Sabrina Roppo v. Travelers Commercial Insurance , 869 F.3d 568 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3171
SABRINA ROPPO,
individually and on behalf of others similarly situated,
Plaintiff-Appellant,
v.
TRAVELERS COMMERCIAL INSURANCE CO., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-05569 — Edmond E. Chang, Judge.
____________________
ARGUED SEPTEMBER 29, 2016 — DECIDED AUGUST 28, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir-
cuit Judges.
RIPPLE, Circuit Judge. This dispute arises out of representa-
tion provided by Travelers Commercial Insurance Co. (“Trav-
elers”) to one of its insureds, Jeffery Block, following a motor
vehicle accident. During the course of that personal-injury
suit, Travelers and the attorneys it retained for Block dis-
closed only the limits of Block’s automobile liability policy;
2 No. 15-3171
they did not disclose the existence of his additional umbrella
policy. Ms. Roppo, the plaintiff in the underlying personal in-
jury action, eventually learned of the umbrella policy and
then settled the case.
She brought this proposed class action in state court
against Travelers. Basing the action on several state law
claims, she challenged Travelers’s alleged practice of not dis-
closing the existence of umbrella policies. Travelers removed
the action to the district court. Ms. Roppo then filed a motion
to remand, claiming that the district court lacked jurisdiction
under the Class Action Fairness Act, 28 U.S.C. § 1332(d). The
district court denied Ms. Roppo’s motion to remand, but al-
lowed her to file a second amended complaint, which added
Block’s defense attorney, Jason Hitchings, and his law firm,
Maisel & Associates, as defendants. Ms. Roppo later filed a
third amended complaint, adding an additional cause of ac-
tion under the Racketeer Influenced and Corrupt Organiza-
tions Act, 18 U.S.C. § 1962(c). The defendants then filed a mo-
tion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
The district court granted this motion and dismissed with
prejudice the complaint’s eleven counts.
Ms. Roppo now renews her argument that federal juris-
diction is lacking and therefore asks us to vacate the district
court’s judgment. She also contends that, even if the district
court had jurisdiction, we should reverse its judgment be-
cause the third amended complaint sufficiently states claims
of fraudulent misrepresentation, negligent misrepresenta-
tion, and negligence under Illinois law, as well as violations
of the Illinois Insurance Code and the Illinois Consumer
Fraud and Deceptive Business Practices Act. We cannot agree
No. 15-3171 3
with her submission and, for the reasons set forth in this opin-
ion, we affirm the district court’s dismissal of Ms. Roppo’s
third amended complaint.
I
BACKGROUND
A.
Ms. Roppo’s complaint recites that, on July 11, 2011, she
suffered serious personal injuries in a motor vehicle accident
with Jeffrey Block, a Travelers’s insured. At the time of the
accident, Block carried two types of insurance with Travelers:
an automobile liability policy with a policy limit of $500,000
and a general umbrella policy with a policy limit of
$1,000,000. The general umbrella policy would be triggered if
Block’s primary automobile policy limits were exhausted.
On August 9, 2011, Ms. Roppo’s attorney requested that a
Travelers claims adjuster provide Block’s policy limits. On
August 30, 2011, Travelers informed Ms. Roppo’s attorney
that, on the date of the accident, Block had a $500,000 com-
bined single limit for property damage and bodily injury lia-
bility claims. Over a year later, in December 2012, Ms. Roppo
underwent foot surgery to repair several bones that were bro-
ken in the accident. She then filed the underlying personal in-
jury action against Block in state court. According to the com-
plaint, between December 21, 2012, and January 22, 2013,
Travelers again represented to Ms. Roppo’s attorney that
Block had only $500,000 of coverage available for the claim.
4 No. 15-3171
In early 2013, as part of discovery in the underlying per-
sonal injury suit, Ms. Roppo’s attorney again requested infor-
mation regarding Block’s insurance policies. This request ex-
plicitly included information regarding Block’s “umbrella or
excess insurance coverage.” 1 Mr. Hitchings, representing
Block in the personal injury suit, 2 disclosed only Block’s
$500,000 automobile policy. According to the complaint,
Ms. Roppo’s attorney had been “lied to in another case” about
Travelers’s policy limits, and therefore continued to question
whether Block also carried an umbrella policy. 3 Finally, on
June 13, 2013, Mr. Hitchings disclosed the $1,000,000 umbrella
policy. On May 9, 2014, Ms. Roppo settled her claim against
Block for $750,000.
B.
1.
One month after she learned of the existence of the um-
brella policy, in July 2013, Ms. Roppo filed a putative class ac-
tion in the Circuit Court of Cook County, Illinois, on behalf of
“all Illinois persons who made a personal injury motor vehi-
cle claim[] for accidents occurring after August 12, 1988 and
had the Travelers Insurance Company[4] … misrepresent and
1 R.63, ¶ 47 (emphasis removed).
2The complaint asserts that Roanne Maisel, doing business as Maisel &
Associates, supervised Mr. Hitchings.
3 Id. ¶ 26.
4 In its removal papers, Travelers explained that the named defendant in
the new state court action does not exist: “The alleged tortfeasor’s auto
No. 15-3171 5
conceal the actual policy limits of their insured’s facing claims
from a third-party.” 5 In Count I, Ms. Roppo alleged that Trav-
elers had engaged in fraudulent concealment: through both
Travelers’s claim representative, Rachel Grace, and the attor-
ney Travelers had retained on behalf of Block, Mr. Hitchings,
Travelers had misrepresented and concealed the liability lim-
its on Block’s vehicle. In Count II, Ms. Roppo alleged an im-
plied private right of action under 215 ILCS 5/143.24b, which
requires that an insured “disclose the dollar amount of liabil-
ity coverage under the insured’s personal private passenger
automobile liability insurance policy” when a specific request
has been made. 6
Travelers then removed the action to federal court under
the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d),
1453(b). In its moving papers, Travelers argued that all of the
requirements for removal under CAFA had been met:
(1) Ms. Roppo had alleged a class size of “approximately 500
persons,” far exceeding CAFA’s requirement of at least 100
persons; 7 (2) there was the necessary diversity; and (3) based
on the affidavit submitted by Gary G. Hafner, Travelers’s Di-
rector of Underwriting, the amount in controversy ranged
policy was issued by Travelers Commercial Insurance Company and the
alleged tortfeasor’s personal liability umbrella policy was issued by The
Travelers Indemnity Company of America.” R.1 at 1 n.1. The complaint
later was amended to name the correct defendants. For ease of discussion,
we refer to the defendants collectively as Travelers.
5 R.1-2, ¶ 2.
6 Id. ¶ 33 (internal quotation marks omitted).
7 See R.1 at 3 (internal quotation marks omitted) (citing 28 U.S.C.
§ 1332(d)(5)).
6 No. 15-3171
from the CAFA minimum of $5 million, see 28 U.S.C.
§ 1332(d)(2), to $500,000,000, the total amount of the insureds’
coverage that, allegedly, had been concealed by Travelers. 8
One week later, Travelers moved to dismiss Ms. Roppo’s
complaint in the district court for failure to state a claim for
relief under Federal Rule of Civil Procedure 12(b)(6).
In response, Ms. Roppo filed a motion for leave to file a
first amended complaint and also moved to remand. The new
five-count complaint alleged the following causes of action:
(1) fraudulent concealment against both Travelers and its
claims representative, Ms. Grace; (2) negligence against the
insured, Block, for failing to answer accurately interrogatories
related to the limits of his insurance policies; (3) negligence
against Mr. Hitchings, for his part in responding to the same
interrogatories; (4) negligence against Maisel & Associates,
Mr. Hitchings’s law firm, for failing to train him; and (5) a vi-
olation of 215 ILCS 5/143.24b against both Travelers and
Ms. Grace. 9 In her motion to remand, Ms. Roppo asserted that
the proposed new defendants all were citizens of Illinois
“whose alleged conduct form[ed] a significant basis for the
claims asserted.” 10 Therefore, the case fell within CAFA’s “lo-
cal controversy” exception, 28 U.S.C. § 1332(d)(4)(A). 11 Trav-
elers opposed both motions.
8 See R.1-1 at 2–3.
9 See R.15; R.15-1 at 19–30.
10 R.17 at 2 (quoting 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb)).
11 See id. at 1.
No. 15-3171 7
In her reply brief in support of her motion to remand,
Ms. Roppo proposed a new basis for remanding the action:
Travelers had failed to establish CAFA’s required amount in
controversy, $5,000,000, and the minimum number of class
members, 100. 12 She also urged that, even if the court had ju-
risdiction, it should exercise its discretion to remand under 28
U.S.C. § 1332(d)(3) because at least one-third of the proposed
class members were Illinois citizens, “Illinois has a distinct
nexus with the class members, the alleged harm and the de-
fendants,” and “the other requirements of … § 1332(d)(3)
[we]re easily met.” 13
Before the court could rule on the pending motions,
Ms. Roppo moved for leave to file a second amended com-
plaint. 14 Ms. Roppo’s proposed complaint consisted of eight
counts: three counts of fraudulent concealment against Trav-
elers, Maisel & Associates, and Mr. Hitchings (Counts I–III);
negligence against Mr. Hitchings and Maisel & Associates
(Counts IV–V); a violation of 215 ILCS 5/143.24b against Trav-
elers (Count VI); and violations of the Illinois Consumer
Fraud and Deceptive Business Practices Act (“ICFA”) against
Travelers and Maisel & Associations (Counts VII–VIII).
After more briefing, the district court ultimately granted
Ms. Roppo’s motion for leave to file her second amended
complaint, but denied the motion to remand. The court noted
12 See R.26 at 4–6.
13Id. at 10. Among the other requirements of 28 U.S.C. § 1332(d)(3) is that
“the primary defendants are citizens of the State in which the action was
originally filed.”
14 See R.31.
8 No. 15-3171
that Ms. Roppo “herself [had] describe[d] the size of the class
to be ‘approximately 500 persons’”; because there was “no ba-
sis in the record that the Plaintiff’s estimate was incorrect,”
Travelers could rely on that representation in establishing the
class-number requirement. 15 Regarding the amount in contro-
versy, the district court found it compelling that “[e]ven if the
alleged additional damages of each putative class member
were as small as $10,000,” as Travelers had estimated, “then
the aggregate damages for the putative class would neverthe-
less exceed the requisite amount of $5 million (i.e., 500 x
$10,000 = $5 million).” 16 Finally, the district court also con-
cluded that the action did not fall within the local controversy
exception because Mr. Hitchings and Maisel & Associates
only defended Block in the suit against Ms. Roppo and were
not “defendant[s] from whom significant relief [was]
sought.” 17 For the same reasons, Mr. Hitchings and Maisel &
Associates were not “primary” defendants with respect to the
class as a whole:
for the discretionary exception to apply at all, the “pri-
mary” defendants must be the Illinois defendants. But
… the record does not bear out that the local defend-
ants—Hitchings and Maisel & Associates—are the
“primary” defendants with regard to the class as a
15 R.49 at 8.
16 Id. at 10 (alteration in original) (internal quotation marks omitted) (quot-
ing R.39 at 4).
17 Id. at 12 (internal quotation marks omitted).
No. 15-3171 9
whole … . … Travelers is the primary defendant. Trav-
elers, however is a citizen of Connecticut. … The dis-
cretionary exception has not been triggered.[18]
2.
Following the district court’s denial of her motion to re-
mand, Ms. Roppo sought permission from this court, pursu-
ant to 28 U.S.C. § 1453(c)(1), to file an interlocutory appeal
challenging the district court’s denial of her motion. She
claimed that the appeal, which focused on whether Travelers
had established the requisite amount in controversy, was a
matter of first impression and would help us develop a body
of law interpreting CAFA. We denied the motion.
3.
After the denial of leave to appeal, Ms. Roppo sought per-
mission from the district court to file a third amended com-
plaint. The district court granted the motion. The third
amended complaint included all eight counts set forth in the
second amended complaint as well as a claim of “Bad Faith
Insurance Practices” against Travelers (Count IX), a claim of
negligent misrepresentation of the policy limits against Trav-
elers (Count X), and a civil action under the Racketeer Influ-
ence and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1962(c), against Travelers (Count XI). 19
18 Id. at 14 (internal citation omitted).
19In the third amended complaint filed with the court, Ms. Roppo does
not address any claims against “Maisel & Associates,” as she had in her
10 No. 15-3171
The defendants again moved to dismiss the complaint un-
der Rule 12(b)(6); the district court granted the motion. In ex-
plaining its decision, the court noted several deficiencies in
Ms. Roppo’s allegations. It noted, first of all, that the com-
plaint lacked the necessary allegations of reliance for her
fraud and negligent misrepresentation claims (Counts I–III,
X). The complaint also failed to allege that Mr. Hitchings or
any member of his firm owed Ms. Roppo a duty of care
(Counts IV–V). The court could discern no violation of 215
ILCS 5/143.24b because Travelers had made the only disclo-
sure required by the statute—the “amount of liability cover-
age under the insured’s personal private passenger automo-
bile liability insurance policy” (Count VI). 20 The court further
determined that the claims under ICFA (Counts VII–VIII)
failed in the absence of any allegation of “consumer nexus.”21
The claim under the Illinois Insurance Code, 215 ILCS 5/155
(Count IX), also failed because the statute did not provide
penalties to third parties. Finally, turning to the RICO allega-
tion, the court determined that Ms. Roppo had not only failed
to plead adequately a RICO enterprise—a failing she con-
ceded—but also had failed to plead with particularity the un-
derlying predicate acts of fraud (Count XI).
Ms. Roppo moved for reconsideration. The motion was
denied, and Ms. Roppo timely appealed.
motion for leave; instead, pursuant to the district court’s order, the rele-
vant counts were brought against Roanne Maisel doing business as Maisel
& Associates. See R.62.
20 R.78 at 18.
21 Id. at 21.
No. 15-3171 11
II
DISCUSSION
A.
In this appeal, Ms. Roppo first maintains that the district
court lacked jurisdiction over this action because the statutory
requirements of CAFA were not met. We review questions of
subject matter jurisdiction, including the denial of a motion to
remand, de novo. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 758 (7th Cir. 2009).
1.
Congress enacted CAFA in 2005 “to facilitate adjudication
of certain class actions in federal court.” Dart v. Cherokee Basin
Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). To meet
these objectives, CAFA expands jurisdiction for diversity
class actions by creating federal subject matter jurisdiction if:
(1) a class has 100 or more class members; (2) at least one class
member is diverse from at least one defendant (“minimal di-
versity”); and (3) there is more than $5 million, exclusive of
interest and costs, in controversy in the aggregate. 28 U.S.C.
§ 1332(d); Hart v. FedEx Ground Package Sys., 457 F.3d 675, 677
(7th Cir. 2006). Consistent with this purpose, CAFA also loos-
ens removal requirements: any defendant, including in-state
defendants, can remove; a defendant can remove even if all
12 No. 15-3171
defendants do not consent; and there is no one-year limit on
the timing of removal. 28 U.S.C. § 1453(b). 22
CAFA does not alter the burden of establishing the district
court’s jurisdiction. As in removal in non-CAFA diversity ac-
tions, the party asserting federal jurisdiction under CAFA
must establish that the requirements of § 1332(d) are satisfied.
Hart, 457 F.3d at 679. 23 To meet this burden, a defendant seek-
ing to remove to federal court must file in the district court a
notice of removal “containing a short and plain statement of
the grounds for removal.” 28 U.S.C. § 1446(a). “By design,
§ 1446(a) tracks the general pleading requirement stated in
22 Ms. Roppo argues that the removal statute ought to be construed nar-
rowly and that “there is a strong presumption in favor of remand.” Ap-
pellant’s Br. 13 (quoting Fuller v. BNSF Ry. Co., 472 F. Supp. 2d 1088, 1091
(S.D. Ill. 2007)). Although the Supreme Court has left open the possibility
of such a presumption “in mine-run diversity cases,” that presumption
does not operate with respect to CAFA removal: “It suffices to point out
that no antiremoval presumption attends cases invoking CAFA, which
Congress enacted to facilitate adjudication of certain class actions in fed-
eral court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547,
554 (2014).
23 All of our sister circuits that have addressed this issue have reached the
same conclusion. See Wurtz v. Rawlings Co., LLC, 761 F.3d 232, 239 (2d Cir.
2014); Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th
Cir. 2013); Erie Ins. Exch. v. Erie Indem. Co., 722 F.3d 154, 158 (3d Cir. 2013);
Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1141 (9th Cir. 2013);
Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822–23 (8th Cir. 2010);
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010); Amoche
v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009); Strawn v.
AT&T Mobility LLC, 530 F.3d 293, 296–98 (4th Cir. 2008); Smith v. Nation-
wide Prop. & Cas. Ins. Co., 505 F.3d 401, 404–05 (6th Cir. 2007).
No. 15-3171 13
Rule 8(a) of the Federal Rules of Civil Procedure.” Dart Cher-
okee Basin Operating Co., 135 S. Ct. at 553. As the Supreme
Court explained in Dart Cherokee Basin Operating Co., “Con-
gress, by borrowing the familiar ‘short and plain statement’
standard from Rule 8(a), intended to ‘simplify the ‘pleading’
requirements for removal’ and to clarify that courts should
‘apply the same liberal rules [to removal allegations] that are
applied to other matters of pleading.’” Id. (alteration in origi-
nal) (quoting H.R. Rep. No. 100-889, p. 71 (1988)). Just as we
generally accept the plaintiff’s good-faith allegations of the
amount in controversy to establish diversity jurisdiction, 24
“when a defendant seeks federal-court adjudication, the de-
fendant’s amount-in-controversy allegation should be ac-
cepted when not contested by the plaintiff or questioned by
the court.” Id.If, however, the plaintiff challenges the defendant’s
amount in controversy allegation, 28 U.S.C. § 1446(c)(2)(B) in-
structs that removal is proper “if the district court finds, by
the preponderance of the evidence, that the amount in contro-
versy exceeds” the jurisdictional threshold. Id. (internal quo-
tation marks omitted) (quoting 28 U.S.C. § 1446(c)(2)(B)). The
Supreme Court has instructed that, “[i]n such a case, both
sides submit proof and the court decides … whether the
amount-in-controversy requirement has been satisfied.” Id. at
554.
24 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276 (1977)
(“‘[T]he sum claimed by the plaintiff controls if the claim is apparently
made in good faith.’” (alteration in original) (quoting St. Paul Mercury In-
dem. Co. v. Red Cab Co., 303 U.S. 283, 288–89 (1938))).
14 No. 15-3171
“We have acknowledged the difficulty a defendant faces
when the plaintiffs, who control the allegations of the com-
plaint, do not want to be in federal court and provide little
information about the value of their claims.” Blomberg v. Serv.
Corp. Int’l, 639 F.3d 761, 763 (7th Cir. 2011). A removing party
therefore only must establish the amount in controversy by a
good faith estimate that is “plausible and adequately sup-
ported by the evidence.” Id. “The party seeking removal does
not need to establish what damages the plaintiff will recover,
but only how much is in controversy between the parties.” Id.(emphasis added). “A removing defendant need not ‘confess
liability in order to show that the controversy exceeds the
threshold.’” Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir.
2008) (quoting Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 449 (7th Cir. 2005)). If the removing party is able to meet
this burden, then remand is appropriate only if the plaintiff
can establish the claim is for less than the requisite amount to
a “legal certainty.” Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d
536, 541 (7th Cir. 2006). 25
Our cases set forth several ways that the defendant may
meet this burden:
25 See also St. Paul Mercury Indem. Co., 303 U.S. at 288–89 (“The rule gov-
erning dismissal for want of jurisdiction in cases brought in the federal
court is that, unless the law gives a different rule, the sum claimed by the
plaintiff controls[] if the claim is apparently made in good faith. It must
appear to a legal certainty that the claim is really for less than the jurisdic-
tional amount to justify dismissal.”); Back Doctors Ltd. v. Metro. Prop. & Cas.
Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011) (“[T]he estimate of the dispute’s
stakes advanced by the proponent of federal jurisdiction controls unless a
recovery that large is legally impossible.”); Amoche, 556 F.3d at 43 (“[T]he
removing defendant must show a reasonable probability that the amount
in controversy exceeds $5 million.”).
No. 15-3171 15
by calculation from the complaint’s allegations (as in
Brill); by reference to the plaintiff’s informal estimates
or settlement demands (as in Rising-Moore [v. Red Roof
Inns, Inc., 435 F.3d 813 (7th Cir. 2006)]); or by introduc-
ing evidence, in the form of affidavits from the defend-
ant’s employees or experts, about how much it would
cost to satisfy the plaintiff’s demands (see Rubel v. Pfizer
Inc., 361 F.3d 1016 (7th Cir. 2004)).
Id. at 541–42. This list, however, “is not exclusive; any given
proponent of federal jurisdiction may find a better way to es-
tablish what the controversy between the parties amounts to,
and this demonstration may be made from either side’s view-
point (what a judgment would be worth to the plaintiff, or
what compliance with an injunction would cost the defend-
ant).” Id. at 542.
With these general principles in mind, we turn to an ex-
amination of the case before us.
2.
Our evaluation of the amount in controversy begins with
the allegations of the complaint that was removed to federal
court. 26 First, Ms. Roppo “estimated that the size of the class
26 See Spivey v. Vertrue, Inc., 528 F.3d 982, 985 (7th Cir. 2008) (considering
allegations in the complaint that the unauthorized charges were “common
to all Class Members” and “that making unauthorized charges is a stand-
ard practice” in determining amount in controversy); Andrews v. E.I. Du
Pont de Nemours & Co., 447 F.3d 510, 515 (7th Cir. 2006) (looking to allega-
tions in the complaint concerning the severity of plaintiff’s injuries to de-
termine whether the amount in controversy had been met); see also McPhail
v. Deere & Co., 529 F.3d 947, 955 (10th Cir. 2008) (“[T]he defendant may
16 No. 15-3171
consists of approximately 500 persons and is so numerous
that joinder of all its members before this Court is impractica-
ble.” 27 The proposed class encompassed “all Illinois persons
who made a personal injury motor vehicle claim[] for acci-
dents occurring after August 12, 1998 and had the Travelers
Insurance Company misrepresent and conceal the actual pol-
icy limits of tortfeasor by not disclosing the excess or umbrella
policy.” 28 The complaint further alleged that it was “an ac-
cepted practice of this insurance carrier” to engage in such
misrepresentations. 29
With respect to damages, the complaint set forth two types
of damages that members of the proposed class have suffered.
First were those that Ms. Roppo incurred. According to the
complaint, “the insurance company would have produced
settlement sums at an earlier time had the insurance compa-
nies initially honestly disclosed all applicable coverage and
policy limits”; 30 in other words, Ms. Roppo was deprived of
the time value of the increased settlement amount. The com-
plaint further alleged, however, that these damages paled in
comparison to the second kind of damages—an actual de-
crease in settlement amount due to the misinformation about
policy limits. The complaint explained that the “[c]lass mem-
bers with the greatest damages would be Plaintiffs[,] who,”
rely on an estimate of the potential damages from the allegations in the
complaint.”).
27 R.1-2, ¶ 22.
28 Id. ¶ 2.
29 Id.
30 Id. ¶ 36.
No. 15-3171 17
unlike Ms. Roppo, “settled their case for false policy limits
which were substantially less than the Plaintiffs’ actual dam-
ages.” 31 The complaint further stated that, “in a personal in-
jury case, there are only three issues that matter: (1) whose
fault was the injury; (2) what are the damages; and (3) what
are the policy limits of the insurance coverage.” 32 “Both sides
know that, realistically, the Plaintiff is extremely unlikely to
ever recover more than the policy limits”; 33 in other words,
policy limits are the de facto cap on damages. Whereas
Ms. Roppo “caught the fraud in time to minimize [her] dam-
ages,” that was not the case with other members of the pro-
spective class: “There may[]be thousands of other injured par-
ties that were seriously harmed by the insurance companies’
fraud and still are unaware that they have been victimized.” 34
In addition to these “compensatory damages,” the complaint
sought “punitive damages[ and] attorneys’ fees.” 35
Along with the complaint, Travelers attached to its re-
moval notice the affidavit of its underwriting director, who
attested to other relevant facts:
6. As a precondition for issuing an umbrella pol-
icy, Travelers Indemnity Company of America re-
quires policyholders in Illinois to have an underlying
auto liability policy with specified minimum coverage
amounts. From 1988 to present, the required minimum
31 Id. ¶ 2.
32 Id. ¶ 4.
33 Id. ¶ 5.
34 Id. ¶ 19.
35 Id. at 22.
18 No. 15-3171
coverage amounts for underlying auto liability policies
have been either a combined single limit of at least
$300,000 (or a split of $250,000/$500,000/$50,000) or a
combined single limit of at least $500,000 (or a split
limit of $500,000/$500,000/$100,000).
7. From 1988 to the present, the minimum limit of
liability available under a personal umbrella policy in
Illinois has been $1 million, with a maximum limit of
liability of either $5 million or $10 million.[36]
Travelers used this information as the basis for two calcu-
lations which, in its view, establishes the requisite amount in
controversy. First, Travelers seized on Ms. Roppo’s allegation
that the members of the class received a “‘substantially’ lower
settlement amount” because they were unaware of the um-
brella policy. 37 It then stated that, “[e]ven if the alleged addi-
tional damages of each putative class member were as small
as $10,000, then the aggregate damages for the putative class
would nevertheless exceed the requisite amount of $5 million
(i.e., 500 x $10,000 = $5 million).” 38 Second, Travelers calcu-
lated damages based on the increased policy limits provided
by the umbrella policies: “If each of the approximately 500 pu-
tative class members sought to recover the full value of an
umbrella policy, the aggregate damages for the putative class
would total over $500 million (i.e., 500 x $1 million minimum
umbrella limit = $500 million).” 39
36 R.1-1 at 3.
37 R.1 at 5.
38 Id.
39 Id.
No. 15-3171 19
3.
Ms. Roppo submits that Travelers has failed to meet its
burden with respect to both the number of plaintiffs as well
as the amount in controversy. She first maintains that the
number (500) that she employs in her complaint was simply
an estimate and that it is incumbent upon Travelers to estab-
lish that at least 100 individuals fall within this class. We can-
not accept this view.
Travelers may rely on the estimate of the class number set
forth in the complaint. Illinois Supreme Court Rule 137(a) re-
quires counsel to sign pleadings filed in state court, and that
signature certifies “that[,] to the best of [counsel’s]
knowledge, information, and belief formed after reasonable
inquiry[,] it is well grounded in fact.” Travelers should be able
to take counsel at his word. Although it is true that the com-
plaint states that “discovery will be required to determine
how many members there are in the class,” the complaint also
says that the 500 estimate is conservative. 40 The complaint al-
leges that the class could include plaintiffs whose injuries date
back to 1988. 41 Additionally, it notes that “[t]here may[]be
thousands of other injured parties.” 42 Given these representa-
tions, and the underlying duty of counsel in making them, we
believe that Travelers may rely on them.
With respect to the amount in controversy, Ms. Roppo
maintains that “the underlying policy limits do not establish
40 R.1-2, ¶ 22.
41 Id.
42 Id. ¶ 19.
20 No. 15-3171
the amount of damages to any members of the class. One
simply cannot tell from policy limits the amount of damages
suffered by a class member.” 43 Instead, she believes that the
district court should have required Travelers to establish how
many of its insureds’ cases “involved the fraudulent conceal-
ment of the umbrella policy from the claimant” and to aggre-
gate the damages attendant to those claims. 44
Ms. Roppo’s arguments are untenable, given her allega-
tions in the complaint. The complaint emphasizes the im-
portance of policy limits in determining settlement values:
they represent the maximum recovery that an injured party
likely will receive. 45 Given that, over the relevant time period,
Travelers’s minimum available umbrella coverage was
$1,000,000, injured parties who made claims against Travel-
ers’s insureds during that time would have had a minimum
of an additional $1,000,000 in potential recovery. If there were
even five members of the proposed class to whom the policy
limits were not revealed, the amount in controversy under
CAFA would be met based just on compensatory damages.
However, Ms. Roppo also seeks punitive damages, which fac-
tor into the amount-in-controversy calculation, see, e.g., Back
Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 831
(7th Cir. 2011). Given that courts in Illinois have affirmed jury
awards for fraud with multipliers higher than five, see Keeling
43 Appellant’s Br. 18.
44 Id. at 19.
45 In Ms. Roppo’s own case, the revelation of the umbrella policy in-
creased the settlement amount $250,000 above the automobile policy limit.
See R.63, ¶ 52.
No. 15-3171 21
v. Esurance Ins. Co., 660 F.3d 273, 275 (7th Cir. 2011), a single
class member with compensatory damages of $1 million
could be awarded as much as $5 million in punitive dam-
ages. 46 Moreover, according to the complaint, “there may[]be
thousands” of individuals that fall into this category, 47 be-
cause it was “an accepted practice of this insurance carrier” to
engage in such misrepresentations concerning umbrella pol-
icy limits, as far back as 1988. 48
Indeed, we see little difference between the present case
and Spivey. There, the plaintiff purported to represent indi-
viduals “who d[id] business with Vertrue, a marketer that of-
fers discounts to customers who use its services.” Spivey, 528
F.3d at 983. The plaintiff alleged that “Vertrue ‘systematically’
submit[ted] unauthorized charges.” Id. Vertrue sought re-
moval under CAFA, and with respect to amount in contro-
versy, it came forth with evidence that “its billings, for 4 of
the 22 programs in Illinois alone, c[a]me to almost $7 million.”
Id. at 985. Despite this evidence, the district court remanded
because “Vertrue did not concede that more than $5 million
in charges was unauthorized.” Id. On appeal, we reversed and
explained that “the statute does not make federal jurisdiction
depend on how much the plaintiff is sure to recover. The
question is what amount is ‘in controversy.’” Id. We observed
that “[t]he complaint alleges that Spivey’s credit card was
46 See also Hunt v. DaVita, Inc., 680 F.3d 775, 777 (7th Cir. 2012) (considering
punitive damages in the amount-in-controversy calculation and describ-
ing a “punitive-to-compensatory damages ratio of two or three to one” as
“modest”).
47 R.1-2, ¶ 19.
48 Id. ¶ 2.
22 No. 15-3171
charged without authorization and that Vertrue’s practices
are ‘common to all Class Members.’ The complaint also al-
leges that making unauthorized charges is a standard practice
at Vertrue.” Id. “Spivey’s allegations,” we therefore con-
cluded, “put into ‘controversy’ the propriety of all of Ver-
true’s charges, and the complaint demands refunds for all un-
authorized charges.” Id. at 985–86. To hold otherwise would
have required Vertrue to “‘confess liability in order to show
that the controversy exceeds the threshold’”—something the
statute did not require the defendant to do. Id. at 986 (quoting
Brill, 427 F.3d at 449).
Here, Ms. Roppo alleged that it was “an accepted practice”
over almost thirty years to engage in misrepresentations con-
cerning the existence of umbrella coverage. 49 Moreover, she
alleged that these policy limits represented the de facto max-
imum recovery injured individuals could receive on their
claims. Travelers came forward with undisputed evidence
that those additional policy amounts were at least $1,000,000
per insured. Based on these allegations and evidence, “a fact-
finder might conceivably lawfully award” in excess of $5 mil-
lion dollars. Hammond v. Stamps.com, Inc., 844 F.3d 909, 912
(10th Cir. 2016) (emphasis in original).
B.
Ms. Roppo added two additional defendants in her sec-
ond amended complaint: Mr. Hitchings, Block’s defense at-
torney in the underlying personal injury action, and his em-
ployer, Ms. Maisel, doing business as Maisel & Associates.
49 Id.No. 15-3171 23
Ms. Roppo contends that the addition of these defendants
triggered one or both of CAFA’s “local controversy” excep-
tions, 28 U.S.C. §§ 1332(d)(3) (discretionary) and (d)(4) (man-
datory), and therefore the district court either lacked jurisdic-
tion or should have declined jurisdiction over the proposed
class action.
Although CAFA “substantially” expands “federal court
jurisdiction over class actions,” Hart, 457 F.3d at 681, a district
court must decline to exercise jurisdiction over a class action
in which:
(I) greater than two-thirds of the members of
all proposed plaintiff classes in the aggregate
are citizens of the State in which the action was
originally filed;
(II) at least 1 defendant is a defendant—
(aa) from whom significant relief is
sought by members of the plaintiff
class;
(bb) whose alleged conduct forms a
significant basis for the claims asserted
by the proposed plaintiff class; and
(cc) who is a citizen of the State in
which the action was originally filed;
and
(III) principal injuries resulting from the al-
leged conduct or any related conduct of each de-
fendant were incurred in the State in which the
action was originally filed; and
24 No. 15-3171
(ii) during the 3-year period preceding the filing of
that class action, no other class action has been filed as-
serting the same or similar factual allegations against
any of the defendants on behalf of the same or other
persons[.]
28 U.S.C. § 1332(d)(4)(A). The “local controversy” exception
is narrow, and the legislative history of CAFA reveals “a
strong preference that interstate class actions should be heard
in a federal court if properly removed.” Hart, 457 F.3d at 681
(internal quotation marks omitted). 50 Plaintiffs seeking to re-
mand under the “local controversy” exception bear the bur-
den of establishing, by a preponderance of the evidence, that
one of the CAFA exceptions applies and that the federal court
either should or must remand the action to the state court. See
id. at 676.
1.
Even if we assume that greater than two-thirds of the pro-
posed class’s members are citizens of Illinois (the state in
which the action originally was filed), Ms. Roppo still cannot
meet the requirements of § 1332(d)(4)(A)(i)(II). For the local
controversy exception to apply, Ms. Roppo must establish
that at least one of the Illinois defendants “is a defendant …
from whom significant relief is sought by members of the
plaintiff class,” and “whose alleged conduct forms a signifi-
cant basis for the claims asserted by the proposed plaintiff
50 See also Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163 (11th Cir. 2006)
(explaining that the local controversy exception is narrow and “all
doubts” should be “resolved ‘in favor of exercising [federal] jurisdiction
over the case’”).
No. 15-3171 25
class.” Id. “[T]he significant basis provision requires at least
one local defendant whose alleged conduct forms a signifi-
cant basis for all the claims asserted in the action.” Kaufman v.
Allstate N.J. Ins. Co., 561 F.3d 144, 155 (3d Cir. 2009) (emphasis
added). 51
Neither Mr. Hitchings nor Ms. Maisel “is a defendant
from whom significant relief is sought.” Indeed, according to
the complaint, Travelers “instructed” Mr. Hitchings and
Maisel & Associates not to disclose umbrella and excess poli-
cies of their insureds. 52 These allegations highlight that the
gravamen of this action is directed at Travelers, a citizen of
Connecticut, not its attorneys. At no point does Ms. Roppo
deny that, if she prevails, Travelers will face the brunt of lia-
bility.
Moreover, Ms. Roppo has not asserted that Mr. Hitchings
or Ms. Maisel (doing business as Maisel & Associates) has in-
jured a significant portion of the class. Although it is clear
51 See also Opelousas Gen. Hosp. Auth. v. Fairpay Solutions, Inc., 655 F.3d 358,
362 (5th Cir. 2011) (concluding that the local controversy exception did not
apply when the plaintiff failed to show that the local defendant’s conduct
affected “all or a significant portion of the putative class”); Evans, 449 F.3d
at 1167 (refusing to apply the “local controversy” exception when the
plaintiff did not show that “a significant number or percentage of putative
class members” had claims against the local defendants); S. Rep. 109-14,
at 40 (2005) (“[T]he local defendant must be a primary focus of the plain-
tiffs’ claims—not just a peripheral defendant. The defendant must be a
target from whom significant relief is sought by the class (as opposed to
just a subset of the class membership) … .”).
52 R.56 at 21 (¶¶ 52, 53); R.63 at 25 (¶¶ 64, 65). Ms. Roppo’s second and
third amended complaints begin each new count at the same paragraph
number. As a result, we have included cross-references to page and para-
graph numbers where necessary throughout the opinion.
26 No. 15-3171
from the complaint that Mr. Hitchings defended Block in
Ms. Roppo’s personal injury action, the complaint does not
provide any basis to conclude that these defendants made
similar misrepresentations to a significant portion of the
plaintiff class.
2.
Alternatively, Ms. Roppo asserts that the district court
should have declined to exercise jurisdiction under 28 U.S.C.
§ 1332(d)(3). This discretionary exception provides that a dis-
trict court “may, in the interests of justice … , decline to exer-
cise jurisdiction” over a class action when “the primary de-
fendants are citizens of the State in which the action was orig-
inally filed” and “greater than one-third but less than two-
thirds” of the class members “are citizens of the State in which
the action was originally filed.” 28 U.S.C. § 1332(d)(3).
We cannot accept Ms. Roppo’s contention that this excep-
tion is applicable to her proposed class. In order for the dis-
cretionary exception to apply, the “primary” defendants must
be the Illinois defendants—here, Mr. Hitchings and
Ms. Maisel. Neither the second amended complaint nor the
third amended complaint allege that these are the primary de-
fendants; rather, as previously discussed, the gravamen of the
complaint suggests that Travelers is the primary defendant.
Because Travelers is a citizen of Connecticut, the district court
correctly concluded that this action is not a “local contro-
versy” and therefore that it should not decline to exercise ju-
risdiction over the action.
No. 15-3171 27
C.
Travelers submits that, even if the district court did not
have jurisdiction under CAFA, Ms. Roppo’s RICO count pro-
vided an alternative basis for federal jurisdiction. 53 Ms. Roppo
53 Following the district court’s denial of her motion to remand,
Ms. Roppo sought review pursuant to 28 U.S.C. § 1453(c)(1), which we de-
nied. See supra at 9. She maintains that she interpreted our denial of leave
to appeal as “strongly suggesting” that the district court “got it right” in
determining that it had jurisdiction under CAFA. Appellant’s Br. 11 (in-
ternal quotation marks omitted) (quoting Dart Cherokee Basin Operating
Co., 135 S. Ct. at 556). “In practical effect,” she continues, our “denial of
review established the law not simply for this case but for future CAFA
removals sought by defendants.” Id. (internal quotation marks omitted)
(quoting Dart Cherokee Basin Operating Co., 135 S. Ct. at 556). She further
notes that, in Dart Cherokee, the Supreme Court determined that the Tenth
Circuit had abused its discretion in denying the petition for review. Alt-
hough she does not state so explicitly, Ms. Roppo apparently believes that
our denial of review, like that of the Tenth Circuit in Dart Cherokee, was an
abuse of discretion. She continues that, had we not lulled her into believ-
ing that jurisdiction was secure under CAFA, she never would have in-
cluded a RICO claim and thus there would be no alternative basis for fed-
eral subject matter jurisdiction.
Ms. Roppo’s premise is faulty: her situation and the facts of Dart Cher-
okee are readily distinguishable. In Dart Cherokee, the district court denied
removal on the basis that the defendant had failed to proffer evidence of
the amount in controversy with the notice of removal. The district court
had read Tenth Circuit precedent as holding “that reference to factual al-
legations or evidence outside of the petition and notice of removal is not
permitted to determine the amount in controversy.” Dart Cherokee Basin
Operating Co., 135 S. Ct. at 552 (internal quotation marks omitted). Conse-
quently, when the defendant submitted detailed calculations as to the
amount in controversy after the notice of removal, the district court re-
fused to consider them and ordered a remand. The Tenth Circuit then de-
nied review of the remand order. The Supreme Court observed that “[i]n
practical effect, the Court of Appeals’ denial of review established the law
28 No. 15-3171
maintains, however, that Travelers cannot now assert that her
RICO claim provides a basis for jurisdiction because it previ-
ously took the position that it was “so insubstantial, implau-
sible, foreclosed by prior decisions of this Court, or otherwise
not simply for this case, but for future CAFA removals sought by defend-
ants in the Tenth Circuit” because “any diligent attorney … would submit
to the evidentiary burden rather than take a chance on remand to state
court.” Id. at 556 (internal quotation marks omitted). Ms. Roppo’s petition
for leave to appeal the district court’s denial of her motion to remand,
however, did not raise the question of a pleading standard that, in the ab-
sence of immediate review, may not make its way back to the appellate
court.
Indeed, the issues presented by Ms. Roppo’s petition for leave to ap-
peal were unique to her and could have been raised and reviewed in due
course. In her petition, Ms. Roppo claimed that the district court had erred
in concluding (1) that Travelers had met its burden of establishing the
amount in controversy and (2) that she was not entitled to limited discov-
ery on the issue of the involvement of Maisel & Associates. See Roppo v.
The Travelers Cos., No. 14-8018, App. R.1-1. When we previously have
granted leave to appeal under 28 U.S.C. § 1453(c)(1), we have done so in
cases involving novel or unsettled questions of law. See, e.g, Bullard v. Bur-
lington N. Santa Fe Ry. Co., 535 F.3d 759, 761 (7th Cir. 2008) (“We grant this
petition, because the legal issue is novel. It has not been addressed in this
or any other circuit.”). Ms. Roppo’s appeal did not involve such a ques-
tion.
In sum, neither Dart Cherokee nor our own case law required us to re-
view immediately the district court’s denial of Ms. Roppo’s motion to re-
mand. Additionally, our denial of review did not lull Ms. Roppo into any
false belief concerning the merits of Travelers’s CAFA allegations.
No. 15-3171 29
completely devoid of merit as not to involve a federal contro-
versy.” 54 Having prevailed on that argument below, she con-
tinues, Travelers now cannot reverse course.
We have reviewed Travelers’s submissions to the district
court. Although it vigorously argued that Ms. Roppo had not
pleaded a proper RICO claim, it never made the argument
that the flimsiness of Ms. Roppo’s allegations deprived the
court of jurisdiction. 55 Indeed, it would have been an odd ar-
gument for Travelers to make given that the district court al-
ready had determined that it had subject matter jurisdiction
under CAFA.
At oral argument, however, we articulated the concern
that, in the absence of CAFA jurisdiction, Ms. Roppo’s RICO
allegations were so lacking in substance as to deprive the dis-
trict court of subject matter jurisdiction. We therefore re-
quested that the parties address through supplemental brief-
ing the issue whether Ms. Roppo’s RICO claim met the re-
quirement of substantiality. See Bell v. Hood, 327 U.S. 678, 681–
54 Appellant’s Br. 28 (internal quotation marks omitted) (quoting Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)).
55 In its Reply in Support of Defendants’ Motion to Dismiss, Travelers did
argue that the district court should not grant Ms. Roppo an opportunity
“to file a Fourth Amended Complaint on grounds of undue delay and fu-
tility.” R.76 at 11. It submitted that Ms. Roppo had not shown the court
how she could cure the deficiencies in her complaint by way of amend-
ment. The fact that it believed that Ms. Roppo could not state a viable
claim for relief under RICO, however, is not a concession that her claim
falls into that category of “extraordinary” cases where the federal claim is
so “obviously[] or plainly insubstantial or frivolous” as to deprive the fed-
eral court of jurisdiction. See Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177,
1182 (7th Cir. 1989) (internal quotation marks omitted).
30 No. 15-3171
82 (1946). Having considered their arguments, we now con-
clude that, although the district court correctly dismissed
Ms. Roppo’s RICO claim, her allegations nevertheless are suf-
ficient to support, and supply an independent basis for, fed-
eral jurisdiction.
1.
“The Supreme Court has repeatedly held that ‘federal
courts are without power to entertain claims otherwise within
their jurisdiction if they are so attenuated and unsubstantial
as to be absolutely devoid of merit.’” Gammon v. GC Servs. Ltd.
P’ship, 27 F.3d 1254, 1256 (7th Cir. 1994) (quoting Hagans v.
Lavine, 415 U.S. 528, 536 (1974)). This “substantiality doctrine”
requires that a district court “conduct an initial review of the
face of the complaint to determine whether the merits are suf-
ficiently substantial to engage the subject matter jurisdiction
of the court.” Id. (citing Ricketts v. Midwest Nat’l Bank, 874 F.2d
1177, 1180–82 (7th Cir. 1989)).
“Through its choice of language, … the Court has … made
clear that only the most extreme cases will fail the jurisdic-
tional test of substantiality.” LaSalle Nat’l Trust, N.A. v. ECM
Motor Co., 76 F.3d 140, 143 (7th Cir. 1996). “A claim must be
‘wholly insubstantial,’ or ‘obviously frivolous,’ ‘plainly un-
substantial,’ or ‘no longer open to discussion,’ to merit dis-
missal under the substantiality doctrine.” Gammon, 27 F.3d at1256 (citing Hagans, 415 U.S. at 537). “Although similar to the
standard for dismissal for failure to state a claim upon which
relief can be granted under [Federal Rule of Civil Procedure]
12(b)(6), the standard for dismissal for want of subject matter
No. 15-3171 31
jurisdiction is considerably more rigorous.” Id. “A claim is in-
substantial only if ‘its unsoundness so clearly results from the
previous decisions of this court as to foreclose the subject and
leave no room for the inference that the questions sought to
be raised can be the subject of controversy.’” Hagans, 415 U.S.
at 538 (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)). If the
district court concludes that the claim, in fact, is “wholly in-
substantial and frivolous,” it must dismiss the complaint for
lack of subject matter jurisdiction. Bell, 327 U.S. at 682–83.
“Absent such frivolity, ‘the failure to state a proper cause of
action calls for a judgment on the merits and not for a dismis-
sal for want of jurisdiction.’” Shapiro v. McManus, 136 S. Ct.
450, 456 (2015) (quoting Bell, 327 U.S. at 682)).
2.
We do not believe that Ms. Roppo’s RICO claim falls
within this narrow category of “most extreme cases.” LaSalle
Nat’l Trust, 76 F.3d at 143. Although pleaded deficiently, es-
pecially when evaluated against the heightened pleading re-
quirements of Federal Rule of Civil Procedure 9(b), 56
Ms. Roppo’s RICO allegations are not so wholly without legal
foundation as to fail the test for substantiality.
56Allegations of fraud in a RICO complaint are subject to the heightened
pleading requirements of Federal Rule of Civil Procedure 9(b). Goren v.
New Vision Int’l, Inc., 156 F.3d 721, 726 (7th Cir. 1988). “[A] RICO plaintiff
‘must, at a minimum, describe the predicate acts [of fraud] with some
specificity and state the time, place, and content of the alleged communi-
cations perpetrating the fraud.’” Id. (alteration in original).
32 No. 15-3171
Ms. Roppo alleges a civil violation of 18 U.S.C. § 1962(c),
which states: “(c) It shall be unlawful for any person em-
ployed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering ac-
tivity or collection of unlawful debt.” Section 1964 of Title 18
further limits the population of civil RICO plaintiffs to per-
sons who have been “injured in [their] business or property
by reason of a violation of section 1962.” 18 U.S.C. § 1964(c).
Thus, to allege a violation of § 1962(c), Ms. Roppo must show
“(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.” Vicom, Inc. v. Harbridge Merch. Servs.,
Inc., 20 F.3d 771, 778 (7th Cir. 1994) (internal quotation marks
omitted) (quoting Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S.
479, 496 (1985)). Additionally, to have standing, Ms. Roppo
must allege that she “has been injured in h[er] business or
property by the conduct constituting the violation.” Sedima,
S.P.R.L., 473 U.S. at 496.
a.
Initially, therefore, Ms. Roppo must “identify a ‘person’—
i.e., the defendant—that is distinct from the RICO enterprise.”
United Food & Commercial Workers Unions & Employers Midwest
Health Benefits Fund v. Walgreen Co., 719 F.3d 849, 853 (7th Cir.
2013) (citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S.
158, 161 (2001)). Before the district court, Travelers argued
that Ms. Roppo had not alleged an enterprise separate from
No. 15-3171 33
Travelers itself. 57 Ms. Roppo maintained that Travelers and
Maisel & Associates together constituted the “enterprise.” 58
She admitted, however, that she had not set forth this rela-
tionship sufficiently and sought permission to file a fourth
amended complaint to add those allegations. 59
Although Ms. Roppo fails to connect the legal dots be-
tween Travelers and its outside counsel, the possibility that
those players, together, could form a RICO enterprise is not
without support in case law. One of our sister circuits has rec-
ognized that a corporation and its outside counsel can consti-
tute an enterprise under RICO. See Living Designs, Inc. v. E.I.
Dupont de Nemours & Co., 431 F.3d 353, 362 (9th Cir. 2005) (ob-
serving that “[j]ust as a corporate officer can be a person dis-
tinct from the corporate enterprise, DuPont is separate from
its legal defense team” and holding, therefore, that “the dis-
trict court erred in concluding that Plaintiffs failed to allege a
distinct RICO enterprise”). Moreover, the Supreme Court re-
cently clarified what is required to show an “association-in-
fact” enterprise: “a purpose, relationships among those asso-
ciated with the enterprise, and longevity sufficient to permit
these associates to pursue the enterprise’s purpose.” Boyle v.
57 See R.69 at 23–24.
58 See R.74 at 33 (internal quotation marks omitted).
59 See id. On appeal, Ms. Roppo does not contend that the district court
abused its discretion in denying her the opportunity to file a fourth
amended complaint, see, e.g., Mulvania v. Sheriff of Rock Island Cty., 850 F.3d
849, 854 (7th Cir. 2017) (“We review for abuse of discretion the district
court’s denial of Mulvania’s motion to amend her complaint.”), petition for
cert. filed, -- U.S.L.W. ---- (U.S. Aug. 16, 2017) (No. 17-245), nor would such
an argument be persuasive.
34 No. 15-3171
United States, 556 U.S. 938, 946 (2012). Nothing in these re-
quirements forecloses a RICO enterprise comprised of a cor-
poration and its outside counsel. 60 We cannot conclude, there-
fore, that Ms. Roppo’s allegations of a RICO enterprise, alt-
hough lacking in detail, are wholly insubstantial or frivolous.
b.
Turning to the remaining RICO elements, “to satisfy the
‘conduct’ element, … a plaintiff must allege that the defend-
ant ‘participated in the operation or management of the enter-
prise itself,’ and that the defendant played ‘some part in di-
recting the enterprise’s affairs.’” Goren v. New Vision Int’l, Inc.,
156 F.3d 721, 727 (7th Cir. 1998) (quoting Reves v. Ernst &
Young, 507 U.S. 170, 179 (1993)). Additionally, the conduct
cannot be an isolated incident. A pattern of racketeering ac-
tivity consists of at least two violations of a specified list of
criminal laws. See Goren, 156 F.3d at 728. Ms. Roppo alleges
wire and mail fraud, which require (1) “the defendant’s par-
60 Fitzgerald v. Chrysler Corp., 116 F.3d 225 (7th Cir. 1997), also does not
foreclose this possibility. In Fitzgerald, we held that the “‘Chrysler family’
consisting of subsidiaries of the Chrysler Corporation engaged in various
facets of production, financing, and marketing of Chrysler automobiles,
plus Chrysler’s dealers, plus trusts controlled by Chrysler” was not suffi-
ciently distinct from the Chrysler Corporation, the named defendant, to
be recognized as a RICO enterprise. Id. at 226. Here, however, there is no
apparent corporate relationship between Travelers and Maisel & Associ-
ates; rather they are distinct legal entities. See George v. Urban Settlement
Servs., 833 F.3d 1242, 1249–50 (10th Cir. 2016) (distinguishing Fitzgerald on
the ground that it involved related corporate entities, but the plaintiffs’
proposed RICO enterprise involved “two separate legal entities”).
No. 15-3171 35
ticipation in a scheme to defraud”; (2) “defendant’s commis-
sion of the act with intent to defraud”; and (3) the use of
wires—or mail—“in furtherance of the fraudulent scheme.”
Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 657 (7th
Cir. 2015) (internal quotation marks omitted). These viola-
tions must “exhibit ‘continuity plus relationship.’ … Related
predicate acts have ‘the same or similar purposes, results, par-
ticipants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not iso-
lated events.’” Empress Casino Joliet Corp. v. Balmoral Racing
Club, Inc., 831 F.3d 815, 828 (7th Cir. 2016) (quoting H.J. Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 239, 240 (1989)).
In her amended complaint, Ms. Roppo alleges that “there
is a widespread practice within the Travelers Companies …
of not disclosing excess and umbrella policies,” 61 that Travel-
ers is incentivized not to disclose policy limits, and that it may
have instructed its outside counsel to misrepresent, or not dis-
close, the existence of excess or umbrella policies. 62 Addition-
ally, she avers that Travelers intentionally misrepresented, or
failed to reveal when under a legal obligation to do so, rele-
vant policy limits of its insureds. It did so through written
communications sent by its attorneys to counsel for injured
parties and through oral communication over the telephone. 63
And it did so with the intent of inducing injured parties to
61 R.63 ¶ 32 (emphasis in original).
62 Id. at 25 (¶¶ 64–65).
63 See id. at 23–26 (¶¶ 54–71), 63 (¶ 58).
36 No. 15-3171
rely on these statements and settle their claims for less than
they would if the actual coverage limits were revealed. 64
In general terms, Ms. Roppo’s complaint speaks to the el-
ements of a RICO cause of action by alleging that Travelers
was a key player in a fraudulent scheme to communicate false
policy limits to injured parties, through both interstate wires
and the mail, in order to reduce its payouts under its policies.
Her complaint may not be sufficiently specific to meet the
heightened pleading requirements of Rule 9(b), see Goren, 156
F.3d at 729 (setting forth the detailed pleading requirements
for a RICO claim based on predicate acts of wire fraud), as
Ms. Roppo readily acknowledges. 65 Nevertheless, her allega-
tions of conduct and racketeering activity are neither wholly
insubstantial nor legally unsound.
c.
Finally, to obtain relief under RICO, indeed to have stand-
ing to pursue a RICO cause of action, a plaintiff must allege
that she has been injured in her “business or property by rea-
son of” the RICO violation. 18 U.S.C. § 1964(c). We have ex-
plained that “[t]he terms ‘business or property’ are … words
of limitation which preclude recovery for personal injuries
and the pecuniary losses incurred therefrom.” Doe v. Roe, 958
F.2d 763, 767 (7th Cir. 1992). Thus, “a civil RICO action cannot
be premised solely upon personal or emotional injuries.” Id.64 Id. at 24 (¶ 62).
65See R.74 at 33 (“Travelers’ other challenges to Count XI are acknowl-
edged … .”).
No. 15-3171 37
In her RICO count, Ms. Roppo requests damages for
“[e]motional distress” as well as “[a]ggravation and incon-
venience.” 66 These clearly are not available under § 1964(c)
and will not support standing to pursue a RICO claim. Nev-
ertheless, Ms. Roppo also alleges that, because of Travelers’s
misrepresentations, there was a delay in settling her claim. 67
Consequently, she lost the time value of her settlement over
the months that Travelers (allegedly) was perpetrating the
fraud. See Habitat Educ. Ctr. v. U.S. Forest Serv., 607 F.3d 453,
457 (7th Cir. 2010) (recognizing that a party had “incurred a
loss” of the time value of $10,000). 68 Thus, she has alleged an
injury to property resulting from the alleged RICO violation.
In sum, although, in some respects, Ms. Roppo’s RICO al-
legations do not satisfy the heightened pleading requirement
of Rule 9(b), hers is not among “the extreme cases” in which
the federal claim is so “obviously frivolous” that it cannot
support our exercise of jurisdiction. Ms. Roppo’s RICO claim,
therefore, provides an alternative basis for our exercise of ju-
risdiction over her complaint.
66 R.63 at 63–64 (¶ 60) (internal quotation marks omitted).
67 See id. at 64 (¶ 60).
68 See also Medcom Holding Co. v. Baxter Travenol Labs., Inc., 200 F.3d 518,
519–20 (7th Cir. 1999) (“‘Compensation deferred is compensation reduced
by the time value of money.’” (quoting In re Milwaukee Cheese Wis., Inc.,
112 F.3d 845, 849 (7th Cir. 1997)); Soo Line R.R. Co. v. Escanaba & Lake Supe-
rior R.R. Co., 840 F.2d 546, 552–53 (7th Cir. 1988) (explaining that the time
value of money requires compensation because, during the delay in com-
pensation, one party “has the benefit of the other’s purse”). This loss may
have been taken into account in Ms. Roppo’s settlement of her personal
injury claim. However, the settlement agreement is not part of the record.
38 No. 15-3171
D.
Having determined that the district court had jurisdiction,
we now turn to whether the district court erred in dismissing
Ms. Roppo’s third amended complaint. We review de novo a
district court’s decision to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Abcarian v.
McDonald, 617 F.3d 931, 933 (7th Cir. 2010). We “accept as true
all factual allegations in the amended complaint and draw all
permissible inferences in [the plaintiff]’s favor.” Bible, 799
F.3d at 639. A complaint will survive a motion to dismiss for
failure to state a claim if it “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, “[a]
plaintiff can plead herself out of court by alleging facts that
show she has no legal claim.” Shott v. Katz, 829 F.3d 494, 497
(7th Cir. 2016).
1.
Ms. Roppo first asserts that the district court erred in dis-
missing her fraud and negligent misrepresentation claims.
Counts I, II, and III of Ms. Roppo’s third amended complaint
allege that Travelers and its attorneys fraudulently misrepre-
sented Block’s policy limits. In the alternative, Count X asserts
that Travelers negligently misrepresented the policy limits.
Both parties agree that, under Illinois law, reliance is an ele-
ment of both fraudulent and negligent misrepresentation. See
Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d
719, 722–23 (7th Cir. 2008) (“A claim of fraud requires proof
that the victim of the fraud relied on the representations that
No. 15-3171 39
he contends are fraudulent.” (citing HPI Health Care Servs.,
Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 681 (Ill. 1989));
Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475
F.3d 824, 833–34 (7th Cir. 2007) (“[T]o state a claim for negli-
gent misrepresentation under Illinois law, a party must allege
… ‘reliance on the truth of the [false] statement’” (quoting
First Midwest Bank, N.A. v. Stewart Title Guar. Co., 843 N.E.2d
327, 334–35 (Ill. 2006))). Without reliance, a plaintiff “cannot
have been hurt by the fraud.” Extra Equipamentos, 541 F.3d at
723.
As a result, Ms. Roppo’s complaint must allege facts
which suggest that she plausibly relied on defendants’ al-
leged misrepresentation. See Iqbal, 556 U.S. at 678. The defend-
ants maintain that Ms. Roppo has pleaded herself out of court
because the complaint states that Ms. Roppo’s attorney “re-
peatedly expressed uncertainty” about the lack of an umbrella
policy. 69 According to Travelers, this statement suggests that
Ms. Roppo did not rely on the misrepresentations regarding
the policy limits because her attorney did not believe them.
We agree. A plaintiff must believe the alleged misrepre-
sentation to be true in order to state reliance. See Smith v.
Duffey, 576 F.3d 336, 339 (7th Cir. 2009). 70 Even under Rule 8’s
69 R.63, ¶ 49.
70 See also Schmidt v. Landfield, 169 N.E.2d 229, 231–32 (Ill. 1960) (“In all
cases where it is sought to hold one liable for false representations, the
question necessarily arises whether … the plaintiff had a right to rely upon
them. In determining this question, the representations must be viewed in
the light of all the facts of which the plaintiff had actual notice, and also of
such as he might have availed himself by the exercise of ordinary pru-
dence.” (internal quotation marks omitted)).
40 No. 15-3171
more relaxed pleading standard (which only applies to
Ms. Roppo’s negligent misrepresentation claim), 71 the allega-
tions in the third amended complaint do not pass muster. In-
deed, the third amended complaint makes clear that neither
Ms. Roppo nor her attorney believed Travelers’s and
Mr. Hitchings’s representations regarding Block’s policy lim-
its: the complaint alleges that Ms. Roppo’s attorney was so
“uncertain[]” about the represented policy limits that he con-
tinued to push Travelers and its employees to disclose the
possibility of an umbrella policy. 72 Accordingly, we conclude
that Ms. Roppo has pleaded herself out of court with respect
to her fraudulent and negligent misrepresentation claims.
2.
Regarding her negligence claims against Mr. Hitchings
(Count IV) and his employer, Ms. Maisel, doing business as
Maisel & Associates (Count V), Ms. Roppo contends that the
district court erred in determining that they did not owe
Ms. Roppo a duty of care. According to Ms. Roppo, both
Mr. Hitchings and his employer owed her a duty of care be-
cause she was entitled to the protections of Block’s automo-
71 See Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824,
833 (7th Cir. 2007) (applying Illinois law and holding that a claim for neg-
ligent misrepresentation “is not governed by the heightened pleading
standard of Rule 9(b)” (emphasis in original)). Federal Rule of Civil Pro-
cedure 9(b) requires that claims of fraudulent misrepresentation be
pleaded with particularity. See Extra Equipamentos E Exportacao Ltda. v.
Case Corp., 541 F.3d 719, 723–24 (7th Cir. 2008).
72 R.63, ¶ 49.
No. 15-3171 41
bile liability policy and therefore was a beneficiary of a cog-
nizable relationship under Illinois law between a plaintiff and
a defendant’s attorney. In short, she believes that a defense
attorney’s duty as an officer of the court translates into a duty
to Ms. Roppo to use reasonable care in answering her discov-
ery inquiries.
In Illinois, an attorney generally owes a duty of care only
to his client and not to third parties. Kopka v. Kamensky & Ru-
benstein, 821 N.E.2d 719, 723 (Ill. App. Ct. 2004). This general
rule is meant to protect the attorney-client relationship: “Since
an attorney ‘must represent his client with zeal and undi-
vided loyalty in adversarial matters,’ he cannot have fiduci-
ary responsibilities to third parties which may interfere with
this duty to his client and leave him vulnerable to liability.”
Schechter v. Blank, 627 N.E.2d 106, 109 (Ill. App. Ct. 1993)
(quoting Gold v. Vasileff, 513 N.E.2d 446, 448 (Ill. App. Ct.
1987)). A “narrow exception,” however, extends an attorney’s
duty of care to third parties when the attorney was “hired by
the client specifically for the purpose of benefitting that third
party.” Kopka, 821 N.E.2d at 723. For this exception to apply
in adversarial proceedings, “there must be a clear indication
that the representation by the attorney is intended to directly
confer a benefit upon the third party.” Pelham v. Griesheimer,
440 N.E.2d 96, 100 (Ill. 1982).
Pelham is a good illustration of just how narrow this excep-
tion is. In Pelham, the defendant had been retained to repre-
sent Loretta Ray in a divorce action against her husband,
George. The plaintiffs in the action were the Rays’ children,
all of whom were minors at the time of the divorce. The nego-
tiated divorce decree required George to maintain all four of
42 No. 15-3171
his children as the primary beneficiaries of a $10,000 life in-
surance policy. Later, however, George remarried and named
his second wife as the beneficiary, and she received the pro-
ceeds after his death. The children then sued Loretta’s lawyer
claiming that, given this provision, they were intended to
benefit directly from his services. The court disagreed:
Applying the “intent to directly benefit” test to the
facts alleged in the complaint, it is clear that the plain-
tiffs herein are not in the nature of direct third-party
beneficiaries. The attorney was hired primarily for the
purpose of obtaining a divorce, property settlement,
and custody of the minor children for Loretta Ray, not
to represent her children’s interest. The plaintiffs
herein are, at best, only incidental beneficiaries in this
situation. That George Ray name the children as bene-
ficiaries of the policy cannot be described as the pri-
mary reason that Loretta Ray retained the defendant to
be her attorney.
Id. at 100–01.
Applying the “intent to directly benefit” test to the facts
alleged in the third amended complaint, it is clear that
Ms. Roppo is not a direct third-party beneficiary. Ms. Roppo
asserts that she was injured by Mr. Hitchings’s negligence
during his representation of Block in the underlying personal
injury action. In that context, Mr. Hitchings’s primary duty
was to protect the interests of his client, Block, against the
claims asserted by Ms. Roppo. Although Ms. Roppo certainly
may have benefitted from part of Mr. Hitchings’s representa-
tion of Block, in the same way that the Ray children may have
benefitted from the divorce lawyer’s representation of their
mother, Ms. Roppo was not a direct third-party beneficiary of
No. 15-3171 43
Mr. Hitchings’s relationship with Block. Mr. Hitchings’s ser-
vices were not secured for her benefit. Moreover, we agree
with the district court’s concern that “[e]xpanding an attor-
ney’s duty of care to adversaries on the basis of discovery vi-
olations would swallow the ‘narrow’ intent-to-directly-bene-
fit exception.” 73 Also, as the district court noted, such an ex-
pansion could undermine the attorney-client relationship. See
id. at 101 (“We refuse to create such a wide range of potential
conflicts by imposing such duties upon an attorney in favor
of a nonclient, unless the intent to benefit the third party is
clearly evident.”); Schechter, 627 N.E.2d at 109 (“Public policy
requires that an attorney, when acting in his professional ca-
pacity, be free to advise his client without fear of personal li-
ability to third persons … .” (emphasis removed) (internal
quotation marks omitted)).
In Ms. Roppo’s negligence claim against Ms. Maisel, indi-
vidually, and against Maisel & Associates, Ms. Roppo asserts
that Ms. Maisel, and by extension her law firm, failed to train
or supervise Mr. Hitchings. Under Illinois law, Ms. Roppo
“must prove that the employer’s breach—not simply the em-
ployee’s malfeasance—was a proximate cause of the plain-
tiff’s injury.” Vancura v. Katris, 939 N.E.2d 328, 343 (Ill. 2010).
But Ms. Roppo also must demonstrate that Mr. Hitchings’s
employer owed her a duty of care. Id. at 347 (holding that an
employer’s duty to train or supervise “is best analyzed under
principles generally applicable to negligence cases”). Under
Illinois law, “‘[t]he touchstone of the duty analysis is to ask
whether the plaintiff and defendant stood in such a relation-
ship to one another that the law imposes on the defendant an
73 R.78 at 13 (quoting Kopka v. Kamensky & Rubenstein, 821 N.E.2d 719, 723
(Ill. App. Ct. 2004)).
44 No. 15-3171
obligation of reasonable conduct for the benefit of the plain-
tiff.’” Id. (quoting Krywin v. Chicago Transit Auth., 938 N.E.2d
440, 447 (Ill. 2010)).
The allegations of the complaint, taken as true, simply do
not establish that the firm owed a duty of care to Ms. Roppo.
As Mr. Hitchings’s employer, Maisel & Associates was re-
tained to represent Block, not Ms. Roppo, in the underlying
personal injury action. Nothing in the complaint suggests that
Ms. Roppo’s relationship with the firm was any different than
her relationship with Mr. Hitchings. Because both the Maisel-
Block and Hitchings-Block relationships were meant to de-
fend Block in an adversarial proceeding against Ms. Roppo,
and because Ms. Roppo has not established that she was an
intended direct beneficiary of that relationship, we conclude
that neither party owed her a duty of care.
3.
Turning to Ms. Roppo’s claim under 215 ILCS 5/143.24b
(Count VI), the Illinois Insurance Code requires an insurer to
disclose the policy limits of its insured to someone making a
claim against the insured’s policy under certain circum-
stances. As is relevant to Ms. Roppo’s claim, when an insured
is involved in a “vehicular accident,” an insurance company
must “disclose the dollar amount of liability coverage under
the insured’s personal private passenger automobile liability
insurance policy” when the claimant requests it. Id. To make
a request for the policy limits, a claimant (or her representa-
tive) must provide the insurer with “(a) a certified letter …
which requests such disclosure and (b) a brief description of
No. 15-3171 45
the nature and extent of the injuries, accompanied by a state-
ment of the amount of medical bills incurred to date and cop-
ies of medical records.” Id. Ms. Roppo alleges that Travelers
violated this provision of the Insurance Code when it did not
disclose Block’s umbrella policy to her. 74
The district court concluded that (1) Ms. Roppo’s request
did not trigger Travelers’s disclosure; and (2) Travelers dis-
closed all that was required under Illinois law. First, it is clear
from the plain text of § 143.24b that a claimant must provide
two things to trigger disclosure: a certified letter requesting
the disclosure; and “a brief description of the nature and ex-
tent of the injuries, accompanied by a statement of the amount
of medical bills incurred to date and copies of medical rec-
ords.” 215 ILCS 5/143.24b. Although the complaint states that
Ms. Roppo’s attorney sent a certified letter to Travelers on
August 9, 2011, the complaint does not assert that the letter
described Ms. Roppo’s injuries or included her medical rec-
ords. In fact, Ms. Roppo concedes that she did not provide
Travelers with that information. 75
Ms. Roppo counters that Travelers has waived the right to
challenge the contents of her certified letter because Travelers
acknowledged that information regarding her medical needs
was not yet available in response to Ms. Roppo’s disclosure
74 Illinois courts have not addressed whether § 143.24b of the Illinois In-
surance Code supplies a private right of action. See Demarco v. CC Servs.
Inc., No. 1-15-2933, 2017 WL 1148752, at *10–11 (Ill. App. Ct. Mar. 24, 2017).
Because we conclude that Travelers did not violate this provision of the
Code, we do not resolve this issue.
75 R.74 at 24.
46 No. 15-3171
request and, nevertheless, it disclosed Block’s automobile pol-
icy. Under Illinois law, waiver “arises when conduct of the
person against whom waiver is asserted is inconsistent with
any intention other than to waive it.” Home Ins. Co. v. Cincin-
nati Ins. Co., 821 N.E.2d 269, 282 (Ill. 2004). “[T]he evidence
must show a clear, unequivocal[,] and decisive act of a party
demonstrating an intent to waive the known right.” Anderson
v. Catholic Bishop of Chicago, 759 F.3d 645, 651 (7th Cir. 2014)
(internal quotation marks omitted) (applying Illinois law).
We do not agree with Ms. Roppo’s contention that Travel-
ers’s acknowledgment of her missing medical records consti-
tuted waiver. In its response to Ms. Roppo’s certified letter,
the complaint asserts that a Travelers claims representative
acknowledged the absence of medical records from the re-
quest and stated: “While we realize that medical specials and
narratives are not available now, we are in need of infor-
mation so that our file will reflect the accurate injury and
medical information for this claim.” 76 We read this response
as preserving Travelers’s rights, not waiving them: the claims
representative specifically asked Ms. Roppo to provide the
company with the required medical records as soon as possi-
ble. Because the complaint does not support an inference that
Travelers acted inconsistently with preserving its statutory
rights, we conclude that Travelers has not waived the argu-
ment that Ms. Roppo failed to comply with § 143.24b.
Even if Ms. Roppo’s request had triggered this disclosure,
the district court was correct to dismiss this claim because
Travelers disclosed the policy limits of Block’s automobile pol-
76 R.63, ¶ 44.
No. 15-3171 47
icy, as required under this provision of the Illinois Code. Un-
der § 143.24b, the insurance company must provide the
“amount of liability coverage under the insured’s personal
private passenger automobile liability insurance policy” upon
the claimant’s request. 215 ILCS 5/143.24b (emphasis added).
Ms. Roppo admits that Travelers disclosed the limits of
Block’s automobile policy; 215 ILCS 5/143.24b does not require
more. Umbrella liability policies are different from automo-
bile policies under Illinois law. See Hartbarger v. Country Mut.
Ins. Co., 437 N.E.2d 691, 694 (Ill. App. Ct. 1982) (“[A]n um-
brella liability policy is entirely different from an automobile
policy.”); Mei Pang v. Farmers Ins. Grp., 10 N.E.3d 301, 305 (Ill.
App. Ct. 2014) (“In Illinois, umbrella policies and primary
auto policies are distinct policies.”). The Insurance Code also
defines a “[p]olicy of automobile insurance” as separate from
“other policies of personal lines” of liability insurance. See 215
ILCS 5/143.13(a), (c). We therefore cannot infer that the plain
language of § 143.24b, which requires insurers to disclose
“automobile” insurance policies, actually requires disclosure
of both automobile and umbrella insurance policies. Travelers
only was required to disclose Block’s automobile policy lim-
its, which it did. Because Travelers did not violate § 143.24b,
Ms. Roppo cannot state a claim under that provision, assum-
ing one exists. 77
4.
Ms. Roppo also contends that the district court erred in
dismissing her ICFA claims (Counts VII and VIII), asserting
77 See supra note 74.
48 No. 15-3171
she is “a consumer” of Block’s policy with Travelers because
she became a direct beneficiary of the policy following the ac-
cident. 78 The ICFA prohibits “unfair or deceptive acts or prac-
tices, including … fraud, false pretense, false promise, mis-
representation or the concealment, suppression or omission
of any material fact” in the “conduct of any trade or com-
merce.” 815 ILCS 505/2. Ms. Roppo has not invited our atten-
tion to any Illinois case extending this statute, which the state
courts have held applies to consumer transactions or those
having a consumer nexus, see Athey Prods. Corp. v. Harris Bank
Roselle, 89 F.3d 430, 436–37 (7th Cir. 1996), 79 to the discovery
78 Appellant’s Br. 42.
79 As noted in the text, some Illinois courts have held that only a “con-
sumer” may bring an action under ICFA. See Bank One Milwaukee v.
Sanchez, 783 N.E.2d 217, 220 (Ill. App. Ct. 2003); see also 815 ILCS 505/1(e)
(defining “consumer” as “any person who purchases or contracts for the
purchase of merchandise not for resale in the ordinary course of his trade
or business but for his use or that of a member of his household”). Some
Illinois courts also have allowed plaintiffs to proceed with an ICFA claim
if they satisfy a somewhat broader “consumer nexus” test. Brody v. Finch
Univ. of Health Sciences/The Chicago Med. Sch., 698 N.E.2d 257, 268–69 (Ill.
App. Ct. 1998). This difference in approach is of no concern to us today.
Ms. Roppo’s claim arises out of alleged misrepresentations to an opposing
party during the course of litigating a private personal injury action. The
complaint simply fails to articulate how Travelers’s conduct harms its con-
sumers (like Block) or generally implicates consumer protection concerns.
Therefore, under either approach, the alleged misrepresentation here is
beyond the ambit of the statute. See Bank One Milwaukee, 783 N.E.2d at 222(holding that there was a consumer nexus when the plaintiff alleged that
“a merchant bound her to a commercial transaction through a fraudulent
act”). Combined with the complaint’s failure to allege reliance, see infra at
49, we conclude that Ms. Roppo has not stated a violation of the ICFA.
No. 15-3171 49
of insurance policy limitations by an adverse party in civil lit-
igation. Nor is such an application self-evident; the statute is
applicable to deception occurring “in a course of conduct in-
volving trade or commerce.” Brody v. Finch Univ. of Health Sci-
ences/The Chicago Med. Sch., 698 N.E.2d 257, 267 (Ill. App. Ct.
1998). We consistently have held that “it is not our role to
break new ground in state law.” Lopardo v. Fleming Cos., Inc.,
97 F.3d 921, 930 (7th Cir. 1996). That counsel is certainly ap-
plicable here.
Moreover, to recover under the ICFA, 80 a plaintiff also
must be deceived by the defendant’s misrepresentation. De
Bouse v. Bayer, 922 N.E.2d 309, 316 (Ill. 2009); see also Mulligan
v. QVC, Inc., 888 N.E.2d 1190, 1199 (Ill. App. Ct. 2008). 81 As we
have noted earlier, Ms. Roppo specifically pleaded that she
did not believe Travelers’s misrepresentations. 82 Because she
did not believe those statements, she also cannot have been
deceived by Travelers. She thus has pleaded herself out of court
on this count as well.
80 ICFA claims are evaluated under Rule 9(b)’s heightened pleading
standard. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736–37 (7th
Cir. 2014).
81 See also American Bar Association, Survey of State Class Action Law: Illi-
nois § 18, Westlaw (database updated Dec. 2016) (discussing that, under
recent precedent, Illinois courts have not permitted ICFA class actions to
proceed when plaintiffs have not established that they actually were de-
ceived by the defendant’s conduct). But cf. Cozzi Iron & Metal, Inc. v. U.S.
Office Equip., Inc., 250 F.3d 570, 576 (7th Cir. 2001) (issued before the deci-
sion of the Supreme Court of Illinois in De Bouse v. Bayer, 922 N.E.2d 309(Ill. 2009)).
82 See supra note 70 and accompanying text.
50 No. 15-3171
5.
Count IX of the third amended complaint alleges that
Travelers violated the Illinois Insurance Code when it vexa-
tiously and unreasonably delayed in settling her claim. Trav-
elers counters that penalties under 215 ILCS 5/155 of the Illi-
nois Insurance Code are available only to the insured and
therefore Ms. Roppo cannot sustain a claim.
We agree with the district court that Ms. Roppo cannot
state a claim under § 155. That section of the Illinois Insurance
Code “provides that a court may award attorney fees and
specified penalties in an action against an insurer when the
court determines, in its discretion, that the insurer’s delay in
settling a claim was unreasonable and vexatious considering
the totality of the circumstances.” Garcia v. Lovellette, 639
N.E.2d 935, 937 (Ill. App. Ct. 1994). Section 155 “is designed
‘to protect insured parties who are forced to expend attor-
neys’ fees where the insurer refuses to pay under the terms of
the policy.’” Id. (emphasis in original) (quoting Stamps v. Cald-
well, 273 N.E.2d 489, 492 (Ill. App. Ct. 1971)). The Supreme
Court of Illinois has interpreted section 155 as “extend[ing]
only to the party insured” and has stated explicitly that “the
remedy embodied in section 155 of the Insurance Code does
not extend to third parties.” Yassin v. Certified Grocers of Ill.,
Inc., 551 N.E.2d 1319, 1322 (Ill. 1990). The only exception to
the bar on third party recovery is for assignees of the insured
who succeed to the insured’s position. Id.; Statewide Ins. Co. v.
Houston Gen. Ins. Co., 920 N.E.2d 611, 625 (Ill. App. Ct. 2009).
This exception is limited, however, and “is not intended for
‘true’ third parties” who do not have a contractual relation-
ship with the insurer. Garcia, 639 N.E.2d at 937.
No. 15-3171 51
Yassin forecloses Ms. Roppo’s ability to recover under 215
ILCS 5/155. Ms. Roppo clearly is not the insured under the
Travelers policy; Block is. Additionally, Ms. Roppo does not
allege that she is an assignee of Block. To the extent that
Ms. Roppo asks us to reconsider Yassin, 83 we are unable to do
so. As a federal court hearing a claim arising under state law,
we are bound by the Illinois judiciary’s interpretation of its
own insurance code. See State Farm Mut. Auto. Ins. Co. v. Pate,
275 F.3d 666, 669 (7th Cir. 2001) (“In fulfilling the mandate of
Erie Railroad v. Tompkins, 304 U.S. 64 (1938), a United States
district court sitting in diversity, see 28 U.S.C. § 1332, must ap-
ply the law of the state as it believes the highest court of the
state would apply it if the issue were presently before that tri-
bunal.” (parallel citations omitted)). Because the Supreme
Court of Illinois has confronted this exact issue and has de-
cided that a third party to an insurance policy cannot bring a
claim under § 155, we conclude that the district court correctly
dismissed this claim. 84
83 Appellant’s Br. 47–48 (“The district court decided that since Yassin was
decided by the Illinois Supreme Court it was required to blindly follow
that case. … But the district court could have held that Yassin was not cor-
rectly decided or, alternatively, that if the Illinois Supreme Court faced the
issue now they would not follow Yassin.” (internal citations omitted)).
84 The third amended complaint’s final claim asserted that Travelers vio-
lated RICO by misrepresenting Block’s policy limits (Count XI). Below,
Ms. Roppo conceded that she inadequately pleaded this claim. She also
does not appeal the district court’s decision to deny her the opportunity
to file a fourth amended complaint. See supra note 59 and accompanying
text.
52 No. 15-3171
Conclusion
For the reasons set forth in this opinion, the district court’s
judgment is affirmed. The allegations in the complaint opera-
tive at the time of removal, along with Travelers’s disclosure
of the relevant umbrella policy limits, were sufficient for the
district court to conclude that it had subject matter jurisdic-
tion under CAFA. The “local controversy” exception also
does not require remand: Travelers is the “primary” defend-
ant in this action. Moreover, Ms. Roppo’s RICO allegations
provide an independent basis for federal jurisdiction. Finally,
the court did not err in dismissing the third amended com-
plaint because it insufficiently pleads claims of fraudulent
misrepresentation, negligent misrepresentation, and negli-
gence, as well as violations of the Illinois Insurance Code, the
Illinois Consumer Fraud and Deceptive Business Practices
Act, and RICO.
AFFIRMED