                                       2018 IL App (1st) 180133



                                                                                    SIXTH DIVISION
                                                                                  NOVEMBER 9, 2018


1-18-0133
MARY SLAY and MARY T. SLAY, INC.,                                )        Appeal from the
                                                                 )        Circuit Court of
        Plaintiffs-Appellants,                                   )        Cook County.
                                                                 )
v.                                                               )
                                                                 )        No. 16 L 009708
THE ALLSTATE CORPORATION, d/b/a Allstate                         )
Insurance Company,                                               )        Honorable
                                                                 )        Brigid Mary McGrath,
        Defendant-Appellee.                                      )        Judge Presiding.


        JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
        Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.


                                               OPINION


¶1      The plaintiffs-appellants, Mary Slay and Mary T. Slay, Inc. (collectively, Mary), appeal

from the dismissal of Mary’s second amended complaint, 1 which alleged a single count of

breach of contract against defendant-appellee the Allstate Corporation, d/b/a Allstate Insurance

Company (Allstate). For the following reasons, we reverse the judgment of the circuit court of

Cook County and remand for further proceedings.


        1
         The original complaint, stating a single breach of contract count, was filed in September 2016. In
January 2017, Mary filed her first amended complaint, adding counts for fraud and tortious interference
with contractual relations (counts II and III). On June 19, 2017, following a hearing on Allstate’s motion
to dismiss, the trial court granted Allstate’s motion as to counts II and III with prejudice but dismissed
Mary’s breach of contract count without prejudice. On July 26, 2017, Mary filed the second amended
complaint at issue in this appeal.
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¶2                                          BACKGROUND

¶3      This action arises out of the termination of Allstate’s contract with Mary, under which

Mary was an exclusive agent selling Allstate insurance, and Allstate’s subsequent denial of

Mary’s proposed sale of her economic interest in her agency to her husband.

¶4      According to the second amended complaint, beginning in 1999, Mary’s husband, Buddy

Slay (Buddy), operated an independent Allstate agency in Lake City, Florida. 2 Mary was

employed as a school guidance counselor, but she often assisted Buddy with his insurance

agency.

¶5      In 2004, Ray McKnight, an Allstate territory manager, began “recruiting” Mary to

become an exclusive Allstate insurance agent in Lake City, Florida. Ray allegedly offered Mary

the opportunity to “purchase an existing book of business” from a retiring agent, Rick Bringger.

However, Ray allegedly failed to disclose that “he had a conflict of interest because his wife,

Faye McKnight, wanted to purchase an Allstate agent’s book of business and open up her own

office” in Lake City, “in direct competition with” Mary. Ray also allegedly failed to disclose to

Mary that “Allstate was in the process of cancelling approximately thirty percent of the policies

in Bringger’s book of business” and that Allstate had “begun the process of non-renewing all

mobile home policies, all commercial policies, and all landlord and rental policies in Florida.”

¶6      The second amended complaint alleges that in February 2005, “in reliance on [Ray]

McKnight’s promises and representations,” Mary retired from her job, obtained an $800,000

loan to purchase Bringger’s book of business, and signed an exclusive agency agreement (EA

Agreement), a copy of which is attached as an exhibit to the second amended complaint. The EA

Agreement expressly incorporated other documents, including an “Exclusive Agency


        2
        Although the allegations of the complaint describe conduct in Florida, jurisdiction in Illinois is
premised upon Allstate’s transaction of business in Illinois. 735 ILCS 5/2-109 (West 2016).

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Independent Contractor Manual” (EA Manual), although the EA Manual was not attached to the


second amended complaint. 


¶7     Section XVI of the EA Agreement, entitled “Transfer of Interest,” provided, in part:


              “Agency has an economic interest, as defined in this Agreement

              and in the incorporated Supplement and EA Manual, in its Allstate

              customer accounts developed under this Agreement. Subject to the

              terms and conditions set forth in this Agreement, and in the

              incorporated Supplement and EA Manual, agency may transfer its

              entire economic interest in the business written under this

              Agreement upon termination of this Agreement by selling the

              economic interest in the business to an approved buyer. [Allstate]

              retains the right in its exclusive judgment to approve or disapprove

              such a transfer ***.”

¶8     The second amended complaint alleges that Mary worked as an exclusive agent “selling

only Allstate insurance products and reporting directly to [Ray] McKnight.” Mary subsequently

“grew her book of business,” gaining new customers. Allstate underwrote the insurance policies

for Mary’s customers and paid Mary commissions on each policy. Ray allegedly acted as Mary’s

“manager,” and he “assessed [Mary]’s production (policies sold) on a regular basis.”

¶9     According to the second amended complaint, in March 2005, Ray’s wife opened an

exclusive Allstate agency, competing directly with Mary’s agency. Mary’s business was also

harmed by several other circumstances, including (1) in May 2005, Allstate announced that it

was no longer writing commercial insurance policies in Florida and that Allstate would not

renew approximately 95,000 Florida homeowner insurance policies; (2) in 2007, Allstate began



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“substantially increasing its insurance rates,” making its products unattractive to customers, and

(3) in 2008, the Florida Insurance Commission suspended Allstate’s license to write new

policies, due to Allstate’s failure to comply with a subpoena. These and other circumstances

allegedly resulted in Mary “losing more than thirty percent of her book of business,” although

she “continued to work hard selling policies to meet her production requirements.”

¶ 10   In September 2011, Allstate terminated Mary’s EA Agreement, “allegedly for failing to

meet her unrealistic production requirements.” Following the termination, Mary “arranged to

transfer her economic interest in her customer accounts to her husband,” Buddy. However,

“Allstate refused to approve the transfer of [Mary]’s economic interest in her customer accounts”

to Buddy. Instead, “Allstate transferred and/or sold [Mary]’s economic interest in her customer

accounts, along with [Mary]’s book of business, to Faye McKnight,” the spouse of Mary’s

manager.

¶ 11   The second amended complaint alleged that, “[i]nstead of allowing [Mary] to sell her

economic interest in her agency, Allstate offered her a $40,000 ‘termination payment,’ ” which

was “far less than the value of her economic interest in her agency.” Mary alleges that she was

“economically coerced” into accepting the termination payment because she could not otherwise

afford the remaining payments on the loan she used to purchase Bringger’s book of business.

¶ 12   The second amended complaint contains a single count for breach of contract, which

alleges that Allstate “materially breached the EA Agreement” by failing to approve the transfer

to Mary’s husband and that “Allstate also materially breached the covenant of good faith and fair

dealing implied in the EA Agreement.” Specifically, Mary pleads that “Allstate, the party vested

with discretion, owed [Mary] a duty to act in good faith in deciding whether to approve the sale

of her economic interest in her business, and her book of business, to Buddy Slay, and to make



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its decision in a reasonable manner, and not in a manner that was arbitrary, capricious, or

otherwise inconsistent with the parties’ reasonable expectations.”

¶ 13   The second amended complaint pleads that Buddy “ran a successful independent

Allstate” agency and “was qualified to acquire [Mary’s] economic interest in her agency and

service the policyholders in her book of business.” However, Allstate “refused to approve the

sale of [Mary’s] business to Buddy Slay solely for the benefit of Faye McKnight, whose agency

competed with Buddy Slay’s agency.” Mary alleges that, by “refusing to approve [Mary’s]

transfer request for this arbitrary and capricious reason, Allstate breached the covenant of good

faith and fair dealing” and caused Mary “substantial damages, including lost wages and

economic injury.”

¶ 14   On August 29, 2017, Allstate filed a motion to dismiss the second amended complaint

pursuant to section 2-619 of the Code of Civil Procedure (Code). 735 ILCS 5/2-619 (West 2016).

The motion attached an affidavit of Mark Canfield, who is a “Territorial Sales Leader” for

Allstate in Florida. Canfield’s affidavit attached a copy of the EA Manual, as well as a copy of

the notice of termination sent to Mary. Canfield’s affidavit further attested that Mary “was

compensated with a ‘termination payment’ as outlined in the EA Manual.”

¶ 15   The motion argued that the EA Agreement granted “Allstate absolute discretion to

approve or disapprove of a proposed buyer.” Allstate argued that its denial of Mary’s proposed

transfer of her economic interest to her husband was “an exercise of Allstate’s contractual

discretion, and therefore was not a breach of contract.” The motion further argued that, since

there was no contractual provision “limit[ing] how Allstate can assign policies from [Mary’s]

former book of business after her termination,” the subsequent transfer to Faye did not breach the

EA Agreement.



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¶ 16   Allstate also argued that Mary’s claim for breach of the implied covenant of good faith

relied on legal conclusions and “unsupported conclusions of fact.” Allstate argued that the

second amended complaint did not “provide any facts in support of [Mary’s] allegation that

Allstate refused [Mary]’s proposed buyer with the sole intention of benefitting Faye McKnight”

and “does not allege that she proposed any other buyer that Allstate refused.”

¶ 17   Mary’s response to the motion to dismiss argued that dismissal was improper under

section 2-619 of the Code, as Allstate had not identified an “affirmative matter” to defeat her

claim. Mary otherwise argued that the second amended complaint adequately pleaded facts

supporting a breach of the implied duty of good faith.

¶ 18   On December 13, 2017, the court held a hearing on the motion to dismiss the second

amended complaint. Mary’s counsel first argued, as a procedural matter, that Allstate’s motion

should have been brought under section 2-615 of the Code (735 ILCS 5/2-615 (West 2016)),

rather than section 2-619. Mary’s counsel acknowledged that the EA Agreement gave Allstate

discretion in approving a transfer but argued that this did not preclude a claim for breach of the

implied duty of good faith and fair dealing. Mary’s counsel argued that the second amended

complaint pleaded that Allstate exercised its discretion in an arbitrary or capricious manner or

otherwise “not consistent with the parties’ reasonable expectations.” Specifically, Mary’s

counsel argued that since Buddy, an experienced Allstate agent, had already been found by

Allstate as “qualified” to sell its polices, it was “within the reasonable expectation of the parties”

that Allstate would approve the transfer to him, such that Allstate abused its discretion when it

disapproved the transfer. Mary’s counsel urged that, at the pleading stage, “these facts are

sufficient when construed in favor of the plaintiff to show that there could have been a violation

of the covenant of good faith and fair dealing.”



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¶ 19     In issuing its ruling, the trial court remarked that it was “inclined to agree” with Mary’s

counsel that the motion to dismiss was “more appropriate as a [section] 2-615,” yet the court

would grant the motion under both section 2-615 and 2-619 of the Code. The trial court also

noted that “the duty of good faith and fair dealing applies because of th[e] discretionary aspect”

of the EA Agreement. Nevertheless, the court rejected the proposition that a breach of the duty of

good faith and fair dealing could be alleged based on Mary’s “reasonable expectation that a

previously approved seller of Allstate’s polices would automatically be approved under this

contractual provision.” The court found that the allegations of the second amended complaint

“still haven’t adequately pled the breach of covenant of good faith and fair dealing, and I don’t

think they could, given the wording of the contractual provision.”

¶ 20     On December 13, 2017, the trial court entered an order granting Allstate’s motion to

dismiss “pursuant to section 2-615 & 2-619” and dismissing the second amended complaint with

prejudice. On January 12, 2018, Mary filed a timely notice of appeal from the December 13,

2017, dismissal order. Accordingly, this court has jurisdiction. Ill. S. Ct. R. 303 (eff. July 1,

2017).

¶ 21                                        ANALYSIS

¶ 22     On appeal, Mary argues that the second amended complaint was not subject to dismissal

under either section 2-615 or 2-619 of the Code. First, she claims that dismissal was improper

under section 2-615 because the second amended complaint sufficiently pleaded a claim for

breach of contract, premised on the implied covenant of good faith and fair dealing. Mary

recognizes that the EA Agreement afforded Allstate “broad discretion,” but she argues that she

sufficiently pleaded that Allstate “exercised that discretion in bad faith” or otherwise in a manner

inconsistent with her reasonable expectations. Mary asserts that Allstate denied the transfer to



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her husband “for an arbitrary and capricious reason: to benefit [Ray’s] wife,” when her husband,

who had been a successful independent Allstate agent, was “the most qualified person to

purchase [her] book of business.” Mary claims that she pleaded facts from which a reasonable

inference can be drawn that Allstate lacked good cause to prohibit her from selling her book of

business to her husband. She urges that her complaint sufficiently pleads that Allstate denied her

proposed transfer to her husband for “opportunistic, arbitrary, and capricious reasons” in breach

of the duty of good faith. Mary contends that dismissal premised upon section 2-615 dismissal

was improper, as she is entitled to conduct discovery to explore the facts surrounding Allstate’s

decision to disapprove the proposed transfer to her spouse.

¶ 23   Mary additionally argues that the court erred in finding dismissal warranted by section 2­

619 of the Code. In that regard, she contends that Allstate’s motion did not set forth any

“affirmative matter” that would defeat her cause of action but merely challenged the legal

sufficiency of the second amended complaint.

¶ 24   Allstate’s appellate brief argues that dismissal was proper under either section 2-615 or 2­

619 of the Code. Allstate claims that dismissal under section 2-615 was proper because Mary

could not state a claim for breach of contract, as the EA Agreement granted Allstate unlimited

discretion to approve or disapprove a transfer of her economic interest in her book of business.

Specifically, Allstate relies on the EA Agreement’s language that Allstate “retains the right in its

exclusive judgment to approve or disapprove such a transfer.” Allstate also cites the EA

Manual’s language that Allstate “shall have the right to approve or disapprove the sale of the

economic interest in the book at any time up until the time the transfer of the economic interest

has occurred.” Furthermore, Allstate emphasizes the EA Manual’s statement that “The Company

[(Allstate)] will not approve the transfer of any shares or interests in the agency” to enumerated



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categories of transferees, one of which is “Any person who is acting as an agent or broker of

another insurance company, including any Allstate Independent Agent.” 3 Allstate contends that

these provisions regarding its broad discretion precluded Mary from having any reasonable

expectation that Allstate would approve her proposed transfer to Buddy.

¶ 25    Allstate further argues that the second amended complaint consists of “legal conclusions

and unsupported conclusions of fact” but lacks “concrete facts” supporting Mary’s claim that

Allstate acted in order to benefit Faye. Allstate’s briefing and oral argument also suggest that

Allstate’s eventual transfer of Mary’s book of business to Faye is irrelevant because Allstate

maintained unlimited discretion to disapprove Mary’s proposed transfer to Buddy. Allstate

argues that even if it acted with the intent to benefit Faye, Mary’s claim “would still fail”

because the EA Manual put her on notice that Allstate would not approve a transfer to an

“independent” Allstate agent, including her husband.

¶ 26    Allstate additionally argues that dismissal was proper under section 2-619 of the Code,

because its supporting affidavit provided an “affirmative matter” that negated Mary’s allegations

and “directly refute[d]” her claim that Allstate “acted arbitrarily, capriciously, or with improper

motive.” Specifically, Allstate contends that the EA Manual contradicts Mary’s claim of bad

faith, as it provided that Allstate “will not approve the transfer” to “an Allstate Independent

Agent.” Allstate otherwise claims that Mary’s allegation of harm is negated by the facts that

(1) the EA Manual provides that agents are entitled to a “termination payment” if they “decline

or are unable to sell” their book of business and (2) Mary received a termination payment as

compensation and thus cannot maintain a breach of contract claim. Allstate also suggests that the

        3
         Notably, Allstate did not cite this language from the EA Manual in its argument to the trial court.
Mary’s reply asserts that, as a result, Allstate cannot rely on this provision on appeal. We disagree, since
“[o]n appeal, a reviewing court may affirm the trial court’s ruling for any reasons supported by the record
regardless of the basis relied upon by the trial court.” Pekin Insurance Co. v. AAA-1 Masonry &
Tuckpointing, Inc., 2017 IL App (1st) 160200, ¶ 21.

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notice of termination sent to Mary constitutes an “affirmative matter” defeating her claim, as the

notice informed her of her right to either sell to an approved buyer or receive a termination

payment. Thus, Allstate argues that dismissal under section 2-619 was warranted, as the affidavit

and exhibits thereto establish that Allstate complied with the EA Agreement.

¶ 27   Mary’s reply argues that Allstate cannot rely on the language in the EA Manual stating

that Allstate will not approve a transfer to “Any person who is acting as an agent or broker for

another insurance company, including an Allstate Independent Agent.” Mary emphasizes that

this language is followed by a “Note” stating: “In instances where the proposed transferee is a

spouse or other family member of the *** Agent, the Company will consider making an

exception to the above limitations based on the facts and circumstances presented.” Based on

that additional note, Mary argues that Allstate retained discretion to approve a transfer to her

husband and thus retained the duty to exercise that discretion in good faith.

¶ 28   We first note, as a procedural matter, that although Allstate’s motion to dismiss was

captioned as a motion under section 2-619, the trial court correctly construed it as additionally

seeking dismissal under section 2-615, because the motion argued that the second amended

complaint’s allegations were legally insufficient. See Gagnon v. Schickel, 2012 IL App (1st)

120645, ¶ 17 (explaining that “[a] section 2-615 motion to dismiss attacks the legal sufficiency

of the complaint” whereas a section 2-619 motion “does not attack the legal sufficiency of the

claim but rather attacks the complaint by raising defenses or other affirmative matters *** which

would defeat the plaintiff’s claims”). Absent prejudice to the nonmoving party, a reviewing court

may treat an improperly labeled motion as if it were properly filed under section 2-615. Vicars-

Duncan v. Tactikos, 2014 IL App (4th) 131064, ¶ 18. Mary does not suggest that she was

prejudiced by Allstate’s failure to specify that its motion sought dismissal under section 2-615.



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Thus, we will review whether the second amended complaint was properly dismissed, under

either section 2-615 or section 2-619. “We review dismissals under either statute de novo,

drawing all reasonable inferences in favor of the nonmovant.” Lake Point Tower Condominium

Ass’n v. Waller, 2017 IL App (1st) 162072, ¶ 11.

¶ 29    We first discuss whether dismissal was proper pursuant to section 2-615 of the Code. A

section 2-615 motion to dismiss “tests the legal sufficiency of the complaint based on defects

apparent on its face.” Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139,

¶ 25. “A section 2-615(a) motion presents the question of whether the facts alleged in the

complaint, viewed in the light most favorable to the plaintiff, and taking all well-pleaded facts

and all reasonable inferences that may be drawn from those facts as true, are sufficient to state a

cause of action upon which relief may be granted. [Citations.] [A] cause of action should not be

dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved

that would entitle the plaintiff to recovery. [Citations.]” Id.

¶ 30    We also note that the EA Agreement, as an exhibit to the second amended complaint, is

considered part of the complaint for purposes of reviewing the sufficiency of the pleading. See

Gagnon, 2012 IL App (1st) 120645, ¶ 18 (“An exhibit attached to the complaint becomes part of

the pleading for every purpose, including the decision on a motion to dismiss.”). On the other

hand, the EA Manual—which was not attached to the second amended complaint—does not

factor into our review of the sufficiency of the pleadings for purposes of section 2-615.

¶ 31    We thus review whether the allegations of the second amended complaint stated a claim

for breach of the EA Agreement, arising from a breach of the implied covenant of good faith and

fair dealing. “In order to state a cause of action for breach of contract, a plaintiff must plead:

(1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) a



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breach of the subject contract by the defendant; and (4) that the defendant’s breach resulted in

damages.” McCleary v. Wells Fargo Securities, L.L.C., 2015 IL App (1st) 141287, ¶ 19.

¶ 32   Our court in McCleary explained the implied duty of good faith as follows:

               “Every contract contains an implied covenant of good faith and fair

               dealing. [Citation.] The purpose of this duty ‘is to ensure that

               parties do not take advantage of each other in a way that could not

               have been contemplated at the time the contract was drafted or do

               anything that will destroy the other party’s right to receive the

               benefit of the contract.’ [Citation.] Disputes involving the exercise

               of good faith arise when one party is given broad discretion in

               performing its obligations under the contract. [Citation.] ‘In order

               to plead a breach of the covenant of good faith and fair dealing, a

               plaintiff must plead [the] existence of contractual discretion.’

               [Citation.] ‘Where a contract specifically vests one of the parties

               with broad discretion in performing a term of the contract, the

               covenant of good faith and fair dealing requires that the discretion

               be exercised ‘reasonably and with proper motive, not arbitrarily,

               capriciously, or in a manner inconsistent with the reasonable

               expectations of the parties.’ ” Id.

¶ 33   “A plaintiff sustains a cause of action for breach of contract for abuse of discretion based

on a violation of the implied covenant of good faith and fair dealing by alleging that defendant

‘exercised its discretion in a manner contrary to the reasonable expectations of the parties.’ ” Id.

¶ 21 (quoting Wilson v. Career Education Corp., 729 F.3d 665, 675 (7th Cir. 2013)). Thus, in



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McCleary, we found that the plaintiff had stated a claim for breach of the implied covenant of

good faith and fair dealing, based on his employer’s failure to give him a bonus after he met

relevant bonus criteria. See id. ¶ 26 (“Where a plaintiff has pled that he had a reasonable

expectation to a bonus from a defendant that abused its broad contractual discretion by arbitrarily

withholding the bonus in a manner not reasonably anticipated by the parties at the time of

contract formation, a valid cause of action has been sufficiently pled to withstand a section 2-615

motion to dismiss.”).

¶ 34   We conclude, drawing reasonable inferences from her pleading in Mary’s favor, that

dismissal was not warranted under section 2-615. That is, the second amended complaint alleged

facts sufficient to plead that Allstate abused its contractual discretion when it denied the

proposed transfer to Mary’s husband, in breach of its implied duty to exercise its discretion in

good faith. The pleading alleged a contract, the EA Agreement, that afforded Allstate discretion

in whether to approve a sale to Mary’s proposed transferee. As Allstate acknowledged in its

briefing and on oral argument, Allstate was bound by the implied duty to exercise its discretion

in good faith. In turn, Mary had a reasonable expectation that Allstate would not deny the sale to

her proposed transferee, her husband Buddy, for a bad-faith, arbitrary, or capricious reason.

Further, Mary alleges specific facts supporting a reasonable inference that Buddy was qualified

to be the transferee, as he allegedly served as a successful independent Allstate insurance agent

for several years. Mary alleges that the transfer to Buddy, an otherwise qualified candidate, was

disapproved for an arbitrary or capricious reason—that is, Allstate refused to approve the transfer

to Buddy “solely for the benefit of Faye McKnight,” the spouse of Mary’s manager, whose

agency was in competition with Buddy’s agency.




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¶ 35    We reiterate that, at this stage, Mary only needs to plead facts supporting reasonable

inferences. The second amended complaint pleads facts sufficient to allege a bad-faith reason for

Allstate’s conduct. The parties may explore, in subsequent discovery, whether there is any

factual evidence supporting or refuting Allstate’s alleged improper motive. That is, we are not

deciding whether, in fact, Allstate was motivated by bad faith or some other reason. The parties

may explore such factual issues in discovery, upon motions for summary judgment, or at an

eventual trial.

¶ 36    We recognize that our court reached a different result in Barille v. Sears Roebuck & Co.,

289 Ill. App. 3d 171 (1997), which is heavily relied upon by Allstate and was relied upon by the

trial court. Although that case also discussed a breach of contract claim against Allstate by a

former agent, we find Barille distinguishable.

¶ 37    The plaintiff in Barille signed an “agent employment agreement *** with Allstate and

became an Allstate insurance agent.” Id. at 173. The plaintiff subsequently sold Allstate

insurance policies through Allstate’s “Neighborhood Office Agent” (NOA) program. Id.

However, the plaintiff “incurred financial losses and eventually terminated her relationship with

Allstate.” Id. The Barille plaintiff filed a complaint against Allstate, including counts for breach

of contract and other claims, which was dismissed under section 2-615 of the Code. Id. at 174.

¶ 38    With respect to the breach of contract claim, the Barille plaintiff argued on appeal that

she sufficiently pleaded that Allstate had

        “a duty of good faith and fair dealing, which require[d] Allstate to act reasonably and

        with proper motive when exercising its discretion; and that Allstate abused its discretion

        by unreasonably increasing her costs of doing business, thereby causing her to go out of

        business and then retaining her book of business.” Id.



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Our court recognized that the duty of good faith and fair dealing “requires the party vested with

discretion under the contract to exercise that discretion reasonably and with proper motive” and

not “arbitrarily, capriciously or in a manner inconsistent with the reasonable expectations of the

parties.” (Internal quotation marks omitted.) Id. at 175.

¶ 39   However, our court upheld the dismissal, reasoning that:

               “[T]he actions complained of by Barille *** were exercised within

               the discretion granted Allstate pursuant to the contract. The terms

               of the contract clearly and unambiguously notified Barille that

               Allstate reserved the right to make any changes in the terms and

               conditions of her employment as Allstate deemed necessary and

               appropriate in furtherance of its business objectives subject to the

               terms and conditions of the contract.

                       The contract also stated that the compensation rules and

               amounts set forth in Barille’s employment manual may be

               amended from time to time and that, due to the inherent

               uncertainty of business conditions, Allstate reserved the right to

               increase or decrease any compensation amounts and change the

               compensation rules at any time ***.” Id.

¶ 40   We further stated that, as “Barille does not allege that she did not understand the explicit

terms of the parties’ contract,” her “execution of the contract negates any inference that

Allstate’s actions were unreasonable and exercised without proper motive so as to constitute a

breach of contract.” Id. at 175-76.




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¶ 41   We recognize that the contract in Barille, as in this case, afforded Allstate a large degree

of contractual discretion. We also recognize that “[p]arties are entitled to enforce the terms of

negotiated contracts to the letter without being mulcted[4] for lack of good faith.” (Internal

quotation marks omitted.) Id. at 176.

¶ 42   Nevertheless, we find that Barille is distinguishable, as the plaintiff in that case did not

make specific factual allegations supporting an inference of bad faith or improper motive by

Allstate in exercising its contractual discretion. The plaintiff in Barille pleaded generally that

Allstate “abused its discretion by unreasonably increasing her costs of doing business” (id. at

174), yet did not plead specific, concrete facts suggesting any improper, arbitrary, or capricious

motivation for Allstate’s actions. That is, no factual circumstances were alleged in Barille to

suggest that Allstate implemented any changes affecting the plaintiff’s agency in bad faith, rather

than reasonably exercising its discretion to adjust to the “inherent uncertainty of business

conditions,” as disclosed in the contract. Id. at 175.

¶ 43   In contrast, we believe that Mary’s second amended complaint has pleaded facts that

sufficiently allege an improper motive, amounting to an abuse of Allstate’s contractual

discretion, in violation of its implied duty of good faith and fair dealing. Mary pleads that

Allstate denied her proposed transfer to Buddy not for any legitimate business reason but solely

in order to benefit Ray, her former manager, by transferring Mary’s former book of business to

his spouse. Mary offers specific factual allegations that support an inference of improper motive.

Specifically, she pleads that her husband, Buddy, successfully operated as an Allstate

independent insurance agent for a number of years. These allegations support a reasonable

inference that, since Buddy was previously found to be qualified to sell Allstate policies, he


       4
       “Mulct” means “to punish by a fine” or to defraud. See Merriam-Webster Online Dictionary,
www.merriam-webster.com/dictionary/mulct [https://perma.cc/74CF-58V9] (last visited Nov. 2, 2018).

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would be qualified to manage Mary’s book of business. In turn, this inference supports Mary’s

reasonable expectation that her proposed transfer to Buddy would be approved by Allstate. 5

Further, the second amended complaint alleges a specific, bad faith reason for Allstate’s denial

of the proposed transfer. That is, Mary alleges that the transfer to her spouse was denied, solely

in order to facilitate the subsequent transfer of her former book of business to Faye, the spouse of

Mary’s former supervisor, who directly competed with Mary’s husband’s agency. Although

Allstate contends that the subsequent transfer is irrelevant in light of its contractual discretion to

deny Mary’s requested transfer to Buddy, we find that, at the pleading stage, this allegation

support a reasonable inference in Mary’s favor as to Allstate’s improper motive. We find that the

second amended complaint sufficiently alleges that Allstate exercised its contractual discretion in

a manner that was arbitrary, capricious, or contrary to the reasonable expectations of the parties.

Thus, it states a claim for breach of the implied duty of good faith and fair dealing. Accordingly,

we conclude that the trial court erred in dismissing the second amended complaint under section

2-615 of the Code.

¶ 44   We turn to the trial court’s separate determination that dismissal was also warranted

under section 2-619 of the Code. 735 ILCS 5/2-619(a)(9) (West 2014) (permitting defendant to

seek dismissal on the ground “[t]hat the claim asserted against defendant is barred by other

affirmative matter avoiding the legal effect of or defeating the claim”). A motion to dismiss

under this provision “admits the legal sufficiency of the complaint, admits all well-pleaded facts

and all reasonable inferences therefrom, and asserts an affirmative matter outside the complaint

bars or defeats the cause of action.” Reynolds, 2013 IL App (4th) 120139, ¶ 31. “An affirmative

matter *** is something in the nature of a defense that negates the cause of action completely or

       5
         We note that, as the EA Manual was not part of the complaint, for purposes of reviewing
dismissal under section 2-615 of the Code, we need not consider the EA Manual’s language stating that
Allstate would not approve a transfer to an “independent” Allstate agent, such as Mary’s husband.

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refutes crucial conclusions of law or conclusions of material fact contained in or inferred from

the complaint. [Citation.]” (Internal quotation marks omitted.) Dewan v. Ford Motor Co., 363 Ill.

App. 3d 365, 368 (2005).

¶ 45   “When ruling on the section 2-619(a)(9) motion, the court construes the pleadings ‘in the

light most favorable to the nonmoving party’ [citation] and should only grant the motion ‘if the

plaintiff can prove no set of facts that would support a cause of action’ [citation].” Reynolds,

2013 IL App (4th) 120139, ¶ 31. “The reviewing court accepts all well-pleaded facts as true and

draws all reasonable inferences in favor of the plaintiff.” Dewan, 363 Ill. App. 3d at 368. A

dismissal under section 2-619 is reviewed de novo. Id.

¶ 46   Allstate contends that the documents attached to its supporting affidavit, including the

EA Manual, “directly refute” the claim that Allstate “acted arbitrarily, capriciously, or with

improper motive,” justifying dismissal under section 2-619. We reject Allstate’s contentions.

¶ 47   First, Allstate relies on the language in the EA Manual that “the Company will not

approve the transfer of any shares or interest in the agency” to “[a]ny person who is acting as an

agent or broker for another insurance company, including an Allstate Independent Agent.” As

Allstate points out, the second amended complaint alleges that Buddy was an independent

Allstate agent. Thus, initially, Allstate’s reliance on this language of the EA Manual appears to

be in its favor. However, as Mary’s reply brief points out, directly after the language relied on by

Allstate, the EA Manual adds a “Note” stating: “In instances where the proposed transferee is a

spouse *** the Company [Allstate] will consider making an exception to the above limitations

based on the facts and circumstances presented.” Allstate fails to address this language anywhere

in its brief. At oral argument, Allstate argued that the “Note” simply recognized the possibility

that Allstate would permit a transfer to a spouse but that it did not create any reasonable



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expectation that such a transfer would be approved. Allstate essentially argues that the “Note” is

superfluous in light of the other contractual provisions setting forth its unlimited discretion. This

argument, taken to its logical conclusion, suggests that Allstate is absolved of responsibility to

act in good faith. During oral argument, Allstate suggested that Mary could not have had a

reasonable expectation that she could transfer her book of business to her spouse.

¶ 48   We disagree with Allstate and find that this “Note” is significant, as it expressly qualifies

the previous language that Allstate “will not approve” certain categories of transferees. Keeping

in mind that we are to draw reasonable inferences in favor of the plaintiff (Dewan, 363 Ill. App.

3d at 368), the “Note” indicates that where, as in this case, the proposed transferee is a spouse of

the agent, Allstate will use its discretion in good faith and deal fairly “based on the facts and

circumstances presented,” to “consider making an exception” to the previously expressed

limitations. The “Note” expressly indicated that Allstate retained discretion to approve a transfer

to a spouse who was an independent agent, such as Mary’s husband. In light of this “Note,” we

cannot say that the other EA Manual language relied on by Allstate is an affirmative matter that

negates Mary’s claim.

¶ 49   We also reject Allstate’s argument that Mary’s allegation that she was “harmed by

Allstate’s conduct” is negated by (1) the EA Manual’s provision that she would receive a

“termination payment” if she was unable to sell her economic interest in her book of business or

(2) the fact that she accepted a termination payment. Although it is not disputed that she received

a termination payment, this does not negate her claim that she was harmed by Allstate’s denial of

her proposed sale of her economic interest. The second amended complaint expressly pleads that,

although she received a $40,000 termination payment, this amount “was far less than the value of

Plaintiff’s economic interest in her agency.”



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¶ 50    Finally, we reject Allstate’s claim that the notice of termination was an affirmative

matter defeating Mary’s claim. Allstate emphasizes that the notice of termination explained that

Mary could sell only to an “approved buyer,” that “Allstate has the absolute right of approval of

the buyer,” and that “[i]f [Mary] does not present a buyer or the buyer [Mary] presents is not

approved, [Allstate] will process [a] termination payment.” Through this language, the notice of

termination simply reiterated Allstate’s contractual discretion, as already set forth elsewhere in

the EA Agreement and EA Manual. However, that language does not refute Mary’s claim that

Allstate abused its contractual discretion and acted in bad faith when it disapproved her proposed

transfer to her husband for an arbitrary or capricious reason.

¶ 51   In short, we do not find that the materials attached to Allstate’s affidavit constitute an

“affirmative matter” that negates Mary’s cause of action or refutes conclusions of law or

conclusions of material fact from the second amended complaint. Thus, we find that the second

amended complaint was not subject to dismissal under section 2-619 of the Code.

¶ 52   For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

and remand the matter for further proceedings consistent with this opinion.

¶ 53   Reversed and remanded.




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