{ "id": 5387086, "name": "ROBERT R. ZINSER et al., Plaintiffs-Appellants, v. MELVIN C. ROSE et al., Defendants-Appellees (State Farm Mutual Insurance Company, Defendant)", "name_abbreviation": "Zinser v. Rose", "decision_date": "1993-05-04", "docket_number": "No. 3-92-0315", "first_page": "881", "last_page": "889", "citations": [ { "type": "official", "cite": "245 Ill. App. 3d 881" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 N.E.2d 815", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2504652 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/1074-01" ] }, { "cite": "243 Ill. App. 3d 230", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108446 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0230-01" ] }, { "cite": "607 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "198" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738760 ], "year": 1993, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0534-01" ] }, { "cite": "510 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 154", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 8499060 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0522-01" ] }, { "cite": "546 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "41" }, { "page": "41" } ], "opinion_index": 0 }, { "cite": "137 Ill. Dec. 409", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1989, "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518602 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0524-01" ] }, { "cite": "807 F. Supp. 1412", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7408459 ], "pin_cites": [ { "page": "1421" } ], "opinion_index": 0, "case_paths": [ "/f-supp/807/1412-01" ] }, { "cite": "608 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. 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ZINSER et al., Plaintiffs-Appellants, v. MELVIN C. ROSE et al., Defendants-Appellees (State Farm Mutual Insurance Company, Defendant)." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiffs are 13 chiropractors. Defendants are a chiropractic claims review service, Professional Evaluation Service, P.C. (PES), and its principals, Melvin Rose and Herbert Hender, and State Farm Mutual Insurance Company, a client of PES. Plaintiffs brought suit alleging sham reviews by PES of claims submitted to State Farm by plaintiffs\u2019 patients. In their second amended complaint, plaintiffs sought recovery under theories alleging interference with contract and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1989, ch. 121V2, par. 261 et seq.) (Consumer Fraud Act), the Uniform Deceptive Trade Practices Act (111. Rev. Stat. 1989, ch. I2IV2, par. 311 et seq.), and the Racketeer Influenced & Corrupt Organizations Act (18 U.S.C. \u00a71961 et seq. (1988)) (RICO).\nOn motion of defendants to dismiss all counts of the complaint, the trial court dismissed with prejudice the statutory causes of action against all defendants and denied the motion with respect to the common law intentional interference with contract claims. The court refused to enforce plaintiffs\u2019 discovery requests pending their appeal to this court. This interlocutory appeal is brought by defendants PES, Rose and Hender (hereinafter defendants) pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Neither State Farm nor the interference with contract claims are before us.\nThe issues on appeal are: (1) whether plaintiffs have stated a cause of action under RICO; (2) whether plaintiffs have stated a cause of action under the Consumer Fraud Act; and (3) whether plaintiffs have stated a cause of action under the Uniform Deceptive Trade Practices Act.\nThe standard for review of a motion to dismiss requires this court to accept as true all well-pleaded allegations of the complaint and to view these allegations in the light most favorable to the plaintiffs. Although the complaint need not exhaustively detail the basis for each claim, it must contain sufficient direct or inferential allegations of all material elements to sustain a recovery under some viable legal theory. A dismissal is not appropriate unless it is clearly apparent that the plaintiff can prove no facts in support of his claim which would entitle him to relief. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654; see also Godson v. Newman (C.D. Ill. 1992), 807 E Supp. 1412, 1415 (concluding that under the Federal standard \u201c[dismissal is not granted \u2018unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief \u201d), quoting Conley v. Gibson (1957), 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99.\nRICO CLAIMS\nPlaintiffs\u2019 second amended complaint charges in separate counts for each plaintiff that defendants violated RICO by \u201ccontinually engaging in [a] scheme to defraud *** through more than 15,000 acts of sham chiropractic claims \u2018review\u2019 committed since PES\u2019 formation in 1982 substantially all of which separate sham chiropractic claims \u2018review\u2019 conducted with regard to a particular chiropractor\u2019s particular treatment of patients are indictable offenses of mail fraud under Title 18, \u00a71341, United States Code and wire fraud indictable under Title 18, \u00a71343, United States Code\u201d; that defendants Rose and Hender \u201chave received substantial amounts of income directly from the pattern of racketeering activity engaged in sham chiropractic claims review conducted through PES, and each has acquired a substantial interest in the racketeering enterprise itself, PES, and its business of conducting sham claim review contrary to the prohibitions of 18 U.S.C. \u00a7 1962(a) & (c)\u201d; that defendants Rose and Hender and defendant PES \u201cthrough its managerial agents, Rose and Hender, have each conspired together to engage in a pattern of racketeering activity through the sham chiropractic claims review scheme to defraud *** in violation of 18 U.S.C. \u00a71962(a) & (e)\u201d; that plaintiff \u201chas been injured in his business by reason of the damage to his reputation and good will and his ability to receive other patients and retain the insured patients whose treatment has been the subject of a PES review within the meaning of 18 U.S.C. \u00a7 1964(c)\u201d; that plaintiff \u201chas also been injured in his business or property as a direct and proximate result of the pattern of racketeering activity engaged by defendants through the loss of money *** in violation of 18 U.S.C. \u00a7 1962(a), (c), (d)\u201d; and that the \u201cbusiness of sham chiropractic claims review *** is a racketeering enterprise as defined in 18 U.S.C. \u00a71961(4) as is the corporation PES itself.\u201d\nThe trial court granted defendants\u2019 motion to dismiss the RICO counts \u201cfor lack of direct injury and causation.\u201d In this appeal plaintiffs present a multipronged argument for reversal, contending that the court improperly applied a narrow interpretation of the RICO standing requirement and that their complaint on its face satisfies the causation element for purposes of the motion to dismiss. We cannot agree.\nRICO was enacted by Congress \u201cin an attempt to eradicate organized, long-term criminal activity.\u201d A civil cause of action may arise under RICO for persons whose business is injured by a pattern of racketeering activity, which activity may involve mail or wire fraud as proscribed by 18 U.S.C. \u00a7\u00a71341 and 1343, respectively. Where, as here, mail and wire fraud are the predicate acts for plaintiffs\u2019 RICO claims, they must be alleged with specificity as to time and place (Midwest Grinding Co. v. Spitz (7th Cir. 1992), 976 F.2d 1016), and causation of plaintiffs\u2019 injury, if not direct, must flow logically from defendants\u2019 alleged activities (National Enterprises, Inc. v. Mellon Financial Services Corp. No. 7 (5th Cir. 1988), 847 F.2d 251).\nIn our opinion, plaintiffs\u2019 RICO counts cannot withstand analysis. Although plaintiffs complain of \u201csham claim reviews\u201d over a 10-year period by PES, the complaint is remarkably vague as to time and place of the use of the mail or telephone to defraud and refers only in general terms to \u201cinsurance companies\u201d and \u201cplaintiffs\u2019 patients\u201d as the persons to whom such communications were directed. Such allegations are not sufficient for purposes of RICO.\nPlaintiffs contend that any lack of specificity in their complaint is a product of the fact that documentation of the alleged racketeering activity is within defendants\u2019 control. However, it is apparent to us that plaintiffs\u2019 alleged inability to plead with greater specificity is not a consequence of thwarted discovery efforts, but rather is related to the indirect nature of the injury they claim to have suffered as a result of defendants\u2019 activity. The complaint alludes to damages to reputation and good will as well as lost income, but does not allege that any patients have discontinued plaintiffs\u2019 services or refused to pay their bills as a result of PES\u2019 activity. The complaint alleges only that the patients\u2019 insurers have refused to pay indemnities to their insureds. On its face, the complaint alleges only an inference of indirect injury and invites speculation of causation. Because the complaint fails to plead requisite standards of specificity and direct injury, we hold that the trial court did not err in dismissing with prejudice plaintiffs\u2019 RICO causes of action.\nCONSUMER FRAUD CLAIMS\nPlaintiffs next contend that the trial court erroneously gave \u201cgrudging\u201d interpretation of the Consumer Fraud Act in granting defendants\u2019 motion to dismiss counts charging violations of the Act. Defendants contend that plaintiffs not only lack standing to bring an action under the Act, but that in any event their allegations of fraud are insufficient to state a cognizable claim.\nInitially, we note that the Consumer Fraud Act was amended effective January 1, 1990. The amendment provides that \u201cproof of public injury, a pattern, or an effect on consumers generally shall not be required.\u201d (Ill. Rev. Stat. 1991, ch. 12V-k, par. 270a(a).) Prior to the amendment, the courts were split on the question of whether the Act required proof of public injury or injury to consumers generally. Since the acts complained of in this case date from 1982, in order to analyze the sufficiency of plaintiffs\u2019 allegations, it must be determined whether the amendment was prospective only, as urged by defendants, or retrospective, as argued by plaintiffs. That question was recently resolved in plaintiffs\u2019 favor in Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc. (1992), 240 Ill. App. 3d 360, 368, 608 N.E.2d 178. The court there analyzed relevant case law and the legislative history of the amendment and concluded that the 1990 amendment \u201cmerely clarified rather than changed the Act\u201d and was, therefore, applicable retroactively. The court\u2019s reasoning is sound. Accordingly, we reject defendants\u2019 challenge to plaintiffs\u2019 statutory cause of action on the ground that it fails to allege a public injury.\nThe standing of professionals alleging a cause of action under the Consumer Fraud Act was recently analyzed in Gadson v. Newman (C.D. Ill. 1992), 807 F. Supp. 1412, 1421. Plaintiff Gadson was a psychiatrist who complained that patients were being referred by defendant psychiatrist, Newman, to Newman\u2019s own clinic and admitted to defendant hospital, St. Mary\u2019s Hospital of Quincy, Illinois, in a scheme designed to profit the hospital and Newman to the exclusion of plaintiff and to increase health care costs. One of the issues before the court was whether Gadson was a person who suffered damage as a result of a violation of the Act. The court determined that he was.\n\u201cThe proper test for standing was enunciated in Downers Grove Volkswagen v. Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 137 Ill. Dec. 409, 546 N.E.2d 33, 41 (1989). Wigglesworth found that where the dispute involves two businesses who are not consumers, the test for standing is whether \u2018the alleged conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns.\u2019 The court found that plaintiff, who was a business competitor of the defendant stated a case against defendant by alleging that the defendant published false information about its prices to consumers. Id. There was no requirement that plaintiff plead any special damages other than damages to \u2018reputation\u2019, \u2018business\u2019 or \u2018prestige.\u2019 Id. Wigglesworth also noted that the requirements for standing under the act were to be liberally construed. Id.\nThe Court finds that Plaintiff Dr. Gadson\u2019s pleadings meet this test. In paragraph 25 of Count IV of this complaint, Dr. Gadson alleges harm to the medical consumers in the Quincy area because of SMH [St. Mary\u2019s Hospital] and Dr. Newman\u2019s fraudulent and deceptive practices. Dr. Gadson also notes that his own business has been damaged as a result of these actions. These pleadings satisfy the \u2018liberal construction\u2019 of the pleadings requirements as stated in Wiqqlesworth.\u201d 809 F. Supp. at 1421.\nLikewise, in the present case, we believe that liberal construction requires the conclusion that plaintiffs have standing to sue under the Act. Plaintiffs complain that defendants have harmed their reputations through collusive, sham reviews of the necessity of care and reasonableness of charges submitted on plaintiffs\u2019 clients\u2019 claims for insurance indemnities. By alleging that the insurers are thereby able to reduce their payments on the insurance claims, plaintiffs allege conduct arguably implicating consumer protection concerns. Moreover, contrary to defendants\u2019 arguments, we do not find that the damage alleged by plaintiffs is too indirect or attenuated to give them standing since, as stated in Wigglesworth, general damage to reputation, prestige, good will and business is sufficient under the Act. Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 534, 546 N.E.2d 33, 41.\nDefendants also argue that plaintiffs\u2019 claims under the Consumer Fraud Act must fail for lack of specificity. Defendants posit that the same specificity required to state a common law fraud cause of action is needed to sustain one under the Act.\nNotwithstanding this general rule of law, the two actions are distinct. As observed by the court in Rubin v. Marshall Field & Co. (1992), 232 Ill. App. 3d 522, 533, 597 N.E.2d 688, 695, quoting Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 953, 557 N.E.2d 246, a plaintiff\u2019s right to recovery under the Act may be based on an innocent or negligent misrepresentation as well as one that is intentional. A finding for plaintiff on consumer fraud is thus not inconsistent with a finding for defendant on common law fraud. The court explained that the Consumer Fraud Act was enacted to expand the consumer\u2019s rights beyond those of the common law and provide broader protection than the common law action of fraud. Rubin, 232 Ill. App. 3d at 533, 597 N.E.2d at 695, quoting Zimmerman v. Northfield, Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 168, 510 N.E.2d 409.\nThe elements of the statutory cause of action are: (1) a deceptive act or practice; (2) defendants\u2019 intent that plaintiffs rely on the deception; and (3) that the deception occurred in the course of conduct involving trade or commerce. \u201cSignificantly, the Act does not require actual reliance.\u201d By contrast, an actionable common law fraud claim requires pleading actual reliance. (Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 542, 607 N.E.2d 194, 198; cf. Elipas Enterprises, Inc. v. Silverstein (1993), 243 Ill. App. 3d 230 (holding that complaint brought by private party seeking money damages under the Act must plead and prove justifiable or reasonable reliance).) In Siegel, unlike here, plaintiffs sought recovery for both common law and statutory fraud. The court held that by adequately pleading the former, plaintiffs necessarily met their burden of pleading the latter. We reject the recent decision of Elipas to the extent it holds that actual reliance must be established for both causes of action.\nIn this case, we find that the lack of specificity in the mail/ wire fraud counts brought under RICO does not defeat plaintiffs\u2019 complaint under the Consumer Fraud Act. Plaintiffs allege that defendants\u2019 reviews of insurance claims were in fact a sham, motivated by defendants\u2019 collusive interest with the insurer to save the insurer money that rightfully should have been paid out in indemnities to plaintiffs\u2019 chiropractic clients, and that such sham reviews in fact resulted in monetary losses to the plaintiffs along with loss of professional reputation. Taking these allegations, as we must, as true for purposes of the motion to dismiss, we do not find them so unspecific as to require dismissal. Accordingly, we hold that plaintiffs\u2019 complaints of business disparagement under the Act are sufficient to survive defendants\u2019 motion to dismiss.\nUNIFORM DECEPTIVE TRADE PRACTICES CLAIMS\nLastly, we reject defendants\u2019 challenges to plaintiffs\u2019 causes of action under the Uniform Deceptive Trade Practices Act. Defendants contend that plaintiffs lack standing, i.e., the Act was not enacted for the benefit of plaintiffs because they are not purchasers of products or services from defendants. They further argue that the complaint under this Act suffers from the same lack of specificity argued in support of the court\u2019s dismissal of the consumer fraud counts.\nThe Uniform Deceptive Trade Practices Act, while not enacted as a consumer protection statute (Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872), has been broadly construed as a remedy for unfair trade practices between competing businesses as well as for deceptive trade practices damaging consumers. (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 35, 585 N.E.2d 51, citing Hayna v. Arby\u2019s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174; Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.) Thus, in this case, where the alleged unfair practice was deceptive to consumers and caused harm to the provider of professional services to those consumers, the same operative facts may sustain causes of action under both statutes as against defendants\u2019 motion to dismiss based on lack of standing and specificity. See People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d at 34-35, 585 N.E.2d at 66 (rejecting defendants\u2019 arguments that plaintiffs lacked standing and that their complaint was factually insufficient for reasons given in review of dismissal of Consumer Fraud Act claim).\nIn sum, we hold that the trial court correctly dismissed plaintiffs\u2019 causes of action based on the RICO Act and erred in allowing defendants\u2019 motion to dismiss claims brought under the Consumer Fraud and Uniform Deceptive Trade Practices Acts. We therefore remand the cause to the circuit court of Peoria County for reinstatement of counts alleging violations of the Consumer Fraud Act and the Uniform Deceptive Trade Practices Act and for further proceedings.\nAffirmed in part; reversed in part and remanded.\nSLATER and BRESLIN, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "John P. Nicoara, of Nicoara & Steagall, of Peoria (Richard L. Steagall, of counsel), for appellants.", "Karen L. Kendall, Brent H. Gwillim, and Nicholas Bertschy, all of Heyl, Royster, Voelker & Allen, of Peoria (Bradley S. McMillan, of counsel), for appellees." ], "corrections": "", "head_matter": "ROBERT R. ZINSER et al., Plaintiffs-Appellants, v. MELVIN C. ROSE et al., Defendants-Appellees (State Farm Mutual Insurance Company, Defendant).\nThird District\nNo. 3 \u2014 92\u20140315\nOpinion filed May 4, 1993.\nModified on denial of rehearing June 15, 1993.\nJohn P. Nicoara, of Nicoara & Steagall, of Peoria (Richard L. Steagall, of counsel), for appellants.\nKaren L. Kendall, Brent H. Gwillim, and Nicholas Bertschy, all of Heyl, Royster, Voelker & Allen, of Peoria (Bradley S. McMillan, of counsel), for appellees." }, "file_name": "0881-01", "first_page_order": 901, "last_page_order": 909 }