{ "id": 3627567, "name": "DOD TECHNOLOGIES, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. MESIROW INSURANCE SERVICES, INC., et al., Defendants-Appellees", "name_abbreviation": "DOD Technologies v. Mesirow Insurance Services, Inc.", "decision_date": "2008-02-14", "docket_number": "No. 1\u201406\u20143300", "first_page": "1042", "last_page": "1056", "citations": [ { "type": "official", "cite": "381 Ill. App. 3d 1042" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "359 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5595832 ], "year": 2005, "pin_cites": [ { "page": "514", "parenthetical": "\"Discovery is not necessary where a cause of action has not been stated\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0504-01" ] }, { "cite": "375 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4271259 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "927" }, { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0912-01" ] }, { "cite": "347 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3950418 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0373-01" ] }, { "cite": "226 Ill. 2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610803 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "345, 347" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0334-01" ] }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "year": 1995, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "337 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894509 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "434" }, { "page": "434" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0420-01" ] }, { "cite": "236 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783766 ], "year": 1992, "pin_cites": [ { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/1065-01" ] }, { "cite": "258 Ill. App. 3d 588", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2882941 ], "year": 1994, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0588-01" ] }, { "cite": "179 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 249252 ], "year": 1995, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0138-01" ] }, { "cite": "363 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766037 ], "year": 2006, "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0795-01" ] }, { "cite": "368 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. 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App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5731058 ], "year": 2005, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0696-01" ] }, { "cite": "220 Ill. App. 3d 290", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5275745 ], "year": 1991, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0290-01" ] }, { "cite": "299 Ill. App. 3d 843", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221485 ], "year": 1998, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0843-01" ] }, { "cite": "195 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2493747 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0314-01" ] }, { "cite": "334 Ill. App. 3d 215", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 522004 ], "year": 2002, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0215-01" ] }, { "cite": "31 Ill. App. 3d 368", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2709932 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0368-01" ] }, { "cite": "343 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3718403 ], "year": 2003, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0581-01" ] }, { "cite": "341 F.3d 644", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9099841 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "651-52" } ], "opinion_index": 0, "case_paths": [ "/f3d/341/0644-01" ] }, { "cite": "308 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261301 ], "year": 1999, "pin_cites": [ { "page": "224", "parenthetical": "a question of fact existed as to whether the broker breached his fiduciary duty to the insured by misleading him about the nature and potential cost of his policy" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0220-01" ] }, { "cite": "324 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256344 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "309" }, { "page": "309-10" }, { "page": "310" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0305-01" ] }, { "cite": "336 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599258 ], "year": 2003, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0553-01" ] }, { "cite": "298 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073591 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "1011" }, { "page": "1013", "parenthetical": "an insured's failure to read the terms of a policy was not an absolute bar to recovery against his broker for breach of fiduciary duty" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/1007-01" ] }, { "cite": "357 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135726 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "32" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0017-01" ] }, { "cite": "193 Ill. 2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963705 ], "year": 2000, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0433-01" ] }, { "cite": "338 Ill. App. 3d 812", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25404 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "815" }, { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0812-01" ] }, { "cite": "358 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5730754 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "920" }, { "page": "920" }, { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0912-01" ] } ], "analysis": { "cardinality": 1246, "char_count": 33404, "ocr_confidence": 0.829, "pagerank": { "raw": 1.2567111310375225e-07, "percentile": 0.6114628690707451 }, "sha256": "982d628de8f06e529dd5966d41544db226e1ef3e882a3ad1a26538a4a53d3cf0", "simhash": "1:8fad75b66344d475", "word_count": 5327 }, "last_updated": "2023-07-14T18:23:38.608554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOD TECHNOLOGIES, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. MESIROW INSURANCE SERVICES, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE MURPHY\ndelivered the opinion of the court:\nPlaintiff, DOD Technologies, brought a five-count putative class-action complaint against defendant, Mesirow Insurance Services, Inc., plaintiffs insurance broker, alleging that defendant received contingent commissions from insurers without informing plaintiff. The trial court granted defendant\u2019s motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 2004)) on the basis that (1) section 2 \u2014 2201 of the Code (735 ILCS 5/2 \u2014 2201 (West 2004)) precludes claims for breach of fiduciary duty and (2) plaintiff failed to allege actual damages or reliance on the alleged concealment.\nI. BACKGROUND\nPlaintiffs second amended complaint alleges as follows. Defendant is a licensed Illinois insurance broker, or \u201cinsurance producer.\u201d An insurance producer is \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 2004).\nPlaintiff provided defendant with confidential and proprietary information with the expectation that defendant would seek the desired insurance at the lowest possible price. Standard industry practice is for consumers to make a single payment to the broker that includes both the insurer\u2019s premium and the broker\u2019s commission; the producer deducts the commission and forwards the premium to the insurer. Defendant also received \u201ccontingent commissions\u201d from insurers, including Hartford Insurance Company, for its placement of insurance for plaintiff and other putative class members. The contingent commissions were based on three factors: (1) the aggregate amount of business referred to the insurer paying the kickbacks, (2) the \u201closs ratio\u201d performance of the book of business referred to that insurer, and (3) renewals.\nDefendant did not disclose its receipt of the contingent commissions to plaintiff. These undisclosed financial incentives caused defendant to refer business to a paying insurer even if the policy and rates quoted by that insurer were not the most advantageous for the customer. These kickbacks, which should have been returned to plaintiff like any other rebate, inflated the cost of insurance to consumers and created a conflict preventing brokers from acting in the customers\u2019 best interest. Had plaintiff known about the contingent commissions, it would have been more diligent in its selection of insurance. Approximately 10% or more of defendant\u2019s revenues as an insurance broker is derived from kickbacks.\nPlaintiffs second amended complaint alleges breach of fiduciary duty, consumer fraud, fraudulent concealment, unjust enrichment, and accounting. Plaintiff based its breach of fiduciary duty count on section 500 \u2014 80(e) of the Illinois Insurance Code (215 ILCS 5/500\u2014 80(e) (West 2004)), which requires an insurance producer to disclose fees not directly attributable to premiums, and section 2 \u2014 2201, which precludes breach of fiduciary duty actions against insurance producers but excepts claims based on the wrongful retention or misappropriation of premiums. In alleging that the statute of limitations should be tolled due to defendant\u2019s fraudulent concealment and misrepresentation, plaintiff quoted a portion of defendant\u2019s Web site, which provided:\n\u201cOur philosophy is to provide sound and unbiased advice with an emphasis on protecting your interests at all times. Rather than focusing on one area, we are adept at reviewing your entire situation, integrating personal and professional goals to identify and eliminate any areas of vulnerability. We are committed to being a resource for you.\u201d\nThe trial court dismissed counts I, R/ and V (breach of fiduciary duty, unjust enrichment, and accounting) on the basis that section 2 \u2014 2201 of the Code precludes claims for breach of fiduciary duty. Counts II and III (consumer fraud and fraudulent concealment) were dismissed because there was no proof of actual damages or reliance on the alleged concealment.\nII. ANALYSIS\nA. Motion to Dismiss\nA motion to dismiss pursuant to section 2 \u2014 615 attacks the legal sufficiency of the complaint. R&B Kapital Development, LLC v. North Shore Community Bank & Trust Co., 358 Ill. App. 3d 912, 920 (2005). A court reviewing an order granting a section 2 \u2014 615 motion takes all well-pled facts as true. R&B, 358 Ill. App. 3d at 920. \u201cOn review of a section 2 \u2014 615 dismissal, the reviewing court must determine whether the allegations of the complaint, when interpreted in [the] light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted.\u201d R&B, 358 Ill. App. 3d at 920. We review a dismissal pursuant to section 2 \u2014 615 de novo. Collins v. Superior Air-Ground Ambulance Service, Inc., 338 Ill. App. 3d 812, 815 (2003).\nAlthough plaintiff makes frequent references to the trial court\u2019s abuse of discretion, a dismissal pursuant to section 2 \u2014 615 is reviewed de novo. Collins, 338 Ill. App. 3d at 815.\n1. Breach of fiduciary duty\nPlaintiff argues that the trial court erred in dismissing its claims for breach of fiduciary duty, unjust enrichment, and accounting because it has alleged the existence of a fiduciary relationship between plaintiff and defendant. Defendant responds that section 2 \u2014 2201 of the Code precludes claims for breach of fiduciary duty.\nTo state a claim for breach of fiduciary duty, a plaintiff must establish (1) a fiduciary duty on the part of the defendant, (2) the defendant\u2019s breach of that duty, and (3) damages that were proximately caused by the defendant\u2019s breach. Neade v. Portes, 193 Ill. 2d 433, 444 (2000). Historically, Illinois has recognized that the relationship between an insured and his broker, acting as the insured\u2019s agent, is a fiduciary one. AYH Holdings, Inc. v. Avreco, Inc., 357 Ill. App. 3d 17, 32 (2005); Perelman v. Fisher, 298 Ill. App. 3d 1007, 1011 (1998).\nIn 1996, the General Assembly enacted Public Act 89 \u2014 638 (Pub. Act 89 \u2014 638, \u00a75, eff. January 1, 1997), which added section 2 \u2014 2201 of the Code. Section 2 \u2014 2201 provides:\n\u201c(a) An insurance producer *** shall exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured.\n(b) No cause of action brought by any person or entity against any insurance provider, registered firm, or limited insurance representative concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance shall subject the insurance producer, registered firm, or limited insurance representative to civil liability under standards governing the conduct of a fiduciary or fiduciary relationship except when the conduct upon which the cause of action is based involves the wrongful retention or misappropriation by the insurance producer, registered firm, or limited insurance representative of any money that was received as premiums, as a premium deposit, or as payment of a claim.\n(d) While limiting the scope of liability of an insurance producer, registered firm, or limited insurance representative under standards governing the conduct of a fiduciary or a fiduciary relationship, the provisions of this Section do not limit or release an insurance producer, registered firm, or limited insurance representative from liability for negligence concerning the sale, placement, procurement, renewal, binding, cancellation of, or failure to procure any policy of insurance.\u201d (Emphasis added.) 735 ILCS 5/2 \u2014 2201 (West 2004).\nThe goal of a court when construing a statute is to ascertain the legislature\u2019s intent, \u201cand the surest indicator *** is the language in the statute.\u201d Department of Public Aid ex rel. Schmid v. Williams, 336 Ill. App. 3d 553, 556 (2003). \u201cTo this end, a court may consider the reason and necessity for the statute and the evils it was intended to remedy, and will assume the legislature did not intend an *** unjust result.\u201d In re Marriage of Beyer, 324 Ill. App. 3d 305, 309 (2001). A court may not supply omissions, remedy defects, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute. Beyer, 324 Ill. App. 3d at 309-10. \u201cIf the language of the statute is clear, its plain and ordinary meaning must be given without resorting to other aids of construction.\u201d Beyer, 324 Ill. App. 3d at 310.\nSince the enactment of section 2 \u2014 2201, the relationship between an insured and its broker continues to be a fiduciary one. See Perelman, 298 Ill. App. 3d at 1013 (an insured\u2019s failure to read the terms of a policy was not an absolute bar to recovery against his broker for breach of fiduciary duty); Cincinnati Insurance Co. v. Guccione, 308 Ill. App. 3d 220, 224 (1999) (a question of fact existed as to whether the broker breached his fiduciary duty to the insured by misleading him about the nature and potential cost of his policy). Rather than eliminate the fiduciary relationship between the insured and the producer, the plain language of section 2 \u2014 2201 protects the insurance producer from civil liability arising out of the fiduciary relationship. Mizuho Corp. Bank (USA) v. Cory & Associates, Inc., 341 F.3d 644 (7th Cir. 2003), for example, considered section 2 \u2014 2201(b) an \u201cautomatic exemption from liability for breaches of fiduciary duty.\u201d Mizuho, 341 F.3d at 651-52. Similarly, AYH Holdings, a summary judgment case based on the broker\u2019s failure to disclose the insurer\u2019s unsound financial condition, acknowledged that section 2 \u2014 2201(b) \u201cimmunizes an insurance broker from claims based on breach of fiduciary duty\u201d but held that it could not determine when the cause of action accrued and, therefore, whether section 2 \u2014 2201 barred the claim. AYH, 357 Ill. App. 3d at 43. Moore v. Johnson County Farm Bureau, 343 Ill. App. 3d 581, 585 (2003), which relates to the failure to procure adequate insurance, also noted that section 2 \u2014 2201 \u201climits any civil liability arising out of a fiduciary relationship between an insured and an insurance agent.\u201d\nPlaintiff argues that its complaint falls within the exception to section 2 \u2014 2201 for causes of action involving \u201cthe wrongful retention or misappropriation\u201d of money received as premiums. Defendant responds that \u201cwrongful retention or misappropriation\u201d means diverting funds intended to pay premiums for another wrongful purpose. While Black\u2019s Law Dictionary defines \u201cmisappropriation\u201d as \u201cthe application of another\u2019s property or money dishonestly to one\u2019s own use\u201d (Black\u2019s Law Dictionary 1019 (8th ed. 2004)), the parties have cited, and this court has found, no cases explaining what constitutes \u201cwrongful retention or misappropriation\u201d of premiums in section 2 \u2014 2201(b).\nDefendant argues that wrongful retention or misappropriation \u201cplainly means diverting funds intended to pay premiums for another wrongful purpose, such as placing money received as premiums into a broker\u2019s operating account rather than into a premium trust account, or failing to pay money received as a premium to the insurer.\u201d Despite defendant\u2019s interpretation of the \u201cplain\u201d meaning of the statute, it only cites Western Life Insurance Co. of America v. Chapman, 31 Ill. App. 3d 368 (1975). In Western Life, an insurance agent violated a provision of the Insurance Code providing that premiums collected by insurance agents were held in a fiduciary capacity and could not be \u201c \u2018misappropriated or converted to his own use or illegally withheld\u2019 \u201d when he gave premium money to his brother or placed it in an account that was not a premium trust account. Western Life Insurance, 31 Ill. App. 3d at 372, quoting Ill. Rev. Stat. 1971, ch. 73, par. 1065.52.\nAlso instructive is case law interpreting section 500 \u2014 115 of the Insurance Code, which provides that any money that an insurance producer receives for soliciting, negotiating, renewing, continuing, or binding insurance policies \u201cshall be held in a fiduciary capacity and shall not be misappropriated, converted, or improperly withheld.\u201d 215 ILCS 5/500 \u2014 115(a) (West 2004). \u201cThus, insurance producers act as fiduciaries in holding the collected premiums in trust for the benefit of the insurer.\u201d Safeway Insurance Co. v. Daddono, 334 Ill. App. 3d 215, 218 (2002). Subsection 500 \u2014 115(d) provides that an insurance producer who \u201cknowingly misappropriates or converts to his or her own use or illegally withholds fiduciary funds\u201d commits a criminal act. 215 ILCS 5/500 \u2014 115(d) (West 2004). In People v. Lambert, 195 Ill. App. 3d 314 (1990), the court affirmed the defendant\u2019s conviction for criminal breach of fiduciary duty under the precursor to section 500\u2014 115 when he received checks from a widow for insurance coverage but the insurance company had no record of applications for insurance or billings for insurance renewals that corresponded to the checks.\nWhile these cases are instructive as to how courts have interpreted misappropriation or conversion, the case at bar presents a different set of facts. The trial court granted the section 2 \u2014 615 motion based on the belief that defendant was protected from \u201ccivil liability under standards governing the conduct of a fiduciary or fiduciary relationship.\u201d 735 ILCS 5/2 \u2014 2201(b) (West 2004). In granting the motion, the court did not find that plaintiffs complaint alleged the exception for \u201cwhen the conduct upon which the cause of action is based involves the wrongful *** misappropriation by the insurance producer *** of any money that was received as premiums.\u201d 735 ILCS 5/2 \u2014 2201(b) (West 2004).\nAccording to the complaint, plaintiff provided defendant with confidential and proprietary information with the expectation that defendant would seek the desired insurance at the lowest possible price. The complaint alleged that the contingent commissions were based on the aggregate amount of business referred to the insurer paying the kickbacks, the \u201closs ratio\u201d performance of the book of business referred to that insurer, and renewals. According to the complaint, these undisclosed incentives caused defendant to refer business to a paying insurer even if the policy and rates quoted by that insurer were not the most advantageous for the customer. We note that a court interpreting a statute will assume that the legislature did not intend an unjust result (Beyer, 324 Ill. App. 3d at 309); the placement of policies that are not the most advantageous for the consumer is most certainly unjust. We hold that the placement of policies with companies that were not the most advantageous for the consumers constitutes \u201cthe wrongful *** misappropriation\u201d of money received as premiums.\nIt is not the undisclosed incentives that constitute misappropriation. Rather, the undisclosed incentives, as alleged in the complaint, were what led defendant to place certain policies without regard for the customer\u2019s needs and in breach of its fiduciary duty. We hold that a producer misappropriates premiums within the terms of section 2 \u2014 2201 when it directs a premium to an insurer, the price or coverage is not in the customer\u2019s best interest, and the placement earns the producer undisclosed contingent incentives.\nWe find that section 2 \u2014 2201 of the Code does not preclude plaintiffs claim for breach of fiduciary duty, because plaintiff comes within the exception in section 2 \u2014 2201(b) by alleging in its complaint that defendant misappropriated certain premiums by placing them with an insurer when the placement was not in the best interest of the consumer. Accordingly, we reverse the trial court\u2019s dismissal of counts I, iy and V (breach of fiduciary duty, unjust enrichment, and accounting).\n2. Unjust enrichment\nDefendant also argues that the unjust enrichment count should be dismissed because a contract governs the relationship between the parties. Defendant did not raise this argument in its motion to dismiss the second amended complaint, and plaintiff did not respond to the argument in its reply brief. While an appellant who fails to raise an issue in the trial court waives that issue, an appellee may raise an issue on review that was not presented to the trial court in order to sustain the judgment, as long as the factual basis for the issue was before the trial court. Schanowitz v. State Farm Mutual Automobile Insurance Co., 299 Ill. App. 3d 843, 848 (1998).\nA claim for unjust enrichment cannot be asserted when a specific contract exists between the parties and concerns the same subject matter. Zadrozny v. City Colleges, 220 Ill. App. 3d 290, 295 (1991). The complaint only alleges that plaintiff \u201cretained\u201d defendant, and the contract attached to the complaint appears to be between plaintiff and Hartford Insurance. Under these circumstances, we do not believe that whether a \u201cspecific\u201d contract concerning \u201cthe same subject matter\u201d can be determined. Accordingly, we reject defendant\u2019s argument.\n3. Consumer fraud\nPlaintiff alleges that defendant violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)) by planning these schemes with insurers, failing to disclose the truth about the extent of the kickbacks, and failing to disclose its conflict of interest. Plaintiff alleges that it relied on \u201cthe faulty information given\u201d by defendant and, as a result, paid excessive premiums. Defendant contends that the trial court properly dismissed plaintiffs consumer fraud count because it failed to allege the omission of a material fact or actual damages.\nTo establish a claim under the Consumer Fraud Act, plaintiff must show that (1) defendant committed a deceptive act or practice; (2) defendant intended for plaintiff to rely on the deception; (3) the deception occurred in the course of conduct involving trade or commerce; (4) plaintiff suffered actual damages; and (5) plaintiffs damages were proximately caused by defendant\u2019s deceptive conduct. Sklodowski v. Countrywide Home Loans, Inc., 358 Ill. App. 3d 696, 703 (2005). A complaint alleging a consumer fraud violation must be pled with the same particularity as that required under common law fraud. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501 (1996). The Consumer Fraud Act is to be liberally construed to effectuate its purpose. Johnson v. Matrix Financial Services Corp., 354 Ill. App. 3d 684, 690 (2004).\nTo bring a civil action for damages, the Consumer Fraud Act requires that a plaintiff suffer \u201cactual damage.\u201d 815 ILCS 505/10a(a) (West 2004); Avery v. State Farm Mutual Insurance Co., 216 Ill. 2d 100, 195 (2005) (plaintiff must suffer \u201cactual damage\u201d). The complaint alleges that plaintiff was damaged by increased premiums and profits that defendant received from the undisclosed contingent commissions. Defendant contends that plaintiffs alleged damages are speculative because there is no support for the idea that if defendant had disclosed receipt of the contingent commissions, plaintiffs premiums would have been reduced by the amount of the contingent commission.\nIn White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278, 287 (2006), the plaintiff alleged that the value of his Jeep was diminished by a defective exhaust manifold. The court acknowledged that diminution of value has been held to be a legally cognizable injury under the Act; however, the plaintiff did not specify how the value of his Jeep had been diminished. White, 368 Ill. App. 3d at 287. \u201cHe never says he would have done anything differently, like bargain for a lower price or refuse to buy the vehicle, if he had known about exhaust manifold failures.\u201d White, 368 Ill. App. 3d at 287. While this is not a diminution-of-value case, it is significant that plaintiffs only allegation as to what it would have done differently (which is in a different count) is that it would have been \u201cmore diligent in its selection of insurance\u201d and would have required competing bids from defendant. Thus, plaintiff does not allege that it would have refused to use defendant\u2019s services if it had known of the contingent commissions or that it would have bargained for better insurance prices while still using defendant as a broker.\nPlaintiff contends on appeal that it is sufficient that \u201cthe basic elements of actual damage are pleaded but not that they are proved at this stage.\u201d It cites Pappas v. Pella Corp., 363 Ill. App. 3d 795, 805 (2006), which is distinguishable; the plaintiffs in that case alleged that they suffered actual damage because their windows underwent rotting and deterioration.\nDefendant argues that an additional reason for dismissing the consumer fraud count is that it did not allege the omission of a material fact. The Consumer Fraud Act defines a deceptive act as \u201cthe use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any [such] material fact *** in the conduct of trade or commerce.\u201d 815 ILCS 505/2 (West 2004). \u201cAn omission is \u2018material\u2019 if the plaintiff would have acted differently had [it] been aware of it, or if it concerned the type of information upon which it would be expected to rely in making its decision to act.\u201d Mackinac v. Arcadia National Life Insurance Co., 271 Ill. App. 3d 138, 141 (1995). It is difficult to believe that a consumer would not rely on a broker\u2019s acceptance of contingent commissions in deciding which broker to patronize or what insurance coverage to purchase. However, while plaintiff alleged that it would have scrutinized defendant\u2019s bills had it known of the contingent commissions, it did not allege that the types or the amount of commissions paid to defendant were material to plaintiffs decision to purchase insurance coverage. Therefore, while it may have acted differently, that difference is of little consequence.\nDefendant also claims that section 10b(l), which provides that the Act does not apply to \u201c[a]ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States\u201d (815 ILCS 505/ 10b(l) (West 2004)), applies because its conduct was \u201cin compliance\u201d with section 500 \u2014 80(e) of the Insurance Code (215 ILCS 5/500 \u2014 80(e) (West 2004)). See Avery, 216 Ill. 2d at 192-93; Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 581 (2005). Section 500 \u2014 80(e) establishes various disclosure requirements when \u201can insurance producer or business entity charges any fee or compensation separate from commissions deductible from, or directly attributable to, premiums on insurance policies or contracts.\u201d 215 ILCS 5/500 \u2014 80(e) (West 2004). Defendant argues that section 500 \u2014 80(e) does not apply because it did not \u201ccharge\u201d the consumer directly but instead received the commission from an entity other than the consumer. However, subsection 500 \u2014 80(e) does not specify that the consumer must be charged, only that the separate fee be charged. Therefore, we conclude that section 10b(l) did not immunize defendant.\nWe affirm the dismissal of the consumer fraud count.\n4. Fraudulent concealment\nAs with the consumer fraud count, the trial court dismissed the fraudulent concealment count on the basis that it failed to allege actual damages or reliance. To establish fraudulent concealment, a plaintiff must allege (1) the concealment of a material fact; (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak; (3) the innocent party could not have discovered the truth through reasonable inquiry or inspection, or was prevented from making reasonable inquiry or inspection, and relied upon misrepresentation as a fact that did not exist; (4) the concealed truth was such that the injured party would have acted differently if he had been aware of it; and (5) reliance by the person from whom the fact was concealed led to his injury. Stewart v. Thrasher, 242 Ill. App. 3d 10, 16 (1993). There is a high standard of specificity required for pleading fraud claims. Cwikla v. Sheir, 345 Ill. App. 3d 23, 31 (2003).\nWhile the fraudulent concealment count alleges that defendant intended that plaintiff rely on its misrepresentation and concealment, it does not allege that plaintiff actually relied on anything. The consumer fraud count does allege that plaintiff relied on \u201cfaulty information\u201d given by defendant, but it does not specify what this \u201cfaulty information\u201d is.\nThe trial court also ruled that plaintiff failed to allege actual damages. This count alleges that plaintiff \u201csuffered actual damages\u201d; elsewhere, plaintiff alleges that it was damaged by increased premiums and profits that defendant received from the undisclosed contingent commissions. Defendant cites Huls v. Clifton, Gunderson & Co., 179 Ill. App. 3d 904, 909 (1989), where the plaintiffs, who were purchasers of two businesses, claimed that the defendant\u2019s failure to disclose its relationship with the sellers caused it to offer to pay a price greater than the equity value of the businesses, \u201c \u2018which excess value such purchaser might not [have been] willing to pay had such disclosures been made.\u2019 \u201d (Emphasis omitted.) The court found that the plaintiffs failed to state a cause of action for fraudulent concealment because they did not sufficiently allege damages. Huls, 179 Ill. App. 3d at 909. \u201c[P]laintiffs fail to allege that what they received was not worth the money they paid for it or that they could have purchased the companies for less. Furthermore, they do not state they would not have purchased the companies had they known about the lack of independence between the businesses and defendant.\u201d Huls, 179 Ill. App. 3d at 909. See also State Security Insurance Co. v. Frank B. Hall & Co., 258 Ill. App. 3d 588, 589-90 (1994). Here, while plaintiff alleges that its premiums were inflated, it does not allege that it would not have purchased its chosen insurance had it known of the contingent commissions.\n5. Affirmative matter\nPlaintiff argues that defendant\u2019s motion to dismiss should have been stricken or denied because it relied on a report prepared by the Insurance Information Institute. Defendant responds that citation to secondary sources is proper in a section 2 \u2014 615 motion to dismiss.\nA trial court may not consider documentary evidence not incorporated into the pleadings as exhibits in ruling on a section 2 \u2014 615 motion. Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1068 (1992). Regardless of whether the report is considered a \u201csecondary source,\u201d however, in the hearing on defendant\u2019s motion to dismiss, the trial court makes no reference to it. While plaintiff claims that the trial court \u201cpresumably\u201d relied on the report \u201cat least in part,\u201d there is nothing in the record to support that contention. Accordingly, we reject plaintiffs argument.\nB. Requests to Admit\nOn May 11, 2005, plaintiff served defendant with requests for production of documents, requests to admit, and interrogatories. The next day, defendant filed a motion to dismiss, and in the order setting a briefing schedule, the court stayed discovery during the pending motion to dismiss. On June 23, 2005, upon agreement of the parties, portions of the complaint were dismissed and plaintiff was granted leave to file a first amended complaint. Defendant filed a motion to dismiss the first amended complaint and to stay discovery on September 22, 2005. On October 4, 2005, the court stayed all discovery pending the resolution of defendant\u2019s motion to dismiss. In its response to defendant\u2019s motion to dismiss the first amended complaint, plaintiff argued that certain facts should be admitted because defendant failed to respond to the requests to admit. On December 6, 2005, the trial court struck \u201call previously filed discovery and requests to admit\u201d and stayed discovery until further order of the court. The trial court noted that plaintiff was not barred from renewing the requests to admit in the future.\nPlaintiff argues that the trial court abused its discretion when it refused plaintiff\u2019s request to deem facts admitted under Supreme Court Rule 216 (134 Ill. 2d R. 216) and later struck them. According to plaintiff, defendant \u201csimply never responded\u201d to requests to admit that it propounded soon after filing the complaint. Plaintiff contends that the trial court \u201cignored and directly controverted\u201d supreme court rules regarding requests to admit and instead \u201cfabricated as rule that the requests were \u2018untimely\u2019 or \u2018premature\u2019 \u201d when it struck the requests to admit.\nThe trial court has great latitude in ruling on discovery matters. Mutlu v. State Farm Fire & Casualty Co., 337 Ill. App. 3d 420, 434 (2003). A trial court\u2019s rulings on such matters will not be disturbed absent a manifest abuse of discretion. Mutlu, 337 Ill. App. 3d at 434. While plaintiff contends that \u201cthere is some question\u201d as to whether requests to admit are discovery, in Bright v. Dicke, 166 Ill. 2d 204, 208 (1995), our supreme court stated that \u201ca request for admissions is essentially a discovery tool.\u201d After Bright, the supreme court amended Rule 201, entitled \u201cGeneral Discovery Provisions,\u201d to include requests to admit within the definition of \u201cdiscovery methods.\u201d 166 Ill. 2d R. 201(a). More recently, in Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334 (2007), the court concluded, \u201cThis amendment clearly reinforced our statement in Bright that requests for admission are part of the discovery process,\u201d and \u201c[w]e hold, as we did in Bright, that requests for admission constitute discovery.\u201d Haas, 226 Ill. 2d at 345, 347. In light of this clear statement by the supreme court, the requests to admit clearly fall within the court\u2019s order pertaining to stays of \u201cdiscovery.\u201d\nFurthermore, in arguing that defendant \u201csimply did not respond,\u201d plaintiff ignores that the trial court stayed discovery twice during defendant\u2019s pending motions to dismiss. Indeed, while plaintiff argues that the trial court needed \u201cgood cause\u201d under Rule 183 to excuse defendant\u2019s failure to respond, it fails to address the trial court\u2019s discretion to stay discovery while a motion to dismiss is pending. In Adkins Energy, LLC v. Delta-T Corp., 347 Ill. App. 3d 373 (2004), the court found that the trial court did not err when it stayed discovery until ruling on the defendant\u2019s motion to dismiss, even though the case could have been resolved earlier or settled if discovery had not been postponed. \u201cWe cannot say that it was a manifest abuse of discretion for the trial court to stay discovery until it ruled on the motion to dismiss, because if a cause of action had not been stated, discovery would have been unnecessary.\u201d Adkins Energy, 347 Ill. App. 3d at 381. Similarly, in Redelmann v. Claire-Sprayway, Inc., 375 Ill. App. 3d 912 (2007), this court affirmed the trial court\u2019s stay of discovery pending the resolution of a motion to dismiss because it was unwilling to permit the plaintiff to \u201cgo on a fishing expedition.\u201d Redelmann, 375 Ill. App. 3d at 927. Here, as in Redelmann, the trial court stated that plaintiff might be in a position to renew the requests to admit in the future. Also, plaintiff has failed to explain how the requests to admit would help it overcome the pleading deficiencies in its complaint. See Redelmann, 375 Ill. App. 3d at 927.\nAlthough plaintiff argues that a stay was not in effect from June 23, 2005, when the original complaint was dismissed, until October 4, 2005, when the court stayed all discovery pending the resolution of defendant\u2019s motion to dismiss, the court struck all filed discovery when it dismissed the first amended complaint. A trial court may properly quash a discovery request when it has sufficient information upon which to decide a defendant\u2019s motion to dismiss. Mutlu, 337 Ill. App. 3d at 434. Significantly, plaintiff does not argue that discovery was needed for the trial court to rule on defendant\u2019s motion to dismiss or for plaintiff to successfully resist the motion. See Adkins Energy, 347 Ill. App. 3d at 381; Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504, 514 (2005) (\u201cDiscovery is not necessary where a cause of action has not been stated\u201d).\nThe trial court did not abuse its discretion when it stayed discovery and struck plaintiffs requests to admit.\nIII. CONCLUSION\nIn summary, because we find that the conduct alleged in plaintiffs complaint constituted the \u201cmisappropriation\u201d of money received as premiums, we reverse the dismissal of counts I, iy and V We affirm the dismissal of the consumer fraud and common law fraud counts as well as the trial court\u2019s rulings regarding discovery.\nAffirmed in part and reversed in part; cause remanded.\nNEVILLE, EJ., and CAMPBELL, J., concur.\nPlaintiff does not argue that the trial court erred in striking its requests for production of documents and interrogatories, the other discovery it propounded.", "type": "majority", "author": "JUSTICE MURPHY" } ], "attorneys": [ "David S. Klevatt, of Chicago, for appellant.", "Kenneth S. Ulrich, David E. Morrison, and Mary E. Anderson, all of Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago, for appellee Mesirow Insurance Services, Inc." ], "corrections": "", "head_matter": "DOD TECHNOLOGIES, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. MESIROW INSURANCE SERVICES, INC., et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1\u201406\u20143300\nOpinion filed February 14, 2008.\nRehearing denied May 9, 2008.\nDavid S. Klevatt, of Chicago, for appellant.\nKenneth S. Ulrich, David E. Morrison, and Mary E. Anderson, all of Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago, for appellee Mesirow Insurance Services, Inc." }, "file_name": "1042-01", "first_page_order": 1058, "last_page_order": 1072 }