FIRST DIVISION

									October 21, 2002

No.  1-00-3743

									)

ILLINOIS BELL TELEPHONE COMPANY,			) Appeal from the

d/b/a Ameritech Illinois, 				) Circuit Court of

an Illinois Corporation,					) Cook County,

							  		)

	Plaintiff and Counterdefendant-Appellee,)

									) Nos. 98 L 2870										

		v.							)

									)

PLOTE, INC.,							)

an Illinois Corporation,					) Honorable

									) James F. Henry,

	Defendant							) Judge Presiding.

_________________________________________________________________

(Plote, Inc., an Illinois Corporation,		)

Allied Asphalt Paving Company, an			)

Illinois Corporation, and Milburn			)

Brothers, Inc., an Illinois				)

Corporation, an Illinois Joint			)

Venture,								)

									)

	Counterplaintiffs-Appellants).		)

									)

	PRESIDING JUSTICE GORDON delivered the opinion of the court:

	Counterplaintiffs, Plote, Inc., Allied Asphalt Paving

Company and Milburn Brothers, Inc. (collectively Plote or

plaintiff), appeal from the judgement of the circuit court of

Cook County granting a motion pursuant to section 2-615 of the

Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)) in favor

of counterdefendant Illinois Bell Telephone Company, d/b/a

Ameritech Illinois (Bell or defendant), dismissing counts II,

III, IV and V of Plote's lawsuit against Bell.  On appeal, Plote

contends that its suit is not barred by the Moorman doctrine (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E. 2d 443 (1982)); that it has a cause of action under both

the Illinois Underground Utility Facilities Damage Prevention Act

(220 ILCS 50/1 et seq. (West 1996)) and the Illinois Highway Code (605 ILCS 5/1-101 et seq.; and that it properly stated a cause of action for tortious interference with a contract.  We affirm in

part, reverse in part and remand for further proceedings.

BACKGROUND

	Plote's first amended counterclaim makes the following

general allegations.  Plote entered into a contract with the

Illinois Department of Transportation (IDOT) to make improvements

to Arlington Heights Road in the city of Arlington Heights,

Illinois.  Prior to accepting bids for the above-described

contract, IDOT submitted the proposed plans for the construction

project to Bell so that Bell could locate conflicts between the

project and Bell's underground telephone facilities.  Bell,

however, did not respond to IDOT's request that it identify the

anticipated conflicts.  Alternatively, Plote alleges that Bell

did not fully respond to IDOT's requests to identify anticipated

conflicts.  On August 8, 1995, a preconstruction conference was

held at IDOT's offices.  At this conference a representative of

Bell was informed of the date on which the construction project

was expected to start.  

	Beginning on December 13, 1995, a series of "utility

meetings" was held at which various conflicts relating to Bell's

facilities were identified.  As a result of Bell's failure to

identify the location of its facilities, or alternatively as a

result of Bell's failure to adequately identify those facilities,

the construction project was delayed.  Pursuant to the contract,

Plote was to complete the project by October 31, 1996; however,

due to the delays, it was not completed until May 31, 1997. 

Plote sustained increased expenses as a result of these delays.

	The first amended counterclaim alleges three counts

pertinent to this appeal.  Count II purports to state a claim for

a violation by Bell of the Illinois Underground Utility

Facilities Damage Prevention Act (Underground Facilities Act)

(220 ILCS 50/9 (West 1996)).  Count III purports to state a claim

for common law negligence.  Count IV purports to state a claim

for a violation by Bell of the Illinois Highway Code (605 ILCS

5/9-113(f) (West 1996)).  Count V purports to state a claim for

tortious interference with contract.1

	On June 16, 1999, Bell filed a motion to dismiss Plote's

first amended counterclaim in its entirety pursuant to section 2-

615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2000)).  Bell argued that counts II, III and IV were barred under

the Moorman doctrine.  Bell further argued that count V failed to state a cause of action because it failed to allege that Bell

intended to interfere with Plote's contract with IDOT.  The trial

court subsequently granted Bell's section 2-615 motion and

dismissed counts I, II, III, IV and V.  

	Plote filed its second amended counterclaim on December 1,

1999.  This counterclaim made changes to count I and V, and added

counts VI and VII.2  The second amended counterclaim realleged the general allegations made in the first amended counterclaim. 

It also realleged counts II, III and IV verbatim.  Bell

subsequently filed a motion to dismiss pursuant to sections 2-619

(735 ILCS 5/2-619 (West 2000)) and 2-615.  Bell again argued that

count V failed to make allegations that its interference with

Bell's contract was intentional.  Bell's motion does not address

counts II, III and IV, except to note in a footnote that

"although not so noted in its counterclaim, the undersigned

counsel has confirmed with *** counsel for Plote, that counts II,

III and IV were re-pled solely for the purpose of preserving

Plote's appellate rights."  The court granted Bell's motion and dismissed counts I, V, VI and VII. This appeal followed.

	ANALYSIS

	Plote first argues that the trial court erred in dismissing

count II of the complaint, which purports to state a claim for a

violation by Bell of the Illinois Underground Utility Facilities

Damage Prevention Act.  220 ILCS 50/9 (West 1996).  Plote

contends that it is not barred by the Moorman doctrine from recovering economic losses for Bell's alleged failure to properly

mark the location of its underground facilities, which delayed

Plote's construction project.  We agree.

	The Moorman doctrine, promulgated by our supreme court in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982), established the rule known as the economic

loss doctrine as the law in Illinois.  The Moorman doctrine provides that "a plaintiff cannot recover solely economic losses

in tort."  Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 176, 441 N.E.2d 324, 326 (1982); Moorman, 91 Ill. 2d at 86, 435 N.E.2d at 451.  Our supreme court, however, has defined several exceptions

to the Moorman doctrine.  These exceptions include the "information provider" exception, which allows recovery in tort

for economic losses "where the plaintiff's damages are a

proximate result of a negligent misrepresentation by a defendant

in the business of supplying information for the guidance of others in their business transactions."  In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233, 240-241, 641 N.E.2d 440, 443-44 (1994).3  See Moorman, 91 Ill. 2d at 89, 435 N.E.2d at 452 (allowing recovery for economic losses against

those who are "in the business of supplying information for the

guidance of others," thereby upholding the right of recovery

under Rozny v. Marnul, 43 Ill. 2d 54, 250 N.E.2d 656 (1969), which allowed recovery of economic damages against a surveyor).

	 Plote urges that the information provider exception applies

to Bell in this case because all Bell was required to do in this

situation was provide information about the location of its

facilities.  Plote contends that the determination of whether 

Bell is an information provider is made by looking to the context

of the specific transaction involved and not on the basis of

Bell's general business.  Bell contends that it does not fall

within the information provider exception because its primary

business is to supply telephone service and not information, even

though its function under the circumstances contemplated by the

Underground Facilities Act is solely to provide information.  We

agree with Plote.

	Section 10 of the Underground Facilities Act provides in

relevant part as follows:

		"Upon notice by the person engaged in excavation

or demolition, the person owning or operating

underground utility facilities *** shall mark,

within 48 hours (excluding Saturdays, Sundays and

holidays) of receipt of notice, the approximate

locations of such facilities so as to enable the

person excavating or demolishing to establish the

location of the underground utility facilities or

CATS facilities."  220 ILCS 50/10 (West 1996).

This statute provides that the limit of Bell's obligations in the

case at bar was to provide information to Plote regarding the

location of its underground facilities.  Thus, in the context of

the Underground Facilities Act, Bell is imposed with the duty of

being nothing but an information provider.  

	Although cited only by defendant in a footnote, the decision

of the Fifth District of this court in Followell v. Central Illinois Public Service Co., 278 Ill. App. 3d 1103, 663 N.E.2d 1122 (1996), is squarely on point.  The facts in that case are

virtually identical to the facts in the case at bar.  In

Followell, the plaintiff contractor was hired by the City of West Frankfort, Illinois, to replace several water mains.  The

plaintiff contacted the defendant natural gas utility company and asked that the defendant mark the locations of its lines which

conflicted with excavations which the plaintiff would need to

undertake in the course of its water main work.  The plaintiff

alleged that the defendant negligently marked the location of its

lines, and the defendant allegedly broke one of the plaintiff's

gas lines as a result.  The plaintiff had to stop work until the

defendant repaired the gas line, thus incurring economic losses,

for which it sued the defendant.

	The court reasoned that section 9 of the Act created a

private cause of action for a violation of section 10. 

Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125; 220 ILCS 50/9 (West 1994).  The court finally noted that "the plain

language of the Act does not restrict the damages a plaintiff may

recover under the Act to 'actual' or 'physical' damages." 

Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125.  The court then held "that in this instance, where a person suffers

purely economic damages as a result of an owner's breach of its

duty under section 10 of the Act, that person may bring an action

under section 9 for purely economic damages."  Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125.  The court thus held

that the plaintiff could recover for its economic losses. 

Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125; accord

A&L Underground, Inc. v. City of Port Richey, 732 So. 2d 480, 481 (Fla. App. 1999).

	The Followell court held that the defendant had an independent duty to supply information to the plaintiff regarding

the location of its underground facilities.  The court reasoned:

	"This statute imposes a duty on the defendant as the

owner or operator of underground facilities to supply

information about the location of the underground

facilities to the plaintiff or any other person

properly giving notice of an intention to excavate or

demolish.  The defendant is clearly engaged in the

business of supplying information concerning the

location of its underground facilities to persons like

the plaintiff who must rely on the information in order

to engage in excavations."  Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125.

Thus, the court held that the statute created an independent duty

upon the defendant to provide information and thus, in the

context of that statute defendant was deemed to be in the

business of supplying information.  Followell, 278 Ill. App. 3d at 1107, 663 N.E.2d at 1125.  

	Accordingly, as in Followell, the factual situation in the case at bar falls within the information-provider exception to

the Moorman doctrine.  In this particular case, Bell has the same duty that the utility company had in Followell to provide information to Plote, which originates in a statute, section 10 of the Underground Facilities Act.  As in Followell, the transaction between Bell and Plote created by the provisions of

the Underground Facilities Act does not extend beyond the

provision of information.  While Bell's general business may be

providing telephone service, as in Followell, it is the nature of the transaction at issue in the specific case on an ad hoc basis that is determinative.  Cf. Tolan & Son, Inc. v. KLLM Architects, Inc., 308 Ill. App. 3d 18, 719 N.E.2d 288 (1999).  We thus find that the trial court erred in dismissing count II of Plote's

complaint.  

	Bell argues the applicability of Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 679 N.E.2d 1197 (1997), to the instant case.  However, we find several

significant distinctions between the facts presented there and

those presented to us here.  In Fireman's Fund, our supreme court addressed the question:

	"'Is a professional engineer who prepares plans and

specifications for a construction project in the

business of supplying information to others for the

guidance of the recipient in its business dealings and

liable in tort for negligent misrepresentation under

Moorman ***[?]'"  Fireman's Fund, 176 Ill. 2d at 166, 679 N.E.2d at 1200.

The court answered the question in the negative, holding that the economic loss doctrine barred a contractor's tort suit against

the project engineer whose drawings allegedly miscalculated the

site for a water supply system.  Fireman's Fund, 176 Ill. 2d at 169, 679 N.E.2d at 1201.  The court reached this answer through

the application of a two-pronged analysis, and both prongs reveal

the distinctions between the facts presented in Fireman's Fund and those presented in this case.

	The first prong of the court's analysis centered on the applicability of the economic loss doctrine to service providers

who distribute information as part of their services.  The court noted that sound policy dictates that a service provider, such as

an engineer, generally should be protected by the doctrine

because the duties of a service provider may well be defined by

its contract with a client as may the duties of any other seller. 

The economic loss doctrine seeks to protect the integrity of

contract law and to force plaintiffs whose damages, in essence,

equal their commercial expectations to sue on their bargained-for

agreement.  Thus, the court concluded, the doctrine should be

applied to contractual relationships between service providers

and clients.  Fireman's Fund, 176 Ill. 2d at 166-68, 679 N.E.2d at 1200-01.

	In the instant case, however, Bell's duties and obligations

to Plote are not defined by a contract because there is no

contract between the parties.  The nature of the duty is wholly created and defined by statute under the provisions of the

Underground Facilities Act.  As the Fireman's Fund court noted:

	"'The evolution of the economic loss doctrine shows

that the doctrine is applicable to the service industry

only where the duty of the party performing the service

is defined by the contract that he executes with his

client.  Where a duty arises outside the contract, the

economic loss doctrine does not prohibit recovery in

tort for the negligent breach of that duty.'" 

Fireman's Fund, 176 Ill. 2d at 167, 679 N.E.2d at 1200, quoting Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 161-62, 636 N.E.2d 503 (1994). 

Because Bell's duty to Plote is not the result of any contract,

but only defined by statute, the policy concerns underlying the

application of the economic loss rule are not triggered in this

case.  Plote is not seeking the benefit of its bargain via a tort

suit rather than through more appropriate contract remedies.

	The second prong of the Fireman's Fund court's analysis was premised upon its conclusion that the applicability of the

economic loss doctrine depends upon whether the information

provider is supplying information that is incidental to a

tangible product.  The court reasoned that if the "ultimate

result" of the information is a tangible product, then the doctrine should apply.  Fireman's Fund, 176 Ill. 2d at 168-69, 679 N.E.2d at 1201.  As this court has recently reiterated, "[i]n

short, if the intended end result of the plaintiff-defendant

relationship is for the defendant to create a product, a tangible

thing, then the defendant will not fit into the 'business of

supplying information' negligent misrepresentation exception." 

Tolan, 308 Ill. App. 3d at 28, 719 N.E.2d at 296, quoting MW Manufacturers, Inc. v. Friedman Corp., slip op. at ____ No. 97 C 8319, N.D. Ill. July 21, 1998).  Because the defendant

engineering firm in Fireman's Fund provided plans for building a water supply system, the court concluded that it was hired to

create a tangible thing and did not fit into the information

provider exception.  Fireman's Fund, 176 Ill. 2d at 169, 679 N.E.2d at 1201.  

	In the case sub judice, Bell was not hired to "create a product, a tangible thing" but was instead statutorily obligated

simply to provide information to Plote about the location of its

facilities so as to avoid damage to those facilities during

Plote's road construction project.  Bell's information was not to

be incorporated into a product or structure but was merely to be

used to avoid causing the public any harm from utility

disruption.  The only "product" that Bell had a duty to

contribute was information and the "ultimate result" was avoidance of damage to Bell's facilities, not the creation of a

structure or tangible object itself.

	Finally we note that Bell's reliance on Northern Illinois Gas Co. v. Vincent DiVito Construction, 214 Ill. App. 3d 203, 573 N.E.2d 243 (1991), is misplaced.  Northern Illinois Gas does not address the information provider exception, which we have found

applicable herein, nor does it address a situation to which that

exception is applicable.  In Northern Illinois Gas, the plaintiff contractor sued the defendant gas company for economic losses it

suffered when it damaged one of the defendant's gas lines thereby

delaying plaintiff's construction project.  Plaintiff contended

that defendant was negligent because the gas line was not buried

sufficiently far beneath the surface.  There is nothing in

Northern Illinois Gas that would pertain to any breach of duty involving the supply of information.

	Plote next contends that the trial court erred in dismissing

count III, which purported to state a claim against Bell based on

common law negligence.  Plote contends that this count is not

barred by the Moorman doctrine.  We disagree.

	The same reasons that compel us to reverse the dismissal of

count II compel us also to affirm the dismissal of count III. 

Unlike court II, where a statute is pled so as to provide Bell

with an obligation to provide information to Plote, count III is

pled as a common law cause of action and is not based on the Underground Facilities Act or any other statute.  Count III thus

contends that Bell owed Plote a duty at common law to mark the

location of its underground facilities.  

	Plote, however, has not argued or cited any authority for

the proposition that Bell has a common law duty to mark the

location of its facilities in order to avoid causing Plote

economic losses.  Furthermore, our research has indicated that no

such common law duty exists.  Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 289 (Tx. Ct. App. 2000) (no duty exists for a utility to avoid economic losses by marking the

location of its facilities under Texas common law); cf. W. Keeton, Prosser & Keeton on Torts §92, at 657 (5th ed. 1984) ("there is no general duty to exercise reasonable care to avoid

intangible economic loss or losses to others that do not arise

from tangible physical harm to persons and tangible things");

accord Springfield Hydroelectric Co. v. Copp, 779 A.2d 67, 70 (Vt. 2001); Weisblatt v. Chicago Bar Ass'n, 292 Ill. App. 3d 48, 58, 684 N.E.2d 984, 990 (1997) (to establish a common-law claim

for negligent representation a plaintiff must allege, inter alia, "a false statement of material fact" and "carelessness or

negligence in ascertaining the truth of the statement by

defendant").  The Illinois case of Diaz v. Krob, 264 Ill. App. 3d 97, 100, 636 N.E.2d 1231, 1233 (1994), is also helpful.  There

the court held that where the plaintiff was hit by a car while crossing the street after being waved across the street by a

school bus driver, the bus driver had no duty to provide accurate

information.  We note that in this case, unlike Diaz, plaintiff has not alleged that Bell made any false statements, or for that

matter any affirmative statements at all.  Thus, without even reaching a Moorman analysis the complaint fails to establish any duty on the part of Bell at common law to supply the information

required under the statute.

	Plote next argues that the trial court erred in dismissing

count IV of its complaint because it has adequately stated a

cause of action under the Illinois Highway Code.  We disagree.

	"In order to recover for a defendant's violation of a

statute or rule designed to protect human life or property, a

plaintiff must show [inter alia, that his injury is] *** the kind of injury which the rule sought to prevent."  Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 543, 582 N.E.2d 108, 112 (1991).  Section 9-113(f) of the Illinois Highway Code

(605 ILCS 5/9-113(f)(West 2000)) states in relevant part as

follows:

	"Any ditches, drains, track, rails, poles, wires, pipe

line or other equipment located, placed or constructed

upon, under or along a State highway with the consent

of the State highway authority under this Section

shall, upon written notice by the State highway authority be subject to removal, relocation or

modification at no expense to the State highway

authority when and as deemed necessary by the State

highway authority for highway or highway safety

purposes."  605 ILCS 5/9-113(f)(West 2000).

This statute establishes that the highway authority may move

facilities that infringe on its easement.  This statute does not

purport to impose any duty upon a utility to provide information

to anyone, and in no event does it impose a duty to supply

information to private contractors.  Nothing in this statute

indicates that its purpose is to protect Plote or other

contractors from economic losses.  Rather, this statute gives the

state highway authority the power to subject objects on its

highways to removal upon its written notice.  We thus find that

Plote has no private cause of action based on section 9-113 of

the Highway Code. Cf. Swope v. Northern Illinois Gas Co., 251 Ill. App. 3d 850, 857-58, 623 N.E.2d 841, 846 (1993) (no private

cause of action was available to the plaintiff under section 9-

113 for injuries sustained in a car accident because the statute

was not intended to protect against that type of injury).  As is

the case with respect to count III, since Plote has no cause of

action based on this statute, we do not reach any Moorman issues with respect to that count.

	Finally, Plote argues that the trial court erred in dismissing count V of its complaint.  Plote contends that count V

properly states a cause of action for intentional interference

with a contract.  Bell contends that Plote has failed to plead

such a cause of action because Plote had not alleged that Bell

acted intentionally or that Bell's actions were unjustified.  We

agree with Bell.

	Here, too, as is the case with respect to counts III and IV,

Plote has not shown that Bell owed it any duty not to interfere

with Plote's contract with IDOT by providing information

concerning the location of its underground facilities.  However,

even if we were to graft the duty imposed by the Underground

Facilities Act onto this cause of action, Plote would not prevail

because Plote has failed to plead intentionality.  

	"In order to establish an action for intentional

interference with contract, a plaintiff must plead and prove

[,inter alia,]*** defendant's intentional and unjustified inducement of [a] third party to breach [a] contract."  Strosberg v. Brauvin Realty Services, Inc., 295 Ill. App. 3d 17, 32, 691 N.E.2d 834, 845 (1998).  "A necessary prerequisite to the

maintenance of an action for tortious interference with contract

is a defendant's intentional and unjustified inducement of a

breach of contract."  Strosberg, 295 Ill. App. 3d at 33, 691 N.E.2d at 845; Futurevision, Inc. v. Dahl, 139 Ill. App. 3d 61, 66, 487 N.E.2d 127, 131 (1985).   

	In the case at bar, Plote has not pled that Bell

intentionally caused Plote to breach its contract with IDOT or that Bell intended to cause Plote harm.  The trial court's dismissal of count V was thus correct.  

	Plote's reliance on HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc.,131 Ill. 2d 145, 545 N.E.2d 672 (1989), is misplaced.  HPI stands for the proposition that a plaintiff in a interference with contract action does not need to prove that the

defendant's conduct was malicious or unjustified unless that

defendant's conduct was privileged.  HPI, 131 Ill. 2d at 157, 545 N.E.2d at 677.  Plote thus argues that since Bell's conduct was

not privileged, it need not plead that Bell's conduct was

unjustified or malicious.  Nothing in HPI, however, limits the element of intentionality to cases where the defendant's conduct

was privileged.  Plote was thus required to plead that Bell acted

intentionally, which Plote did not do. 

	For the reasons discussed above, the judgment of the circuit

court of Cook County is affirmed in part and reversed in part and

this cause is remanded to the circuit court for further

proceedings not inconsistent with this opinion.

	Affirmed in part and reversed in part; cause remanded.

	McBRIDE and CAHILL, JJ., concur.