United States Seventh Circuit

In plaintiff's suit against his insurer for breach of contract, consumer fraud and common law fraud, arising from an automobile insurance, district court's dismissal of the statutory consumer fraud claim and an entry of summary judgment in favor of the insurer on the breach of contract and common law fraud claims, is affirmed where: 1) all of plaintiff's claims are foreclosed by the Illinois Supreme Court's decision in Avery v. State Farm Mutual Automobile Insurance Co., 835, N.E.2d 801 (Ill. 2005), which established the common-sense proposition that a policyholder's suit against his insurer for breach of its promise to restore his collision-damages car to its preloss condition cannot succeed without an examination of the car, and here, because plaintiff gave away his car, he cannot prove that what the insurer paid him was inadequate to restore the car to its preloss condition; and 2) Avery also made clear that fraud claims must contain something more than reformulated allegations of a contractual breach, and here, plaintiff's breach of contract allegations are dressed up in the language of fraud, which cannot support statutory or common law fraud claims.

Appellate Information

• Argued 09/25/2009
• Decided 01/10/2011
• Published 01/10/2011

Judges

• SYKES

Court

• United States Seventh Circuit

Counsel