{ "id": 4265156, "name": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff, v. STEVE CARR, d/b/a Carr Construction, et al., Defendants (Steve Carr, d/b/a Carr Construction, Defendant and Third-Party Plaintiff-Appellant; Harold Vogelzang, Third-Party Defendant-Appellee)", "name_abbreviation": "Country Mutual Insurance v. Carr", "decision_date": "2006-07-14", "docket_number": "No. 4-05-0796", "first_page": "758", "last_page": "769", "citations": [ { "type": "official", "cite": "366 Ill. App. 3d 758" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "612 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1993, "pin_cites": [ { "page": "528" }, { "page": "531-32" }, { "page": "532" }, { "page": "532" }, { "page": "532" }, { "page": "533" }, { "page": "533" } ], "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 658", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099143 ], "weight": 8, "year": 1993, "pin_cites": [ { "page": "660-61" }, { "page": "666" }, { "page": "666" }, { "page": "667" }, { "page": "667" }, { "page": "668" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0658-01" ] }, { "cite": "636 N.E.2d 503", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "514", "parenthetical": "\"Where a duty arises outside of the contract, the economic[-]loss doctrine does not prohibit recovery in tort for the negligent breach of that duty\"" } ], "opinion_index": 0 }, { "cite": "159 Ill. 2d 137", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781332 ], "year": 1994, "pin_cites": [ { "page": "162", "parenthetical": "\"Where a duty arises outside of the contract, the economic[-]loss doctrine does not prohibit recovery in tort for the negligent breach of that duty\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0137-01" ] }, { "cite": "843 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2006, "pin_cites": [ { "page": "333" }, { "page": "333" } ], "opinion_index": 0 }, { "cite": "218 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735885 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "337" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0326-01" ] }, { "cite": "787 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "204 Ill. 2d 127", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609708 ], "year": 2003, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0127-01" ] }, { "cite": "706 N.E.2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352923 ], "year": 1999, "pin_cites": [ { "page": "1055" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/1051-01" ] }, { "cite": "525 N.E.2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585556 ], "year": 1988, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0765-01" ] }, { "cite": "648 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "1140" }, { "page": "1140" }, { "page": "1140" } ], "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249321 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "755" }, { "page": "754-55" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0750-01" ] }, { "cite": "753 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1036" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256344 ], "year": 2001, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0305-01" ] }, { "cite": "784 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "418" }, { "page": "418" }, { "page": "418" } ], "opinion_index": 0 }, { "cite": "336 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599258 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "556" }, { "page": "556" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0553-01" ] }, { "cite": "1996 Ill. Laws 3361", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "433 N.E.2d 1362", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "page": "1366" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471684 ], "year": 1982, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0234-01" ] }, { "cite": "379 N.E.2d 1206", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "1210", "parenthetical": "\"An insurance broker is distinguished from an insurance agent in that he is not permanently employed by any principal, but holds himself out to employment by the public\"" } ], "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 623", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5620937 ], "year": 1978, "pin_cites": [ { "page": "629", "parenthetical": "\"An insurance broker is distinguished from an insurance agent in that he is not permanently employed by any principal, but holds himself out to employment by the public\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0623-01" ] }, { "cite": "811 N.E.2d 1199", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "1201" }, { "page": "1201" } ], "opinion_index": 0 }, { "cite": "349 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435190 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "1006" }, { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/1005-01" ] }, { "cite": "812 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "745-59" }, { "page": "745" } ], "opinion_index": 0 }, { "cite": "351 Ill. App. 3d 151", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083920 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "153-72" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0151-01" ] }, { "cite": "826 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "1115" } ], "opinion_index": 0 }, { "cite": "357 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135726 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "19-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0017-01" ] }, { "cite": "834 N.E.2d 531", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "532-39" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5595361 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "676-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0674-01" ] }, { "cite": "798 N.E.2d 790", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 2003, "pin_cites": [ { "page": "793" }, { "page": "791" }, { "page": "791-92" }, { "page": "792" }, { "page": "793" }, { "page": "794" }, { "page": "795-96", "parenthetical": "Goldenhersh, J., dissenting" }, { "page": "795", "parenthetical": "Goldenhersh, J., dissenting" }, { "page": "794" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718403 ], "weight": 10, "year": 2003, "pin_cites": [ { "page": "585" }, { "page": "582-83" }, { "page": "583" }, { "page": "583" }, { "page": "584-85" }, { "page": "586" }, { "page": "588" }, { "page": "587" }, { "page": "586" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0581-01" ] }, { "cite": "786 N.E.2d 980", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "984" }, { "page": "984" }, { "page": "984" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799409 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "447" }, { "page": "447" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0441-01" ] }, { "cite": "435 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "444" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 0 }, { "cite": "91 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092944 ], "weight": 5, "year": 1982, "pin_cites": [ { "page": "72" }, { "page": "81" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0069-01" ] } ], "analysis": { "cardinality": 985, "char_count": 26253, "ocr_confidence": 0.779, "pagerank": { "raw": 5.843310912360784e-08, "percentile": 0.36300012085646693 }, "sha256": "1fe4c04f5589dd21a10a45d90a14663ba4e3435bd358665dad4a5141d488b868", "simhash": "1:0abc7dbfb545e594", "word_count": 4280 }, "last_updated": "2023-07-14T18:50:16.995484+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff, v. STEVE CARR, d/b/a Carr Construction, et al., Defendants (Steve Carr, d/b/a Carr Construction, Defendant and Third-Party Plaintiff-Appellant; Harold Vogelzang, Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nSteve Carr, d/b/a Carr Construction, purchased a commercial general liability insurance policy issued by Country Mutual Insurance Company (Country Mutual) from Harold Vogelzang. After Carr purchased the policy, he was sued for alleged damage to a home he constructed; the allegations claimed Carr placed inappropriate backfill in and around the residence\u2019s basement walls and then operated heavy equipment near those wall's, causing damage to those walls. Carr filed a claim with Country Mutual for the defense of that lawsuit. Country Mutual followed by filing a declaratory-judgment action, in which it asserted it owed no duty to indemnify or defend Carr in the lawsuit, as the property damage was caused by his own work which was excluded from the commercial general liability coverage.\nIn May 2005, Carr filed his amended third-party complaint against Vogelzang. In his complaint, Carr alleged Vogelzang breached the statutory duty to provide ordinary care in selling and procuring insurance (see 735 ILCS 5/2 \u2014 2201(a) (West 1998)). On August 31, 2005, the trial court dismissed with prejudice the negligence counts of Carr\u2019s third-party complaint, upon finding Vogelzang owed Carr no duty and the Moorman doctrine barred those claims.\nCarr appeals and argues (1) he stated a claim for negligence because section 2 \u2014 2201(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 2201(a) (West 1998)) required Vogelzang to exercise ordinary care in procuring the insurance policy Carr requested, and (2) the Moorman doctrine (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982)) does not apply. We agree with Carr and reverse and remand.\nI. BACKGROUND\nOn an unspecified date, Carr, d/b/a Carr Construction, filed an insurance claim with Country Mutual. Carr\u2019s claim sought coverage for a lawsuit filed against Carr \u201cfor damages alleged to have occurred to property during [Carr\u2019s] work at\u201d that property. Country Mutual denied coverage of the claim. On May 7, 2004, Country Mutual filed a declaratory-judgment action, seeking a court ruling it had no duty under the policy to defend or indemnify Carr.\nIn response, Carr filed a counterclaim against Country Mutual, asserting Country Mutual was responsible for the actions of its agent and employee, Vogelzang. Specifically, the counterclaim asserted Vogelzang improperly procured an insurance policy that did not cover the risks Carr sought to protect against. In May 2005, Carr filed an amended third-party complaint against Vogelzang. This complaint asserted two counts of negligence based on a statutory duty and one count of breach of contract. The breach-of-contract claim, count III, is not at issue on appeal.\nIn count I, Carr alleged Vogelzang was an agent of Country Mutual. According to count I, Vogelzang \u201cheld himself out as a qualified insurance agent for Country\u201d Mutual and procured insurance policies from Country Mutual to the general public. Carr purchased a business policy from Vogelzang for \u201cliability coverage relative to jobs performed by him in his construction business.\u201d Vogelzang told Carr the \u201cpolicy issued would provide general and complete coverage for all matters and usual, customary, and obvious risks associated with being a general contractor.\u201d The complaint asserted, under section 2 \u2014 2201(a), Vogelzang owed Carr the duty of exercising ordinary care, competence, and skill in procuring insurance coverage. Vogelzang breached this duty by issuing Carr a policy that did not provide general and complete coverage for \u201cthe most obvious risks associated with being a general contractor.\u201d As a result of the breach, Country Mutual denied Carr coverage.\nIn count II, Carr alleged a second count of negligence based on a statutory duty of care. In this count, the allegations were the same as in count I, except Carr alleged Vogelzang was an independent insurance agent or broker.\nIn June 2005, Vogelzang moved to dismiss counts I and II pursuant to section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 2004)). In his motion, Vogelzang argued count I of the complaint alleges Vogelzang was Country Mutual\u2019s agent. As an agent of Country Mutual, according to Vogelzang, Vogelzang owed a duty of care only to the insurance company \u2014 not to Carr. Vogelzang argued that count II states he was an independent insurance agent or broker. Vogelzang disputed this legal conclusion by attaching exhibits to show he was an agent of Country Mutual. Vogelzang further argued both counts were barred by the Moorman doctrine.\nIn August 2005, the trial court dismissed counts I and II with prejudice. The court concluded Vogelzang owed no duty to Carr and the Moorman doctrine barred the negligence claims. This appeal followed.\nII. ANALYSIS\nA. The Propriety of the Section 2 \u2014 619 Motion To Dismiss\nOn appeal, Carr first argues Vogelzang improperly moved to dismiss count I under section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 2004)). Carr contends because Vogelzang argues the allegations do not give rise to a claim, the motion to dismiss count I on this ground should have been brought under section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 2004)). In response, Vogelzang contends he properly filed the claim under section 2 \u2014 619 and, in the alternative, if he did not, Carr suffered no prejudice by the improper designation.\nA section 2 \u2014 615(a) motion to dismiss \u201ctests the legal sufficiency of the plaintiff\u2019s claim, while a motion to dismiss under section 2 \u2014 619(a) [citation] admits the legal sufficiency of the plaintiffs claim, but asserts certain defects or defenses outside the pleading which defeat the claim.\u201d Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984 (2002). Vogelzang\u2019s motion to dismiss, as a whole, touches on both section 2 \u2014 615 and section 2 \u2014 619. As to count I, Vogelzang asserts Carr did not state a claim for negligence in that the facts do not establish a duty. Vogelzang is not asserting Carr sufficiently pleaded negligence, including a duty, but that negligence is defeated by a certain defect or defense. Vogelzang\u2019s argument should have been brought under section 2 \u2014 615.\nAs to count II, Vogelzang does not dispute the legal sufficiency of the claim but emphasizes affirmative matters outside of the record to defeat the claim. Vogelzang contends Carr improperly pleaded him to be an insurance broker. To support his claim, Vogelzang attached exhibits. This is a section 2 \u2014 619 argument. See Wallace, 203 Ill. 2d at 447, 786 N.E.2d at 984. Moreover, Vogelzang\u2019s argument that both of Carr\u2019s claims are barred by the Moorman doctrine was properly brought under section 2 \u2014 619. As to the Moorman doctrine, Vogelzang asserts even if Carr stated a claim, that claim is barred by an affirmative matter, the Moorman doctrine.\nVogelzang\u2019s error does not require a reversal. Carr has not argued nor does the record establish Carr was prejudiced by the improper designation. See Wallace, 203 Ill. 2d at 447, 786 N.E.2d at 984.\nB. Section 2 \u2014 2201(a)\nWe turn now to Carr\u2019s argument the third-party complaint stated a claim of negligence. Carr argues count I alleges Vogelzang owed him a duty of ordinary care in procuring an insurance policy for his business. While Carr agrees the common law did not recognize a duty between an insurance agent and an insured, he maintains the legislature created a statutory duty in section 2 \u2014 2201(a) (735 ILCS 5/2 \u2014 2201(a) (West 1998)) that requires insurance agents to act with ordinary care in procuring insurance policies for their customers. Carr, however, concedes he could not find any published case since the enactment of section 2 \u2014 2201(a) that supports his claim.\nVogelzang contends he owed no duty to Carr. Vogelzang does not dispute the language of section 2 \u2014 2201(a) but asserts that since its enactment, no case has held as Carr suggests. Moreover, Vogelzang cites four cases that postdate 1997 that, he alleges, held insurance agents owe no duty to the insureds in procuring adequate insurance: Moore v. Johnson County Farm Bureau, 343 Ill. App. 3d 581, 585, 798 N.E.2d 790, 793 (2003); Pekin Life Insurance Co. v. Schmid Family Irrevocable Trust, 359 Ill. App. 3d 674, 834 N.E.2d 531 (2005); AYH Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 826 N.E.2d 1111 (2005); and Young v. Allstate Insurance Co., 351 Ill. App. 3d 151, 812 N.E.2d 741 (2004).\nWe review de novo a trial court\u2019s decision to dismiss a complaint under section 2 \u2014 615. Malcome v. Toledo, Peoria & Western Ry. Corp., 349 Ill. App. 3d 1005, 1006, 811 N.E.2d 1199, 1201 (2004). We will affirm the dismissal only when, upon considering the allegations in the light most favorable to the nonmovant, it is clear no set of facts can be proved to entitle the nonmovant to relief. Malcome, 349 Ill. App. 3d at 1006, 811 N.E.2d at 1201.\nHistorically, Illinois treated insurance brokers, or agents of the insured, differently than it treated insurance agents, or agents of the insurer. See Browder v. Hanley Dawson Cadillac Co., 62 Ill. App. 3d 623, 629, 379 N.E.2d 1206, 1210 (1978) (\u201cAn insurance broker is distinguished from an insurance agent in that he is not permanently employed by any principal, but holds himself out to employment by the public\u201d). The distinction was significant in that it affected tort liability:\n\u201cWhereas the insured\u2019s agent or broker has a duty of care, competence, and skill in performing all aspects of the insurance transaction, no such duty is imposed upon the insurer\u2019s agent regarding its duties toward a customer of the insurer.\u201d Bellmer v. Charter Security Life Insurance Co., 105 Ill. App. 3d 234, 239, 433 N.E.2d 1362, 1366 (1982).\nIn 1996, the General Assembly enacted section 2 \u2014 2201 of the Civil Practice Law, which addressed liability of insurance producers in the placement of insurance. See Pub. Act 89 \u2014 638, \u00a7 5, eff. January 1, 1997 (1996 Ill. Laws 3361, 3361) (adding 735 ILCS 5/2 \u2014 2201 (West 1998)). Carr\u2019s claims hinge on the interpretation of section 2 \u2014 2201.\nWhen interpreting a statute, the goal of this court is to ascertain the legislature\u2019s intent. Department of Public Aid ex rel. Schmid v. Williams, 336 Ill. App. 3d 553, 556, 784 N.E.2d 416, 418 (2003). To achieve this goal, we begin with the language of the statute, which is \u201cthe surest indicator\u201d of legislative intent. Williams, 336 Ill. App. 3d at 556, 784 N.E.2d at 418. In interpreting the statute\u2019s language, we are limited to the language before us and may not \u201c \u2018depart from the plain meaning\u2019 \u201d of those words. Williams, 336 Ill. App. 3d at 556, 784 N.E.2d at 418, quoting In re Marriage of Beyer, 324 Ill. App. 3d 305, 310, 753 N.E.2d 1032, 1036 (2001).\nSection 2 \u2014 2201(a) states the following:\n\u201cAn insurance producer, registered firm, and limited insurance representative shall exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured.\u201d 735 ILCS 5/2 \u2014 2201(a) (West 1998).\nSection 2 \u2014 2201 does not define \u201cinsurance producer.\u201d The term, however, is defined by the Illinois Insurance Code as \u201ca person required to be licensed under the laws of this State to sell, solicit, or negotiate insurance.\u201d 215 ILCS 5/500 \u2014 10 (West 2002).\nA plain reading of the statute, combined with section 500 \u2014 10, is that any \u201cperson required to be licensed *** to sell, solicit, or negotiate insurance\u201d had a duty to \u201cexercise ordinary care\u201d in procuring insurance. We find no distinction in either of these sections between an insurance agent or an insurance broker.\nVogelzang neither disputes the plain language of section 2 \u2014 2201 or section 500 \u2014 10, nor attempts to explain the plain meaning of the text. Instead, Vogelzang emphasizes the case law existing before the effective date of section 2 \u2014 2201(a) and argues no case since its inception has found section 2 \u2014 2201(a) creates a duty. Vogelzang cites four decisions that, he contends, held insurance agents owed no duty to their customers.\nThe four post-section 2 \u2014 2201(a) cases Vogelzang cites, however, are distinguishable. Neither Pekin Life Insurance, 359 Ill. App. 3d at 676-84, 834 N.E.2d at 532-39, AYH Holdings, 357 Ill. App. 3d 17, 826 N.E.2d 1111, nor Young, 351 Ill. App. 3d at 153-72, 812 N.E.2d at 745-59, addresses section 2 \u2014 2201(a). Interestingly, in AYH Holdings and in Young, the insurance at issue was sold and procured before the January 1, 1997, effective date of section 2 \u2014 2201(a). See AYH Holdings, 357 Ill. App. 3d at 19-20, 826 N.E.2d at 1115; see Young, 351 Ill. App. 3d at 154, 812 N.E.2d at 745.\nMoreover, in Moore, while the dissent discussed section 2 \u2014 2201(a), the majority did not consider this section. In Moore, the plaintiffs were involved in an automobile collision with a tractor insured by Country Mutual. See Moore, 343 Ill. App. 3d at 582-83, 798 N.E.2d at 791. Because others not named in the suit were believed to have also suffered injuries, Country Mutual began an interpleader action and deposited an amount equal to its policy limits. The court found the actual damages exceeded the deposit and distributed the funds. See Moore, 343 Ill. App. 3d at 583, 798 N.E.2d at 791-92. Plaintiffs later filed suit against Country Mutual. In their complaint, plaintiffs asserted Country Mutual failed to procure \u201c \u2018the proper type and amount of insurance coverage\u2019 \u201d for the type of business done. Moore, 343 Ill. App. 3d at 583, 798 N.E.2d at 792.\nThe Moore plaintiffs urged the court to find no rational basis for distinguishing between agents and brokers. Country Mutual responded it had no duty to provide \u201cadequate\u201d insurance. Moore, 343 Ill. App. 3d at 584-85, 798 N.E.2d at 793. The majority did not consider section 2 \u2014 2201(a). Instead, the court construed plaintiffs\u2019 claim as one alleging a duty to provide adequate insurance. The court found \u201cCountry Mutual owed no duty to the insured to determine what would constitute \u2018adequate\u2019 insurance coverage and to provide coverage in that amount.\u201d Moore, 343 Ill. App. 3d at 586, 798 N.E.2d at 794.\nThe dissent disagreed, not by concluding an insurance producer is under a duty to provide adequate coverage, but upon finding the complaint could be read as asserting a duty to provide the coverage requested. See Moore, 343 Ill. App. 3d at 588, 798 N.E.2d at 795-96 (Goldenhersh, J., dissenting). The dissenting justice focused on section 2 \u2014 2201(a) and concluded the section allowed a claim that the insurance producer failed to provide the insurance requested. See Moore, 343 Ill. App. 3d at 587, 798 N.E.2d at 795 (Goldenhersh, J., dissenting).\nMoore is distinguishable. Unlike Moore, this case does not deal with \u201cinadequate\u201d insurance. Carr did not have inadequate insurance such that the coverage applied but the dollar amount of that coverage was insufficient to pay for all damages. Instead, a fair reading of the complaint is Carr was denied all coverage and Carr pleaded Vogelzang breached the duty to procure the type of insurance necessary to cover the activities of his business. The Moore court did not hold, as Vogelzang contends, an insurance producer has no duty to provide the type of insurance coverage requested. The majority simply construed the complaint as one asserting the coverage applied to the incident but provided less money than necessary to cover the damages. See Moore, 343 Ill. App. 3d at 586, 798 N.E.2d at 794.\nThe failure of the majority in Moore to analyze section 2 \u2014 2201(a) is troubling. With no reference to the plain language of section 2 \u2014 2201(a), Moore concluded \u201cIllinois law recognizes a distinction between brokers and captive agents\u201d by finding brokers had \u201ca duty to procure adequate insurance,\u201d but \u201ccaptive agents\u201d did not. Moore, 343 Ill. App. 3d at 585, 798 N.E.2d at 793.\nFurther supporting Carr\u2019s argument section 2 \u2014 2201(a) creates a duty of care for insurance agents are the sections that follow. Section 2 \u2014 2201(d) anticipates negligence actions against \u201cinsurance producers\u201d:\n\u201c(d) While limiting the scope of liability of an insurance producer, *** the provisions of this [selection do not limit or release an insurance producer *** from liability for negligence concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance.\u201d 735 ILCS 5/2 \u2014 2201(d) (West 1998).\nIn addition, section 2 \u2014 2201(b) removes the common-law basis for distinguishing between insurance brokers, who owed a fiduciary duty to their customers (see Kanter v. Deitelbaum, 271 Ill. App. 3d 750, 755, 648 N.E.2d 1137, 1140 (1995)), and insurance agents, who owed the fiduciary duty to the insurers (see Economy Fire & Casualty Co. v. Bassett, 170 Ill. App. 3d 765, 771, 525 N.E.2d 539, 543 (1988)), by barring breach-of-fiduciary-duty claims against insurance producers:\n\u201cNo cause of action brought by any person or entity against any insurance producer *** concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance shall subject the insurance producer *** to civil liability under standards governing the conduct of a fiduciary or a fiduciary relationship except when the conduct upon which the cause of action is based involves the wrongful retention or misappropriation by the insurance producer *** of any money that was received as premiums, as a premium deposit, or as payment of a claim.\u201d 735 ILCS 5/2 \u2014 2201(b) (West 1998).\nAccordingly, we hold section 2 \u2014 2201(a) places a duty on insurance producers, including brokers and agents, to act with ordinary care in procuring insurance for insureds.\nWe further hold Carr\u2019s third-party complaint stated a claim for breach of the duty created in section 2 \u2014 2201(a). According to the complaint, Carr sought an insurance policy from Vogelzang that would cover the jobs he performed in his construction business, and Vogelzang told Carr he sold him a policy that would do so. The complaint further alleges Vogelzang breached his duty of ordinary care by issuing Carr a policy that did not provide general coverage for \u201cthe most obvious risks associated with being a general contractor,\u201d and as a result of the breach, Country Mutual denied Carr coverage of a claim arising from Carr\u2019s work on a property. As to count II, Vogelzang moved to dismiss that count by challenging Carr\u2019s designation of him as an insurance broker and then by asserting Vogelzang, as an insurance agent, owed Carr no duty of care. As we stated above, this was properly designated as a section 2 \u2014 619 argument.\nA trial court may dismiss a complaint under section 2 \u2014 619(a)(9) \u201cwhen the asserted claim is barred by other affirmative matter that defeats the claim or voids its legal effect.\u201d Turner v. Fletcher, 302 Ill. App. 3d 1051, 1055, 706 N.E.2d 514, 517 (1999). On appeal, we review de novo a dismissal under section 2 \u2014 619 to ascertain \u201cwhether a genuine issue of material fact exists and whether the defendant is entitled to judgment as a matter of law.\u201d Saichek v. Lupa, 204 Ill. 2d 127, 134, 787 N.E.2d 827, 832 (2003).\nCarr emphasizes a factual dispute exists over whether Vogelzang is properly characterized as an insurance broker. While Vogelzang relied on an agent\u2019s agreement to show he was an agent of Country Mutual, Carr points to other language within Vogelzang\u2019s attachments that describes Vogelzang as an \u201cindependent contractor.\u201d Carr further stresses Country Mutual denied Carr\u2019s allegation in his counterclaim that Vogelzang was an agent or employee of Country Mutual.\nThe factual dispute is not dispositive of the issue because it is not over a material fact. It is irrelevant whether Vogelzang is an agent or a broker under section 2 \u2014 2201(a). Both fall within the definition of insurance producer, a conclusion Vogelzang does not dispute. Because both are insurance producers, both brokers and agents owe the duty of care set forth in section 2 \u2014 2201(a). We find dismissal of count II on this ground inappropriate.\nC. The Moorman Doctrine\nCarr next argues the trial court erred in finding counts I and II barred by the Moorman doctrine. Carr contends the Moorman doctrine does not apply for two reasons. First, Carr maintains because Vogelzang\u2019s duty to him arises by statute, it is an extracontractual duty to which the Moorman doctrine does not apply. In the alternative, Carr contends the fraudulent-misrepresentation exception to the Moorman doctrine applies.\nVogelzang argues the court properly concluded the Moorman doctrine bars Carr\u2019s claims. Vogelzang responds to Carr\u2019s arguments by asserting he owed no duty to Carr and by contending, under First Midwest Bank, N.A. v. Stewart Title Guaranty Co., 218 Ill. 2d 326, 843 N.E.2d 327 (2006), the fraudulent-misrepresentation exception to the Moorman doctrine is inapplicable because Vogelzang is not in the business of supplying information.\nThe economic-loss doctrine, or Moorman doctrine, has its Illinois roots in Moorman, 91 Ill. 2d 69, 435 N.E.2d 443. In Moorman, the plaintiff sued to recover damages under various tort causes of action resulting from \u201can alleged crack in a grain-storage tank.\u201d Moorman, 91 Ill. 2d at 72, 435 N.E.2d at 444. The Supreme Court of Illinois reasoned the plaintiff could not recover under the tort theories upon finding \u201cat common law, purely economic loss was generally not recoverable in tort.\u201d First Midwest Bank, 218 Ill. 2d at 337, 843 N.E.2d at 333, citing Moorman, 91 Ill. 2d at 81, 435 N.E.2d at 448. The court concluded that contract law, protecting expectation interests, provided \u201c \u2018the proper standard when a qualitative defect [was] involved.\u2019 \u201d First Midwest Bank, 218 Ill. 2d at 337, 843 N.E.2d at 333, quoting Moorman, 91 Ill. 2d at 81, 435 N.E.2d at 448.\nThe Moorman doctrine, however, does not apply when a duty arises that is extracontractual. See Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 162, 636 N.E.2d 503, 514 (1994) (\u201cWhere a duty arises outside of the contract, the economic[-]loss doctrine does not prohibit recovery in tort for the negligent breach of that duty\u201d). For instance, in Ranter, the First District rejected the argument the Moorman doctrine barred a claim against an insurance broker who failed to procure the health-insurance coverage as agreed. Kanter, 271 Ill. App. 3d at 754-55, 648 N.E.2d at 1140. The court reasoned the broker, who had a fiduciary duty to the insured, had a duty that arose outside the contract. Kanter, 271 Ill. App. 3d at 755, 648 N.E.2d at 1140. While it is true Ranter was decided before the effective date of section 2 \u2014 2201(a), its analysis is consistent with our earlier holding because section 2 \u2014 2201 removed the broker-agent distinction in this context.\nVogelzang does not dispute the proposition the Moorman doctrine does not apply when an extracontractual duty is present. Vogelzang contends he owed no extracontractual duty to Carr. As we determined above, that proposition is incorrect.\nFor this reason, too, Vogelzang\u2019s and the trial court\u2019s reliance on Nielsen v. United Services Automobile Ass\u2019n, 244 Ill. App. 3d 658, 612 N.E.2d 526 (1993), is misplaced. In Nielsen, the plaintiffs purchased $40,000 in fire-insurance coverage from the insurer. When a fire destroyed the plaintiffs\u2019 home, plaintiffs learned they were underinsured. Nielsen, 244 Ill. App. 3d at 660-61, 612 N.E.2d at 528. In their amended complaint, the plaintiffs sued their insurer, alleging, in part, the insurer, \u201cas the vendor of fire insurance to plaintiffs,\u201d had a common-law duty to sell only full coverage to the plaintiffs. Nielsen, 244 Ill. App. 3d at 666, 612 N.E.2d at 531-32. The trial court dismissed the plaintiffs\u2019 complaint upon finding no duty to support the negligence claim. Nielsen, 244 Ill. App. 3d at 666, 612 N.E.2d at 532.\nThe appellate court agreed. The court did so upon recognizing Illinois case law that found insurers have \u201can implied duty of good faith and fair dealing with respect to an insured. [Citation.] But this duty does not include the burden of reviewing the adequacy of an insured\u2019s policy when the policy is renewed.\u201d Nielsen, 244 Ill. App. 3d at 667, 612 N.E.2d at 532.\nIn dicta, the court then considered whether the Moorman doctrine barred the plaintiffs\u2019 negligence claim. Nielsen, 244 Ill. App. 3d at 667, 612 N.E.2d at 532. The court found, \u201c[t]he Moorman doctrine applies in this case precisely because count V of plaintiffs\u2019 complaint was rooted in disappointed contractual expectations even though count V sounded in negligence.\u201d Nielsen, 244 Ill. App. 3d at 668, 612 N.E.2d at 533.\nBefore finding the Moorman doctrine barred the Nielson plaintiffs\u2019 claims, the court already determined the insurer owed the plaintiffs no extracontractual duty to ascertain the amount of insurance coverage needed. Nielsen, 244 Ill. App. 3d at 668, 612 N.E.2d at 533. Because Vogelzang owed Carr an extracontractual duty, as legislated in section 2 \u2014 2201(a), the Moorman doctrine does not bar Carr\u2019s tort-based claim. To rule otherwise would be to render ineffective not only section 2 \u2014 2201(a), but also section 2 \u2014 2201(d), which expressly provides for negligence actions against insurance producers.\nWe conclude Vogelzang owed Carr a duty of care in procuring insurance. We find that duty is extracontractual and the Moorman doctrine does not prohibit Carr\u2019s claim. We need not determine whether the fraudulent-misrepresentation exception to the Moorman doctrine applies.\nIII. CONCLUSION\nWe reverse the trial court\u2019s order dismissing counts I and II with prejudice and remand for further proceedings.\nReversed and remanded.\nTURNER, P.J., and MYERSCOUGH, J., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Edward H. Rawles (argued), of Rawles, O\u2019Bryne, Stanko, Kepley & Jefferson, P.C., of Champaign, for appellant.", "Laura A. Petersen (argued), of Quinn, Johnston, Henderson & Pretorius, Chtrd., of Peoria, for appellee." ], "corrections": "", "head_matter": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff, v. STEVE CARR, d/b/a Carr Construction, et al., Defendants (Steve Carr, d/b/a Carr Construction, Defendant and Third-Party Plaintiff-Appellant; Harold Vogelzang, Third-Party Defendant-Appellee).\nFourth District\nNo. 4-05-0796\nArgued June 21, 2006.-\n\u2014Opinion filed July 14, 2006.\n\u2014 Rehearing denied August 22, 2006.\nEdward H. Rawles (argued), of Rawles, O\u2019Bryne, Stanko, Kepley & Jefferson, P.C., of Champaign, for appellant.\nLaura A. Petersen (argued), of Quinn, Johnston, Henderson & Pretorius, Chtrd., of Peoria, for appellee." }, "file_name": "0758-01", "first_page_order": 776, "last_page_order": 787 }