UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENEFIT VISION INC., and )

RONALD KLEIMAN, individually and as )

President of Benefit Vision Inc., )

)

Plaintiffs, )

) 12 C 3025

v. )

) Judge George M. Marovich

CONSECO LIFE INSURANCE )

COMPANY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

After many years of paying monthly fees to plaintiffs Benefit Vision Inc. (“Benefit

Vision”) and Ronald Kleiman (“Kleiman”) for life-insurance policies plaintiffs had sold,

defendant Conseco Life Insurance Company (“Conseco”) stopped paying. Plaintiffs filed this

suit.1

 The parties have filed cross-motions for summary judgment. For the reasons set forth

below, the Court grants in part and denies in part defendant’s motion for summary judgment. 

The Court grants in part and denies in part plaintiffs’ motion for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule

56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the

Court. For example, facts included in a party’s brief but not in its statement of facts are not

1

The Court has jurisdiction over this case, because the parties are diverse and the amount

in controversy is greater than $75,000.00. Plaintiff Ronald Kleiman is a citizen of Illinois. 

Plaintiff Benefit Vision Inc. is an Illinois corporation with its principal place of business in

Illinois. Defendant Conseco is an Indiana corporation with its principal place of business in

Indiana. 
considered by the Court because to do so would rob the other party of the opportunity to show

that such facts are disputed. Where one party supports a fact with admissible evidence and the

other party fails to controvert the fact with citation to admissible evidence, the Court deems the

fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.

2004). This does not, however, absolve the party putting forth the fact of its duty to support the

fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.

2012). Asserted “facts” not supported by deposition testimony, documents, affidavits or other

evidence admissible for summary judgment purposes are not considered by the Court. At the

summary judgment stage, it does not suffice to rely on complaint allegations. Nor is it enough

for either party to say a fact is disputed. The Court considers a fact disputed only if both parties

put forth admissible evidence of his or its version of the fact. 

Defendant Conseco filed a motion to strike plaintiffs’ memorandum in support of its

motion for summary judgment. Conseco argues that plaintiffs filled their brief with facts

plaintiffs did not include in their statement of facts. As the Court explained above, the Court

ignores facts that parties include only in a brief and not in a statement of facts. Thus, the Court

will ignore any facts included only in plaintiffs’ brief. That does not mean, though, that the

Court will strike plaintiffs’ memorandum, which contains plenty of appropriate argument. The

Court need not bother to strike that which it can simply ignore. Conseco’s motion to strike is

denied.

The following facts are undisputed unless otherwise noted.

Plaintiff Kleiman started a company called Benefit Vision Inc. (“Benefit Vision”) to sell

life insurance policies to LA County employees. Kleiman needed, however, an insurance

product to sell.

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Kleiman approached Life Partners Group in early 1995. Benefit Vision and Life Partners

Group held a series of meetings to discuss matters. Ultimately, in April 1995, Kleiman and

Benefit Vision began selling to LA County employees universal life insurance policies

underwritten by Philadelphia Life Insurance, a company owned by Life Partners Group. The LA

County employees to whom Kleiman sold policies paid the premiums for the insurance via

payroll deduction. Kleiman and Benefit Vision were paid an agent’s commission plus $.4166

per month ($5 per year) for each policy sold. Plaintiffs alleged in their second-amended

complaint (and therefore admitted) that the monthly fee “recognize[d]” plaintiffs’ role “in

maintaining and servicing the policies and protecting the block of business.” 

Kleiman and Benefit Vision continued selling the policies until sometime between 2000

and 2002 (the parties disagree about the timing, but it does not matter). All in all, Kleiman and

Benefit Vision sold more than 26,000 policies. At some point before 2000, defendant Conseco

bought (or at least succeeded) Life Partners Group, and it may have been Conseco’s subsequent

bankruptcy that prompted Kleiman and Benefit Vision to stop selling the policies (though the

reason is not relevant). 

For years, Conseco continued to pay Kleiman and Benefit Vision the $.4166 fee per

policy per month. To be precise, Conseco, like Life Partners Group before it, paid the fee for

each policy only so long as the policyholder continued to pay for the policy by payroll

deduction. As individual policyholders left LA County’s payroll (due to, say, retirement or loss

of job) such that those policy holders could no longer pay their premiums via payroll deduction,

Conseco stopped paying Kleiman and Benefit Vision the $.4166 per month fee on those policies

even if the policyholder continued to pay for the policy directly. As long as the policy holders

continued to pay their premiums via payroll deduction, Conseco continued to pay Kleiman and

Benefit Vision the monthly fee until 2010, when Conseco abruptly stopped.

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As of April 14, 2010, Conseco completely stopped paying the monthly policy fee to

Kleiman and Benefit Vision. On August 10, 2011, Kelly Honn, Conseco’s Director for

Administration, sent Kleiman a letter of explanation. The letter stated, among other things: (1)

that Conseco had searched for but had not found any written agreement to pay the $.4166 per

policy/per month fee; (2) that Kleiman had not provided one, either; and (3) that any such

agreement would need to be in writing. The letter also stated that Conseco had concluded that

the prior payments had been in error. Conseco said it would not pay the fees going forward but

would not seek to recoup the prior payments.

Kleiman, for his part, does not know whether a signed agreement ever existed. When

asked whether the parties ever signed a contract or other document with the terms, he answered,

“I’m not aware. I’m just not aware.” 

Conseco searched for a signed, written agreement between Life Partners Group and

Kleiman/Benefit Vision. Conseco did not find a traditional contract. It found two internal

business records that are related to this dispute, and it produced them during discovery, at which

time Kleiman saw the documents for the first time.

The first internal document (the “Life Partners Group Standard Procedure”) is four pages

long and is type-written. It contains no handwritten signatures. The first page of the document

states:

LIFE PARTNERS GROUP Date: 03/21/95

STANDARD PROCEDURE Page 4 of 4

Revised: 04/27/95

_______________________________________________________________________________

Subject Prepared by K. Fethkenher

Department: Field Office Administration

LA COUNTY Approved By: A. Vrchota Use This Column

SALARY REDUCTION CASE Effective Date: 04/27/95 For

ANNUALIZATION ADVANCES Procedural Notes

_____________________________________________________________________________

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VIII: The 61JH100 account will be recovered by earnings assigned 

from the 61JH002. Once the debit is cleared, all monies 

will be released and the assignment removed from the 61JH002.

(Docket entry 80 at Exh. A p. CLIC000047). The second page states, in relevant part:

CONFIDENTIAL: For Home Office Use Only

COMMISSION NOTES AND RATES:

FOA will manually annualize and pay commission for Kleiman (see annualization notes).

All commissions earned on 61JH002 (Kleiman) will be assigned to 61JH100 to pay off the 

debit balance. If the debit is paid off, the assignment will be released and commissions

will be paid as earned.

Only one product will be offered, universal life, ULA95. No commissions will be paid on

over control premiums.

Jo Delle Roberts will be 1099d for all administrative fees.

Automatic face increases are a product feature that will pay a different commission rate. Need to

address in future and write up detailed procedures on how to process commissions. The face

increases will pay first year commissions of 60% (of premium) (5% renewal).

***

ANNUALIZATION NOTES:

Kleiman Only: Annualization will be calculated manually based upon a transmittal submitted by

Jo Delle. Monies will be wired within 48 hours of notice. Annualization amount will be debited

from the 100 accounts and the corresponding entry will be the funds that are wired to Kleiman. All

earned income will pay through the 002 number, which will be assigned to the 100 account, which

will offset the debit.

***

2040/566 04/27/14 Page 2 of 4

(Docket entry 80 at Exh. A p. CLIC000048). The third pages states, in relevant part:

CLIENT/AFFILIATED COMPANY:

Status:

Client

Quota Share:

To be determined.

SPECIAL AGREEMENTS:

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Pre-case advance given by GAC. FOA Commissions to follow-up with GAC to transfer funds to

“100” account.

New Business will process administrative fees payable to Jo Delle’s 003 account. The account will

be credited $10.00 for each policy issued and $1.24 per policy mailed. This will be done on a

monthly basis. These payments should be applied as first year, non-bonusable earnings.

Premium Accounting will also pay 42¢ per month per policy on all policies paid for by Ron

Kleiman.

ADDITIONAL INFORMATION:

All applications will be submitted by Kleiman with 100% of business going to Kleiman.

HOME OFFICE MARKETING CONTACT:

Ken Luzietti -- Executive Vice President (x2213)

Jo Tucker -- Vice President (x2240)

2040/566 04/27/95 Page 4 of 4

(Docket entry 80 at Exh. A p. CLIC000049). Ken Luzietti was part of the original working

group that set up the insurance product Kleiman sold.

The second internal document (the “Atlantic City/LA County” document) Conseco found

and produced during discovery is a type-written memo on Life Partners Group letterhead. It

contains no signatures and is not dated. It states:

To: Ken Luzietti

From: Judy Fania

Subject: Atlantic City/LA County-- Proposed procedure for inforce administrative fees

PURPOSE:

To obtain direction.

BACKGROUND:

The easiest method for counting premium paying policies is as follows.

Upon processing the group payment tape, the EMAPPS system will generate a Payment

Processing Report for each BCN. This report contains payment detail by policy number

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with an ABCN. The summary report totals this information by policy count for accepted

and rejected payments.

Based upon the summary information, the List Bill Technician that pays the group will

calculate the total administrative fees due. A fee of $.41666 per premium paying policy

per month will be sent to Ron Kleiman on a monthly basis.

In the event premium is refunded on a policy, the administrative fees for the following

month will be adjusted accordingly.

An alternative method for determining the fees due would be to count the payments

processed by BCN as reflected on the Collections report. This method would be very time

consuming as policies would be counted manually.

The only other method would be to run a DYL by BCN of all payments applied to policies

the prior month. A monthly DYL would be the most accurate, but would take more time

and resources than using the existing report out of EMAPPS.

NECESSARY ACTION:

Please advise me of the way you would like to count the number of policies paid to arrive

at the fees.

(Docket entry 80 at Exh. A p. CLIC000107). The Atlantic City deal mentioned in the subject

line never materialized. 

Plaintiffs filed suit, and the parties filed cross motions for summary judgment.

II. Summary Judgment Standard

In a diversity case, such as this one, the Court applies state substantive law and federal

procedural law. Erie RR v. Tompkins, 304 U.S. 64, 78 (1938). The parties seem to agree that

Illinois law applies.

Summary judgment should be granted when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). When making such a determination, the Court must construe the

evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate, however,

when the non-moving party “fails to make a showing sufficient to establish the existence of an

element essential to the party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact

arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a

verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir.

2005).

III. Discussion

Plaintiffs Kleiman and Benefit Vision filed a four-count complaint against Conseco. In

Counts I and II, plaintiffs allege Conseco breached their contract when it stopped paying the

$.4166 per month policy fee in 2010. In Count III, plaintiffs allege promissory estoppel. Count

IV is another claim for breach of contract, this time for underpayment during the years 1995-

2010.

A. Defendant’s affirmative defense to Count IV.

In Count IV, plaintiffs allege that Conseco (and Life Partners Group before it) underpaid

the policy fee from 1995 to 2010. Specifically, plaintiffs allege that once a policy-holder

stopped paying for her policy via payroll deduction (because, say, the employee quit her job or

retired), Conseco (and its predecessor before it) stopped paying the $.4166 per month fee on that

policy even if the policy-holder continued the policy by paying the premium directly. The

undisputed facts confirm these allegations. 

Conseco moves for summary judgment with respect to its affirmative defense to Count

IV. Conseco argues that this claim is barred under Illinois law by the 10-year statute of

limitations for written contracts or the five-year statute of limitations for unwritten contracts. 

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See 735 ILCS 5/13-205; 735 ILCS 5/13-206. The facts are undisputed that, beginning in 1995,

Life Partners Group did not pay the policy fee for policies that were no longer paid for by payroll

deduction and that Conseco continued the practice when it took over. Plaintiffs did not file suit

until 2012, more than ten years later. 

Plaintiffs did not respond to defendant’s motion for summary judgment with respect to

this issue. The Court concludes that Count IV is time-barred as a matter of law. Regardless of

whether the five-year or ten-year statute of limitations applies, plaintiffs filed suit more than ten

years after Conseco (and Life Partners Group before it) commenced its practice of not paying the

$.4166 per month fee on policies that had transitioned from payroll deduction to self pay. 

Defendant is entitled to summary judgment on Count IV.2

B. Plaintiffs’ claims for breach of contract and the statute of frauds

In Counts I and II, plaintiffs allege that Conseco breached their contract when, in April

2010, it stopped paying the $.4166 per month per policy fee. Plaintiffs move for summary

judgment on the merits, and defendant moves for summary judgment as to its affirmative

defense, the statute of frauds.

It is clear, to begin with, that plaintiff can establish the existence of an oral contract to

pay $.4166 per policy. It is undisputed that in early 1995, Benefit Vision and Life Partners held

a series of meetings to discuss Benefit Vision’s desire to sell a Life Partners insurance product to

LA County employees. In April 1995, plaintiffs began selling to LA County employees

2

The Court does not read Counts I-III of plaintiffs’ complaint as seeking payment for

2010 and beyond for policies that are no longer paid by payroll deduction. To the extent

plaintiffs are, however, seeking such payments, the Court notes that those portions of Counts IIII are also time-barred.

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universal life insurance policies underwritten by Philadelphia Life Insurance (a company owned

by Life Partners). The fact that plaintiffs actually sold the policies, together with the fact that

Life Partners (and later Conseco) actually paid Benefit Vision and Kleiman $.4166 per month for

each policy Benefit Vision/Kleiman sold evidences the parties’ meeting of the minds. They

agreed that Life Partners (which later became Conseco) would pay Kleiman/Benefit Vision

$.4166 per month for each policy that plaintiffs sold. 

The problem for Kleiman and Benefit Vision, who want to enforce that oral contract

many years later, is the statute of frauds. The Illinois statute of frauds states, in relevant part:

No action shall be brought . . . to charge any person . . . upon any agreement that

is not to be performed within the space of one year from the making thereof,

unless the promise or agreement upon which such action shall be brought, or

some memorandum or note thereof, shall be in writing, and signed by the party to

be charged therewith, or some other person thereunto by him lawfully authorized.

740 ILCS 80/1. Plaintiffs seem to concede that the contract is within the statute of frauds. (This

is a reasonable concession. The contract was clearly intended to last beyond a year.) Plaintiffs

argue, though, that they can still prevail, either because this case presents an exception to the

statute of frauds for partial or full performance or because a writing exists that satisfies the

statute of frauds. The Court considers these arguments in turn. 

The doctrine of partial performance cannot help plaintiffs. The Supreme Court of Illinois

has explained:

A party’s partial performance generally does not bar application of the statute of

frauds, unless it would otherwise be ‘impossible or impractical to place the parties

in status quo or restore or compensate’ the performing party for the value of his

performance.

McInerney v. Charter Golf, Inc., 176 Ill.2d 482, 491 (Ill. S.Ct. 1997). Thus, partial performance

will void application of the statute of frauds only where a party lacks an adequate remedy at law. 

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Trustmark Ins. Co. v. General & Cologne Life Re of Am., 424 F.3d 542, 551 (7th Cir. 2005)

(“The doctrine of part performance is an equitable doctrine. As such, the doctrine excepts only

those actions seeking equitable relief from the writing requirement of the statute of frauds, to the

exclusion of those claims where there exists an adequate remedy at law.”) (internal citations

omitted). That is why the case plaintiffs cite (Monetti SPA v. Anchor Hocking Corp., 931 F.2d

1178 (7th Cir. 1991)) is distinguishable--Monetti had no adequate remedy at law. In Monetti, the

plaintiff was trying to enforce an oral agreement allowing defendant to be the exclusive

distributor of plaintiff’s products in the United States and Canada. The Seventh Circuit said, 

“partial performance took the contract out of the general Illinois statute of frauds,” because

“once [plaintiff] turned over its trade secrets and other intangible assets to [defendant] it had no

way of recovering those things.” Monetti, 931 F.2d at 1183-1184. Unlike in Monetti, the

plaintiffs in this case did not hand over any trade secrets. The plaintiffs in this case have an

adequate remedy at law: money damages. 

Next, plaintiffs argue that the statute of frauds is inapplicable in this case, because they

have fully performed the contract. Plaintiffs are correct that, under Illinois law, “where a party

has completely performed a contract, the contract is enforceable and the statute of frauds may

not be used as a defense.” Schrock v. Learning Curve Int’l, Inc., 744 F. Supp.2d 768, 774 (N.D.

Ill. 2010) (citing Anderson v. Kohler, 397 Ill.App.3d 773 (Ill.App.Ct. 2009)). If all plaintiffs

were required to do under the contract was to sell the policies, then it could be said that plaintiffs

have fully performed. Defendant, though, argues that plaintiffs may have been required to do

more. In plaintiffs’ second-amended complaint, they alleged (and therefore admitted) that the

monthly fee “recognize[d]” plaintiffs’ role “in maintaining and servicing the policies and

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protecting the block of business.” (Second Am. Complt. ¶ 9). Defendant seems to be arguing

that this creates an issue of fact as to whether the contract required plaintiffs to do more than just

sell the policies. The Court disagrees. In ¶ 9, plaintiff gives an explanation as to why it was

rational for Life Partners Group to agree to pay a monthly fee over time. It is not evidence from

which a reasonable jury could conclude that the contract included additional terms. Plaintiffs

have established, as a matter of law, that they fully performed under the oral agreement by

selling more than 26,000 universal life policies to LA County employees who paid for them by

payroll deduction. Accordingly, defendant cannot use the Illinois statute of frauds as a defense.

Even if the defendant could use the Illinois statute of frauds as a defense to this case, the

Court thinks plaintiffs have put forth evidence of a writing that satisfies the Illinois statute of

frauds. The question of whether such a writing exists in a case is appropriately answered on a

motion for summary judgment. Monetti, 931 F.2d at 1182 (“Because oral evidence was

inadmissible on the question whether the documents meet the requirements of the statutes of

frauds, it was proper for the judge to resolve it on motion for summary judgment.”). 

“The purpose of the Statute of Frauds is to prevent fraud, not facilitate it.” Crawley v.

Hathaway, 309 Ill.App.3d 486, 491 (Ill.App.Ct. 1999). To satisfy the Illinois statute of frauds,

the writing “need not itself be a valid contract, but only evidence of one.” Crawley, 309

Ill.App.3d at 490 (quoting Melrose Park Nat’l Bank v. Carr, 249 Ill.App.3d 9, 15-16 (1993)). A

satisfactory writing can be “made up of several documents, such as notes, papers, or letters, as

long as, taken together, they contain the required information either on their face or by reference

to other writings.” Cohen Dev’t Co. v. JMJ Properties, Inc., 317 F.3d 729, 737 (7th Cir. 2003). 

Even the word “signed” in the statute of frauds is a “term of art” that means more than just a

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traditional handwritten-in-cursive signature. See Cloud Corp. v. Hasbro, Inc., 314 F.3d 289, 296

(7th Cir. 2002) (“Neither the common law nor the UCC requires a handwritten signature.”);

Monetti, 931 F.2d at 1182 (“Since ‘signed’ in statute-of-frauds land is a term of art, meaning

executed or adopted by the defendant, Schneider’s typed initials are sufficient.”) (internal

citations omitted).

With these principals in mind, the Court considers the two documents that, according to

plaintiffs, constitute writings that satisfy the Illinois Statute of Frauds. One document is the

Atlantic City/LA County document, which is an undated internal memo printed on Life Partners

Group letterhead. The memo is from Judy Fania (“Fania”) to Ken Luzietti (“Luzietti”). The

“subject” line of the memo reads: “Atlantic City/LA County--Proposed procedure for in-force

administrative fees.” In the memo, Fania suggests possible ways to count policies for which

Kleiman should be paid a monthly fee, and, at the end of the memo, Fania asks Luzietti to tell

her how to proceed. The memo also states, “A fee of $.4166 per premium paying policy per

month will be sent to Ron Kleiman on a monthly basis.” Plaintiffs argue that this document is a

writing that satisfies the statute of frauds, but the Court disagrees. Although the document

comes close, the subject line of the document refers not only to the LA County project (with

respect to which the parties ultimately reached an oral agreement) but also the Atlantic City

project, with respect to which it is undisputed that the parties never reached an agreement. That

fact suggests that this document (which is undated) may have been created before the parties

reached a meeting of the minds on LA County, such that the document may reflect not a contract

but merely negotiations. The Court cannot agree that the Atlantic City/LA County document is a

writing that satisfies the statute of frauds. 

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The next document that plaintiffs argue satisfies the statute of frauds is the Life Partners

Group Standard Procedure. This four-page memorandum under the heading “Life Partners

Group Standard Procedure” describes what is obviously internal accounting procedures for

handling the universal life policies that Kleiman/Benefit Life were selling. It is an internal

business record that Conseco produced in discovery. The Court agrees with plaintiffs that this

document satisfies the statute of frauds. First, the document constitutes evidence of a contract in

that it sets out the essential terms of the agreement. Among other things, the document states,

“Only one product will be offered, universal life, ULA95,” and “Premium Accounting will also

pay 42¢ per month per policy on all policies paid for by Ron Kleiman.” Thus, the document sets

out the essential terms of the agreement: what insurance product Kleiman was selling and how

much he was to be paid for selling the product. Conseco argues that the document speaks in

future tense, such that it might merely evidence negotiations of a contract, rather than an actual

contract. The Court disagrees. The document states that it was revised on April 27, 1995, with

an effective date of April 27, 1995, by which time Kleiman and Benefit Vision were already

selling the policies. The fact that the memo is written in the future tense is not evidence that the

negotiations were continuing but rather that the accounting treatment described in the memo

would continue to be followed in the future. Next, Conseco points to other language in the

document (specifically, “Quota share: To be determined.”) and argues that the document cannot

be evidence of a meeting of the minds, because that term was left open. It is surprising that such

an argument would come from an insurance company. A quota share agreement is an agreement

a primary insurance company might make with a reinsurance company to share the premiums

and also the risk on a book of business. It is not an agreement that would be reached between

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the insurance company and the agent selling the policy. Thus, the fact that the document states

that quota share was undetermined does not suggest that plaintiffs had not reached an agreement

with defendant’s predecessor.

The document also meets the signature requirement, because it was clearly adopted by

Life Partners Group, who Conseco succeeded. The document states that it was prepared by K.

Fethkenher and that it was approved by A. Vrochota. These were obviously agents of Life

Partners Group. See Central Ill. Light Co. v. Consolidation Coal Co., 349 F.3d 448, 491 (7th

Cir. 2003) (“The document states that it was created by Debbie Wopmack and ‘released to the

system by’ Beverly Wilson. Neither of these individuals is otherwise identified. The district

judge thought that without further identification of them it could not be said that the document

had been signed by an agent of Consolidation. That was not a realistic assessment. It is obvious

that the people who prepare internal documents of this sort are employees, and hence agents, of

Consolidation. . . . The absence of a handwritten signature is not a problem either.”). 

The Life Partners Group Standard Procedure satisfies the Illinois statute of frauds. 

Because a writing satisfies the statute of frauds in this case and because plaintiffs have fully

performed under the contract, Conseco’s statute of frauds defense fails as a matter of law. 

In addition, plaintiffs have shown as a matter of law that Conseco breached their oral

agreement when it stopped paying the $.4166 per month per policy fee in April 2010. Plaintiffs

are entitled to summary judgment on their claims (Counts I and II) that defendant breached their

oral agreement. Because plaintiffs have prevailed on their claim for breach of contract, their

claim for promissory estoppel (Count III) is dismissed as moot. See WorldCom, Inc. v. Free

Paging, Inc., Case No. 00 C 7545, 2003 WL 1713603 at *9 n.5 (N.D. Ill. March 28, 2003). 

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Finally, plaintiffs argue that they are entitled to damages in the amount of $1,103,410.02. 

The Court will not grant summary judgment as to damages. Plaintiffs included no facts about

their damages (or evidence to support those facts) in their statement of facts in support of their

motion for summary judgment. Plaintiffs have not shown that they are entitled to judgment as a

matter of law as to their damages. 

IV. Conclusion

For the reasons set forth above, the Court denies Conseco’s motion to strike. The Court

grants in part and denies in part Conseco’s motion for summary judgment. The Court grants

defendant Conseco summary judgment on Count IV. The Court grants in part and denies in part

plaintiffs’ motion for summary judgment. The Court grants plaintiffs Kleiman and Benefit

Vision summary judgment as to the merits of Counts I and II. Count III is dismissed as moot. 

ENTER:

 

George M. Marovich

United States District Judge

DATED: November 3, 2014

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