Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Company ( 2017 )

2017 IL App (1st) 162808No. 1-16-2808
Fourth Division
December 7, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
INSURANCE BENEFIT GROUP, INC., )
) Appeal from the Circuit Court
Plaintiff-Appellee and Cross-Appellant, ) of Cook County.
)
v. ) No. 11 CH 28150
)
GUARANTEE TRUST LIFE INSURANCE ) The Honorable
COMPANY, ) Margaret Ann Brennan,
) Judge Presiding.
Defendant-Appellant and Cross-Appellee. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Insurance Benefit Group, Inc., filed suit against defendant Guarantee Trust Life
Insurance Company for violation of a marketing agreement. The matter proceeded to a bench
trial on counts III and V of the complaint, and the trial court entered judgment in plaintiff’s
favor on one part of count III; it entered judgment in defendant’s favor on the remainder of
count III and on count V. Defendant appeals, arguing that the trial court should have found in
defendant’s favor on the entirety of count III. Plaintiff cross-appeals, arguing that the trial
court should have found in its favor on the entirety of count III and that the trial court erred
No. 1-16-2808
in finding in defendant’s favor on count V and in denying plaintiff leave to file a second
amended complaint. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 I. Complaint
¶4 A. Allegations of Complaint
¶5 On August 10, 2011, plaintiff filed a five-count complaint against defendant; the
complaint was subsequently amended, and it is the first amended complaint that proceeded to
trial. Counts III and V of the first amended complaint were the only counts at issue at trial,
and plaintiff does not raise any arguments concerning any other counts. 1 Accordingly, we
discuss only the two relevant counts of the first amended complaint.
¶6 Count III of the first amended complaint was for breach of a written contract and alleged
that defendant sold various insurance products, including health insurance products, within
the state of Illinois. In the course of this business, defendant had entered into a reinsurance
agreement with Munich Reinsurance America, Inc. (Munich). In October or November 2007,
Montgomery Edson, on behalf of defendant, approached Richard Hayes, plaintiff’s president
and chief executive officer, to determine whether plaintiff would be interested in developing
and marketing certain of defendant’s health insurance programs. After discussions between
Edson and Hayes, on December 1, 2007, plaintiff and defendant executed a marketing
agreement under which plaintiff agreed, among other things, to become the exclusive
marketer of certain of defendant’s insurance products. In January 2008, based on plaintiff’s
1
Counts I and II were voluntarily dismissed by plaintiff, while count IV was dismissed by the trial
court pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)).
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agreement to become defendant’s exclusive marketer under the marketing agreement,
Munich extended its reinsurance agreement with defendant for one year.
¶7 Under the terms of the marketing agreement, defendant authorized and appointed plaintiff
as defendant’s exclusive marketer for various insurance programs offering health insurance
policies within the territories listed in the marketing agreement, including 40 states within the
United States. The size of the territory set forth in the marketing agreement “was a material
consideration” for plaintiff entering into the marketing agreement.
¶8 Additionally, under the terms of the marketing agreement, “[defendant] agreed to pay
[plaintiff] certain commissions,” consisting of:
“(a) Three percent (3%) of all premiums collected regardless of who sold the
product;
(b) The allowable producer commission *** as set forth in the reinsurance treaty
***.”
On August 1, 2009, plaintiff and defendant entered into an amendment of the marketing
agreement which, among other things, amended the calculation of the producer commission,
which had previously been calculated by reference to the reinsurance agreement with
Munich. According to the complaint, “[t]he payment of commissions on both the original
sale of a health insurance policy as well as the renewal thereof was a material consideration”
for plaintiff entering into the marketing agreement.
¶9 The complaint alleged that sometime in July 2009, defendant began to discontinue certain
health insurance programs that fell within the terms of the marketing agreement and replace
them with others that defendant claimed did not fall within the terms of the marketing
agreement. Hayes advised Edson that plaintiff objected to the replacement of these policies.
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On January 1, 2010, defendant terminated the marketing agreement. The complaint alleged
that the purpose for terminating the marketing agreement “was to avoid paying [plaintiff] the
three percent (3%) commission and Producer Commissions rightfully due” plaintiff.
¶ 10 Count III alleged that defendant breached the express terms of the marketing agreement
by (1) failing to maintain authority to sell certain insurance products in states that were part
of plaintiff’s territory, (2) discontinuing insurance policies that fell within the terms of the
marketing agreement and replacing them with policies that defendant claimed did not fall
within the terms of the marketing agreement, (3) failing to pay plaintiff the 3% commissions
due to plaintiff on policies already sold, (4) failing to pay plaintiff all of the producer
commissions due to plaintiff, and (5) terminating the marketing agreement in violation of the
terms of the marketing agreement. At trial, the focus was solely on the payment of two fees
allegedly owed to plaintiff.
¶ 11 Count V of the first amended complaint was for breach of an oral agreement and alleged
that in spring 2008, plaintiff determined that defendant was selling products in states in
which defendant had not received approval to sell. According to the complaint, “[t]he
products that were being sold without having been approved for such sale did not fall within
the terms of the Marketing Agreement and [plaintiff] was not receiving any commissions for
their sale.” When Hayes discovered that defendant was not approved to sell products in
certain states, he advised Edson that defendant needed to obtain approvals in the states in
which defendant was not in compliance. According to the complaint, “[w]ithout Richard
Hayes’ original knowledge, Al Heindal, [defendant’s] Compliance and Licensing Officer,
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No. 1-16-2808
asked Karen Marcozzi, an employee of [plaintiff],[2] to assist [defendant] in obtaining such
approvals.”
¶ 12 When Hayes discovered that Marcozzi “was performing tasks which were not
[plaintiff’s] responsibility under the Marketing Agreement,” Hayes advised Edson “that
because it was not [plaintiff’s] responsibility under the Marketing Agreement to perform
compliance work on products which were not governed under the terms of the Marketing
Agreement and for which [plaintiff] was not being paid commissions, [plaintiff] would not
allow Karen Marcozzi to continue to work with [defendant] on those efforts.” In response,
Edson offered to Hayes “that if [plaintiff] would continue to allow Karen Marcozzi to assist
[defendant] in seeking compliance for insurance products that were not governed by the
terms of the Marketing Agreement and for which [plaintiff] was not being paid commissions,
[defendant] would pay [plaintiff] for Karen Marcozzi’s services at Karen Marcozzi’s billing
rate of $50.00 per hour.” Hayes accepted this offer on behalf of plaintiff, and Marcozzi
continued to assist defendant in obtaining state approval for sale of the products. However, in
breach of the oral agreement, defendant refused to pay plaintiff for the time and expenses
incurred by Marcozzi.
¶ 13 B. Marketing Agreement
¶ 14 Attached to the complaint was a copy of the marketing agreement. Article III of the
marketing agreement was entitled “Marketer’s Compensation” and provided, in relevant part:
“A. [Defendant] will pay Marketer, as full compensation for all duties and
responsibilities under this Agreement, the amounts set forth in Exhibit A.
Compensation will be paid to you based on Policies produced by you and your
2
According to the record, Marcozzi’s duties included regulatory compliance administration,
meaning that she ensured that the policies plaintiff procured met state regulatory requirements.
5
No. 1-16-2808
Producers. Any commission payable will be made on at least a monthly basis and
only after the receipt of premium by [defendant] for such Policy. Marketer shall
refund to [defendant] any compensation received on cancellations, refunds and return
premiums for such Policies.
B. Unless this Agreement is terminated for ‘cause’ as described below, your first
year and renewal year commission are vested.”
¶ 15 The marketing agreement also contained an integration clause, which provided:
“Entire Agreement. This Agreement supersedes all previous agreements, whether
written or oral, between [defendant] and Marketer, or their predecessors with respect
to the Business to be written under this Agreement.
1. This Agreement may be amended, altered or modified only in writing
signed by both parties.
2. Manuals, rules, regulations, guidelines, instructions and directions issued in
writing by [defendant] from time to time as provided in this Agreement, shall bind
the Marketer as though a part of this Agreement.”
¶ 16 Exhibit A to the marketing agreement, as amended, 3 provided, in relevant part:
“Compensation:
Marketer’s Fee: For all Policies/certificates issued on or after 12/1/07, Marketer
will receive 3% of all premiums collected by [defendant’s] third party administrator
for such Policies/certificates, less any returns or refunded premium amounts.
3
The compensation due plaintiff under the preamended version of Exhibit A is not at issue on
appeal.
6
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Commissions:[4] For the GTL Forms identified below, [plaintiff] will receive a
commission on all base premium collected (no underwriting rate-up and no rate
increase premium) by [defendant’s] third party administrator for all
Policies/Certificates issues, less any returns or refunded premium amounts. The
commission rate shall be: 32% for policy/cert year 1; 10% for policy/cert year 2; and
8% thereafter as long as the policy/cert remains in force. These commission amounts
do not apply to any replacement policies issued within 12 months of the original
policy’s termination date or as a result of [defendant’s] Uniform Termination of
Coverage program under HIPAA.”
¶ 17 II. Trial
¶ 18 At trial, Richard Hayes testified on behalf of plaintiff 5 that he was plaintiff’s 6 chief
executive officer and sole shareholder. He signed the marketing agreement on behalf of
plaintiff, and Montgomery Edson signed it on behalf of defendant. Hayes was given the
marketing agreement on the stand, and testified to his understanding of certain terms within
the agreement. He testified that his understanding of the word “vested” based on his
extensive experience in the insurance industry was that “your rights to compensation cannot
be taken away from you, at any time, except for cause. And those commissions and
compensations will go on and on and on, according to your agreement, and can’t be taken
4
This provision was formerly entitled “Producer Commission” under the preamended Exhibit A.
While the name has changed, the parties and the trial court continued to refer to it as the producer
commission, and we will do the same.
5
We note that in its brief on appeal, defendant states that plaintiff called Hayes “as its sole
witness.” However, as related later in this opinion, plaintiff in fact also called two of defendant’s
employees as adverse witnesses. Defendant does not discuss the testimony of these witnesses in its
brief.
6
Hayes testified that plaintiff changed its name and was now named Integra Benefits.
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No. 1-16-2808
away from you, basically.” Hayes testified that “[t]he only time commissions would
terminate is when the policyholder stops being a policyholder and stops paying his
premiums.” With respect to the marketer’s fee, Hayes testified that it was not a one-time fee
but was a continuing payment. Hayes testified that the difference between the marketer’s fee
and the producer’s commission was that “one is level, like the 3 percent goes on and on and
on, it doesn’t go down. Where the producer’s commission is different is because it starts at a
level higher and then it goes down to where it’s a level renewal commission.”
¶ 19 Hayes testified that the marketing agreement was terminated effective January 1, 2010, as
demonstrated by a letter drafted by Rob Baluk, legal counsel for defendant. At the time of the
termination, there were still policies in effect that had been procured by plaintiff pursuant to
the marketing agreement.
¶ 20 Hayes testified that Gilsbar, L.L.C. (Gilsbar), was defendant’s third-party administrator
for the policies that plaintiff procured for defendant. Gilsbar remained the third-party
administrator after the marketing agreement was terminated, and plaintiff continued to be
paid for those policies after the termination in 2010.
¶ 21 Hayes testified that Karen Marcozzi was an employee of plaintiff’s from 2007 through
2010, and her duties consisted of regulatory compliance administration, meaning that she
ensured that the policies plaintiff procured pursuant to the marketing agreement met state
regulatory requirements. Marcozzi also performed compliance work for policies that were
not procured by plaintiff; Hayes testified that it came to his attention that she had been
performing compliance work on some of defendant’s policies that predated the marketing
agreement. In March or April 2008, Hayes had a telephone call with Edson about the issue,
followed by a meeting in June or July. The telephone call also included Al Heindl,
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No. 1-16-2808
defendant’s compliance officer. During the in-person meeting with Edson, “[w]e talked about
Karen helping them in the prior block of business to make sure that they—regulatory and the
compliance was happening so they wouldn’t get in trouble. And we agreed that Karen would
receive $50 an hour, keep track of her work and then when the projects were all done, we
would get reimbursed.” Hayes identified a document shown to him as “the records that Karen
kept as she was doing the work and it’s the hours, the type of work she did and the totals for
the [nonmarketing agreement] work that she was performing.” Hayes testified that her hours
were kept under his direction and control and that “[s]he would perform the duties, put the
hours and then communicate with me, on a frequent basis, what she was doing.” Once the
document was prepared, Hayes gave it to Edson.
¶ 22 Plaintiff then moved to admit the document into evidence, and defendant objected. In
response, plaintiff offered a “Certification Pursuant to Rule 902(11) of the Illinois Rules of
Evidence” 7 prepared by Marcozzi. The memorandum reflecting the number of hours she
spent on such services to be submitted to defendant was attached as exhibit A to her
certification and reflected that she had spent 1463.5 hours performing the nonmarketing
agreement services.
¶ 23 Additionally, Marcozzi stated in her certification that she was authorized to retain the
services of Suzanne Heasley as an independent contractor to assist her in performing the
7
Rule 902(11) provides that “[e]xtrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to *** [t]he original or a duplicate of a record of regularly
conducted activity that would be admissible under Rule 803(6) if accompanied by a written
certification of its custodian or other qualified person.” Ill. R. Evid. 902(11) (eff. Jan. 1, 2011). The
certification must be a written declaration under oath subject to the penalty of perjury and must
certify that the record “was made at or near the time of the occurrence of the matters set forth by, or
from information transmitted by, a person with knowledge of these matters”; “was kept in the course
of the regularly conducted activity”; and “was made by the regularly conducted activity as a regular
practice.” Ill. R. Evid. 902(11) (eff. Jan. 1, 2011).
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No. 1-16-2808
nonmarketing agreement services for defendant. Heasley submitted a total of $9233.88 in
bills to plaintiff, which plaintiff paid; these bills were also reflected in the memorandum
prepared by Marcozzi.
¶ 24 Based on Marcozzi’s certification, the document was admitted into evidence. Following
its admission Hayes testified that plaintiff did not receive any payment from defendant for
the nonmarketing agreement services that Marcozzi had performed.
¶ 25 On cross-examination, Hayes admitted that the marketing agreement provided that
“commissions” were vested and did not specify that the marketing fee was vested; he further
admitted that the marketing fee and producer’s commission were separated into two
provisions in the marketing agreement. Hayes also testified that after May 2011, no third-
party administrator collected any premiums. Hayes testified that plaintiff would not be
entitled to any producer’s commissions on policies that were replaced by replacement
policies or for policies that were terminated. As to Marcozzi’s work, Hayes testified on cross-
examination that he and Edson did not set a specific date for her contract to begin or end, and
did not specify the length of the contract.
¶ 26 Robert Baluk testified both as an adverse witness on behalf of plaintiff and as a witness
on behalf of defendant that he was defendant’s general counsel and was involved in the
drafting of the marketing agreement and its amendment. Baluk testified that after the January
1, 2010, termination date of the marketing agreement, defendant did not issue any health
insurance policies that were subject to the marketing agreement but issued other health
insurance policies using different forms. Baluk further testified that after the termination of
the marketing agreement, plaintiff continued to be paid for any commissions it was owed
through October 2010. However, plaintiff was not paid commissions on any premiums
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No. 1-16-2808
collected by defendant after May 2011, when Gilsbar stopped being the third-party
administrator.
¶ 27 Baluk testified that Montgomery Edson was a senior vice president of marketing for
defendant and was in charge of defendant’s “fronting programs.” Baluk explained that under
those programs, defendant “would pretty much take a small percentage of the risk, around 10
percent usually, and then we’d farm out the administration to a third-party administrator. The
marketing would be done by a marketer outside the company. And then the reinsurer would
pick up 90 percent of all the costs as well as 90 percent of all the profits. We just received a
small percentage of the risk and we received a small fee for allowing these other parties to
basically sell our products.” Plaintiff was the marketer for one of these programs, and Gilsbar
was the third-party administrator. Baluk testified that defendant was very structured in terms
of agreements executed pursuant to these types of programs because there were many entities
and contracts involved.
¶ 28 Baluk testified that plaintiff would only be entitled to the marketer’s fee so long as there
was a third-party administrator collecting the premium and, if there was no third-party
administrator, no fee would be owed. He further testified:
“Q. So under that scenario, as a hypothetical, [plaintiff] could have procured a
thousand policies the first month and a third-party administrator would be there to
administer them. The second month [defendant] could say, you know what, why are
we paying these fees? Let’s just terminate the third-party administrator and keep the
fees yourself. Is that your position?
A. I’m not sure I heard a question there. Keep in mind, as I testified earlier, the
fronting programs were structured so there were multiple outside parties outside of
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No. 1-16-2808
[defendant] that performed specific functions. That’s the way the fronting programs
worked. We weren’t able to administer or *** do a lot of these things internally
ourselves, so it would be unlikely that scenario would happen.
Q. But if it did happen, would it be your position that there be no compensation?
A. The program would no longer be in place, so yes.”
Baluk testified that “[t]here were no policies remaining when the third-party administrator
was terminated” and that “[t]hey were either cancelled through uniform termination of
coverage or discontinuance of all coverage.”
¶ 29 Barbara Sloothaak testified both as an adverse witness on behalf of plaintiff and as a
witness on behalf of defendant that she was defendant’s controller and, as such, oversaw all
of defendant’s financial reporting. Sloothaak testified that a document compiling policies that
defendant self-administered beginning in 2011 showed that defendant collected a total of
$1,680,779.90 in premiums. Sloothaak further testified that all of these policies were a
different type of policy than that marketed by plaintiff and that they all had different policy
numbers than plaintiff’s policies. 8
¶ 30 On September 23, 2016, the trial court issued a memorandum decision and judgment, in
which it found that Marcozzi’s certification “contained an after the fact compilation of
estimated hours for the work performed. Due to the bills not being created concurrent with
the work performed and the estimated nature of the bills, the court can afford little if any
weight to the bills submitted.” The court also found that “Robert Baluk established that the
Marketing Fee ceased once the Amended Marketing Agreement took effect. As such the
8
Kim Prevost, a business analyst at Gilsbar, testified via evidence deposition as to certain records.
However, the evidence deposition does not appear in the record on appeal.
12
No. 1-16-2808
evidence supports [defendant’s] contention that no amount is owed for a breach of the
Marketing Agreement with regards to the Marketing Fee.” The court further found that
“Robert Baluk asserted that once [defendant] took over administering the policies, as no
[third-party administrator] was involved, then no Producers Commission would be owed to
[plaintiff]. This is an absurd reading of the contract.” The court found that the producer
commission owed to plaintiff was $134,460, based on a producer commission of 8%.
¶ 31 The court made the following findings of fact and conclusions of law concerning the fees
owed under the marketing agreement:
“The evidence clearly established Gilsbar was no longer the [third-party
administrator] after May 31, 2011. As such, [plaintiff] has not proved that [defendant]
breached the contract with regards to the Marketing Fee.
Concerning the Producers Commission, [plaintiff] must establish that [defendant]
failed to pay the Producers Commission on renewal policies. [Plaintiff] established
through the testimony of Kim Prevost that certain policies were cancel and replace
policies and therefore no commission would be owed on those policies. As to the
remaining policies, the evidence supports that premiums in the amount of $1,680,779
and therefore an 8% commission would be owed. Baluk’s and Sloothak’s claims that
all the policies were cancel and replace or UTC policies lacked any documentary
support and therefore strained all credibility with the Court. Additionally this Court
finds the claim that by bringing the work and attendant cost of administering policies
into [defendant], rather than using a [third-party administrator], somehow justified
cutting the fee to marketer absurd. Therefore, [plaintiff] has met its burden as to the
Producers Commission and will be awarded $134,460 on Count II [sic].”
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¶ 32 With respect to count V, which concerned payment for Marcozzi’s work, the court found:
“Concerning Count V, the oral contract for Karen Marcozzi’s services, [plaintiff]
has failed to meet its burden of proof as to that claim. *** The evidence
overwhelmingly established that compliance work was contracted for as part of [the]
Marketing Agreement, and there was no separate oral contract formed. *** If a
modification to the time frame was to be done, then the integration clause in the
Marketing Agreement required a writing. Additionally, no subcontractor was ever
contemplated in the Marketing Agreement, so there is zero support for those fees.
Lastly, the Court afforded very little weight to the fees of Karen Marcozzi as the ‘bill’
was an estimate of time spent, created long after the work was performed. Therefore,
judgment is entered in favor of [defendant] on Count V.”
¶ 33 Defendant filed a notice of appeal, and plaintiff filed a notice of cross-appeal.
¶ 34 ANALYSIS
¶ 35 On appeal, each party argues that the trial court should have entered judgment entirely in
its favor on count III, and plaintiff argues that the trial court should have entered judgment in
its favor on count V. Plaintiff also argues that the trial court should have permitted it leave to
file a second amended complaint.
¶ 36 I. Count III
¶ 37 First, each party argues that the trial court should have entered judgment entirely in its
favor on count III—defendant argues that the trial court should not have awarded plaintiff the
producer commission, while plaintiff argues that it was also entitled to the marketing fee.
“Generally, the standard of review in a bench trial is whether the order or judgment is against
the manifest weight of the evidence.” Reliable Fire Equipment Co. v. Arredondo, 2011 IL
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No. 1-16-2808
111871, ¶ 12. “[W]here findings of fact depend on the credibility of witnesses, it is
particularly true that a reviewing court will defer to the findings of the trial court unless they
are against the manifest weight of the evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 251
(2002). “A decision is against the manifest weight of the evidence only when an opposite
conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based
on the evidence. [Citations.] ‘The court on review must not substitute its judgment for that of
the trier of fact.’ ” Eychaner, 202 Ill. 2d at 252 (quoting Kalata v. Anheuser-Busch Cos., 144
Ill. 2d 425, 434 (1991)). However, the trial also concerned the construction and interpretation
of contractual terms. “The interpretation of a contract involves a question of law, which we
review de novo.” Carr v. Gateway, Inc., 241 Ill. 2d 15, 20 (2011). De novo consideration
means we perform the same analysis that a trial judge would perform. People v. McDonald,
2016 IL 118882, ¶ 32.
¶ 38 “In construing a contract, the primary objective is to give effect to the intention of the
parties.” Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011) (citing Gallagher v. Lenart, 226
Ill. 2d 208, 232 (2007)). The court will first look to the language of the contract itself to
determine the parties’ intent, and the contract must be construed as a whole, “viewing each
provision in light of the other provisions.” Thompson, 241 Ill. 2d at 441. “The parties’ intent
is not determined by viewing a clause or provision in isolation, or in looking at detached
portions of the contract.” Thompson, 241 Ill. 2d at 441. “If the words in the contract are clear
and unambiguous, they must be given their plain, ordinary and popular meaning.” Thompson,
241 Ill. 2d at 441 (citing Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141,
153 (2004)). “A court will not interpret a contract in a manner that would nullify or render
provisions meaningless, or in a way that is contrary to the plain and obvious meaning of the
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No. 1-16-2808
language used. [Citation.] Further, when parties agree to and insert language into a contract,
it is presumed that it was done purposefully, so that the language employed is to be given
effect. [Citation.]” Thompson, 241 Ill. 2d at 442.
¶ 39 Compensation under the marketing agreement was governed by article III, which
provided, in relevant part:
“A. [Defendant] will pay Marketer, as full compensation for all duties and
responsibilities under this Agreement, the amounts set forth in Exhibit A.
Compensation will be paid to you based on Policies produced by you and your
Producers. Any commission payable will be made on at least a monthly basis and
only after the receipt of premium by [defendant] for such Policy. Marketer shall
refund to [defendant] any compensation received on cancellations, refunds and return
premiums for such Policies.
B. Unless this Agreement is terminated for ‘cause’ as described below, your first
year and renewal year commission are vested.”
Exhibit A, in turn, provided, in relevant part:
“Compensation:
Marketer’s Fee: For all Policies/certificates issued on or after 12/1/07, Marketer
will receive 3% of all premiums collected by [defendant’s] third party administrator
for such Policies/certificates, less any returns or refunded premium amounts.
Commissions: For the GTL Forms identified below, [plaintiff] will receive a
commission on all base premium collected (no underwriting rate-up and no rate
increase premium) by [defendant’s] third party administrator for all
Policies/Certificates issues, less any returns or refunded premium amounts. The
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No. 1-16-2808
commission rate shall be: 32% for policy/cert year 1; 10% for policy/cert year 2; and
8% thereafter as long as the policy/cert remains in force. These commission amounts
do not apply to any replacement policies issued within 12 months of the original
policy’s termination date or as a result of [defendant’s] Uniform Termination of
Coverage program under HIPAA.”
¶ 40 In the case at bar, the parties focus on what they call the trial court’s inconsistent readings
of the marketer’s fee and producer commission. Specifically, both provisions refer to
premiums “collected by [defendant’s] third party administrator,” but the trial court found that
plaintiff was entitled to one and not the other. However, we cannot agree that the trial court’s
interpretation of the marketing agreement was inconsistent given the other important
distinction between the provisions—namely, that, as a commission, the producer commission
was vested while the marketing fee was not.
¶ 41 First, with respect to the marketing fee, as noted, the marketing agreement provided that,
“[f]or all Policies/certificates issued on or after 12/1/07, Marketer will receive 3% of all
premiums collected by [defendant’s] third party administrator for such Policies/certificates,
less any returns or refunded premium amounts.” It is undisputed that defendant self-
administered its policies after May 31, 2011. Under the plain language of the provision, then,
because there were no “premiums collected by [defendant’s] third party administrator,” there
was no marketing fee due. We cannot find that the trial court erred in reaching this
conclusion.
¶ 42 The analysis becomes slightly more complex, however, when taking the producer
commission into account. The marketing agreement provided that “[plaintiff] will receive a
commission on all base premium collected (no underwriting rate-up and no rate increase
17
No. 1-16-2808
premium) by [defendant’s] third party administrator for all Policies/Certificates issues, less
any returns or refunded premium amounts. The commission rate shall be: 32% for policy/cert
year 1; 10% for policy/cert year 2; and 8% thereafter as long as the policy/cert remains in
force.” At first glance, the same analysis would apply as with the marketer’s fee—because
there was no “premium collected *** by [defendant’s] third party administrator,” plaintiff
would not be entitled to compensation under this provision. Indeed, this is the way that
defendant urges us to read this provision. However, we cannot do as defendant wishes and
merely view the phrase “premium collected *** by [defendant’s] third party administrator”
in isolation, because “[t]he parties’ intent is not determined by viewing a clause or provision
in isolation, or in looking at detached portions of the contract.” Thompson, 241 Ill. 2d at 441.
In the case at bar, the producer commission is labeled as a “commission” and, under the
express terms of the marketing agreement, “your first year and renewal year commission are
vested.” Thus, if we simply interpreted provisions the same way, plaintiff would cease to be
entitled to its commission once defendant decided to self-administer the policies, rendering
the vesting provision meaningless. See Thompson, 241 Ill. 2d at 442 (“A court will not
interpret a contract in a manner that would nullify or render provisions meaningless, or in a
way that is contrary to the plain and obvious meaning of the language used.”). The only way
to read the vesting provision and the producer commission provision in harmony is to find
that the producer commission remains in effect even after the third-party administrator has
ceased administrating the policies. We also note that all of the policies for which plaintiff
seeks commissions would be renewal policies, as opposed to new policies. Thus, all of these
policies had premiums that had at one time been collected by the third-party administrator,
even if they were now being self-administered.
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¶ 43 We are unpersuaded by plaintiff’s attempt to read the marketing agreement’s vesting
language as applying to the marketer’s fee. The marketer’s fee is labeled a “fee” and not a
“commission.” This is not a distinction without a difference because the marketing
agreement expressly gives commissions special treatment by providing that they are vested.
Furthermore, the parties clearly drew a distinction between a fee and a commission by
choosing to use both terms in separate provisions of exhibit A. They did so not only in the
original marketing agreement but also amended the agreement upon the termination of the
reinsurance agreement and again included the two distinct terms. There is simply no basis for
treating the marketer’s fee as though it was a commission. Accordingly, we cannot find that
the trial court erred in finding that plaintiff was entitled to the producer commission but not
the marketer’s fee.
¶ 44 As a final matter, we note that, at oral argument, defendant made several comments
challenging the evidence presented at trial concerning the amount of plaintiff’s damages.
Defendant raised this issue for the first time on appeal in its reply brief, where the argument
consisted of two brief paragraphs with no citations to authority and merely the claim that
“there is simply no evidentiary support for” the trial court’s findings of fact as to the damages
calculations. Defendant also stated that “it is impossible to recite the entire transcript of
proceedings in this brief to prove this assertion” and “instead challenge[d] counsel for
[plaintiff] to pinpoint and quote the evidence in the record that supports these two findings of
fact.” Leaving aside the fact that the appellee does not respond to arguments made in a reply
brief and therefore plaintiff would have no opportunity to meet defendant’s “challenge,”
defendant, as the appellant, bears the burden of persuasion as to its claims of error. City of
Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st) 150870, ¶ 29; Yamnitz v.
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William J. Diestelhorst Co., 251 Ill. App. 3d 244, 250 (1993). Furthermore, it is well settled
that “[p]oints not argued [in the appellant’s brief] are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,
2016). Finally, during oral argument, defendant several times referenced the evidence
deposition of Kim Prevost in support of this argument. However, as noted, the evidence
deposition is not included in the record on appeal, but only in the appendix to defendant’s
brief on appeal. “[A]n appellant has the burden to present a sufficiently complete record of
the proceedings at trial to support a claim of error, and in the absence of such a record on
appeal, it will be presumed that the order entered by the trial court was in conformity with
law and had a sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
See also Pine Top Receivables of Illinois, LLC v. Transfercom, Ltd., 2017 IL App (1st)
161781, ¶ 2 n.1 (“because including a document not a part of the record in an appendix is
improper, we will not consider this document”); Oruta v. B.E.W., 2016 IL App (1st) 152735,
¶ 32 (“This appendix also includes documents that are not in the appellate record and thus
must be disregarded.”); People v. Wright, 2013 IL App (1st) 103232, ¶ 38 (“The inclusion of
evidence in an appendix is an improper supplementation of the record with information
dehors the record.”). Accordingly, we will not review defendant’s claims as to any
inadequacy of the proof of damages.
¶ 45 II. Count V
¶ 46 Plaintiff also argues that the trial court erred in finding in defendant’s favor with respect
to the oral contract for Marcozzi’s work. “Oral agreements are binding so long as there is an
offer, an acceptance, and a meeting of the minds as to the terms of the agreement.” K4
Enterprises, Inc. v. Grater, Inc., 394 Ill. App. 3d 307, 313 (2009). “The existence of an oral
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contract, its terms, and the intent of the parties are questions of fact, and the trial court’s
determinations on those questions will be disturbed only if they are against the manifest
weight of the evidence.” Anderson v. Kohler, 397 Ill. App. 3d 773, 785 (2009).
¶ 47 In the case at bar, the trial court found that “[t]he evidence overwhelmingly establishes
that compliance work was contracted for as part of [the] Marketing Agreement, and there
was no separate oral contract formed.” We cannot find that this conclusion was against the
manifest weight of the evidence. The marketing agreement provided, as part of plaintiff’s
duties, that plaintiff would “file and secure approval of all policy, certificate, application and
related forms” and “assure that the policies, certificates and related forms comply with all
applicable state and federal laws, and regulations.” The marketing agreement also contained
an integration clause providing that “[t]his Agreement may be amended, altered or modified
only in writing signed by both parties.” Thus, we cannot find that it was against the manifest
weight of the evidence for the trial court to find that any oral discussions about Marcozzi’s
work did not constitute a separate oral contract.
¶ 48 Furthermore, “[d]amages are an essential element of a breach of contract action and a
claimant’s failure to prove damages entitles the defendant to judgment as a matter of law.”
In re Illinois Bell Telephone Link-Up II & Late Charge Litigation, 2013 IL App (1st)
113349, ¶ 19. In the case at bar, the trial court expressly stated that it would afford little
weight to Marcozzi’s memorandum of her hours worked because it was “an estimate of time
spent, created long after the work was performed.” Accordingly, plaintiff also failed to
properly establish damages, so the trial court properly found in favor of defendant on count V
of the complaint.
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¶ 49 III. Amendment of Complaint
¶ 50 As a final matter, plaintiff argues that it should have been permitted leave to file a second
amended complaint. “A trial court decision to deny leave to file an amended complaint will
not be disturbed absent a clear abuse of discretion.” Harding v. Amsted Industries, Inc., 276
Ill. App. 3d 483, 494 (1995). “A court abuses its discretion if allowing the amendment
furthers the ends of justice.” W.E. Erickson Construction, Inc. v. Chicago Title Insurance
Co., 266 Ill. App. 3d 905, 911 (1994).
¶ 51 “ ‘[T]he factors which are to be considered in reviewing the propriety of the denial of a
motion to amend the pleadings include (1) whether the proposed amendment would cure the
defective pleading; (2) whether the proposed amendment would cause prejudice or surprise
to the defendant; (3) the timeliness of the proposed amendment; and (4) whether previous
opportunities to amend the pleadings could be identified.’ ” Zubi v. Acceptance Indemnity
Insurance Co., 323 Ill. App. 3d 28, 40 (2001) (quoting Kennedy v. King, 252 Ill. App. 3d 52,
55 (1993)); see also Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273
(1992). “However, the primary consideration is whether amendment would further the ends
of justice.” Regas v. Associated Radiologists, Ltd., 230 Ill. App. 3d 959, 968 (1992); see also
Cantrell v. Wendling, 249 Ill. App. 3d 1093, 1095 (1993) (“The most important question is
whether amendment will be in furtherance of justice, and amendment of defective pleadings
should be permitted unless it is clear that the defect cannot be cured thereby. Any doubts
should be resolved in favor of allowing amendments.”).
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¶ 52 In the case at bar, on July 28, 2016, 9 plaintiff sought to amend the complaint to add two
additional counts concerning Marcozzi’s work—one for unjust enrichment and one for
quantum meruit. The motion for leave to file the second amended complaint did not provide
any explanation as to why these counts had not been previously included in either the
original complaint or the first amended complaint. The trial court denied the motion on
August 8, 2016, and denied plaintiff’s motion to reconsider on August 30, 2016. Trial began
on September 12, 2016.
¶ 53 We cannot find that the trial court abused its discretion in denying leave to amend the
complaint to add the two new causes of action. The proposed amendment was filed shortly
before trial, after the parties had already been litigating the matter for nearly five years, and
added two new causes of action. Plaintiff offered no explanation for why it was adding these
counts so late in the process, especially since the facts underlying the causes of action were
known to it from the inception of the lawsuit. Accordingly, we cannot find the denial of leave
to amend to constitute an abuse of discretion.
¶ 54 CONCLUSION
¶ 55 For the reasons set forth above, we affirm the trial court’s judgment that plaintiff was
entitled to the producer commission but was not entitled to the marketer’s fee. We further
affirm the trial court’s judgment that plaintiff failed to prove a breach of an oral contract
concerning Marcozzi’s work. Finally, we cannot find that the trial court abused its discretion
in denying plaintiff’s motion for leave to file a second amended complaint.
¶ 56 Affirmed.
9
The copy of the motion for leave to file the second amended complaint contained in the record
on appeal is not file-stamped. However, the parties do not dispute that plaintiff filed such a motion or
its date.
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