Greenberger v. GEICO General Insurance

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1603
S TEVEN G REENBERGER, individually and
on behalf of all others similarly situated,
Plaintiff-Appellant,
v.
GEICO G ENERAL INSURANCE C OMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5539—Blanche M. Manning, Judge.
A RGUED S EPTEMBER 25, 2009—D ECIDED JANUARY 10, 2011
Before E ASTERBROOK , Chief Judge, and K ANNE and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Steven Greenberger’s car was
damaged in an accident, and the next day his insurer,
GEICO General Insurance Co., estimated the damage
and wrote him a check to cover his claim. Greenberger
accepted this payment but never repaired the car.
2 No. 09-1603
Instead, he donated the car to charity and later sued
GEICO in state court alleging breach of contract, con-
sumer fraud in violation of 815 ILL. C OMP. S TAT. 505/1
et seq., and common-law fraud. The suit was filed as a
class action, so GEICO removed it to federal court
under the Class Action Fairness Act, 28 U.S.C. § 1332(d).
Though legally distinct, Greenberger’s contract and
fraud claims are all premised on the same basic factual
allegation: that GEICO systematically omits necessary
repairs from its collision-damage estimates in violation
of the promise to restore the policyholder’s vehicle to
its preloss condition. The district court sidestepped
the class-certification question, dismissed the statutory
consumer-fraud claim, and then entered summary judg-
ment for GEICO on the breach-of-contract and common-
law fraud counts. Greenberger appeals.
We affirm. All of Greenberger’s claims are foreclosed
by the Illinois Supreme Court’s comprehensive decision
in Avery v. State Farm Mutual Automobile Insurance
Co., 835 N.E.2d 801 (Ill. 2005). Among other important
holdings, Avery established the common-sense proposi-
tion that a policyholder’s suit against his insurer for
breach of its promise to restore his collision-damaged
car to its preloss condition cannot succeed without an
examination of the car. Id. at 826. Greenberger gave
away his car, and without it, he cannot prove that
what GEICO paid him was inadequate to restore the car
to its preloss condition.
Avery also made clear that fraud claims must contain
something more than reformulated allegations of a con-
No. 09-1603 3
tractual breach. Id. at 844. Greenberger alleges that
GEICO never intended to restore his car to its preloss
condition and failed to disclose that it regularly
breaches this contractual promise. These are breach-of-
contract allegations dressed up in the language of fraud.
They cannot support statutory or common-law fraud
claims.
I. Background
On July 4, 2002, Greenberger, a professor and admin-
istrator at a Chicago law school, was involved in
an automobile accident, and his 1994 Acura sustained
damage to its bumper, steering box, suspension, and
lower body. The next day, a GEICO insurance adjuster
inspected the car at Greenberger’s home and wrote him
a check for $3,284.69 ($3,784.69 minus a $500 deductible).
Greenberger cashed the check but did not repair his
car. Five months later, a stranger approached Green-
berger in a parking lot and expressed interest in buying
the car. Greenberger permitted this prospective buyer
to take the Acura to a friend’s body shop for an estimate
of what it would cost to repair it. The buyer’s mechanic,
Sarkit Tokat of Lake Side Auto Rebuilders, delivered
an estimate of $4,938.65, about $1,150 higher than
GEICO’s estimate. The sale was not made, however, and
in December 2002 Greenberger donated the car to
charity without making any repairs.
Exactly three years after accepting GEICO’s payment
on his claim, Greenberger filed this proposed class-
action lawsuit in Cook County Circuit Court alleging
4 No. 09-1603
breach of contract, violation of the Illinois Consumer
Fraud and Deceptive Practices Act, 815 ILL. C OMP . S TAT.
505/1 et seq., and common-law fraud.1 He claimed that
GEICO systematically underpays on its auto-accident
claims by omitting necessary repairs from vehicle-damage
estimates. This practice, he alleged, violates GEICO’s
contractual promise to restore the insured’s vehicle to
its preloss condition and constitutes statutory and
common-law fraud. GEICO removed the case to federal
court under the Class Action Fairness Act, 18 U.S.C.
§ 1332(d) (“CAFA”).
The district court dismissed the statutory consumer-
fraud claim without prejudice. Greenberger amended
his complaint and again the court dismissed the statu-
tory claim, this time with prejudice, and also denied
Greenberger’s motion to file a third amended com-
plaint. Greenberger’s other claims, however, were
allowed to proceed. The court eventually granted
GEICO’s motion for summary judgment on the breach-of-
contract and common-law fraud claims, and accordingly
did not address the issue of class certification. After an
unsuccessful motion for reconsideration, Greenberger
appealed.
At oral argument we asked counsel whether the
district court’s failure to certify a class had any effect
on the court’s subject-matter jurisdiction. In supple-
mental briefing GEICO argued that federal jurisdiction
1
The complaint also asserted a claim for unjust enrichment.
This claim was dismissed and is not at issue on appeal.
No. 09-1603 5
was intact under CAFA even though the district court
bypassed the issue of class-certification. Greenberger
argued the opposite: that the district court lost jurisdic-
tion to consider his claims on the merits because it
never certified the case as a class action.
II. Discussion
A. Jurisdiction
As we have noted, we raised the question of subject-
matter jurisdiction from the bench and ordered supple-
mental briefing on whether the district court’s failure
to certify a class has any effect on federal jurisdiction.
The supplementals were filed, but we have since
resolved the jurisdictional issue in another case, and our
jurisdiction is secure. In Cunningham Charter Corp. v.
Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010), we held
that federal jurisdiction under CAFA does not depend on
class certification. Id. More specifically, Cunningham
held that a district court’s denial of class certification
does not oust the court’s subject-matter jurisdiction. Id.CAFA confers federal jurisdiction over certain
qualifying class actions—those “in which at least one
member of the class is a citizen of a different state from
any defendant (that is, in which diversity may not be
complete).” Id. “Class action” is defined as “any civil
action filed under Rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial pro-
cedure authorizing an action to be brought by 1 or
more representative persons as a class action.” 28 U.S.C.
6 No. 09-1603
§ 1332(d)(1)(B) (emphasis added). This language, we
said in Cunningham, means that federal jurisdiction does
not depend on whether the district court actually
certifies a class. 592 F.3d at 806-07. Instead, jurisdiction
is determined based on the facts at the time of filing
or removal and is not lost by subsequent developments
in the case. Id. This understanding of CAFA comports
with the general principle that (with immaterial excep-
tions) “jurisdiction once obtained normally is secure.” Id.
at 807; see also St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 292-93 (1938).
Applying Cunningham here, the district court’s failure
to certify a class has no effect on federal jurisdiction. At
the time of removal, Greenberger’s suit was a qualifying
class action under CAFA. That the district court side-
stepped the issue of class certification does not under-
mine subject-matter jurisdiction. We may proceed to
the merits.
A. Breach-of-Contract Claim
We review the district court’s grant of summary judg-
ment de novo, construing all facts and reasonable infer-
ences in Greenberger’s favor. Trentadue v. Redmon, 619
F.3d 648, 652 (7th Cir. 2010). Summary judgment is ap-
propriate if there is no genuine dispute of material
fact and GEICO is entitled to judgment as a matter of
law. FED. R. C IV. P. 56(c).
To prevail on his breach-of-contract claim, Greenberger
has the burden of proving that the amount GEICO paid
No. 09-1603 7
on his auto-collision claim was insufficient to restore his
car to its preloss condition. Because Greenberger donated
his car to charity, he cannot make the showing of proof
required to establish a breach of GEICO’s contractual
promise. This conclusion flows directly from the
Illinois Supreme Court’s decision in Avery. See 835
N.E.2d at 826.
Avery was a nationwide class action against State
Farm Automobile Insurance Company challenging the
insurer’s practice of not using original equipment manu-
facturer parts (“OEM parts”) to repair its insureds’ vehi-
cles. The plaintiff-policyholders claimed that this prac-
tice breached State Farm’s promise to restore collision-
damaged cars to their preloss condition and also was
fraud. Id. at 815. They won a massive award—$1.1
billion—but the judgment did not hold up on review in
the Illinois Supreme Court. As relevant here, the court
held that the breach-of-contract award could not be
affirmed because
in order to establish a breach of the “pre-loss condi-
tion” promise, plaintiffs would have to show that
the parts specified or used by State Farm, whether
OEM or non-OEM parts, did not restore the vehicle
to its preloss condition. A necessary first step in
making this showing would be to examine each class
member’s vehicle to determine its preloss condition.
Id. at 826. Avery thus stands for the proposition that a
claim for breach of an auto insurer’s promise to restore
an insured’s car to its preloss condition cannot succeed
without an examination of the car.
8 No. 09-1603
Greenberger attempts to distinguish Avery on its facts,
arguing that he is not challenging the quality of the
repair work that GEICO provides, but rather its practice
of omitting certain repairs that are needed to restore an
insured’s vehicle to its preloss condition. This distinc-
tion is immaterial. Avery established a general proof
requirement for breach-of-contract claims of this type;
its holding is not narrowly limited to cases alleging that
an insurer’s estimate uses substandard repair parts.
Simply put, an examination of the insured’s vehicle is
required to establish a breach of an insurer’s contractual
promise to restore it to its preloss condition. This is so
regardless of whether the claim is based on omitted
repairs or the use of substandard repair parts; in both
cases the repair work actually covered by the insurer
may in fact have been sufficient to restore the vehicle
after a collision.
Avery’s holding makes sense as a general matter and
also in this case, especially considered in light of some
of the specific repairs Greenberger contends were wrongly
omitted from GEICO’s estimate. For instance, he claims
that the estimate should have included compensation
for the following repair work: “masking openings to
prevent overspray,” “covering the vehicle to prevent
overspray onto glass,” “checking seatbelts to ensure
they worked properly,” and “cleaning the car for delivery
to customer.” Without the car, it is impossible to tell
whether these items—or any others—were in fact neces-
sary for the insurer to make good on its promise to
restore Greenberger’s Acura to its preloss condition.
No. 09-1603 9
Greenberger claims he can meet his burden of proof
using the Lake Side Estimate, which was approximately
$1,150 more than GEICO’s. Not so. The basic problem
under Avery remains: Greenberger cannot produce the
vehicle for examination to determine which (if any) of
the allegedly omitted repair items was in fact necessary
to fulfill GEICO’s contractual promise. That he obtained
a higher estimate some months after the accident
does not prove that GEICO’s payment would have
failed to restore the car to its preloss condition. Stated
differently, the issue is not what Greenberger could have
paid to repair his car, but whether GEICO breached its
contractual obligation. See Gaston v. Founders Ins. Co., 847
N.E.2d 523, 528 (Ill. App. Ct. 2006) (holding that the
amount necessary to repair a vehicle under an insurance
contract “refers to the amount the insurer must spend
to repair the vehicle, not the amount the insured decides
to spend”). A higher repair estimate may be evidence
supporting the claim but cannot by itself establish breach.
Greenberger maintains that he can prove his breach-of-
contract claim under an alternative “industry standards”
theory. That is, he contends that GEICO fails to follow
industry standards in estimating auto repairs and this
is proof that GEICO breached its promise to restore his
car to its preloss condition. This theory suffers from the
same proof problem: Without an examination of the
vehicle, it is impossible to determine which repairs
were necessary to fulfill GEICO’s promise. Whether
GEICO follows “industry standards” does not matter if
its estimate was sufficient to restore Greenberger’s Acura.
The contractual promise at issue here is not a covenant
10 No. 09-1603
to repair cars according to “industry standards” but a
covenant to restore collision-damaged cars to their
preloss condition. The pertinent question thus is
whether GEICO’s payment was sufficient to fulfill this
contractual obligation; under Avery the answer to this
question requires an examination of the car.
Moreover, without the car, Greenberger cannot prove
damages. Avery is instructive on this point as well. The
policyholders in Avery argued for a “specification” mea-
sure of damages—that is, damages flowing from the
mere specification of a non-OEM part in an insurance
estimate, as opposed to the part’s installation in a par-
ticular vehicle. The Illinois Supreme Court rejected
this argument. Avery, 835 N.E.2d at 830-32. The court
explained:
Common sense dictates that any injury resulting
from non-OEM parts would be inflicted, not by the
mere specification of such parts in an estimate, but
by the use of the parts in the repair of a vehicle. No
possible damage could come to a policyholder
simply because a non-OEM part was listed on his
repair estimate. Only if the part were actually
installed, and only if it were shown that this part
failed to restore the vehicle to its preloss condition,
could it possibly be said that the policyholder
suffered damage.
Id. This holding is directly applicable to Greenberger’s
claim. Just as the mere specification of a non-OEM part
in an estimate was not an actionable injury in Avery,
the mere omission of certain repairs from GEICO’s esti-
mate is not an actionable injury here. Greenberger
No. 09-1603 11
cannot prove damages by reference to noncompliance
with “industry standards” for estimating collision loss.
This theory, like the “specification damages” theory in
Avery, “contravenes the basic theory of damages for
breach of contract, under which the claimant must estab-
lish an actual loss or measurable damages resulting
from the breach in order to recover.” 2 Id.B. Fraud Claims
The district court dismissed Greenberger’s claim under
the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILL. C OMP. S TAT. 505/1 et seq., gave
him an opportunity to replead, then dismissed this
count with prejudice for failure to state a claim. 3 Our
review is de novo. Hukic v. Aurora Loan Servs., 588 F.3d
420, 434 (7th Cir. 2009).
2
Because the breach-of-contract claim fails as a matter of
law, we need not address GEICO’s various contract-based
defenses.
3
The district court dismissed Greenberger’s statutory
consumer-fraud claim on GEICO’s Rule 12(b)(6) motion,
but denied the insurer’s motion to dismiss the common-
law fraud claim. The Illinois Supreme Court has said
that this split result is ordinarily inconsistent because “facts
satisfying a claim for common law fraud will necessarily
satisfy a claim under the [ICFA].” Siegel v. Levy Org. Dev. Co.,
Inc., 607 N.E.2d 194, 198 (Ill. 1992). We have concluded, how-
ever, that both fraud counts fail as a matter of law; GEICO’s
motion to dismiss the common-law claim should have been
granted.
12 No. 09-1603
The Consumer Fraud Act provides a remedy for “unfair
methods of competition and unfair or deceptive acts or
practices” in specified commercial transactions. 815
ILL. C OMP. S TAT. 505/2. “[U]nfair or deceptive acts or
practices” under the statute include “false promise[s],
misrepresentation[s] . . . or omission[s] of any material
fact.” Id. Claims for violation of the Consumer Fraud
Act are subject to the same heightened pleading
standards as other fraud claims; as such, they must
satisfy the particularity requirement of Rule 9(b) of the
Federal Rules of Civil Procedure. Davis v. G.N. Mortg.
Corp., 396 F.3d 869, 883 (7th Cir. 2005).
Greenberger alleges that GEICO violated the Act by
falsely promising to restore its insureds’ vehicles to
their preloss condition and failing to disclose to policy-
holders that it would not keep this promise. The instru-
ment of this fraud, he alleges, is GEICO’s damage-esti-
mating software, which systematically omits or under-
estimates the cost of repairs. Avery forecloses this claim.
The Consumer Fraud Act is “not intended to apply to
every contract dispute or to supplement every breach of
contract claim with a redundant remedy.” See Zankle v.
Queen Anne Landscaping, 724 N.E.2d 988, 992-93 (Ill.
App. Ct. 2000). Avery held that a consumer-fraud
claim under the statute requires something more than a
garden-variety breach of contract. See Avery, 835 N.E.2d
at 844 (“A breach of contractual promise, without more,
is not actionable under the Consumer Fraud Act.”).
Greenberger insists that his consumer-fraud claim is
based on more than a simple breach of contract because
No. 09-1603 13
it alleges both a “false promise” and a material “omis-
sion,” both of which are included in the Consumer
Fraud Act’s definition of “unfair or deceptive acts or
practices.” These allegations, however, are nothing more
than restatements of the claimed breach of contract,
albeit using the language of fraud. Avery squarely
rejected a nearly identical effort to turn a mere breach
of contract into a fraud; “[a]s a matter of law, plaintiffs’
consumer fraud claim may not be based on the assertion
that State Farm breached its promise to restore plain-
tiffs’ vehicles to their ‘pre-loss condition’ . . . .” 835 N.E.2d
at 844. When allegations of consumer fraud arise in a
contractual setting, the plaintiff must prove that the
defendant engaged in deceptive acts or practices dis-
tinct from any underlying breach of contract. Id. Avery
explained that “a ‘deceptive act or practice’ involves
more than the mere fact that a defendant promised some-
thing and then failed to do it. That type of ‘misrepre-
sentation’ occurs every time a defendant breaches a
contract.” Id. (quoting Zankle, 724 N.E.2d at 993). Here, as
in Avery, the consumer-fraud and contract claims rest
on the same factual foundation; no distinct deceptive
acts are alleged.
That Greenberger has alleged a “widespread” or “sys-
tematic” breach of contract does not suffice to state a
claim for consumer fraud under the statute. Greenberger
has cited a number of cases involving allegations of
systemic fraud in violation of the Consumer Fraud
Act, but all are distinguishable because they involved
affirmative acts of misrepresentation and not a simple
breach of contract multiplied over a prospective plain-
14 No. 09-1603
tiff class. See Rumford v. Countrywide Funding Corp., 678
N.E.2d 369, 373 (Ill. App. Ct. 1997) (involving an
ICFA claim based on a “pattern of misrepresenting to
customers” that they would not be assessed additional
charges when their mortgages were released); Petri v.
Gatlin, 997 F. Supp. 956, 967-68 (N.D. Ill. 1997) (ICFA
claim based on the dissemination of “promotional bro-
chures containing misrepresentations of material facts”);
cf. Golembiewski v. Hallberg Ins. Agency, Inc., 635 N.E.2d
452, 460 (Ill. App. Ct. 1994) (reversing a directed verdict
for the plaintiff because the consumer-fraud allegation
was nothing more than a breach-of-contract claim).
Greenberger is correct that a widespread, systematic
practice of engaging in unfair or deceptive conduct, even
in a contractual setting, may be actionable under the
statute. But that general proposition doesn’t get him
very far. It is not the existence of the contract that
defeats his consumer-fraud claim, but rather his failure
to allege any unfair or deceptive conduct distinct from
the alleged breach of a contractual promise.
Finally, Greenberger appears to contend that any
breach of contract that implicates consumer-protection
concerns is actionable under the Consumer Fraud Act.
For support, he cites Demitro v. General Motors Acceptance
Corp., 902 N.E.2d 1163 (Ill. App. Ct. 2009). That case
does not help him. Demitro involved a claim against a
car dealer who had knowingly retained the plaintiff’s
vehicle after it had been wrongfully repossessed. Id. at
1169. The key finding in Demitro was that the dealer’s
conduct amounted to an unfair practice in violation of
the Act. The case does not stand for the proposition that
No. 09-1603 15
contract breaches arising in the consumer context are
always actionable under the consumer-fraud statute.
Greenberger needs some stand-alone allegation of a
fraudulent act or practice, and he has none here.4
4
In its dismissal order, the district court relied on two unre-
ported cases from the Northern District of Illinois from which
it discerned a general rule for claims under the Consumer
Fraud Act that arise in the contract setting: Precontractual
statements that are inconsistent with the terms of the parties’
contract may give rise to a claim under the Act, but
precontractual statements that are consistent with the con-
tractual terms may not. Compare Chi. Messenger Serv., Inc. v.
Nextel Commc’ns, Inc., No. 01-cv-8820, 2003 WL 22225619(N.D. Ill. Sept. 24, 2003) (statements consistent with con-
tractual terms may not form basis for consumer-fraud claim
under the statute), with Underwriters Labs., Inc. v. Solarcom LLC,
No. 02-cv-3933, 2002 WL 31103476 (N.D. Ill. Sept. 18, 2002)
(precontractual statements that allegedly misrepresented
terms of agreement may form the basis of a consumer-fraud
claim under the statute). Applying this “rule,” the court held
that GEICO’s precontractual statements were consistent with
its written promises and therefore were not actionable under
the statute: “[GEICO’s precontractual statements] involved
promises to pay to repair vehicles to their pre-accident condi-
tion, a representation identical to an existing term in the
parties’ written contract.” Although the district court properly
dismissed this claim, it should have stopped short of at-
tempting to fashion a new rule for Consumer Fraud Act
claims based on the relationship between precontractual
statements and contract terms. There is no need to gloss the
statute to decide this case. Avery holds that the plaintiff
(continued...)
16 No. 09-1603
Summary judgment for GEICO on Greenberger’s
common-law fraud claim was also appropriate, on the
same basic reasoning. Like the statutory claim, the
common-law fraud count is just a reformulation of the
contract claim. Moreover, because Greenberger has
failed to identify any fraudulent act distinct from the
alleged breach of contract, he cannot satisfy two other
elements of common-law fraud: actual reliance on a
fraudulent misrepresentation and damages resulting
from that reliance. See Connick v. Suzuki Motor Co., Ltd.,
675 N.E.2d 584, 591 (Ill. 1996).
In addition, to the extent this is a claim for fraudu-
lent concealment, it requires a duty to disclose material
facts, and there is no such duty here. A duty to disclose
arises only when the parties have “a special or fiduciary
relationship, which would raise a duty to speak.” Neptuno
Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor, 692
N.E.2d 812, 817 (Ill. App. Ct. 1998). In Illinois, “[i]t is well
settled that no fiduciary relationship exists between
an insurer and an insured as a matter of law.” Fichtel v.
Bd. of Dirs. of River Shore of Naperville Condo. Ass’n,
907 N.E.2d 903, 912 (Ill. App. Ct. 2009) (citation omitted).
A fiduciary duty may be created “where one party
places trust and confidence in another, thereby placing
the latter party in a position of influence and superiority
over the former,” id. (citation omitted), but the “mere
4
(...continued)
must allege a deceptive act or practice distinct from a mere
breach of contract, and Greenberger has not done so.
No. 09-1603 17
fact that a contract of insurance or a contract to settle
plaintiffs’ claim existed between the parties is insuf-
ficient to support a finding of a fiduciary relationship,”
Martin v. State Farm Mut. Ins. Co., 808 N.E.2d 47, 52 (Ill.
App. Ct. 2004); see id. (motor-vehicle insurance com-
pany has no duty to disclose to its insured material
facts about a third-party’s insurance); Fichtel, 907 N.E.2d
at 912 (no duty to disclose where insurance-company
investigator told insured he would “take care of” water-
damaged roof). The plaintiff has the burden to plead
with specificity and prove by clear and convincing evi-
dence the existence of a fiduciary or special relation-
ship. Martin, 808 N.E.2d at 52.
Greenberger has not satisfied this burden. Insurers
ordinarily are not fiduciaries, and the facts and circum-
stances here do not suggest any basis for displacing
this general rule. Accordingly, GEICO had no duty to
disclose. For this additional reason, summary judgment
on the common-law fraud claim was appropriate. See
Fichtel, 907 N.E.2d at 913 (fraudulent-concealment claim
cannot survive summary-judgment stage where plain-
tiff has failed to plead with specificity particular circum-
stances giving rise to fiduciary duty).
A FFIRMED.
1-10-11