{ "id": 4284401, "name": "JULIE FICHTEL et al., Plaintiffs, v. THE BOARD OF DIRECTORS OF THE RIVER SHORE OF NAPERVILLE CONDOMINIUM ASSOCIATION et al., Defendants (Patricia Gatto et al., Plaintiffs-Appellants; State Farm Fire and Casualty Company, Defendant-Appellee)", "name_abbreviation": "Fichtel v. Board of Directors of the River Shore of Naperville Condominium Ass'n", "decision_date": "2009-04-21", "docket_number": "No. 2-07-1237", "first_page": "951", "last_page": "965", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 951" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "174 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223623 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "500" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0482-01" ] }, { "cite": "348 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4023559 ], "weight": 13, "year": 2004, "pin_cites": [ { "page": "850-51" }, { "page": "851" }, { "page": "851" }, { "page": "852" }, { "page": "851" }, { "page": "848" }, { "page": "848" }, { "page": "848" }, { "page": "849" }, { "page": "851-52" }, { "page": "851-52" }, { "page": "852" }, { "page": "851" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0846-01" ] }, { "cite": "78 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074180 ], "year": 1979, "pin_cites": [ { "page": "209-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0204-01" ] }, { "cite": "384 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4278896 ], "year": 2008, "pin_cites": [ { "page": "427-28" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0418-01" ] }, { "cite": "153 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738245 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "32-35", "parenthetical": "applying the voluntary undertaking theory and noting that section 323 of the Restatement (Second) of Torts was \"of particular relevance\"" }, { "page": "32" }, { "page": "34", "parenthetical": "holding that the defendant pharmacist had undertaken a duty to accurately warn of a drug's side effects with respect to the warning actually given, but not a duty to warn of all possible side effects of the medication" }, { "page": "32", "parenthetical": "\"duty of care to be imposed upon a defendant is limited to the extent of its undertaking\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0026-01" ] }, { "cite": "374 Ill. App. 3d 870", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 7328881 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "872" }, { "page": "872" }, { "page": "873" }, { "page": "873" }, { "page": "884-85" }, { "page": "877" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/374/0870-01" ] }, { "cite": "261 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373188 ], "year": 1994, "pin_cites": [ { "page": "244", "parenthetical": "affirming the trial court's grant of summary judgment for the defendant and holding that the defendant's policy manual, which directed employees to keep salt or other abrasives near the gate to keep the walkways clear, did not impose a duty on the defendant" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0237-01" ] }, { "cite": "172 Ill. 2d 213", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55976 ], "year": 1996, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0213-01" ] }, { "cite": "373 Ill. App. 3d 290", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4270838 ], "year": 2007, "pin_cites": [ { "page": "296-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/373/0290-01" ] }, { "cite": "248 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2945227 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1005" }, { "page": "1005-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/1000-01" ] }, { "cite": "134 Ill. App. 3d 985", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636845 ], "weight": 7, "year": 1985, "pin_cites": [ { "page": "989" }, { "page": "988" }, { "page": "988" }, { "page": "990" }, { "page": "988" }, { "page": "988" }, { "page": "989" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0985-01" ] }, { "cite": "174 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223621 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "528" }, { "page": "528" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0513-01" ] }, { "cite": "233 Ill. App. 3d 147", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5194491 ], "year": 1992, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0147-01" ] }, { "cite": "356 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749772 ], "year": 2005, "pin_cites": [ { "page": "745-46", "parenthetical": "to survive a motion for summary judgment in a negligence action, \"the plaintiff must set forth sufficient facts to establish a duty owed by defendants to the plaintiff'" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0740-01" ] }, { "cite": "170 Ill. App. 3d 594", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586022 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "605", "parenthetical": "\"Absent a fiduciary relationship, there is no basis for a cause of action alleging breach of fiduciary duty\"" }, { "page": "605", "parenthetical": "\"Absent a fiduciary relationship, there is no basis for a cause of action alleging breach of fiduciary duty\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0594-01" ] }, { "cite": "351 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083808 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "762", "parenthetical": "\"to state a claim for fraudulent concealment, a plaintiff must allege *** that the defendant concealed a material fact when it was under a duty to disclose to the plaintiff'" }, { "page": "762" }, { "page": "754, 762" }, { "page": "762" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0752-01" ] }, { "cite": "224 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607075 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "280" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0274-01" ] }, { "cite": "201 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477035 ], "year": 2002, "pin_cites": [ { "page": "335", "parenthetical": "\"Although a plaintiff is not required to prove his case at the summary judgment stage, in order to survive a motion for summary judgment, the non-moving party must present a factual basis that would arguably entitle the party to a judgment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0324-01" ] }, { "cite": "361 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259175 ], "year": 2005, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0477-01" ] }, { "cite": "377 Ill. App. 3d 1013", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273766 ], "year": 2007, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/1013-01" ] }, { "cite": "228 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706738 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "417" }, { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0404-01" ] } ], "analysis": { "cardinality": 1160, "char_count": 33357, "ocr_confidence": 0.768, "pagerank": { "raw": 6.548570569702441e-08, "percentile": 0.4014855692358898 }, "sha256": "ba78f136959138966d7bb46705723a7f31c20cdcd7c74aefef84d11157f3178d", "simhash": "1:3bbe4f560b1194d0", "word_count": 5514 }, "last_updated": "2023-07-14T20:37:38.013620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JULIE FICHTEL et al., Plaintiffs, v. THE BOARD OF DIRECTORS OF THE RIVER SHORE OF NAPERVILLE CONDOMINIUM ASSOCIATION et al., Defendants (Patricia Gatto et al., Plaintiffs-Appellants; State Farm Fire and Casualty Company, Defendant-Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE ZENOFF\ndelivered the opinion of the court:\nThe trial court granted summary judgment in favor of defendant State Farm Fire and Casualty Company (State Farm) on August 16, 2007. Following denial of their motion to reconsider, plaintiffs Patricia Gatto and John Gatto (the Gattos) timely appealed, arguing that the trial court erred in concluding that the duty State Farm owed to them was limited to the terms of its insurance contract with them. For the reasons that follow, we affirm.\nBACKGROUND\nPlaintiffs, four condominium owners, filed suit in October 2002 against the Board of Directors of the River Shore of Naperville Condominium Association (Board), Hillcrest Management Company, a/k/a Highcrest Management Company (Hillcrest), Todd Paradis (Para-dis), and State Farm. Plaintiffs brought various contract and tort claims based on water, sewage, and mold damage stemming from the Board\u2019s and Hillcrest\u2019s failure to maintain the premises. Plaintiffs twice amended the complaint, on February 20, 2003, and October 20, 2003.\nThis appeal involves only two of the plaintiffs, the Gattos, and one defendant, State Farm, provider of the Gattos\u2019 homeowner\u2019s insurance. The Gattos\u2019 claims against State Farm were identical in the first and second amended complaints. The trial court denied State Farm\u2019s motion under section 2 \u2014 615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2 \u2014 615 (West 2006)) to dismiss the counts against it in the first amended complaint. The trial court also denied State Farm\u2019s section 2 \u2014 615 motion to dismiss the counts against it in the second amended complaint or to reconsider its order denying the first motion to dismiss. However, after lengthy discovery, State Farm moved under section 2 \u2014 1005 of the Code (735 ILCS 5/2 \u2014 1005 (West 2006)) for summary judgment on the counts against it, which the trial court granted on August 16, 2007. The trial court then denied the Gattos\u2019 motion to reconsider on November 8, 2007, and they timely filed this appeal on December 3, 2007.\nAt issue are three counts of the second amended complaint: count VIII for fraudulent concealment, count IX for breach of fiduciary duty, and count X for negligence, all brought by the Gattos against State Farm. All arise from State Farm\u2019s investigation in September 2000 of the Gattos\u2019 insurance claim for water damage within their unit and State Farm\u2019s failure to disclose to them its discovery of mold in the attic. While investigating the Gattos\u2019 claim, a State Farm investigator viewed the attic space over their unit. Mrs. Gatto was present at the time and held the ladder for the investigator, but she did not look into the attic herself. When the investigator came down, he told Mrs. Gatto that the roof was leaking. Although he also observed and photographed mold in the attic, he did not tell Mrs. Gatto about the mold. Rather, he asked her for the contact information for the condominium management company, which she provided. The investigator also told Mrs. Gatto that he \u201cwould take care of it.\u201d In October 2000, State Farm informed the Board and Hillcrest of the leak and mold, via letter and photographs. State Farm subsequently paid the Gattos\u2019 claim for water damage.\nThe parties agree that, pursuant to the declaration of condominium ownership, the roof and attic were common areas, which the Board, through Hillcrest, was responsible for maintaining. The condominium unit owners paid monthly dues and also received special assessments as needed to cover the costs of repairs. The Board was responsible for securing insurance for the common areas, which was to include each unit owner as an additional insured. State Farm did not insure the common areas.\nState Farm did, however, insure the Gattos\u2019 individual unit and its contents, through a homeowner\u2019s policy. This insurance contract provided that State Farm had the right, but not the obligation, to conduct investigations and report the results to the insured; however, any inspections \u201crelate[d] only to insurability and the premiums to be charged.\u201d The contract further provided that State Farm did not:\n\u201ca. make safety inspections;\nb. undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public;\nc. warrant that conditions are safe or healthful; or\nd. warrant that conditions comply with laws, regulations, codes or standards.\u201d\nAlthough the complaint acknowledged the existence of this insurance contract, the Gattos argue that the allegations in counts VIII, IX, and X against State Farm sounded in tort, not in contract.\nANALYSIS\nThe Gattos argue that the trial court\u2019s orders denying State Farm\u2019s motions to dismiss were inconsistent with its order granting summary judgment in favor of State Farm. They also contend that the trial court erred in limiting State Farm\u2019s duty to the terms of the insurance contract. Finally, the Gattos maintain that State Farm\u2019s conduct gave rise to extracontractual duties to disclose to them the mold growing in the attic and that a grant of summary judgment based on lack of duty was therefore erroneous. We disagree.\nWe first address the Gattos\u2019 contention that the trial court was inconsistent in denying State Farm\u2019s motions to dismiss and then granting its motion for summary judgment. A grant of summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits on file demonstrate that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). If reasonable persons can draw different inferences from the undisputed facts or if material facts are disputed, summary judgment is inappropriate. Williams, 228 Ill. 2d at 417. In contrast, a motion to dismiss brought pursuant to section 2 \u2014 615 of the Code only tests the legal sufficiency of a pleading. Emery v. Northeast Illinois Regional Commuter R.R. Corp., 377 Ill. App. 3d 1013, 1019 (2007). A cause of action should not be dismissed unless it appears that no set of facts can be proved that will entitle the plaintiff to recover. Kelley v. Carbone, 361 Ill. App. 3d 477, 480 (2005).\nOn October 6, 2003, in denying State Farm\u2019s first motion to dismiss, the trial court found that the counts had been \u201csufficiently pled.\u201d Similarly, in denying the second motion to dismiss, the trial court stated:\n\u201cThe circumstances have been alleged that if proven, could possibly take this out of the \u2014 of a contractual relationship and create a special relationship which may give rise to a fiduciary duty.\nWe\u2019re at the pleading stages now, *** there are sufficient allegations to withstand a motion to dismiss.\u201d\nHowever, after consideration of the material produced in discovery, on August 16, 2007, the trial court found that there was no \u201clonger a question of material fact\u201d and that, \u201cas a matter of law, the motion for summary judgment must be granted.\u201d\nThe trial court\u2019s decisions were not inconsistent; they simply reflected the differences inherent in the two types of motions. At the pleading stage, the trial court allowed for the possibility that the Gattos could establish a factual basis to support a finding that State Farm owed them a duty outside the insurance contract; however, after reviewing the depositions and documents obtained in discovery, the trial court decided that the Gattos had failed to establish such a factual basis. See Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002) (\u201cAlthough a plaintiff is not required to prove his case at the summary judgment stage, in order to survive a motion for summary judgment, the non-moving party must present a factual basis that would arguably entitle the party to a judgment\u201d).\nWe turn now to the Gattos\u2019 argument that the trial court erred in granting summary judgment because it limited State Farm\u2019s duty to the terms of the insurance contract. In reviewing a grant of summary judgment, the appellate court will construe the record strictly against the movant and liberally in favor of the nonmoving party. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). We review a grant of summary judgment de novo. Forsythe, 224 Ill. 2d at 280. Summary judgment should be allowed \u201conly where the right of the moving party is clear and free from doubt.\u201d Williams, 228 Ill. 2d at 417.\nThe Gattos\u2019 claims against State Farm were each based on the fact that State Farm failed to disclose the presence of mold in the attic. Each count \u2014 fraudulent concealment, breach of fiduciary duty, and negligence \u2014 sounded in tort and required the Gattos to demonstrate that State Farm owed them a duty. See W.W. Vincent & Co. v. First Colony Life Insurance Co., 351 Ill. App. 3d 752, 762 (2004) (\u201cto state a claim for fraudulent concealment, a plaintiff must allege *** that the defendant concealed a material fact when it was under a duty to disclose to the plaintiff\u2019); Overbey v. Illinois Farmers Insurance Co., 170 Ill. App. 3d 594, 605 (1988) (\u201cAbsent a fiduciary relationship, there is no basis for a cause of action alleging breach of fiduciary duty\u201d); Tzakis v. Dominick\u2019s Finer Foods, Inc., 356 Ill. App. 3d 740, 745-46 (2005) (to survive a motion for summary judgment in a negligence action, \u201cthe plaintiff must set forth sufficient facts to establish a duty owed by defendants to the plaintiff\u2019). The existence of a duty generally is a question of law and, therefore, may be resolved on a motion for summary judgment. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992).\nIn granting summary judgment for State Farm, the trial court stated: \u201cIn this case, the duty of State Farm is, by law, limited to the terms of the insurance contract. I don\u2019t believe that there is any other duty that is germane in this case.\u201d The Gattos make no argument that State Farm had a duty under the insurance contract to disclose the presence of mold. Instead, they maintain that the trial court erred in limiting State Farm\u2019s duty to the terms of the contract, because State Farm\u2019s conduct during its investigation created extracontractual duties to disclose the presence of mold in the attic. We disagree.\nBefore addressing the Gattos\u2019 contentions of how State Farm\u2019s conduct gave rise to extracontractual duties, we address their contention that the trial court erroneously held that the mere existence of the insurance contract precluded State Farm from being liable for torts separate and distinct from the contract. The Gattos rely on Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513 (1996), in arguing that the existence of an insurance contract does not preclude a plaintiff from bringing claims against the insurer for torts, separate and distinct from the contract. In Cramer, the supreme court stated that \u201can insurer\u2019s conduct may give rise to both a breach of contract action and a separate and independent tort action.\u201d Cramer, 174 Ill. 2d at 528. A plaintiff must, however, \u201cactually allege[ ] and prove[ ] the elements of a separate tort.\u201d Cramer, 174 Ill. 2d at 528. Here, the trial court did not, despite the Gattos\u2019 contention, find that State Farm\u2019s duty was necessarily limited because a contract existed but, rather, found that the Gattos failed to present a genuine issue of material fact regarding duties State Farm may have owed the Gattos outside the contract. In other words, upon review of the pleadings, depositions, and other discovery documents, the trial court found that the Gattos failed to present a factual basis that could meet the Cramer standard of \u201calleging] and prov[ing] the elements of a separate tort\u201d (Cramer, 174 Ill. 2d at 528).\nWe now turn to the Gattos\u2019 argument that State Farm had extra-contractual duties to disclose the presence of mold. The Gattos maintain that extracontractual duties existed because: (1) State Farm\u2019s disclosure of the leaky roof constituted a \u201chalf-truth,\u201d which gave rise to a duty to disclose the full truth; (2) State Farm\u2019s decision to exercise its contractual right to investigate created a duty to do so pursuant to the standards articulated in its operating guide, including disclosure of mold; (3) State Farm voluntarily assumed a duty of reasonable care, including disclosure of mold, when it undertook to investigate the attic; and (4) the Gattos\u2019 trust and confidence in the State Farm investigator placed State Farm in a position of influence and superiority over the Gattos, with a corresponding fiduciary duty. We address each in turn.\nPartial Disclosure Compels Full Disclosure\nThe Gattos argue that the disclosure by the investigator that the roof was leaking gave rise to an affirmative duty to disclose \u201cthe whole truth,\u201d i.e., the presence of mold. In support of this argument, the Gattos cite several cases, all involving fraud or fraudulent concealment claims. In Union National Bank & Trust Co. of Joliet v. Carlstrom, 134 Ill. App. 3d 985, 989 (1985), the appellate court held that \u201ca party may assume a duty to disclose information accurately by its conduct.\u201d In Carlstrom, the plaintiff bank sued Ms. Carlstrom as the guarantor of a loan obtained by her ex-husband. Carlstrom, 134 Ill. App. 3d at 988. During the course of the dissolution of the Carlstroms\u2019 marriage, the bank provided to their respective attorneys detailed descriptions of the Carlstroms\u2019 assets and liabilities, for the purpose of reaching a property settlement. Carlstrom, 134 Ill. App. 3d at 988. The attorneys specifically asked the bank for \u201c \u2018everything\u2019 relating to the Carlstrom\u2019s [sic] assets.\u201d Carlstrom, 134 Ill. App. 3d at 990. Yet, the bank failed to disclose that Ms. Carlstrom had guaranteed a loan obtained by her husband while the Carlstroms were still married. Carlstrom, 134 Ill. App. 3d at 988. Years after the dissolution and after Mr. Carlstrom died insolvent, the bank attempted to collect the loan balance from Ms. Carlstrom. Carlstrom, 134 Ill. App. 3d at 988. Under the doctrine of equitable estoppel, the court held that the bank was precluded from collecting, because it had breached its duty to disclose the guaranty during the property settlement negotiations. Carlstrom, 134 Ill. App. 3d at 989.\nSimilarly, in Mitchell v. Skubiak, 248 Ill. App. 3d 1000, 1005 (1993), the appellate court held that, while silence alone does not generally constitute fraud in a business transaction, \u201c[s]ilence accompanied by deceptive conduct or suppression of material facts results in active concealment and it then becomes the duty of a person to speak.\u201d (Emphasis in original.) Accordingly, the court held that the defendant sellers of a residential home had a duty to disclose that faulty repairs had been made to the roof \u2014 the whole truth \u2014 when they explained cracks in the ceiling as caused by changes in humidity and temperature \u2014 a partial truth. Mitchell, 248 Ill. App. 3d at 1005-06.\nLikewise, \u201cconcealment of a material fact during a business transaction is actionable if \u2018done \u201cwith the intention to deceive under circumstances creating an opportunity and duty to speak.\u201d \u2019 [Citation.]\u201d W.W. Vincent, 351 Ill. App. 3d at 762. In W.W. Vincent, during a due diligence investigation conducted in preparation for a stock purchase agreement, the defendant disclosed the half-truth that Vincent \u2014 the company whose stock was the subject of the purchase agreement- \u2014 was a party to a general agents contract, which the defendant listed as an asset of Vincent\u2019s. W.W. Vincent, 351 Ill. App. 3d at 754, 762. In fact, the defendant knew that Vincent had previously assigned its rights in the contract; thus, the contract could no longer be characterized as an asset. W.W. Vincent, 351 Ill. App. 3d at 762. The appellate court reversed the trial court\u2019s dismissal of the plaintiffs\u2019 fraudulent concealment count, holding that the defendant \u201cnot only misled the plaintiffs, but imposed upon itself a duty to disclose the assignment.\u201d W.W. Vincent, 351 Ill. App. 3d at 762.\nIn the cases cited by the Gattos, the appellate court held that the defendants\u2019 conduct had given rise to a duty to accurately disclose material facts relevant to the plaintiffs\u2019 requests. Here, State Farm did accurately disclose all material facts related to the Gattos\u2019 request to investigate water damage within their condominium unit. The fact that the roof was leaking in the attic was material to that claim because the leak was the source of the water infiltration into the Gat-tos\u2019 unit. However, the mold within the attic, an area uninsured by State Farm, was not material to the water damage claim because it did not cause the water damage. Therefore, unlike Carlstrom, Mitchell, and W.W. Vincent, where the defendants failed to accurately disclose material facts relevant to the plaintiffs\u2019 requests, here, the State Farm investigator disclosed everything he found that was material to the claim at issue. Consequently, State Farm\u2019s disclosure of the leaking roof did not give rise to a duty to disclose the presence of mold in the attic.\nState Farm Operating Guide\nThe Gattos next contend that, when State Farm exercised its right to investigate under the insurance contract, it also assumed a duty to investigate according to the standards articulated in its operating guide. State Farm\u2019s operating guide provided that \u201c[e]vidence of mold should be noted and discussed with the insured.\u201d It further stated that \u201c[djelays [in remediation] usually result in additional damage if the conditions for continued mold growth are present.\u201d The guide also addressed the importance of communication with the insured regarding \u201cwhat the investigative process will be, what coverage may apply,\u201d and recited that the insureds \u201cshould be advised of our investigative findings.\u201d Despite the fact that the guide addressed the disclosure of mold, it did not impose a duty on State Farm to disclose the mold in the present case.\n\u201c \u2018Where the law does not impose a duty, one will not generally be created by a defendant\u2019s rules or internal guidelines.\u2019 \u201d Shank v. Fields, 373 Ill. App. 3d 290, 296-97 (2007), quoting Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 238 (1996); see Fillpot v. Midway Airlines, Inc., 261 Ill. App. 3d 237, 244 (1994) (affirming the trial court\u2019s grant of summary judgment for the defendant and holding that the defendant\u2019s policy manual, which directed employees to keep salt or other abrasives near the gate to keep the walkways clear, did not impose a duty on the defendant). The Gattos cite Rice v. White, 374 Ill. App. 3d 870 (2007), in support of their contention that State Farm\u2019s internal policies created a duty to disclose the mold to them. Rice involved a wrongful death suit stemming from a shooting at a party. Rice, 374 Ill. App. 3d at 872. The plaintiff, the mother of the decedent, alleged that the defendant hosts were negligent. Rice, 374 Ill. App. 3d at 872. The hosts had created and distributed 100 to 200 flyers announcing their party. Rice, 374 Ill. App. 3d at 873. The flyer stated in part: \u201c \u2018We will check for weapons.\u2019 \u201d Rice, 374 Ill. App. 3d at 873. Based on this flyer, the appellate court held that the defendants had voluntarily assumed a duty to check the party guests for weapons as they entered. Rice, 374 Ill. App. 3d at 884-85.\nRice is distinguishable from the instant case. In Rice, the defendants acted affirmatively in distributing to prospective party guests a flyer announcing a voluntary assumption of the duty to check for weapons. That flyer is not analogous to State Farm\u2019s internal policies articulated in its operating guide for the use of its employees, in that there is no evidence that State Farm distributed it to the Gattos or other insureds or otherwise announced to anyone other than its employees that it was assuming the duty of disclosing mold. The Gattos do not even contend that they were aware of the existence of the operating guide prior to discovery. Moreover, in Rice, the plaintiff testified that she had been influenced by the defendants\u2019 flyer when deciding to allow her daughter to attend the party. Rice, 374 Ill. App. 3d at 877. In contrast, the Gattos do not claim that they contracted with State Farm because of the contents of its operating guide. Consequently, Rice provides no basis for deviating from the rule that internal guidelines do not create a duty.\nThe directives quoted by the Gattos were contained in the section of the operating guide addressing \u201cclaims involving mold, mildew, or other types of fungi.\u201d As such, they were inapplicable in the present case because the insurance claim being investigated related to water damage, not mold. Moreover, the mold in the attic did not cause the water damage suffered by the Gattos; the leaking roof did, and that was disclosed to the Gattos. In addition, State Farm\u2019s operating guide did not apply to the mold here because State Farm did not insure the attic where the mold was located. Thus, the investigator was not handling a claim involving mold and was therefore not required, even by internal standards, to disclose the presence of mold to the Gattos. Accordingly, we find no duty imposed by State Farm\u2019s operating guide.\nVoluntary Undertaking Theory\nThe Gattos also maintain that State Farm voluntarily assumed a duty of due care when its agent investigated their attic and told Mrs. Gatto that he \u201cwould take care of it.\u201d The voluntary undertaking theory is articulated in section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts \u00a7323 (1965)) and has been adopted by our supreme court. See Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32-35 (1992) (applying the voluntary undertaking theory and noting that section 323 of the Restatement (Second) of Torts was \u201cof particular relevance\u201d). Section 323 states:\n\u201c \u2018One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other\u2019s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if\n(a) his failure to exercise such care increases the risk of such harm, or\n(b) the harm is suffered because of the other\u2019s reliance upon the undertaking.\u2019 \u201d Frye, 153 Ill. 2d at 32, quoting Restatement (Second) of Torts \u00a7323 (1965).\nCourts narrowly construe the theory, however, and limit the scope of the duty to the extent of the undertaking. Buerkett v. Illinois Power Co,, 384 Ill. App. 3d 418, 427-28 (2008). For example, the Chicago Housing Authority, in voluntarily hiring a security company to patrol the premises, did not assume a duty to protect the decedent, a social guest, from criminal conduct and could have been liable at most for negligent hiring. Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 209-10 (1979); see also Frye, 153 Ill. 2d at 34 (holding that the defendant pharmacist had undertaken a duty to accurately warn of a drug\u2019s side effects with respect to the warning actually given, but not a duty to warn of all possible side effects of the medication).\nWe reject the Gattos\u2019 argument that State Farm assumed a duty to disclose the presence of mold by voluntarily undertaking to conduct an investigation. State Farm investigated the attic to settle the water damage claim brought by the Gattos under the insurance contract between them. The investigation was not a voluntary undertaking because State Farm was required by contract to resolve the claim. However, assuming arguendo that State Farm could have resolved the claim without an investigation such that the investigation was a voluntary undertaking, the extent of that undertaking was to resolve the claim under the contract. Consequently, the extent of the investigation was to determine the amount of damage payable under the contract that covered water damage within the Gattos\u2019 unit. Thus, State Farm could be liable only for negligently investigating the water damage claim, not for nondisclosure of mold that did not cause the water damage and that was located in an area that State Farm did not insure.\nThe Gattos also contend that State Farm voluntarily assumed a duty to disclose the mold when the investigator said he \u201cwould take care of it.\u201d The Gattos take the investigator\u2019s comment out of context. In her deposition, Mrs. Gatto explained that when the investigator came down from the attic:\n\u201cHe asked me if I had the name of the management company for the building and the address and had I had correspondence with them about water before, which there were two previous claims by the tenant downstairs against us for water.\nAnd I gave him the address and a copy of a letter that I had written to [Hillcrest]***. *** He told me he would take care of it. He would contact the management company and they would take care of it and we would have a check for our damages.\u201d\nIn saying he would \u201ctake care of it,\u201d the State Farm investigator did not voluntarily assume a duty to disclose the mold to the Gattos. At most, the investigator\u2019s comment imposed a duty to do what he said he would \u2014 namely, inform Hillcrest of the water damage problem. See Frye, 153 Ill. 2d at 32 (\u201cduty of care to be imposed upon a defendant is limited to the extent of its undertaking\u201d). Accordingly, neither State Farm\u2019s investigation \u2014 voluntary or not \u2014 nor the investigator\u2019s comment imposed a duty to disclose the presence of mold to the Gattos.\nFiduciary Duty Based on Special Circumstances\nFinally, the Gattos assert that State Farm owed them a fiduciary duty based upon its investigator\u2019s knowledge and expertise and Mrs. Gatto\u2019s corresponding trust in him. \u201c[I]t is well settled that no fiduciary relationship exists between an insurer and an insured as a matter of law.\u201d Martin v. State Farm Mutual Automobile Insurance Co., 348 Ill. App. 3d 846, 850-51 (2004). A fiduciary duty may be created, however, \u201cwhere one party places trust and confidence in another, thereby placing the latter party in a position of influence and superiority over the former.\u201d Martin, 348 Ill. App. 3d at 851. \u201cThis position of superiority may arise by reason of friendship, agency, or experience.\u201d Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 500 (1996). This type of relationship can give rise to a duty to disclose material facts. Connick, 174 Ill. 2d at 500. Nevertheless, if the relationship between the parties is not a fiduciary one as a matter of law, then the party alleging a fiduciary relationship bears the burden of pleading and proving it by clear and convincing evidence. Martin, 348 Ill. App. 3d at 851. \u201c[Significant dominance and superiority [are] necessary to establish a fiduciary relationship.\u201d Martin, 348 Ill. App. 3d at 852.\nMartin is instructive. In Martin, the appellate court affirmed the dismissal of the plaintiffs\u2019 complaint, which was based on various legal theories, because the plaintiffs failed to adequately plead a fiduciary relationship giving rise to a duty to disclose. Martin, 348 Ill. App. 3d at 851. The plaintiffs were Marisa and Adam Martin. Martin, 348 Ill. App. 3d at 848. Marisa was involved in a car accident with Mr. Beebe; both the Martins and Beebe were insured by State Farm in separate and unrelated automobile policies. Martin, 348 Ill. App. 3d at 848. The Martins brought a third-party claim against Beebe for repair of their vehicle under Beebe\u2019s policy. Martin, 348 Ill. App. 3d at 848. After State Farm, as Beebe\u2019s insurer, settled that claim with the Martins, the Martins filed suit against State Farm, alleging that State Farm breached its duty to disclose the material fact that Beebe\u2019s policy included additional coverage available to the Martins for the diminished value of their automobile. Martin, 348 Ill. App. 3d at 849. The appellate court held that State Farm had no such duty despite the Martins\u2019 allegations that State Farm had told them that it would take care of their claim and that they did not need to hire an attorney. Martin, 348 Ill. App. 3d at 851-52. Specifically, the court held that the Martins never alleged \u201cthat State Farm was in a position of such superiority and influence by reason of friendship, agency, or experience,\u201d and it also rejected the Martins\u2019 \u201cconclusory assertion\u201d that State Farm had acted as their agent in settling their claim against Beebe. Martin, 348 Ill. App. 3d at 851-52. The court concluded that, \u201c[t]o the extent plaintiffs intended to claim a fiduciary duty arose from particular circumstances, it was incumbent upon them to identify those circumstances and plead them with specificity.\u201d Martin, 348 Ill. App. 3d at 852.\nAs the Martins failed to plead with specificity particular circumstances that would give rise to a fiduciary duty, here, by the summary judgment stage, the Gattos had failed to provide a factual basis for State Farm\u2019s significant dominance and superiority sufficient to create a genuine issue of material fact regarding a fiduciary duty. Like the plaintiffs in Martin, the Gattos made only a conclusory allegation that the investigator had knowledge and expertise in investigating mold. The Gattos also maintained that they trusted State Farm and its investigator when he told Mrs. Gatto that he \u201cwould take care of it.\u201d Ignoring the fact that the Gattos took this comment out of context, and even assuming the investigator\u2019s expertise and the Gattos\u2019 trust and confidence in him and State Farm, the Gattos failed to allege facts that would demonstrate State Farm\u2019s corresponding dominance and superiority over them. The Martin court held that State Farm\u2019s representation to the Martins that it \u201cwould take care of their property damage claim and that there would be no need to hire an attorney\u201d did \u201cnot, in and of itself, create a fiduciary duty *** to disclose additional coverage.\u201d Martin, 348 Ill. App. 3d at 851. Although at a later stage of the case than Martin, the Gattos had shown nothing more than the Martins had. Accordingly, summary judgment was appropriate here because the Gattos failed to present a genuine issue of material fact as to whether a duty existed, and, without a showing of duty, State Farm was entitled to judgment as a matter of law. See Overbey, 170 Ill. App. 3d at 605 (\u201cAbsent a fiduciary relationship, there is no basis for a cause of action alleging breach of fiduciary duty\u201d).\nThe facts in the instant case are even less likely to establish a fiduciary duty than those in Martin. Unlike Martin, where the Martins would have had no way of knowing what coverage Beebe had, the Gat-tos had access to the attic space, as it was right outside their back door, and they could have discovered the mold themselves. Approximately 16 months passed from the State Farm inspection in September 2000 to the Gattos\u2019 discovery of the mold in the attic in February 2002. During that time, they continued to have problems with water infiltration, because the Board and Hillcrest did not repair the roof until August or September 2002. Thus, after State Farm told the Gattos that the roof was leaking and paid their water damage claim, they continued to experience problems yet did not even look into the attic to which they had unhindered access. Overall, these circumstances belie the Gattos\u2019 argument that State Farm was in a position of dominance and superiority, let alone significant dominance and superiority. Accordingly, we see no justification for finding that State Farm owed a fiduciary duty to the Gattos.\nThe Gattos additionally argue that there was a genuine issue of material fact as to whether an agency relationship existed between the Gattos and the Board or Hillcrest, such that a grant of summary judgment was inappropriate. According to the Gattos, the disclosure of the mold to the Board and Hillcrest did not qualify as disclosure of the mold to them, because there was no evidence that the Board or Hill-crest was their agent. We need not address this contention since we hold that State Farm had no duty to disclose in the first place.\nThe Gattos also contend that State Farm failed to meet its burden of proof by failing to attach to its motion for summary judgment its October 2000 letter to the Board and Hillcrest. The trial court granted State Farm summary judgment based on its finding that the Gattos failed to raise a genuine issue of material fact as to any extracontrac-tual duty of State Farm to disclose. Therefore, the letter was unnecessary to the trial court\u2019s disposition of the motion, because the letter was only possible evidence of State Farm\u2019s disclosure to the Gattos, through the Board and Hillcrest, not evidence of whether State Farm had a duty to disclose. Thus, this argument is without merit.\nFor the reasons given, we affirm the trial court\u2019s grant of summary judgment.\nAffirmed.\nBOWMAN and O\u2019MALLEY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE ZENOFF" } ], "attorneys": [ "Juliet E. Boyd, Scott W. Kummer, and Alissa A. Rubin, all of Boyd & Kummer, LLC, of Chicago, for appellants.", "Frederick J. Sudekum III, Lynette D. Simmons, and Florence M. Schuma-cher, all of Sudekum, Cassidy & Shulruff, Chtrd., of Chicago, and James F. Mc-Cluskey and Mark W Monroe, both of Momkus McCluskey, LLC, of Lisle, for appellee." ], "corrections": "", "head_matter": "JULIE FICHTEL et al., Plaintiffs, v. THE BOARD OF DIRECTORS OF THE RIVER SHORE OF NAPERVILLE CONDOMINIUM ASSOCIATION et al., Defendants (Patricia Gatto et al., Plaintiffs-Appellants; State Farm Fire and Casualty Company, Defendant-Appellee).\nSecond District\nNo. 2 \u2014 07\u20141237\nOpinion filed April 21, 2009.\nJuliet E. Boyd, Scott W. Kummer, and Alissa A. Rubin, all of Boyd & Kummer, LLC, of Chicago, for appellants.\nFrederick J. Sudekum III, Lynette D. Simmons, and Florence M. Schuma-cher, all of Sudekum, Cassidy & Shulruff, Chtrd., of Chicago, and James F. Mc-Cluskey and Mark W Monroe, both of Momkus McCluskey, LLC, of Lisle, for appellee." }, "file_name": "0951-01", "first_page_order": 967, "last_page_order": 981 }