Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Elaine E. Bucklo Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 5128 DATE 10/12/2012

CASE

TITLE

Carpenter vs. The Paul Revere Life Insurance Co.

DOCKET ENTRY TEXT

Defendant’s motion to dismiss [14] is granted. 

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Defendant’s motion to dismiss is granted. Count V of plaintiff’s complaint, which asserts a violation

of the Illinois Consumer Fraud and Deceptive Business Practices Act, does not state a claim separate and

independent from his contractual claim. “‘When allegations of consumer fraud arise in a contractual setting,

the plaintiff must prove that the defendant engaged in deceptive acts or practices distinct from any underlying

breach of contract.’”Philadelphia Indem. Ins. Co. v. Chicago Title Ins. Co.,---F. Supp. 2d---, 2012 WL

1658291, at *15 (N.D. Ill. May 11, 2012) (quoting Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399

(7th Cir.2011)). Moreover, even if this claim were not duplicative of plaintiff’s contract claim, it is plagued

with an additional problem: although plaintiff alleges a series of false statements, intentional

misrepresentations, and material omissions by defendant, he does not claim that defendant intended this

conduct to dupe him into taking, or forbearing from, any act. Yet intent to induce reliance is a necessary

element under the ICFA. Philadelphia Indem., at *14. Here, plaintiff does not allege, for example, that

defendant made false representations at the time it sold him the policy in an effort to win plaintiff’s business. 

He simply claims that defendant gave sham reasons for denying his claim. There is simply no basis in the

complaint for plaintiff’s conclusory assertion, in his brief. that defendant “engaged in these deceptive acts

with the intent that [plaintiff] rely on them.” Cf. Elder v. Coronet Ins. Co., 558 N.E. 2d 1312, 1320 (Ill. App.

Ct. 1990) (allegations that the defendant engaged in a concealed practice of not paying legitimate claims “in

an effort to negotiate settlements at less than a full and fair value” stated a claim under the ICFA) (emphasis

added).

Counts I and II likewise do not survive defendant’s motion. The first of these, styled “declaratory

judgment of insurance coverage” seeks the same relief (a judgment that defendant breached the policy and

that plaintiff is entitled to benefits), based on the same facts, as his breach of contract claim. Indeed, plaintiff

essentially concedes as much, arguing that a judgment on this count “would settle the controversy.” As for

Count II, the complaint seeks “a decree of specific performance ordering [defendant] to continue to make

Total Disability Benefits as they come due in the future under the Policy,” and an award of costs. 

12C5128 Carpenter vs. The Paul Revere Life Insurance Co. Page 1 of 2
STATEMENT

Acknowledging, as he must, that an order mandating the payment of claims that are predicated upon future

conditions that may or may not come to pass is precluded by Morgan v. Aetna Life Ins. Co., 157 F.2d 527

(7th Cir. 1946) and Trainor v. Mutual Life Insurance Co., 131 F.2d 895 (7th Cir. 1942), plaintiff clarifies that

this count seeks nothing more than an order requiring defendant “to perform its obligations under the terms

of the Policy.” But this appears to be a distinction without a difference. See Shyman v. Unum Life Ins. Co. of

America, No. 01 C 7366, 2002 WL 31133244, at *1 (N.D. Ill. Sept. 20, 2002) (Gottschall, J.) (concluding

that Morgan and Trainor controlled claim seeking an order that the ensured was entitled to future disability

benefits, even with the caveat, “as long as the insured met the terms and conditions for coverage under the

insurance policy.”) In essence, this count asks me to enjoin a hypothetical future violation of the policy, but

to do so would amount to an inappropriate advisory opinion. See Harris v. Quinn, 656 F.3d 692, 700-01 (7th

Cir. 2011).

12C5128 Carpenter vs. The Paul Revere Life Insurance Co. Page 2 of 2