IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

David Sieving, 

 Plaintiff, 

) 

) 

) 

) 

) 

v. ) 

)

) 

No. 20-cv-5127 

Continental Casualty Company 

Defendant. 

)

)

)

) 

Memorandum Opinion and Order 

 Plaintiff David Sieving is a California resident insured 

under a group long-term care policy issued by Defendant Continental 

Casualty Company (“Continental”). In September 2016, Continental 

sent a letter to Mr. Sieving informing him that his insurance 

premium would increase by 95.5%. The letter also provided that 

due to regulatory requirements that varied by state, the premium 

increase would likely not be uniformly implemented across insured 

individuals nationwide. Mr. Sieving initiated the instant 

putative class-action lawsuit against Continental alleging, inter 

alia, breach of contract and fraud. Specifically, Mr. Sieving 

contends Continental was required to make any premium increases 

consistent across a nationwide class, and further that it was 

foreclosed from raising premiums at all for insureds, such as Mr. 

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Sieving, who had purchased inflation-protection coverage in the 

form of an automatic benefit increase. Continental has moved to 

dismiss the complaint in its entirety [15]. For the reasons that 

follow, the motion to dismiss is granted in part and denied in 

part. 

I. 

In reviewing the sufficiency of a complaint pursuant to a 

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), 

I “accept all well pled facts as true and draw all permissible 

inferences in favor of the plaintiff.” Agnew v. Nat’l Collegiate 

Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012). To survive a 

motion to dismiss, the complaint must state a claim “that is 

plausible on its face” after conclusory allegations are 

disregarded. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 

675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678–

79 (2009)). 

Long-term care insurance covers a variety of services for 

people who become unable to care for themselves, including 

assistance in the home, adult daycare, assisted living, and nursing 

home services. Continental, a Delaware corporation headquartered 

in Illinois, issued and delivered the group long-term care policy 

at issue, policy number 9774, to the Employees Long Term Care 

Insurance Trust (“Employees Trust”), located in Illinois, in 

September 1989. Mr. Sieving, who was an employee of Northrop 

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Grumman Space Systems Division at the time, purchased a certificate 

under the policy with an effective date of July 1, 2003. Mr. 

Sieving was able to purchase his certificate because his employer 

had access to insurance through Northrop Grumman Federal Credit 

Union Space Systems Division, a participating organization under 

the policy. 

When Mr. Sieving bought his certificate, he purchased 

inflation protection with an automatic-benefit-increase option. 

That is, he selected a higher premium of $110.80 per month (more 

than double what his “base rate” premium would have been), and in 

exchange, his benefit level automatically increased by 5% each 

year, compounded annually. The automatic benefit increases had 

the purpose of helping protect Mr. Sieving against the increasing 

costs of long-term care over time. 

The insurance policy itself included the following language,1

under the heading “PREMIUM”: “We cannot change the Insured’s 

1 The insurance policy was referred to in but not attached to the 

complaint. However, Continental appended a copy of the policy to 

the motion to dismiss. While a document central to and referred 

to in the complaint may often be considered on a motion to dismiss 

without converting it to a motion for summary judgment, here, Mr. 

Sieving disputes the authenticity of the version of the policy 

Continental attached. See ECF No. 33 at 2. “Because the polic[y] 

[is] not ‘concededly authentic,’ it would be unfair to consider 

[it] in conjunction with the defendant’s motion to dismiss.” 

Hallie v. Wells Fargo Bank, N.A., No. 2:12-cv-235, 2013 WL 3872814, 

at *2 (N.D. Ind. July 24, 2013) (citing Tierney v. Vahle, 304 F.3d 

734, 738 (7th Cir. 2002)); accord Wells Fargo Bank, N.A. v. 

Worldwide Shrimp Co., No. 17 CV 4723, 2019 WL 4189480, at *3-4 

(N.D. Ill. Sept. 4, 2019). Accordingly, for instant purposes, I 

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premiums because of age or health. We can, however, change the 

Insured’s premiums based on his or her premium class, but only if 

We change the premiums for all other Insureds in the same premium 

class.” ECF No. 1 ¶ 23. 

Mr. Sieving alleges that he reviewed and relied upon a 

marketing brochure issued by Continental at the time he purchased 

his certificate. Id. ¶ 30. The marketing brochure provided, with 

respect to premium changes: 

LEVEL PREMIUM RATES DO NOT INCREASE JUST BECAUSE YOU 

GROW OLDER 

Since your premium is based on a fixed daily benefit and 

on your age at the time you apply, CNA [Continental] can 

predict the appropriate premium to charge you. As a 

result, premiums are expected to remain level over your 

lifetime. CNA reserves the right to change premiums for 

the entire plan if necessary based on our experience, 

but you can never be singled out for a rate increase 

because you get older, become ill, or file claims. 

Id. ¶ 29. In an outline of coverage attached to the brochure, 

Continental also included the following language: 

OUR RIGHT TO CHANGE THE PREMIUM. Your premium is based 

on your age on your application date. Your premium will 

consider only the portions of the policy that were cited in the 

complaint. 

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not increase because you grow older. It will remain the 

same unless the rates are increased for everyone in your 

age group; you cannot be singled out for a rate increase 

for any reason. 

Id. ¶ 34. The brochure also featured rate tables showing premium 

amounts based on age at the time of purchase and benefit level. 

Id. ¶ 37. 

 In addition, the brochure included a section describing the 

two available inflation-protection options available under the 

policy. Under the first option, called the “Future Purchase 

Option” feature, the insured would be given an opportunity to 

increase benefits every three years, which he or she could accept 

or decline. The benefit increase would trigger a premium increase 

based on the insured’s age at the time of the increase. The second 

option, which Mr. Sieving selected, was called the “Automatic 

Benefit Increase Option.” That option was described as follows: 

For an additional fixed premium, this allows your 

benefits to increase automatically every year. If you 

choose this option, your daily Nursing Home and 

Community Based Care Benefits and your Lifetime Maximum 

Benefit Amount will all increase by 5% per year, 

compounded annually for as long as you are insured, with 

no corresponding annual increase in premium and without 

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further proof of insurability, even while you are 

withdrawing benefits. 

Id. ¶ 67. The brochure included a pro and con section for the 

automatic benefit increases, listing as pros “Level, easy to budget 

premium,” and “Benefits go up every year without corresponding 

premium increases.” Id. ¶ 68. 

Mr. Sieving’s premiums did not increase for thirteen years. 

However, on September 1, 2016, Continental sent a letter to Mr. 

Sieving informing him that his premium would increase by 95.5%, 

with a 70% increase occurring as of November 1, 2016, and a 15% 

increase occurring November 1, 2017. In a Frequently Asked 

Questions section appended to the letter, Continental included the 

following language: 

6. Will the premium rate increase be effective for 

everyone? 

Since Continental Casualty Company (CCC) must receive 

approval or authorization from certain states prior to 

implementing an increase, it is possible that these 

states will not approve or authorize the same percentage 

increase or authorize an increase at the same time. It 

is also possible some states may deny CCC’s request for 

an increase, or require it be reduced or spread over 

multiple years. . . . Premium increases will be 

staggered in accordance with the timing of regulatory 

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approvals or authorizations and method of premium 

payment. 

Id. ¶ 42. 

 Mr. Sieving alleges that this was the first time Continental 

disclosed that a “premium increase is not uniform for everyone in 

the same age group or premium class.” Id. He also contends that 

Continental misled him into believing premiums would remain 

constant for those who purchased inflation protection with 

automatic benefit increases. Id. ¶ 64. Mr. Sieving brings the 

instant class action asserting six claims for relief, including 

for breach of contract, fraud, and declaratory and injunctive 

relief. 

II. 

 In Count I, Mr. Sieving asserts a claim for breach of 

contract. He claims that Continental breached the policy both by 

increasing premiums at different rates for insureds in different 

states, and by increasing premiums for those who had purchased 

automatic-benefit-increase inflation protection. 

 With respect to the breach regarding disparate nationwide 

rates, Mr. Sieving points to the following language in the 

insurance policy: “We can . . . change the Insured’s premiums 

based on his or her premium class, but only if We change the 

premiums for all other Insureds in the same premium class.” ECF 

No. 1 ¶ 23 (emphasis added). “Premium class” is nowhere defined 

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in the policy. Id. ¶ 26. Mr. Sieving argues that “premium class” 

can only mean “the nationwide pool of insureds under the group 

insurance plan within a given age group.” Id. Continental argues 

that it was not empowered to raise rates consistently nationwide 

because of the state-by-state regulatory framework. Accordingly, 

because “[i]t is presumed that parties contract with knowledge of 

the existing law,” Bray v. Archer-Daniels-Midland Co., 676 N.E.2d 

1295, 1303 (Ill. 1997), “premium class” cannot refer to a 

nationwide group. 

 I conclude that on the record currently before me, the term 

“premium class” is ambiguous. “A policy is ambiguous if it is 

subject to more than one reasonable interpretation.” Newman v. 

Metro. Life Ins. Co., 885 F.3d 992, 998 (7th Cir. 2018) (citing 

Thompson v. Gordon, 948 N.E.2d 39, 48 (Ill. 2011)). “Undefined 

terms are construed as an ‘average, ordinary, normal, and 

reasonable person’ would understand them” in the context of the 

contract “as a whole.” Id. 

Mr. Sieving has presented one plausible interpretation of the 

policy—that Continental promised not to raise premiums unless it 

could do so for all of the insureds in a particular age group 

“class” nationwide. Continental was not, as it argues, powerless 

to promise consistent nationwide premiums, because it could have 

raised premiums only to the extent allowed by the most restrictive 

state. 

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However, “premium class” could also plausibly refer to 

something else. It could refer to the group of insureds that pay 

the same premium, whether or not they are in the same age group—

for example, an insured who purchased an automatic-benefitincrease option might be in a different class from someone of the 

same age who purchased at the base rate. It could also be statespecific, as suggested by Continental, especially given the 

regulations at play. Because there is more than one reasonable 

interpretation, the term is ambiguous. See Newman, 885 F.3d at 

999 (finding undefined term “class” in similar long-term care 

insurance policy to be ambiguous given multiple possible 

meanings). 

Ambiguous contracts are construed against the insurer, but 

before that principle of construction is applied, the parties may 

introduce extrinsic evidence bearing on the ambiguous term’s 

meaning. Id. at 999-1000. Accordingly, this issue cannot be 

resolved at the motion-to-dismiss stage. Mr. Sieving’s breachof-contract claim based on Continental’s inconsistent nationwide 

premium increase may proceed. 

Mr. Sieving also claims that Continental was contractually 

precluded from increasing premiums for those who had purchased 

automatic-benefit-increase inflation protection. Mr. Sieving has 

not, however, cited to any provision of the insurance policy that 

he alleges was breached by the rate increase. Instead, he points 

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exclusively to language contained in the marketing brochure he 

consulted when purchasing his certificate. 

Mr. Sieving’s failure to identify a breach of the policy’s 

language does not, however, by itself doom Mr. Sieving’s breachof-contract claim. Some Illinois courts have held that “a 

descriptive brochure furnished to an individual insured becomes a 

part of the insurance contract.” See Dobosz v. State Farm Fire & 

Cas. Co., 458 N.E.2d 611, 613 (Ill. App. Ct. 1983). “The key 

considerations in making this determination are whether the 

insured relies on the brochure in procuring the insurance and 

whether the brochure differs from the policy itself.” Id. at 614. 

Who prepared the brochure or marketing material may also be 

relevant. Id. Accordingly, whether the brochure is properly 

considered part of the insurance contract involves questions of 

fact, and is not properly resolved at the motion-to-dismiss stage. 

See St. Paul Ins. Co. of Ill. v. Armas, 527 N.E.2d 921, 926 (Ill. 

App. Ct. 1988). 

Assuming for present purposes, however, that the brochure is

properly considered part of the policy, Mr. Sieving still has not 

adequately alleged a breach of contract. Mr. Sieving points to 

the brochure’s claim that the automatic benefit increase would 

increase the benefit amount by 5% annually “with no corresponding 

annual increase in premium.” ECF No. 1 ¶ 67. But “corresponding” 

is the operative word there—this is a promise that premiums will 

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not increase in step with the automatic annual 5% benefit increase, 

not a promise that premiums will never increase. 

Mr. Sieving also notes that in a pro-con section regarding 

the automatic-benefit-increase option, the brochure listed as a 

pro: “Level, easy to budget premium.” ECF No. 1 ¶ 68. Mr. Sieving 

argues that this was a promise that premiums would be kept “level”—

meaning they could never be increased. But the pro-con section 

was clearly comparing the automatic-benefit-increase option to the 

other inflation-protection option, the “Future Purchase Option.” 

See id. ¶ 68 (listing as cons “Costs more initially than FPO” and 

“May not track actual inflation trends as well as FPO”). Compared 

with the Future Purchase Option, which offers benefit increases 

with corresponding premium increases, the automatic-benefitincrease option does offer a premium that is more “level”—even if 

the premium is subject to periodic plan-wide increases. And 

another use of the word “level” in the brochure is consistent with 

that interpretation—the brochure provides that “level premium 

rates do not increase just because you grow older” but may be 

subject to other increases. Id. ¶ 29 (emphasis added). 

Further, any ambiguity regarding the promise of a “level, 

easy to budget premium” is resolved when read in conjunction with 

the brochure’s other sections. The brochure provided: “CNA 

reserves the right to change premiums for the entire plan if 

necessary.” Id. ¶ 29 (emphasis added). In another conspicuous 

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section under the capitalized heading “OUR RIGHT TO CHANGE THE 

PREMIUM,” it announced that premium rates could be increased “for 

everyone in your age group.” Id. ¶ 34. “[T]he entire plan” means 

the entire plan; “everyone” means everyone. Reading the brochure 

as a whole, I cannot conclude that Mr. Sieving and other purchasers 

of the automatic-benefit-increase inflection protection were 

exempt from rate increases.2 

For the foregoing reasons, the breach-of-contract claim 

pertaining to the automatic-benefit-increase inflation protection 

is dismissed. The breach-of-contract claim may proceed, but only 

with regard to the purported breach based on Continental’s 

inconsistent nationwide premium increase. 

III. 

Mr. Sieving also asserts a claim for breach of the implied 

covenant of good faith and fair dealing (Count II). However, 

“Illinois courts are clear that the duty imposed by the covenant 

of good faith and fair dealing generally does not give rise to a 

cause of action in tort for breach of that duty.” Woerner v. 

Bankers Life & Cas. Co., 216 F. Supp. 3d 924, 929 (N.D. Ill. 2016) 

2 Mr. Sieving also notes that Continental’s offer of inflation 

protection was required, under the Illinois Administrative Code, 

to “disclose in a conspicuous manner that the premium may change 

in the future unless the premium is guaranteed to remain constant.” 

Ill. Admin. Code tit. 50, § 2012.80(f). But, as noted above, the 

disclosures in the brochure were conspicuous. At any rate, Mr. 

Sieving has brought a claim for breach of contract, not breach of 

the Illinois Administrative Code. 

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(citing Voyles v. Sandia Mortg. Corp., 751 N.E.2d 1126, 1130-31 

(Ill. 2001)). Instead of an independent source of liability, the 

implied covenant of good faith and fair dealing is merely a rule 

of construction that applies in the context of a breach-of-contract 

claim. Voyles, 751 N.E.2d at 1131. Accordingly, Count II is 

properly dismissed. 

IV. 

 Next, in Count III, Mr. Sieving asserts a cause of action 

under the Illinois Consumer Fraud and Deceptive Business Practice 

Act (“ICFA”), 815 Ill. Comp. Stat. 505. Specifically, Mr. Sieving 

contends that “Continental’s brochure and other marketing 

materials contained deceptive statements about future premium 

increases.” ECF No. 1 ¶ 109. 

Continental moves to dismiss the ICFA claim on standing 

grounds. “[F]or a nonresident plaintiff [such as Mr. Sieving] to 

have standing under the [ICFA], . . . ‘the circumstances that 

relate to the disputed transaction [must] occur primarily and 

substantially in Illinois.’” Crichton v. Golden Rule Ins. Co., 

576 F.3d 392, 396 (7th Cir. 2009) (citing Avery v. State Farm Mut. 

Auto. Ins. Co., 835 N.E.2d 801, 853-54 (Ill. 2005)). This is not 

a “bright-line rule but rather a highly fact-bound inquiry in which 

no single factor would be dispositive.” Id.

Mr. Sieving argues that the transaction occurred “primarily 

and substantially in Illinois” because (1) Continental is 

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headquartered in Illinois, and (2) it marketed and sold the 

insurance policy at issue to Employees Long Term Care Insurance 

Trust, an Illinois resident. ECF No. 21 at 21. But the ICFA claim 

at issue here centers around dissemination of the marketing 

documents, not on negotiating the underlying policy with the Trust. 

Moreover, “the administration of defendant’s business in Illinois 

is insufficient to give a nonresident plaintiff a claim.” Robinson 

v. DeVry Educ. Grp., Inc., No. 16 CV 7447, 2018 WL 828050, at *4 

(N.D. Ill. Feb. 12, 2018) (citing Crichton, 576 F.3d at 397). And 

even assuming the marketing documents were written at and 

circulated from Continental’s headquarters in Illinois, “[t]he 

dissemination of a scheme to defraud from Illinois headquarters is 

not dispositive either.” Id. (citing Avery, 835 N.E.2d at 855). 

The complaint alleges Mr. Sieving was a California resident 

at the time he purchased his policy certificate from Continental. 

ECF No. 1 ¶ 12. Accordingly, he likely received the marketing 

materials and relied on them in making his decision to purchase 

the certificate in the State of California. In like circumstances, 

courts have found a lack of ICFA standing. See Crichton, 576 F.3d 

at 397 (no ICFA standing despite defendant insurance company’s 

“home office” in Illinois where plaintiff “reside[d] in Florida, 

received promotional insurance materials there, entered into and 

renewed his insurance there, submitted claims there, and was 

allegedly deceived there”); Robinson, 2018 WL 828050, at *4 (no 

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ICFA standing despite defendant online university being 

headquartered in Illinois and maintaining website with allegedly 

fraudulent content in Illinois where plaintiffs enrolled in 

university in their respective states and “received the 

misrepresentations and acted upon them there”). Accordingly, 

Count III is dismissed. 

V. 

 In Counts IV and V, Mr. Sieving asserts claims for fraud and 

fraudulent omission. As a threshold matter, the parties dispute 

whether Illinois or California law governs the fraud claims. I 

conclude that Illinois law applies. 

 The rules of the forum state—here, Illinois—apply for 

purposes of a choice-of-law analysis. Klaxon Co. v. Stentor Elec. 

Mfg. Co., 313 U.S. 487, 496 (1941). Illinois courts engage in a 

choice-of-law inquiry “only if there is a conflict between Illinois 

law and the law of another state such that ‘a difference in law 

will make a difference in the outcome.’” West Side Salvage, Inc. 

v. RSUI Indem. Co., 878 F.3d 219, 223 (7th Cir. 2017) (citing 

Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 898 (Ill. 2007)). 

“The party seeking the choice-of-law determination bears the 

burden of demonstrating a conflict.” Bridgeview Health Care Ctr., 

Ltd. v. State Farm Fire & Cas. Co., 10 N.E.3d 902, 905 (Ill. 2014). 

“If the party fails to establish the existence of such a conflict, 

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the court applies the law of the forum state.” West Side Salvage, 

878 F.3d at 223. 

 Here, Continental raised the conflict-of-laws question, so 

bears the burden to demonstrate an outcome-determinative conflict 

between Illinois and California law. But Continental identifies 

no such conflicts, and even concedes that “the relevant elements 

of plaintiff’s fraud claims are similar under Illinois and 

California law.” ECF No. 25 at 2. Accordingly, Illinois law will 

apply. 

 To state a fraud claim in Illinois, a plaintiff must allege: 

(1) a false statement of material fact; (2) known or 

believed to be false by the person making it; (3) an 

intent to induce the plaintiff to act; (4) action by the 

plaintiff in justifiable reliance on the truth of the 

statement; and (5) damage to the plaintiff resulting 

from such reliance. 

Newman, 885 F.3d at 1003 (citing Doe v. Dilling, 888 N.E.2d 24, 

35-36 (Ill. 2008)). To state a claim for fraudulent concealment, 

rather than a false statement, “a plaintiff must allege that the 

defendant concealed a material fact when he was under a duty to 

disclose that fact to plaintiff.” Toulon v. Cont’l Cas. Co., 877 

F.3d 725, 737 (7th Cir. 2017) (citing Connick v. Suzuki Motor Co. 

Ltd., 675 N.E.2d 584, 593 (Ill. 1996)). Mr. Sieving alleges that 

Continental’s marketing materials contained fraudulent statements 

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and omissions because (1) Continental knew that it would not 

uniformly increase premiums from one state to the next, and (2) 

Continental knew that it might or would raise premiums for 

purchasers of the automatic-benefit-increase option. 

 I turn first to Mr. Sieving’s fraud claims regarding the 

inconsistent nationwide premium increases. Continental argues 

initially that Mr. Sieving did not allege any false statement. 

But Mr. Sieving pleaded that Continental’s marketing brochure 

provided premiums would remain the same unless increased “for 

everyone in your age group.” ECF No. 1 ¶ 34. The brochure also 

provided that Continental could raise premiums “for the entire 

plan,” and included tables showing premium rates that appeared to 

be based only on age and benefit level, rather than on state of 

residence. Id. ¶¶ 29, 37. The brochure, thus, could rationally 

be read to suggest that premium rates would be the same for all 

individuals covered under the policy within the same age group—

regardless of their state. That is enough to plead falsity. See, 

e.g., Newman, 885 F.3d at 1001, 1003. 

 Mr. Sieving has also sufficiently pleaded knowledge. “In 

Illinois, a defendant knowingly misrepresents a fact if it makes 

a statement ‘with reckless disregard for its truth or falsity.’” 

Id. at 1003 (citing Gerill Corp. v. Jack L. Hargrove Builders, 

Inc., 538 N.E.2d 530, 536 (Ill. 1989)). Continental portrayed its 

policy as one that offered uniform nationwide premiums, and Mr. 

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Sieving alleged that it did so in bad faith, knowing that in light 

of the state-by-state regulatory framework, it would not honor 

that representation. Accordingly, Mr. Sieving has satisfied the 

knowledge element. See id. (knowledge element sufficiently 

pleaded where plaintiff alleged that defendant insurance company, 

in bad faith, portrayed policy as one that offered a fixed 

premium). 

 Continental also argues that Mr. Sieving failed to plausibly 

allege reasonable reliance. It contends that because contracting 

parties are assumed to know the law, it would not be reasonable 

for Mr. Sieving to rely on any statements guaranteeing uniform 

premium increases. ECF No. 16 at 21. But, as noted above, the 

state regulations do not, in and of themselves, necessitate that 

premium increases are implemented on a non-uniform basis; 

Continental could have chosen to limit its premium increases to 

those permitted by the most restrictive state. Accordingly, the 

state regulations do not necessarily conflict with a promise of 

uniformity. 

Finally, Continental argues that the fraudulent concealment 

claim should be dismissed because Continental did not have a duty 

to disclose that it would not uniformly increase premiums 

nationwide. It is true that no duty to disclose likely arises 

here based on a fiduciary relationship or a relationship of trust 

and confidence between Continental and Mr. Sieving. See Toulon, 

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877 F.3d at 737-38. However, a duty to disclose may also arise 

“when a defendant makes a statement ‘that it passes off as the 

whole truth while omitting material facts that render the statement 

a misleading “half-truth.”’” Newman, 885 F.3d at 1004 (citing 

Crichton, 576 F.3d at 397-98). Here, Continental provided that it 

could raise premiums “for the entire plan,” ECF No. 1 ¶ 29, or for 

“everyone in your age group,” id. ¶ 34, while omitting that premium 

increases could vary significantly based on the certificate 

holder’s state of residency. That is enough to establish a duty 

to disclose at the pleading stage. See Newman, 885 F.3d at 1004. 

Accordingly, Mr. Sieving’s fraud and fraudulent-concealment claims 

pertaining to non-uniform nationwide premium increases may 

proceed. 

Mr. Sieving also claims fraud and fraudulent concealment on 

the grounds that Continental’s marketing materials deceptively 

suggested that purchasers of the automatic-benefit-increase 

inflation protection would not be subject to premium increases. 

However, for the reasons discussed above, the brochure was not 

false or misleading. The brochure provided that Continental could 

“change premiums for the entire plan if necessary,” ECF No. 1 ¶ 29, 

and under the capitalized heading “OUR RIGHT TO CHANGE THE 

PREMIUM,” it announced that premium rates could be increased “for 

everyone in your age group,” id. ¶ 34. There was no indication 

that purchasers of the automatic-benefit-increase option were 

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exempt. This is a situation “in which the consumer [wa]s warned 

about the undesirable result and simply misconstrue[d] the 

material offered by the insurance company.” See Newman, 885 F.3d 

at 1001. I find no falsity or misleading half-truth. Accordingly, 

to the extent Counts IV and V pertain to Mr. Sieving’s claims 

regarding the automatic-benefit-increase inflation protection, 

they are dismissed. 

VI. 

Finally, Continental moves to dismiss Mr. Sieving’s claim for 

declaratory and injunctive relief in Count VI. Count VI is 

properly dismissed because “requests for declaratory judgment and 

injunctions are not independent causes of action.” Elward v. 

Electrolux Home Prods., Inc., 214 F. Supp. 3d 701, 708 (N.D. Ill. 

2016); see also Mohammad v. IndyMac Bank, F.S.B./One West Bank, 

F.S.B., No. 16 C 7241, 2018 WL 1252112, at *6 (N.D. Ill. Mar. 12, 

2018). “It is well established that the Declaratory Judgment Act 

does not create an independent cause of action. It provides only 

an additional form of relief.” Morris v. Mfrs. Life Ins. Co., No. 

EV 95-142-C H/H, 1997 WL 534156, at *10 (S.D. Ind. Aug. 6, 1997); 

see also Keesler v. Electrolux Home Prods., Inc., No. 16 C 199, 

2016 WL 3940114, at *3 (N.D. Ill. July 21, 2016). Similarly, “[a]n 

injunction is a type of remedy, . . . as distinct from an underlying 

claim for relief.” Onyango v. Downtown Entm’t, LLC, 525 F. App’x 

458, 460 (7th Cir. 2013). 

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Continental seems to argue that above and beyond Count VI’s 

dismissal, however, Mr. Sieving should be precluded from seeking 

an injunction in his prayer for relief. It contends that Mr. 

Sieving has an adequate remedy at law because plaintiffs’ injury 

“is easily remedied by an award of money damages.” ECF No. 16 at 

26 (citing Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 

883, 892 (7th Cir. 2011)). But Mr. Sieving seeks to prevent 

Continental from “increasing long-term care insurance premiums by 

amounts that vary state-to-state” in the future. ECF No. 1 ¶ 141. 

Accordingly, I am not convinced at this stage that damages would 

be an adequate remedy at law. See In re Experian Data Breach 

Litig., No. SACV 15-1592 AG (DFMx), 2016 WL 7973595, at *7 (C.D. 

Cal. Dec. 29, 2016) (applying Illinois law and denying motion to 

dismiss claim seeking injunction to protect plaintiffs against 

future data breaches even if damages were sufficient to compensate 

for prior breach); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 

Ltd., 518 F. Supp. 2d 1197, 1220 (C.D. Cal. 2007) (“[A] legal 

remedy is inadequate if it would require a ‘multiplicity of 

suits.’”); see also Almond v. Capital Props., Inc., 212 F.3d 20, 

25 (1st Cir. 2000) (“[I]njunctions against contract breach are 

common where there is some reasonable doubt about whether damages 

can be sufficient [and] that assessment ordinarily turns very much 

on the facts.”). 

Case: 1:20-cv-05127 Document #: 36 Filed: 04/26/21 Page 21 of 22 PageID #:443
22 

VII. 

 For the foregoing reasons, the motion to dismiss [15] is 

granted in part and denied in part. Counts II, III, and VI are 

dismissed. Counts I, IV, and V may proceed insofar as they pertain 

to inconsistent nationwide premium increases, but are dismissed to 

the extent they pertain to the automatic-benefit-increase 

inflation protection. 

 ENTER ORDER: 

 ________________________ 

 Elaine E. Bucklo 

 United States District Judge 

Dated: April 26, 2021 

Case: 1:20-cv-05127 Document #: 36 Filed: 04/26/21 Page 22 of 22 PageID #:444