                          NO. 4-07-0472           Filed 1/9/08

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

ILLINOIS NON-PROFIT RISK MANAGEMENT    )  Appeal from
ASSOCIATION,                           )  Circuit Court of
         Plaintiff,                    )  Sangamon County
         v.                            )  Nos. 03L34
HUMAN SERVICE CENTER OF SOUTHERN       )       03L35
METRO-EAST, TRADE INDUSTRIES, CAREER   )       03L75
DEVELOPMENT CENTER, FIVE STAR          )       03LM341
INDUSTRIES, and LAWRENCE CRAWFORD      )       03LM511
ASSOCIATION FOR EXCEPTIONAL CITIZENS, )        05LM1345
         Defendants and Third-Party    )
         Plaintiffs-Appellants,        )
         v.                            )
RISK MANAGEMENT ADMINISTRATORS, INC., )
STANLEY W. MURRAY, DAVID STOVER,       )
KENNETH BEST, GREG SHAVER, THOM        )
POLLOCK, DAVID BAKER, ARLAN McCLAIN,   )
and JO McVEY,                          )  Honorable
         Third-Party Defendants-       )  Leslie J. Graves,
         Appellees.                    )  Judge Presiding.
______________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          Defendants and third-party plaintiffs (pool members),

Human Service Center of Southern Metro-East, Trade Industries,

Career Development Center, Five Star Industries, and Lawrence

Crawford Association for Exceptional Citizens (Lawrence Crawford)

appeal from the dismissal with prejudice and without leave to

amend their third-party complaint concerning a workers' compensa-

tion self-insurance pool against third-party defendants, Risk

Management Administrators, Inc. (RMA); Stanley W. Murray; David

Stover; Kenneth Best; Greg Shaver; Thom Pollock; David Baker;

Arlan McClain; and Jo McVey.

          On appeal, the pool members argue the trial court erred
in dismissing their claims against third-party defendants.      We

affirm.

                            I. BACKGROUND

            Plaintiff, Illinois Non-Profit Risk Management Associa-

tion (INRMA), is a group workers' compensation self-insurance

pool organized under the Illinois Insurance Code (Insurance Code)

(215 ILCS 5/107a.04 (West 2002)).    The pool members are five

former insureds of the pool.    RMA is the pool's administrator.

Murray was the president of RMA.    Stover, Best, Shaver, McClain,

McVey, Pollock, and Baker were directors and trustees (trustees)

of INRMA.

            The pool members are not-for-profit agencies providing

rehabilitation services to Illinois residents with physical and

mental disabilities.    At various times, pool members entered into

pooling agreements with INRMA that provided the pool members with

workers' compensation insurance coverage.    The pooling agreements

provided each pool member shall make annual contributions or

premiums to the pool.    Annual contributions were determined by

using standard Insurance Code rates and each member's experience-

modification factor.    A deposit in the amount of 25% of the

estimated annual contribution was due at the beginning of each

pool year.   Along with the annual contributions, pool members

were subject to assessments, as necessary, for additional contri-

butions on a pro rata basis of annual contributions.    Assessments

were levied when the loss experience exceeded the total net

premiums collected.    The pooling agreement provided members were


                                - 2 -
liable for these year-end assessments for a three-year period

regardless of whether they renewed their membership in the pool

for the following year.

            In February and March 2003, INRMA filed separate

complaints against these five pool members for failure to pay the

year-end assessments in breach of the parties' pooling agree-

ments.    Each pool member filed answers and counterclaims against

INRMA and brought third-party actions against Murray, RMA, and

the trustees.    The cases were eventually consolidated.

            In January 2005, the pool members, excluding Lawrence

Crawford, filed a second-amended third-party complaint against

Murray, RMA, and the trustees.    Lawrence Crawford filed its

third-party complaint in February 2005.    The complaints set forth

claims of breach of fiduciary duty (RMA and Murray) (count I),

fraud (RMA and Murray) (count II), negligent misrepresentation

(RMA and Murray) (count III), civil conspiracy (RMA and Murray)

(count IV), breach of contract (RMA) (count V), and breach of

fiduciary duty (trustees) (count VI).    Count III was voluntarily

withdrawn.

            The third-party complaints alleged the pool members

paid all annual contributions required under the pooling agree-

ment.    By 1999, the pool had developed a deficit and INRMA levied

a $2 million assessment against the pool members.    At that time,

RMA, Murray, and the trustees allegedly represented to pool

members that INRMA did not have a cash-flow problem, and the $2

million was not to pay operating expenses or claims losses but


                                 - 3 -
would be set aside with interest being returned to the pool.     The

dispute arose when INRMA levied three "extraordinary assess-

ments," including $2 million in 2001, $3 million in 2002, and an

additional $3.6 million dissolution assessment in 2002.    The pool

members refused to pay the additional assessments.   INRMA ceased

writing workers' compensation coverage in April 2002.   The pool

members alleged Murray, Stover, and others engaged in a scheme to

deceive INRMA members about the true performance of the pool by

manipulating INRMA's finances and making public statements about

INRMA's financial performance that were false and misleading.

            The third-party complaints alleged INRMA made payments

of $161,740 in 1996 and $102,728 in 1997 to Risk Management

Solutions, Inc. (RMS), despite Murray's letter to the Illinois

Department of Insurance that RMS did not have operational employ-

ees or staff and did not perform services for INRMA during 1996

and 1997.   The pool members also alleged INRMA paid $59,836 to

FIRM, Inc., for promotional and newsletter services.    The news-

letters allegedly encouraged brokers of the pool to divert "good

risk" existing and potential pool members from INRMA to a work-

ers' compensation insurance entity controlled by Murray.   The

pool members alleged RMA, Murray, and the trustees participated

in and approved the diversion of "good risk" members from the

pool.

            The third-party complaints alleged RMA owed a fiduciary

duty to the pool members and breached that duty by, inter alia,

misrepresenting the financial condition of the pool to pool


                                - 4 -
members.   In the civil-conspiracy count, the pool members alleged

RMA contracted with Ernst & Young to provide accounting services

for INRMA.   RMA and Murray then allegedly conspired with Ernst &

Young to prepare inaccurate, untruthful, and deceptive reports

for the purpose of misrepresenting the true financial condition

of the pool.    The pool members alleged they suffered damage in

excess of $260,000, collectively, based on extraordinary and

unwarranted assessments.

           In January 2006, the trustees filed a motion to dismiss

count VI of the second-amended third-party complaint pursuant to

section 2-615 of the Code of Civil Procedure (Procedure Code)

(735 ILCS 5/2-615 (West 2006)).    The trustees argued the pool

members could not maintain an action against them for breach of

fiduciary duty, and even if they could, the complaint failed to

allege facts sufficient to establish a fiduciary relationship.

           RMA and Murray also filed a motion to dismiss counts I,

II, IV, and V pursuant to section 2-619.1 of the Procedure Code

(735 ILCS 5/2-619.1 (West 2006)).    RMA and Murray argued the pool

members' claim for breach of fiduciary duty in count I was barred

by the doctrines of res judicata and collateral estoppel based on

this court's decision in Illinois Non Profit Risk Management

Ass'n v. Support Systems & Services, Inc., No. 4-05-0161 (October

21, 2005) (unpublished order under Supreme Court Rule 23) (here-

inafter SSS).    Count II's allegation of fraud was subject to

dismissal because it was not pled with sufficient particularity

and specificity.    Further, counts IV and V failed to state a


                                - 5 -
cause of action.

            In May 2007, the trial court dismissed counts I, II,

IV, and V against RMA and Murray with prejudice and without leave

to amend.    The court also dismissed count VI against the trustees

with prejudice and without leave to amend.      The court entered a

finding that no just reason existed for delaying enforcement or

appeal.   See 210 Ill. 2d R. 304(a).    This appeal followed.

                            II. ANALYSIS

                        A. Standard of Review

            In the case sub judice, the trustees filed a motion to

dismiss under section 2-615, while RMA and Murray filed a motion

to dismiss under section 2-619.1.    A motion to dismiss under

section 2-615 of the Procedure Code challenges only the legal

sufficiency of the complaint.    Russell v. Blagojevich, 367 Ill.

App. 3d 530, 532, 853 N.E.2d 920, 923 (2006).      A motion under

section 2-619.1 allows a party to "combine a section 2-615 motion

to dismiss based upon a plaintiff's substantially insufficient

pleadings with a section 2-619 motion to dismiss based upon

certain defects or defenses."    Edelman, Combs & Latturner v.

Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164, 788 N.E.2d 740,

747 (2003).    When reviewing a dismissal pursuant to sections 2-

615 and 2-619 of the Procedure Code (735 ILCS 5/2-615, 2-619

(West 2006)), we accept all well-pleaded facts as true and make

all reasonable inferences therefrom.     Zahl v. Krupa, 365 Ill.

App. 3d 653, 658, 850 N.E.2d 304, 309 (2006).     We review an order

granting a motion to dismiss pursuant to section 2-615 or 2-619


                                - 6 -
de novo.    Edelman, 338 Ill. App. 3d at 164, 788 N.E.2d at 747-48.

             B. Breach of Fiduciary Duty (RMA and Murray)

            In dismissing the pool members' third-party complaint,

the trial court did not specify the theories relied upon for

dismissal.    The pool members argue the court erred in dismissing

their claim for breach of fiduciary duty against RMA and Murray

(count I) pursuant to sections 2-619(a)(4) and 2-615 of the

Procedure Code because the claim was not barred by res judicata

or collateral estoppel or by section 2-2201(b) of the Procedure

Code (735 ILCS 5/2-2201(b) (West 2006)).      We disagree.

            Section 2-619(a)(4) of the Procedure Code (735 ILCS

5/2-619(a)(4) (West 2006)) allows a trial court to dismiss a

cause of action on the grounds it is "barred by a prior judg-

ment."     This section incorporates the doctrine of res judicata

and collateral estoppel.     Yorulmazoglu v. Lake Forest Hospital,

359 Ill. App. 3d 554, 558, 834 N.E.2d 468, 471 (2005).

            "Under the doctrine of res judicata, a final

            judgment on the merits rendered by a court of

            competent jurisdiction acts as a bar to a

            subsequent suit between the parties involving

            the same cause of action.    [Citations.]   The

            bar extends to what was actually decided in

            the first action, as well as those matters

            that could have been decided in that suit.

            [Citation.]   For the doctrine of res judicata

            to apply, the following three requirements


                                 - 7 -
          must be satisfied:    (1) there was a final

          judgment on the merits rendered by a court of

          competent jurisdiction, (2) there is an iden-

          tity of cause of action, and (3) there is an

          identity of parties or their privies."     River

          Park, Inc. v. City of Highland Park, 184 Ill.

          2d 290, 302, 703 N.E.2d 883, 889 (1998).

"Res judicata promotes judicial economy by preventing repetitive

litigation and also protects parties from being forced to bear

the unjust burden of relitigating essentially the same case."

Arvia v. Madigan, 209 Ill. 2d 520, 533, 809 N.E.2d 88, 97 (2004).

          Here, the pool members do not dispute that a final

judgment on the merits had been rendered in SSS.     Instead, they

argue both cases involved distinct causes of action and no

identity of parties or their privies existed between them and the

third-party plaintiff in SSS.    In that case, the third-party

plaintiff, Support Systems & Services, Inc. (Support Systems),

was a member of the same pool as in the present case.    In Novem-

ber 2002, INRMA filed a complaint against Support Systems for

failure to pay its year-end assessments in breach of the pooling

agreement.   Support Systems filed an amended third-party com-

plaint against RMA alleging breach of contract, breach of fidu-

ciary duty, and constructive fraud based on RMA's representations

that it was on sound financial footing and the assessments would

put the program back in good shape.     This court found, inter

alia, no authority to establish the existence of a fiduciary


                                - 8 -
relationship between Support Systems and RMA.     This court found,

in part, as follows:

           "There is no fiduciary relationship between

           an insurer and its insured.    If there is no

           fiduciary relationship between INRMA and

           [Support Systems], INRMA (the principal) owes

           no fiduciary duty to [Support Systems], its

           insured.   Therefore, RMA, as INRMA's agent,

           owes no fiduciary duty to [Support Systems]

           either."    SSS, slip order at 18.

           In determining the identity of causes of action, our

supreme court has adopted the transactional test.      River Park,

184 Ill. 2d at 311, 703 N.E.2d at 893.     Under that test, "sepa-

rate claims will be considered the same cause of action for

purposes of res judicata if they arise from a single group of

operative facts, regardless of whether they assert different

theories of relief."     River Park, 184 Ill. 2d at 311, 703 N.E.2d

at 893.   Moreover, "the transactional test permits claims to be

considered part of the same cause of action even if there is not

a substantial overlap of evidence, so long as they arise from the

same transaction."     River Park, 184 Ill. 2d at 311, 703 N.E.2d at

893.

           Here, the pool members' claims arise from the same

group of operative facts as in SSS.      In a motion to consolidate

and transfer, the pool members stated the SSS case "arose from

the same acts and events" as the present consolidated cases.


                                 - 9 -
Thus, the pool members' cause of action here was the same as set

forth in SSS, even though different theories of relief have been

asserted.

            The pool members, however, maintain they were not in

privity with the third-party plaintiff in SSS, thereby precluding

the application of res judicata.     "Privity exists between two

parties who adequately represent the same legal interests."

Marvel of Illinois, Inc. v. Marvel Contaminant Control Indus-

tries, Inc., 318 Ill. App. 3d 856, 864, 744 N.E.2d 312, 319

(2001).   "It is the identity of interest that controls in deter-

mining privity, not the nominal identity of the parties."       People

ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d

285, 296, 602 N.E.2d 820, 826 (1992).     "A nonparty may be bound

under privity if his interests are so closely aligned to those of

a party that the party is the virtual representative of the

nonparty."    City of Rockford v. Unit Six of the Policemen's

Benevolent & Protective Ass'n of Illinois, 362 Ill. App. 3d 556,

563, 840 N.E.2d 1283, 1289 (2005).      However, "where a party has

no standing to bring a cause of action on behalf of another

party, either individually or derivatively, it also must be said

to lack privity with the other party because it cannot adequately

represent the other party's legal interests."      Mount Mansfield

Insurance Group, Inc. v. American International Group, Inc., 372

Ill. App. 3d 388, 394, 865 N.E.2d 524, 530 (2007).

            In this case, we find the pool members were in privity

with the third-party plaintiff in SSS as members of the same


                               - 10 -
workers' compensation pool.   RMA was the pool administrator and

Murray its president and chief executive officer.   Support

Systems and the pool members signed identical pooling agreements

stating they were made and entered into by and among the trustees

and members of INRMA.   Both cases arose out of the same assess-

ments levied by INRMA against its pool members in 2001 and 2002,

which all members shared on a pro rata basis.

          The interests of all the pool members are identical

because any amounts levied against one pool member necessarily

affect the amounts other members are required to pay.    Allowing

the pool members to repeatedly litigate this fiduciary-duty claim

would not promote the interests of judicial economy.    Further,

repetitive litigation runs the risk of inconsistent judgments.

Accordingly, the pool members' claim against RMA and Murray for

breach of fiduciary duty is barred by res judicata.

          Even if count I is not barred by res judicata, the pool

members cannot show a fiduciary relationship exists between them

and RMA and Murray.   The pool members claim that the pooling

agreements show the pool members "expressly appointed RMA as

their agent."   However, RMA was not a party to the pooling

agreements.   Further, the pooling agreements only state RMA is an

agent for the pool members for the purpose of filing reports,

making or arranging for payment of claims, medical expenses, and

all other things required or necessary, "insofar as they affect

the [m]ember's liability under the Illinois Workers' Compensation

or Occupational Diseases Act."   The pool members have not alleged


                              - 11 -
any failure of RMA to submit workers' compensation claims to

INRMA, a failure to pay claims, or any refusal to defend.      The

pool-administrator agreement, on the other hand, states RMA acted

as INRMA's exclusive agent to conduct the pool's business and act

in INRMA's best interest with an "undivided duty of loyalty."

Accordingly, the pool members cannot establish a claim for breach

of fiduciary duty.

                            C. Fraud

          The pool members argue the trial court erred in dis-

missing their fraud claim against RMA and Murray (count II)

pursuant to sections 2-619(a)(9) and 2-615 of the Procedure Code

(735 ILCS 5/2-615, 2-619(a)(9) (West 2006)) because the complaint

alleged sufficient facts to establish the claim and Murray's

affidavit did not negate the claim.    We disagree.

          To state a cause of action for common-law fraud, a

plaintiff must set forth the following elements:      "(1) a false

statement of material fact; (2) defendant's knowledge that the

statement was false; (3) defendant's intent that the statement

induce the plaintiff to act; (4) plaintiff's reliance upon the

truth of the statement; and (5) plaintiff's damages resulting

from reliance on the statement."   Connick v. Suzuki Motor Co.,

174 Ill. 2d 482, 496, 675 N.E.2d 584, 591 (1996).

          A claim of fraud "must be pleaded with sufficient

specificity, particularity, and certainty to apprise the opposing

party of what he is called upon to answer."    Hirsch v. Feuer, 299

Ill. App. 3d 1076, 1085, 702 N.E.2d 265, 272 (1998).      "Thus, a


                             - 12 -
plaintiff must at least plead with sufficient particularity facts

establishing the elements of fraud, including what misrepresen-

tations were made, when they were made, who made the misrepresen-

tations[,] and to whom they were made."   Board of Education of

City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 457, 546

N.E.2d 580, 594 (1989).

           In count II, the pool members alleged RMA and Murray

engaged in an extensive fraudulent scheme to deceive INRMA

members as to the true performance and financial condition of the

pool.   The scheme was allegedly conducted for the purpose of

continuing operation of the pool so RMA, Murray, Stove, and

others could siphon money from the pool for their own use.

           In claiming fraudulent concealment, the pool members

also alleged RMA had a duty to reveal material facts regarding

the financial management and condition of INRMA based on a

fiduciary relationship to pool members.   RMA and Murray allegedly

concealed these material facts, which they knew presented a false

picture of INRMA's financial condition, with the intent to

deceive the pool members and induce them to renew their member-

ship in the pool.   The pool members alleged they acted in justi-

fiable reliance on the facts as they knew them and suffered

damages.

           "In order to prove fraud by intentional concealment of

a material fact, the plaintiff must show the existence of a

special or fiduciary relationship with the defendant that would

give rise to a duty to speak."   Lewis v. Lead Industries Ass'n,


                              - 13 -
342 Ill. App. 3d 95, 105, 793 N.E.2d 869, 876 (2003); see also

Magna Bank of Madison County v. Jameson, 237 Ill. App. 3d 614,

618, 604 N.E.2d 541, 544 (1992) (no duty to speak exists "absent

a fiduciary or other legal relationship between the parties").

In absence of a fiduciary relationship here, RMA and Murray had

no duty to speak.   Thus, the pool members' fraud claim based on

the fraudulent concealment of a material fact fails.

           In claiming fraudulent inducement, the pool members

alleged RMA and Murray explained the $2 million assessment by

stating INRMA did not have a cash-flow problem and the amount

would be set aside with interest being returned to the program.

The pool members alleged RMA and Murray knew these representa-

tions were false, and they were at the same time actively divert-

ing potential "good risk" members away from INRMA.   The pool

members claimed RMA and Murray intended for them to rely on the

false statements to induce them to renew their memberships in the

pool.   As a result of relying on the statements and renewing

their membership, the pool members alleged they suffered damages.

           Generally, an expression of opinion will not support an

action for fraud.   Peter J. Hartmann Co. v. Capital Bank & Trust

Co., 296 Ill. App. 3d 593, 601, 694 N.E.2d 1108, 1115 (1998).

Further, "financial projections are considered to be statements

of opinion, not fact."   Lagen v. Balcor Co., 274 Ill. App. 3d 11,

17, 653 N.E.2d 968, 973 (1995).   Statements concerning future

intent or conduct are not actionable as fraud.   Ault v. C.C.

Services, Inc., 232 Ill. App. 3d 269, 271, 597 N.E.2d 720, 722


                              - 14 -
(1992).

          Here, the pool members offered only nonspecific allega-

tions of fraud.   The statement that INRMA did not have a cash-

flow problem amounts to an opinion, and the statement that money

would be set aside concerns future conduct.    The statements

relied upon by the pool members in their fraudulent-inducement

claim amount to nothing more than opinions and predictions about

future conduct.   Likewise, the pool members' allegations that RMA

and Murray engaged in a fraudulent scheme to deceive them as to

the true performance and financial condition of the pool neglect

to point out the yearly audits were on file for inspection and

review.   Moreover, the publicly filed financial statements

clearly showed the pool was operating with a member deficit and

pointed out INRMA's "ability to absorb future variability is

based on future assessments of its members."    The pool members'

allegations fail to set forth a valid claim for fraud, and the

trial court did not err in dismissing the claim with prejudice.

                        D. Civil Conspiracy

          The pool members argue the trial court erred in dis-

missing their civil-conspiracy claim against RMA and Murray

pursuant to section 2-615 because they alleged sufficient facts

to state a claim.   We disagree.

          "Civil conspiracy consists of (1) an agreement between

two or more persons (2) for the purpose of accomplishing by some

concerted action either an unlawful purpose or a lawful purpose

by unlawful means, and (3) some tortious or illegal act by a


                              - 15 -
party to the agreement in furtherance of the agreement."     Karas

v. Strevell, 369 Ill. App. 3d 884, 919, 860 N.E.2d 1163, 1195

(2006).    "Conspiracies are often intentionally 'shrouded in

mystery,' which by nature makes it difficult for the plaintiff to

allege with complete specificity all of the details of the

conspiracy."    Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill.

App. 3d 759, 771, 863 N.E.2d 1156, 1167 (2007), quoting Adcock v.

Brakegate, Ltd., 164 Ill. 2d 54, 66, 645 N.E.2d 888, 895 (1994).

However, "the complaint must contain more than the conclusion

that there was a conspiracy, it must allege specific facts from

which the existence of a conspiracy may properly be inferred."

Fritz v. Johnston, 209 Ill. 2d 302, 318, 807 N.E.2d 461, 471

(2004).

            In count IV, the pool members alleged RMA and Murray

agreed and conspired with Ernst & Young to prepare inaccurate,

untruthful, and deceptive reports for the purpose of misrep-

resenting the true financial condition of the pool to maintain

the pool in operation so payments to entities owned and/or

controlled by Murray, Stover, and their associates could con-

tinue.    As a result, the pool members claimed they suffered

damages.

            The pool members failed to adequately allege a claim of

civil conspiracy.    The sole allegation of conspiracy against RMA

and Murray is that they agreed and conspired with Ernst & Young

to prepare inaccurate, untruthful, and deceptive audit reports.

This allegation is nothing more than a conclusion that a conspir-


                               - 16 -
acy existed and fails to satisfy the pleading requirements to

state a cause of action for civil conspiracy.    Moreover, the pool

members failed to adequately allege their underlying claim of

common-law fraud, and thus their conspiracy claim fails as a

matter of law.    See Time Savers, 371 Ill. App. 3d at 772, 863

N.E.2d at 1168.

                        E. Breach of Contract

          The pool members argue the trial court erred in dis-

missing the breach-of-contract claim against RMA pursuant to

section 2-615 of the Procedure Code because they alleged suffi-

cient facts to state a claim.    We disagree.

          In count V, the pool members alleged RMA entered into a

pool-administrator agreement with INRMA with the express intent

to benefit the pool members who were third-party beneficiaries of

the agreement.    The pool members also alleged the agreement

indicated RMA would provide certain services to the pool on

behalf of INRMA for the benefit of the pool members.    The pooling

agreement referenced the agreement between INRMA and RMA to

provide the described services.    The pool members claimed RMA

breached its contractual duties under the pool-administrator

agreement and by reference under the pooling agreements to

administer the pool with good faith and fair dealing toward the

pool members.

          In its motion to dismiss, RMA argued the pool members

lacked standing as third-party beneficiaries to bring their

contract claim because the only parties to the pool-administrator


                                - 17 -
agreement were RMA and INRMA.    Further, the pool members lacked

standing because the pool-administrator agreement did not express

an intent to benefit the pool members.

               "A person who is not a party to a con-

          tract may nevertheless sue based on the con-

          tract if that person is directly benefitted

          by the contract.   [Citation.]   The benefit

          must be direct to the person asserting third-

          party beneficiary status; an incidental bene-

          fit is not a sufficient basis for the claim.

          [Citation.]   A person's status as third-party

          beneficiary depends upon the intent of the

          parties to the contract and must be deter-

          mined on a case-by-case basis.    [Citation.]

          Circumstances surrounding the execution of

          the contract may be considered [citation],

          but the alleged third-party beneficiary must

          be expressly named in the contract."

          Paukovitz v. Imperial Homes, Inc., 271 Ill.

          App. 3d 1037, 1039, 649 N.E.2d 473, 475

          (1995).

          In this case, the pool-administrator agreement does not

contain an express declaration identifying the pool members as

third-party beneficiaries.   While the agreement makes reference

to "members," it is in terms of describing RMA's duties to INRMA

in operating the pool as INRMA's agent.    Any benefit to the pool


                                - 18 -
members is an incidental benefit of the agreement between RMA and

INRMA.    As the pool members cannot properly claim status as

third-party beneficiaries, their breach-of-contract claim fails.

                          F. Leave To Amend

            The pool members argue the trial court erred in denying

leave to amend their third-party complaint against RMA and

Murray.    We disagree.

            "A trial court's denial of a motion for leave to amend

a pleading is reviewed under an abuse[-]of[-]discretion stan-

dard."    County of Cook ex rel. Rifkin v. Bear Stearns & Co., 215

Ill. 2d 466, 474, 831 N.E.2d 563, 568 (2005).    To determine

whether an abuse of discretion occurred, courts look at four

factors, including:    "(1) whether the proposed amendment would

cure the defective pleading; (2) whether other parties would

sustain prejudice or surprise by virtue of the proposed amend-

ment; (3) whether the proposed amendment is timely; and (4)

whether previous opportunities to amend the pleading could be

identified."    Loyola Academy v. S & S Roof Maintenance, Inc., 146

Ill. 2d 263, 273, 586 N.E.2d 1211, 1215-16 (1992).

            In this case, the pool members asked in the conclusion

of their response in opposition to the motion to dismiss for

leave to amend their pleading based upon newly acquired informa-

tion.    They also made a similar request at the conclusion of oral

argument.    The trial court indicated the pool members had re-

ceived opportunities to amend and any further attempt would be

futile.


                               - 19 -
          The pool members did not include a proposed amended

complaint with supporting facts in the trial court.    The failure

to do so "significantly diminishes our ability to determine

whether the proposed amendment" would provide them with a viable

theory against RMA and Murray.     Mendelson v. Ben A. Borenstein &

Co., 240 Ill. App. 3d 605, 619, 608 N.E.2d 187, 196 (1992).    The

failure to tender the proposed amendment forfeits review of the

trial court's decision.    See Ignarski v. Norbut, 271 Ill. App. 3d

522, 532, 648 N.E.2d 285, 293 (1995); Mendelson, 240 Ill. App. 3d

at 619, 608 N.E.2d at 196.

              G. Breach of Fiduciary Duty (Trustees)

          The pool members argue the trial court erred in dis-

missing the breach-of-fiduciary-duty claim against the trustees

pursuant to section 2-615 because sufficient facts were alleged

to state a claim.   We disagree.

          To state a claim for breach of fiduciary duty, a

plaintiff must allege the existence of a fiduciary duty, a breach

of that duty, and damages proximately caused by the breach.

Neade v. Portes, 193 Ill. 2d 433, 444, 739 N.E.2d 496, 502

(2000).   "A fiduciary relationship exists where there is a

special confidence reposed in one who, in equity and good con-

science, is bound to act in good faith with due regard to the

interests of the other."     Schweickart v. Powers, 245 Ill. App. 3d

281, 290, 613 N.E.2d 403, 410 (1993).

          "'A fiduciary or confidential relationship

          exists where, by reason of friendship,


                                - 20 -
          agency, or business association and exper-

          ience, trust and confidence are reposed by

          one person in another who, as a result, gains

          an influence and superiority over him.'"

          Maercker Point Villas Condominium Ass'n v.

          Szymski, 275 Ill. App. 3d 481, 484, 655

          N.E.2d 1192, 1194 (1995), quoting Melish v.

          Vogel, 35 Ill. App. 3d 125, 136, 343 N.E.2d

          17, 26 (1975).

Regardless of the level of trust between the parties, a fiduciary

relationship requires one party to exert dominance and influence

over the other party.    Lagen, 274 Ill. App. 3d at 21, 653 N.E.2d

at 975.

          In count VI, the pool members alleged the trustees owed

a fiduciary duty to INRMA and its members pursuant to the first-

amended trust agreement and as officers of a nonprofit associa-

tion to manage and administer the pool with judgment and care.

The complaint alleged the trustees approved and acquiesced in

fraudulent payments and misrepresentations as to the pool's

financial condition.

          Here, the pool members offer only conclusory allega-

tions that the trust agreement creates a fiduciary duty between

them and the trustees.   Count VI merely claimed the trustees had

a duty to act prudently, but the trust-agreement clause cited in

support of the alleged fiduciary duty simply addresses how the

trustees are to be indemnified by INRMA.   The pool members failed


                               - 21 -
to establish the trustees exerted dominance and influence over

them based on the trust agreement.

            The pool members' claim of a fiduciary duty based on

INRMA's nonprofit status is also insufficient to state a cause of

action for breach of fiduciary duty.     According to section

107a.05(b) of the Worker's Compensation Pool Law, the

"'[t]rustees of a group workers' compensation pool' shall be

considered as though they were directors of a domestic mutual

insurance company."     215 ILCS 5/107a.05(b) (West 2006).   Pooling

agreements are considered as policies of insurance.     215 ILCS

5/107a.05(b) (West 2006).     It is well settled that an insurer

does not owe its insured a fiduciary duty.      Nielsen v. United

Services Automobile Ass'n, 244 Ill. App. 3d 658, 666, 612 N.E.2d

526, 531 (1993).    INRMA is the workers' compensation insurer of

the pool members.    "Directors owe a fiduciary duty to their

corporations and to their shareholders."      Stamp v. Touche Ross &

Co., 263 Ill. App. 3d 1010, 1015, 636 N.E.2d 616, 620 (1993).

The pool members' allegation that INRMA's nonprofit status

created a fiduciary relationship with the trustees failed to

state a cause of action.

                            III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            APPLETON, P.J., and McCULLOUGH, J., concur.




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