{ "id": 349630, "name": "GALLAGHER CORPORATION et al., Plaintiffs-Appellants, v. STEVEN B. RUSS, Defendant-Appellee", "name_abbreviation": "Gallagher Corp. v. Russ", "decision_date": "1999-09-30", "docket_number": "No. 1\u201497\u20144398", "first_page": "192", "last_page": "203", "citations": [ { "type": "official", "cite": "309 Ill. App. 3d 192" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "162 B.R. 150", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6099196 ], "year": 1993, "pin_cites": [ { "parenthetical": "insurance agent falsely represents policy provisions to induce sale" } ], "opinion_index": 0, "case_paths": [ "/br/162/0150-01" ] }, { "cite": "920 F. Supp. 854", "category": "reporters:federal", "reporter": "F. 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App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260358 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0891-01" ] }, { "cite": "700 N.E.2d 1018", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209983 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "274" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0272-01" ] }, { "cite": "582 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 535", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592608 ], "year": 1991, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0535-01" ] }, { "cite": "575 N.E.2d 548", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "143 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591400 ], "year": 1991, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0458-01" ] }, { "cite": "672 N.E.2d 1207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "174 Ill. 2d 77", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223609 ], "year": 1996, "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0077-01" ] }, { "cite": "688 N.E.2d 1172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "344" }, { "page": "344" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] }, { "cite": "29 U.S.C.A. \u00a7\u00a7 1001", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "parenthetical": "addressing the need to assure \"the soundness and stability of plans with respect to adequate funds to pay promised benefits\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1085, "char_count": 23774, "ocr_confidence": 0.773, "pagerank": { "raw": 2.505464260847541e-07, "percentile": 0.8099617004697958 }, "sha256": "8f9b6fe8974ead19233037c086e681f5e729cc40bd02922e47cfdc8039fc46fa", "simhash": "1:32dc1ff72ddbe115", "word_count": 3814 }, "last_updated": "2023-07-14T20:36:09.526568+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GALLAGHER CORPORATION et al., Plaintiffs-Appellants, v. STEVEN B. RUSS, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE ZWICK\ndelivered the opinion of the court:\nThis is an appeal from the circuit court\u2019s dismissal, pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1998)), of a fifth amended complaint filed by plaintiffs Gallagher Corporation (Gallagher) and Gallagher Corporation Employee Defined Pension Benefit Plan (the plan). Defendant, Steven B. Russ, is a licensed actuary who furnished certifications between 1988 and 1993 to a retirement plan established by plaintiff Gallagher for the benefit of its employees. Gallagher hired Massachusetts Mutual Life Insurance Co. (Massachusetts Mutual) to administer the plan, and Massachusetts Mutual, in turn, employed defendant to certify its financial health. Federal law requires that the plan be certified by an actuary each year. See Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C.A. \u00a7\u00a7 1001 through 1461 (West 1998)).\nPlaintiffs\u2019 complaint is in eight counts and alleges that the defendant caused it to incur damages in the amount of $800,000, plus unspecified attorney fees and additional actuarial costs. The first four counts were brought by the plan, an unincorporated entity. These counts are grounded on the following four theories of recovery: (1) professional negligence, (2) breach of contract, including breach of a third-party-beneficiary contract, (3) negligent misrepresentation, and (4) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)). The remaining counts, counts V through VIII, alleged the same theories of recovery but were brought by Gallagher in its corporate capacity.\nIn dismissing the complaint, the circuit court issued an order which stated:\n\u201cPlaintiffs\u2019 claims, whether sounding in tort, contract or violation of statute, all fail because plaintiff[s] cannot and [have] not pled (save by conclusion) a duty between plaintiffs and defendant, Russ, sufficient to found any claim.\u201d\nInitially, we observe that a section 2 \u2014 615 motion to dismiss challenges only the legal sufficiency of a complaint and alleges only defects on the face of the complaint. Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172 (1997). The critical inquiry in deciding upon a section 2 \u2014 615 motion to dismiss is whether the allegations of the complaint, when considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon, 179 Ill. 2d at 344, citing Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87, 672 N.E.2d 1207 (1996), and Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475, 575 N.E.2d 548 (1991). A cause of action will not be dismissed on the pleadings unless it clearly appears that the plaintiff cannot prove any set of facts that will entitle it to relief. Vernon, 179 Ill. 2d at 344, citing Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542, 582 N.E.2d 108 (1991). In reviewing the circuit court\u2019s ruling on defendants\u2019 section 2 \u2014 615 motion to dismiss, we apply a de novo standard of review. Doe v. McKay, 183 Ill. 2d 272, 274, 700 N.E.2d 1018 (1998). Finally, because we may affirm the circuit court on any ground appearing in the record (Estate of Strocchia v. City of Chicago, 284 Ill. App. 3d 891, 677 N.E.2d 964 (1996)), we address all arguments made by defendant\u2019s motion now urged to be sufficient to affirm the circuit court\u2019s dismissal, even arguments not addressed by the circuit court in issuing its ruling.\nDefendant first argues that dismissal of plaintiffs\u2019 complaint was proper with regard to counts I, II, III and IV because the plan has no standing to sue. Defendant\u2019s argument is essentially that the plan is unincorporated and, as such, is not a \u201cperson\u201d or \u201cparty\u201d with sufficient legal interests to bring a lawsuit. See Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 147, 688 N.E.2d 90 (1997) (\u201c[t]he doctrine of standing requires that a party have a real interest in the action brought and its outcome\u201d). In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492, 524 N.E.2d 561 (1988), however, our supreme court rejected a formulaic approach to determining who has standing to sue, stating simply that \u201cstanding in Illinois requires only some injury in fact to a legally cognizable interest.\u201d The claimed injury need only be (1) \u201cdistinct and palpable\u201d; (2) \u201cfairly traceable\u201d to the defendant\u2019s actions; and (3) \u201csubstantially likely to be prevented or redressed by the grant of the requested relief.\u201d Greer, 122 Ill. 2d at 492-93. Section 1132(d)(1) of ERISA (29 U.S.C.A. \u00a7 1132(d)(1) (West 1998)) provides that an employee benefit fund such as the plan \u201cmay sue or be sued under this subchapter as an entity.\u201d Defendant argues that the language \u201cunder this subchapter\u201d indicates that a benefit plan created by ERISA may only sue under those provisions set out in the ERISA statute itself and may not bring state claims. However, this argument was specifically rejected in Pressroom Unions\u2014Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889 (2d Cir. 1983). There, the court determined that it was Congress\u2019s intent, in passing section 1132(d)(1) of the statute, that employee benefit plans be able to sue and be sued \u201clike corporations and other legal entities.\u201d Pressroom, 700 F.2d at 893. In that allowing the plan to sue as a plaintiff in this case is consistent both with Greer and with the federal court\u2019s decision in Pressroom, we reject defendant\u2019s argument.\nDefendant also claims that Gallagher has no standing to bring counts I through IV on behalf of the plan because ERISA requires those who sue on behalf of a regulated employee benefit plan to be a fiduciary (29 U.S.C.A. \u00a7 1002(16)03) (West 1998)), and defendant asserts that Gallagher has failed to allege sufficient facts that establish a fiduciary status between Gallagher and the plan. Gallagher responds principally by noting that defendant failed to make this argument in the circuit court and that the pleading does allege that Gallagher is a fiduciary of the plan, albeit by way of conclusion.\nAs Gallagher asserts, it is generally improper for this court to affirm a section 2 \u2014 615 dismissal on the pleadings if doing so would deny the plaintiff the opportunity to cure the alleged defect by amendment. O.K. Electric Co. v. Fernandes, 111 Ill. App. 3d 466, 470, 444 N.E.2d 264 (1982). The failure to allege sufficient facts to support a conclusionary pleading is precisely the type of argument that must be considered waived once the case proceeds to an appeal. Cf. Ray v. City of Chicago, 19 Ill. 2d 593, 169 N.E.2d 73 (1960) (summary judgment). Accordingly, we reject defendant\u2019s claim.\nWe turn to the defendant\u2019s assertion that plaintiffs have failed to properly allege a cause of action sounding in professional negligence (counts I and V). A complaint for a negligence tort must allege facts from which the law will raise a duty and specific facts showing an omission of that duty and resulting injury; otherwise, the complaint is properly dismissed. Schaffrath v. Village of Buffalo Grove, 160 Ill. App. 3d 999, 513 N.E.2d 1026 (1987). The existence of a duty depends upon whether defendant and plaintiff stand in such a relationship to one another that the law imposes upon defendant an obligation of reasonable conduct for the benefit of plaintiffs. The question is one of law for the court to decide (Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982)) and is contingent upon a variety of factors with the weight accorded each factor depending upon the circumstances of each case. O\u2019Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 339, 561 N.E.2d 18 (1990). Thus, as a threshold matter, plaintiffs are required to allege the existence of a relationship between themselves and the defendant that would give rise to a duty. In deciding the issue, we consider the foreseeability of the plaintiffs\u2019 alleged injuries, the likelihood of the occurrence, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant. Doe v. McKay, 183 Ill. 2d 272, 278, 700 N.E.2d 1018 (1998).\nDefendant concedes that liability for negligent preparation of an actuary\u2019s certification may be imposed under common law tort principles (see generally, W Hager & E Chretien, The Emerging Law of Actuarial Malpractice, 31 Drake L. Rev. 831 (1982)), even against a party not in contractual privity with the actuary like Gallagher and the plan, but it argues the plaintiffs\u2019 complaint is defective because it fails to allege sufficient facts tending to show that protecting the plaintiffs from injury was \u201cthe primary or direct purpose\u201d of the employment agreement between defendant and Massachusetts Mutual. Defendant argues that this is a prerequisite to plaintiffs\u2019 suit under the doctrine announced in Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982) (professional negligence allegations based upon another\u2019s relationship with his attorney), and Brumley v. Touche Ross & Co., 123 Ill. App. 3d 636, 642, 463 N.E.2d 195 (1984) (accountants\u2019 liability to third parties). This requirement has been referred to as the \u201cprimary intent\u201d rule. See Brumley v. Touche Ross & Co., 139 Ill. App. 3d 831, 835, 487 N.E.2d 641 (1985).\nThe terms of plaintiffs\u2019 fifth amended complaint appear to meet the primary intent rule because the complaint explicitly states that defendant prepared the actuarial valuations for the plaintiffs\u2019 use in determining the amounts necessary to meet the plan\u2019s funding obligations. The complaint also states that the defendant\u2019s recommendations were made not to Massachusetts Mutual but, rather, directly to the plaintiffs. Such allegations would normally be sufficient to meet the primary intent rule, particularly in light of the fact that all factual inferences must be taken in the light most favorable to the plaintiffs. People ex rel. Sklodowski v. State of Illinois, 182 Ill. 2d 220, 227-28, 695 N.E.2d 374 (1998). In this case, however, other allegations in the complaint contradict the notion that Russ was engaged by Massachusetts Mutual with the primary intent or purpose of benefitting Gallagher. As we discuss more fully in our analysis which follows regarding the plaintiffs\u2019 third-party beneficiary contract claims, the statutory provisions of ERISA cited in the complaint make clear that Russ\u2019s engagement by Massachusetts Mutual was only for the benefit of the plan, and not to protect Gallagher\u2019s financial health. The fact that Russ communicated with Gallagher or provided information to Gallagher was done solely because Gallagher served as a fiduciary for the plan. This being the case, we conclude the plan may bring professional negligence claims against defendant, but that Gallagher may not do so.\nWe next turn to plaintiffs\u2019 allegations that they have alleged sufficient facts to establish a claim for breach of contract (counts II and VI). To properly plead a cause of action in breach of contract, a plaintiff must allege the essential elements, which are: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) resultant injury to the plaintiff. Allstate Insurance Co. v. Winnebago County Fair Ass\u2019n, 131 Ill. App. 3d 225, 233, 475 N.E.2d 230 (1985). A defendant\u2019s failure to comply with a duty imposed by the contract gives rise to the breach. Hickox v. Bell, 195 Ill. App. 3d 976, 992, 552 N.E.2d 1133 (1990). In alleging a breach of contract by a defendant, a plaintiff should also allege the factual circumstances surrounding the formation of the agreement, specifically, the offer, acceptance and existence of valuable consideration. See Pollack v. Marathon Oil Co., 34 Ill. App. 3d 861, 864, 341 N.E.2d 101 (1976).\nIn this case, the plaintiffs have not alleged a breach of contract claim because they have failed to allege the particular facts that would establish the existence of a contract between themselves and the defendant. As a fact-pleading jurisdiction, Illinois courts require plaintiffs to allege facts, and not merely conclusions, sufficient to bring a claim within the scope of the cause of action being asserted. Teter v. Clemens, 112 Ill. 2d 252, 256, 492 N.E.2d 1340 (1986). Here, the pleadings affirmatively demonstrate that defendant did not have a contractual relationship with the plaintiffs. The complaint alleges that it was Massachusetts Mutual, and not the plaintiffs, which engaged defendant to perform actuarial services for the plan. The complaint does not suggest that Massachusetts Mutual engaged defendant\u2019s services as an agent for plaintiffs. It is no surprise, therefore, that plaintiffs are unable to allege the particular nature of the offer made to defendant, acceptance by him or the consideration given to perform the alleged contractual services. Plaintiffs have even failed to allege the terms of the agreement. In the absence of any factual assertions showing the existence of a contractual relationship between the plaintiffs and defendant, the circuit court properly dismissed those counts alleging breach of contract. See Sabath v. Mansfield, 60 Ill. App. 3d 1008, 1016, 377 N.E.2d 161 (1978) (generally, only a party to a contract, or one in privity with a party, may sue for breach of contract).\nWe turn to plaintiffs\u2019 allegations that the plan and Gallagher were third-party beneficiaries of the contract that existed between defendant and Massachusetts Mutual. Plaintiffs have incorporated these claims within counts II and VI.\nA third-party beneficiary may sue under a contract even when not a party to it, provided the benefit of the contract is direct to him, as opposed to being merely incidental. Cahill v. Eastern Benefit Systems, Inc., 236 Ill. App. 3d 517, 520, 603 N.E.2d 788 (1992); Wilde v. First Federal Savings & Loan Ass\u2019n, 134 Ill. App. 3d 722, 731, 480 N.E.2d 1236 (1985). Whether a party is a third-party beneficiary depends on the intent of the contracting parties and is determined on a case-by-case basis. Midwest Concrete Products Co. v. La Salle National Bank, 94 Ill. App. 3d 394, 396, 418 N.E.2d 988 (1981). \u201cIn making this determination, it must appear from the language of the contract when properly construed that the contract was made for the direct benefit of the third person and that the benefit was not merely incidental.\u201d (Emphasis in original.) Midwest Concrete Products, 94 Ill. App. 3d at 396, citing Young v. General Insurance Co. of America, 33 Ill. App. 3d 119, 337 N.E.2d 739 (1975). \u201cThe promisor\u2019s intention must be shown by an express provision in the contract identifying the third-party beneficiary.\u201d Cahill, 236 Ill. App. 3d at 520; Waterford Condominium Ass\u2019n v. Dunbar Corp., 104 Ill. App. 3d 371, 373-74, 432 N.E.2d 1009 (1982).\nThis case was dismissed by the circuit court on the pleadings. Because plaintiffs were not parties to the agreement between Massachusetts Mutual and defendant, they have been unable to specify the terms of defendant\u2019s professional engagement. It is impossible, therefore, for us to review the specific agreement to determine if plaintiffs were intended to be primary beneficiaries. It is clear, however, from reviewing the ERISA provisions cited to us, that defendant was not engaged by Massachusetts Mutual for the primary purpose of protecting plaintiff Gallagher from financial injury. Defendant\u2019s engagement by Massachusetts Mutual is alleged by the complaint to have been undertaken because ERISA required actuarial certification. This requirement, like the other provisions of ERISA, were implemented to protect the \u201cwell-being and security of millions of employees and their dependants\u201d (emphasis added) (29 U.S.C.A. \u00a7 1001 (West 1998)), not the well being of the employers that run such plans. Any protection provided to Gallagher by defendant\u2019s engagement as an actuary for the plan was therefore tangential only and not the primary purpose of the engagement. For this reason we conclude that Gallagher\u2019s third-party beneficiary claim was properly dismissed by the circuit court.\nWe agree with the plan\u2019s claims, however, that it has alleged sufficient facts to establish that it was intended to be a third-party beneficiary of the agreement between Gallagher and Massachusetts Mutual. The complaint alleges that sections 1023(a)(4)(B) and 1082(c)(3) of ERISA required that an \u201cenrolled actuary\u201d calculate the costs of benefits and the contributions necessary to pay those benefits by using actuarial methods and assumptions that were reasonably related to the experiences of the plan. Even if not made explicit by the terms of defendant\u2019s engagement with Massachusetts Mutual, these requirements are necessarily implied in any engagement that required defendant to certify Gallagher\u2019s contributions to the plan under ERISA. Yet such a requirement was clearly designed to protect the plan from experiencing financial hardships that might endanger the plan\u2019s ability to meet its obligations absent the certificates. See 29 U.S.C.A. \u00a7 1001 (West 1998) (addressing the need to assure \u201cthe soundness and stability of plans with respect to adequate funds to pay promised benefits\u201d). This being the case, we conclude that the plan has alleged sufficient facts to bring a cause of action which alleges that the plan was intended by Massachusetts Mutual and defendant to be a third-party beneficiary of their agreement.\nPlaintiffs also brought claims for negligent misrepresentation (counts III and VII). Negligent misrepresentation involves the breach of a duty to use care in obtaining and communicating information upon which others may reasonably be expected to rely in the conduct of their affairs. Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154, 510 N.E.2d 409 (1986). The elements needed to sustain a cause of action for negligent misrepresentation include a duty owed by defendant to plaintiff, a breach of such duty, and injury proximately resulting from the breach. Harkala v. Wildwood Realty, Inc., 200 Ill. App. 3d 447, 558 N.E.2d 195 (1990). A misrepresentation can result from the failure to provide adequate information when there is a duty to provide such information, as well as providing information that is false. Board of Education v. A, C, & S, Inc., 131 Ill. 2d 428, 546 N.E.2d 580 (1989).\nWe have already rejected the notion that defendant owed Gallagher a duty in the context of Gallagher\u2019s malpractice claim. The same reasoning precludes Gallagher from bringing a negligent misrepresentation claim as there simply was no duty on defendant in performing his actuarial work to protect the financial interests of Gallagher. In contrast, however, we have already determined that defendant owed the plan a legal duty in tort. Since defendant owed the plan a duty to use his professional skills for its benefit, defendant may also be liable for negligent misrepresentations. Accordingly, we conclude the plan\u2019s claim for negligent misrepresentation was improperly dismissed.\nWe turn lastly to plaintiffs\u2019 assertions that they have sufficiently alleged violations of section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1996)) (counts IV and VIII). To prove a defendant violated the Consumer Fraud Act through use of a deceptive practice, as plaintiffs have alleged, they must establish (1) a deceptive act or practice, (2) intent on the defendants\u2019 part that plaintiff rely on the deception, and (3) that the deception occurred in the course of conduct involving trade or commerce. Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 542, 607 N.E.2d 194 (1992).\nIn general, the plaintiff need not show that a defendant intended to deceive but only that it intended the plaintiff to rely on its act or information. Breckenridge v. Cambridge Homes, Inc., 246 Ill. App. 3d 810, 616 N.E.2d 615 (1993). Even an innocent or negligent misrepresentation, therefore, may be actionable under the Consumer Fraud Act. Rubin v. Marshall Field & Co., 232 Ill. App. 3d 522, 597 N.E.2d 688 (1992). Here, however, the requirement that the defendant intend the plaintiffs to rely upon the misrepresentation is significant because plaintiffs\u2019 pleadings fail to allege that defendant intended plaintiffs to act in any particular way. In cases such as Breckenridge and Rubin, the defendant\u2019s representations were made to induce the plaintiff to act in the financial best interest of the defendant or the defendant\u2019s employer. See Breckenridge, 246 Ill. App. 3d at 823 (statements made to prospective home buyer that house would be delivered in \u201cperfect\u201d condition); Rubin, 232 Ill. App. 3d at 526 (sales clerk selling eye makeup remover falsely tells consumer that using Vaseline to do the job causes cataracts). The same is true of those cases on which the defendant relies. See Terrell v. Childers, 920 F. Supp. 854 (N.D. Ill. 1996) (financial management company misrepresented status of financial investments in order to retain business); In re Dorsey, 162 B.R. 150 (Bankr. N.D. Ill. 1993) (insurance agent falsely represents policy provisions to induce sale). In this case there is no claim that the defendant\u2019s failure to meet his professional obligations as an actuary for the plan were intended to cause reliance by defendant to act in any particular way favorable to defendant. Accordingly, there can be no recovery under th\u00e9 Consumer Fraud Act.\nIn sum, we find that the circuit court improperly dismissed the plan\u2019s claims made in count I (professional negligence), count II (third-party beneficiary breach of contract) and count III (negligent misrepresentation). The court properly dismissed the plan\u2019s claims with regard to counts II (breach of contract) and count IV (consumer fraud). With regard to Gallagher\u2019s claims made in counts V through VIII (and to the extent that Gallagher seeks relief as \u201csponsor of the plan\u201d in counts I through IV), we find that the court properly dismissed each of the claims. We remand the matter for further proceedings consistent with these findings.\nAffirmed in part; reversed in part and remanded.\nCAMPBELL and BUCKLEY, JJ., concur.\nIn fact, counts I through IV state that they are brought by the plan and \u201cby Gallagher Corporation as plan sponsor.\u201d Although counts V through VIII state in their captions that they are brought by Gallagher Corporation \u201cindividually,\u201d the prayers for relief in counts V and VI state that relief is sought on behalf of \u201cGallagher Corporation as Plan sponsor and the Plan.\u201d In order to simplify our analysis in light of these and other pleading inconsistencies, we address the complaint as if counts I through IV were brought solely by the plan and counts V through VIII were brought by Gallagher both in its individual capacity and as \u201csponsor of the plan.\u201d We note that, although Gallagher appears to assert in parts of its complaint that it should recover damages in its individual capacity because it was contractually obligated to make payments on behalf of the plan, Gallagher has failed to assert subrogation as a possible theory of recovery. Accordingly, we do not address potential subrogation claims.", "type": "majority", "author": "JUSTICE ZWICK" } ], "attorneys": [ "Hedberg, Tobin, Flaherty & Whalen, of Chicago (Edward J. Whalen and Edmund M. Tobin, of counsel), for appellants.", "Clausen Miller, EC., of Chicago (Edward M. Kay, James O. Nolan, Richard M. Kaplan, and Imelda Terrazino, of counsel), for appellee." ], "corrections": "", "head_matter": "GALLAGHER CORPORATION et al., Plaintiffs-Appellants, v. STEVEN B. RUSS, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201497\u20144398\nOpinion filed September 30, 1999.\nRehearings denied November 22, 1999, December 21, 1999, and January 19, 2000.\nModified opinions filed November 24, 1999, and December 23, 1999.\nHedberg, Tobin, Flaherty & Whalen, of Chicago (Edward J. Whalen and Edmund M. Tobin, of counsel), for appellants.\nClausen Miller, EC., of Chicago (Edward M. Kay, James O. Nolan, Richard M. Kaplan, and Imelda Terrazino, of counsel), for appellee." }, "file_name": "0192-01", "first_page_order": 212, "last_page_order": 223 }