurred the other the event of a wilful refusal benefits, pay to the other company pay company must an amount party, party, due the addition other amounts other controversy unpaid which is three times the amount of benefits in the action.” statute provision sought recovery upon quoted the decision suggesting
but was dismissed motion of Grace v. Howlett. court’s appeal at issue on described
The amended recovery upon Complaint” did not seek order as “the Second Amended contract, only compensatory tort for theory of breach of but sounded pay. a wilful refusal to punitive damages alleging Complaint is that “said Amended provided The order the trial court substantially insufficient grounds stricken on that said law, denied “the oral hereby and the action is dismissed.” Complaint,” and Plaintiff a Third Amended motion of for leave to file entered a in bar of action. argues
Plaintiff states a cause of action the amended principles Hospital within the Plan Ledingham stated Blue Cross supreme (64 Care court App. 3d 75) only had occasion to review an issue of the taxing of costs.
In Ledingham, the insured sued to recover for medical and hospital expenses health payable under a counts, In separate insurance. actual and complaint claimed refusing for “wilful and wanton conduct” *3 compensatory damages jury for was in an breach of contract. The verdict indicating amount an opinion award on each count. The stated:
“The issue punitive to be decided this case is whether damages may a properly brought by be awarded in an action policyholder plan of a health the insurance com- insurance where pany insured allegedly wrongfully denied benefits to the ° * 342, 540, 339, 3d 330 N.E.2d in Illinois: applicable following principles the opinion found in an generally may be awarded
“(1) damages Punitive a action on contract. an may itself constitute
(2) the breach of a contract However will be found.’ willful tort independent unusual case where an is a relationship there insurer-insured (3) In the life and health fairly with the faith and deal duty parties good to act upon both party to the contract. other a breach of duty implied by law both
(4) Breach of this 339, 350, 3d (29 App. Ill. (Emphasis supplied.) and a tort.” contract 540, 548.) 330 N.E.2d reason that damages for the opinion punitive
That reversed the award of claim. a faith good the record disclosed denial (1957), Casualty v. Krutsinger noted that in Illinois Ledingham 16, duty in context: an owed a 2d insurer against of a suit “An who undertakes the defense insurer insured, limits, damages sought where the of policy are excess arbitrarily cannot refuse a policy settlement within limits. And the insured can recover the amount of the against rendered him, including limits, the amount in excess when the guilty insurer has been of bad faith a failing to effect settlement (10 sum.” 21.) smaller opinion liability does not discuss imposed as a tort but anis action for satisfy failure to a judgment against obtained the insurer. Such appear would upon action the insurance contract. Ledingham also noted v. Eckenrode America Insurance Co. Life of Cir.
(7th 1972), duty 470 F.2d as finding good dealing faith and fair between the beneficiary insurer widow of a life insurance and determined that a payment deliberate refusal of when it was known insurer compelled widow was in utter want and to seek charity duty showed a liability. breach which could be the basis of tort Eckenrode acknowledged privilege of the insurer to “insist right in legal permissible way.”
Ledingham Supreme examined series of cases Court of California including Fletcher v. Western National Insurance Co. Life Gruenberg (1970), 10 Aetna Rptr. Cal. Cal. Insurance Co. 566, 510 1032, 108 Rptr. Cal. Cal. P.2d imposed by latter case implied duty determined there was an law to fairly good discharging responsibilities act and in faith in its contractual its from duty separate apart insured and the duties duty contract. It of that insurance further held a breach may give rise to a cause of in tort. action
Fletcher as an in tort was framed action for the intentional infliction of implied duty emotional distress breach of the Ledingham, court, in good deal faith. found that Knierim v. Izzo determined that had punitive damages not available an action the intentional were concluded, however, Ledingham infliction of distress. emotional theory other than tort be awarded Fletcher to hold intentional quoted infliction emotional distress that: faith make and actual bad refusals to
‘[Threatened *4 employed by concert policy, maliciously defendants with communications directed to threatening false and causing him to surrender his policyholder purposes for the dispute a nonexistent constitutes disadvantageously or settle its protected property interference with interest of tortious ” 3d App. be recovered.’ insured for which 330 N.E.2d show purporting fact allegations of contains no that context of within the wilful, conduct or unreasonable vexatious statement. complaint as amended that the trial determined
The of the court in We bar. in law” and so entered substantially “is insufficient whether ascertain allegations of must examine the theory contained upon the in tort has a cause of action plaintiff stated Ledingham. “substantial that Act states the Civil Practice
Section The action.” any cause of necessary to state of fact averments [are] his loss proof made plaintiff that alleges at issue as substance but all terms and conditions complied and Oil In v. Marathon pay. Pollack failed and refused to defendant allegation that an it was held App. 3d legal conclusion into was was made and entered contract trial court’s dismissal affirmed the by a motion to dismiss and admitted in this case are plaintiff’s allegations performance complaint. properly deemed and are allegations than the Pollack not more factual as conclusions. insufficient * * * willful were acts of the Defendant complaint alleges “The 486, 288 N.E.2d In v. Stork Bergfeld and malicious.” allegation punitive damages upon plaintiff sought compensatory contract maliciously plaintiff’s interfered with wilfully by the trial court dismissal reviewing court affirmed to sell a business.. or purpose with a certain that an act was done saying “a mere averment intent, is a intent, purpose showing facts without a statement of 486, 491), and the court determined (7 App. law” Ill. conclusion of acted that defendant fact to show allegation sufficient there was no (1976), 40 Claybon In intentionally maliciously. Alswang compensatory attorney, sought plaintiff, amade the fact that defendant punitive damages Association. the Bar Ethics Committee of against him before the count, said: the court affirming the dismissal of the sufficient “Moreover, plead failed to plaintiff we believe ethics that defendant’s support allegation facts to ° ” ° It is well established faith. malicious and made bad vituperous made out wrong cannot be that an actionable an act characterizing adjectives interpolation of profuse alone pleading of conclusions done. The having wrongfully been cause of action upon which a allegations will not suffice for factual 285, 289.) 147, 151, 351 N.E.2d (40 App. must be based.” comes wilful refusal allegation of plaintiff’s We conclude that within that rule.
We have examined certain of the California authorities cited Ledingham to ascertain factual allegations establishing relevant to cause of action asserted here. In Fletcher v. Western National Life Insurance (1970), here, 10 Cal. App. Rptr. 89 Cal. as a prima plaintiff upon disability sued policy. The court determined a that for an case action in tort arose where the defendant had numerous facie reports medical establishing disability; the fact of a report medical on a surgical fusion aof vertebra with the medical opinion that it would interfere with employment; defendants knew plaintiff was unable to investigative report work and its that plaintiff impoverished showed was work; as payment the result of such denial of while he was unable to defendant misrepresented preexisting the fact as to a defect discontinuing payment and defendant’s offer to compromise plaintiff’s claim was complete conditioned release of that claim. complaint alleges plaintiff obliged was “sell portions to his farm business to secure funds for himself and his ” ”.” family” His answers filed in interrogatories preceding to month plaintiff said that owned 640 acres of land farmed in grain and livestock machinery and that he sold his spring livestock of 1973 because he was unable to continue to farm. The say answer continues to that he has leased land and receives the income as landlord. The sale, allege does not that defendant was advised of the fact of such and it appear does not that the brought sale was fact plaintiff about had disability not received year. limited one The facts stated to poverty the answer the context of Fletcher allege do Eckenrode.
We interrogatories note also that other answers the same series of head, generally plaintiff’s injuries describe as laceration of and left scalp hand, concussion, fractured ribs and brain and that the first medical report disability which would establish was on delivered years injury. December more than three following Plaintiff trial his oral argues denying court erred in motion amend his made at the time of the dismissal and appeal. shows that the was the second amended record shows, writing filed. far as was So the record no amendment presumption tendered to the court and It is held that there is no counsel. that a will that it proposed proper amendment be a is error to refuse to leave to amend where there is no basis to determine whether (People ex rel. will amendment be sufficient to state cause action. International, 740, 321 N.E.2d Scott v. Cardet Inc. (1974), App. 386; 165.) Luetgert N.E.2d We Hancock motion. no the denial of oral can find abuse discretion v. Mutual Omaha Debolt which reviewing court sustained dismissal we does not issue sought punitive damages. While reach.that opinion Ledingham note that that court declined to follow the remedy where it legislature conclusion that the had established that a refusal to was unreasonable and vexatious. Section 73, par. 767), ch. in effect at the (Ill. of the Insurance Code Rev. Stat. Debolt, provided time of this as it was in that where “refusal action cause,” vexatious allow reasonable and without reasonable the court and in an to exceed 25 fees to be taxed costs amount not $1000. recover, percent plaintiff of the sum which is entitled to legislature provided statutory court concluded that since the had *6 remedy, power provide the court did not have the additional cause action, of citing Hall v. Gillins 13 Ill. 2d is affirmed.
Affirmed. MILLS, concurring part dissenting Mr. and PRESIDING JUSTICE in part: procedure
This the basis of disposed case should not be of on pleadings. issue We should meet the headon. affirmance,
I concur in result but for different reason. the of They were my judgment pleadings. dissent is about the correct sure, age liberal scanty, enlightened somewhat to be but this sufficient pleading tendency permit construction and a commendable comply with specific amendment to either be more or otherwise stay to at least the objections, allegations adequate the here look to me ballpark. agree adequacy I dissent—the of the To extent with the amended does not bother me.
But in tort for a question compensatory damages the and I have pay give wilful refusal to under a contract does me concern. Debolt, by the by pound and weighed compared Ledingham and and is more sound finally opinion conclude that the Debolt paragraph, action, being statutory causes of persuasive. and more It strikes me that branch, judicial with should be viewed legislative creatures of the by in this legislative preemption rationale restraint. The Debolt area — cogent fees—is recovery reasonable and limited by said not. But as was Adequate remedy? Perhaps convincing. court, statutory remedy provide should “It may well be Debolt legislative a matter for we greater relief but hold 111, 117, 371 N.E.2d determination.” I It will sufficeto conclude Any words would be overkill. further recovery a contract affirm there can be no tortuous agree to because beyond statutory prescriptions, legislature having preempted field.
I concur in the result. CRAVEN, Mr. dissenting: JUSTICE I disagree with the result reached and affirming dissent the order principal action of trial court. The Mr. Trapp Justice affirms upon apparent pleading That opinion basis. seems to avoid the insufficiency substantive issue. This business about pleading and the of conclusions as discussed in the principal opinion appears not to any have been matter concern the trial court and was not even involved in the decision reached.
Mr. Mills I agreement are in pleadings are Justice sufficient. part company upon We whether or there is a cause of action in tort for an intentional and wilful pay obligation. refusal to a contractual
The opinion of the appellate court Ledingham Blue Cross Plan for Hospital Care is clear authority the proposition sounding is a there cause of action tort for wilful and obligation. intentional refusal clear contractual complaint, than specificity more Ledingham, states When, Ever, Teeple, cause action. See also R. Are Punitive If Damages In An Recoverable Illinois Contract Action? B.J. (1976). I would reverse remand with directions to reinstate complaint. *7 ILLINOIS,
THE Plaintiff-Appellee, PEOPLE OF THE STATE OF DESKIN, Defendant-Appellant. RANDY J. No. 77-74
Third District Opinion filed June