Plaintiff Fern Horwitz (Horwitz), by her father and attorney-in-fact, brought this action on behalf of herselfand a purported class of policyholders who were allegedly injured by the manner in which the defendant insurancecompany, Bankers Life & Casualty Company (Bankers), calculated and applied its premium rates for individualhealth insurance policies. Plaintiff claimed that the manner in which Bankers calculated those premiums breachedits contract (counts III and IV), violated section 364 of the Illinois Insurance Code (Insurance Code) (215 ILCS5/364 (West 1994)) (counts I and II), and violated section 2 of the Illinois Consumer Fraud and Deceptive BusinessPractices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 1994)) (count VI). She also claimed that Bankersbreached its contract with her by increasing her premiums twice-rather than once-during a few years that hercoverage was in effect (count V), and that Bankers fraudulently concealed from her some of the practices sheclaims were unlawful (count VII).

Initially, the trial court partially granted summary judgment as to count III in plaintiff's favor and summaryjudgment as to count V in defendant's favor. Bankers then asked the court to reconsider its ruling as to count III,which was granted. Ultimately, the trial court dismissed all of plaintiff's claims, holding that: (1) plaintiff's policywas governed by Colorado law; (2) plaintiff's breach of contract and consumer fraud claims were barred by thefiled rate doctrine; (3) no private right of action exists under section 364; and (4) defendant had not breached itscontract by increasing premiums more than once during certain policy years. However, the court only decidedHorwitz's individual claims and never decided whether the case should proceed as a class action. Plaintiff nowappeals the trial court's ruling on counts I through III, V, and VI of her third amended complaint.⁽¹⁾ For the reasonsthat follow, we affirm in part, reverse in part, and remand the cause for further proceedings.

This case arose from a dispute between Horwitz and Bankers regarding premium increases for plaintiff'sindividual health insurance policy. Specifically, plaintiff alleges that, beginning in February 1991, defendantincreased her premiums by amounts greater than permitted by the terms of her policy. She also claims that,beginning in 1991, defendant increased her premiums more often than allowed by her policy. These formed thebases of plaintiff's complaint.

In February of 1985, Joel Horwitz, plaintiff's then-husband, purchased a family policy from Bankers underform CR-97N. At that time, the Horwitz family was living in Denver, Colorado. In September of that year,plaintiff became disabled by mental illness. In September of 1986, while divorce proceedings were pending andthe Horwitzes still lived in Colorado, Mr. Mark Gilbert (Gilbert), plaintiff's father, asked Mr. Horwitz to agree tothe issuance of a separate policy, in plaintiff's own name, for which plaintiff would be solely responsible. Mr.Horwitz agreed, and plaintiff's individual policy was issued to her on October 2, 1986, at which time she wasresiding at the Colorado Mental Health Institute in Fort Logan, Colorado.

In approximately September of 1987, plaintiff moved to Illinois and became an Illinois resident. Defendant, however, continued to treat her policy as a Colorado policy in accordance with its established practiceconcerning insureds who move from state to state. In short, to avoid confusion regarding premium rates andcoverages, in such instances, Bankers follows a "state of issuance" rule, under which it continues to apply thepremium rates and coverages of the state of issuance. Thus, defendant charged plaintiff the Colorado premiumrates after plaintiff moved to Illinois. Defendant also notified plaintiff of this fact after she moved and invited herto convert her policy to an Illinois policy. Plaintiff declined and paid the Colorado premium rates throughout thelife of her policy.

In February of 1995, plaintiff filed a two-count complaint that asserted claims under section 364 of theIllinois Insurance Code and for breach of contract, based on defendant's use of its experience with claims and lossesunder form CR-97N to determine the premium rates applicable to that form. In February of 1997, plaintiff filed herthird amended complaint, which contained seven counts that were all based on the allegations of "the death spiral,"which will be described hereinafter.

In her complaint, plaintiff asserted that the defendant gutted the value of the policy by "closing the block"-- meaning that the policy series was no longer sold to new customers. The impetus for such action, plaintiff argued,is that as the number and amount of loss claims (loss experience) grow larger for a policy series, an insurancecompany becomes trapped in having to renew an economically improvident policy. The effect of Bankers' responseto this phenomenon, however, was that Bankers began pricing its renewal premiums based on the loss experienceof just that closed block group. In other words, by "closing the block," Bankers' calculations of what thepolicyholder's renewable premiums should cost arose only from the statistical data of those remaining in the closedblock group. As this limited pool of insureds became older and more sickly, the argument continued, their claimsincreased and their renewal rates, or premiums, rose.⁽²⁾ As they rose, healthy insureds, who could obtain coverageelsewhere, cancelled their policies, leaving behind only those policyholders whose medical condition preventedother coverage. Those who could not qualify for new coverage, consequently, either died or could no longer affordto keep their coverage alive by paying the dramatic premium increases. Ultimately, plaintiff asserted, Bankers wasable to force their healthcare costs to be shifted from Bankers to the insureds (resulting in, effectively, self-insurance) and accomplished nonrenewal by forcing them off the policy. This is what is referred to by plaintiff asthe "death spiral."

Counts I, II, IV, and VII were dismissed under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)) as follows. On November 20, 1995, and on May 24, 1996, the circuit court dismissed withprejudice plaintiff's claims alleging a violation of section 364 of the Illinois Insurance Code, on the ground that noprivate right of action exists under section 364. These claims were counts I and II of plaintiff's original complaintand were subsequently repleaded in all of the amended complaints. On June 13, 1997, the circuit court dismissedwithout prejudice plaintiff's claims alleging (a) breach of contract based on allegedly selective premium increases,and (b) fraudulent concealment, which were counts IV and VII of plaintiff's third amended complaint. Plaintiffnever repleaded these claims.

However, counts III and V were made the subjects of cross-motions for partial summary judgment. Whilethe circuit court partially granted summary judgment to defendant on count V, it also partially granted summaryjudgment to plaintiff on count III. Specifically, in count III, plaintiff focused on what she believed to be the fourcircumstances in which a premium may be changed: changes in age, benefits, the Consumer Price Index, or newrate tables. She quoted Bankers' policy:

"RENEWAL PREMIUM

We may change the premium rates for this policy. The change may be due to a change in benefits. Since some benefit amounts are tied to the Consumer Price Index (CPI) for medical/hospital doctorfees, it's expected that premium and benefit changes will occur each year. The change may also bedue to a new table of rates or an increase in age of a family member. We can only change thepremium if we change it for all policies like yours in your state on a class basis. We'll tell you inadvance of any changes in the premium. The premium for this policy is expected to increase eachyear."

The focus was on whether the clause, "[t]he change may also be due to a new table of rates," permitted Bankers toshift the rate tables for this (or any) policy from broad-based community experience to the experience of just thefinite, closed-off subgroup. The court held:

"And this phrase reasonable expectations of the parties certainly cannot mean that it is reasonablethat with each renewal of the contract that ones insureability [sic] is going to be recalculated abinitio.

* * *

With time under the scheme that is advanced by the defendant, the group members'premiums necessarily increase to levels that are destined to approach the actual medical paymentsthemselves. As these premiums increase along with illnesses, the degree of fortuitous[ness]decreases.

Of course, insurance is intended to protect one from a fortuitous event. And since thedegree of fortuitousness decreases, with it the characteristics of an insurance policy decreases [sic]as well. I think that is why the plaintiff is entitled to summary judgment and that is why thedefendant is not entitled to summary judgment ."

After that ruling, defendant raised the filed rate doctrine as an affirmative defense for the first time in asupplemental brief after its initial reconsideration brief (after it lost summary judgment) was filed. Basically, thisdoctrine states that where a regulated entity is required to file its rates with a governmental agency charged withauthority to regulate those rates, an individual is barred from attacking those rates in a civil action for damages. Onreconsideration, the court found that this newly asserted filed rate doctrine precluded any action under the contract-given Bankers' filing of its rates with the Colorado Division of Insurance (CDOI) without its objection- andgranted summary judgment to defendant on count III. Subsequently, it also barred Horwitz's Illinois ConsumerFraud Act claim (count VI) for the same reason. Plaintiff now appeals the dismissal of counts I, II, III, V, and VI.

This appeal deals mainly with issues of law that are subject to de novo review. E.g., Jackson v. SouthHolland Dodge, Inc., 312 Ill. App. 3d 158, 162 (2000) (A section 2-615 motion to dismiss is reviewed de novo onappeal); Peddinghaus v. Peddinghaus, 314 Ill. App. 3d 900, 904 (2000) ("The standard of review in cases involvingsummary judgment is de novo"). However, the parties disagree as to the applicable standard of review regardingthe court's decision to admit the affirmative defense of the filed rate doctrine, through its granting of defendant'smotion to reconsider, in light of plaintiff's contention that defendant waived the filed rate doctrine as an affirmativedefense. Plaintiff argues that according to Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157 (1994), thereview of a trial court's decision to strike (or admit) an affirmative defense is reviewed de novo. Defendant,however, cites, "[t]he determination of whether to grant a motion for reconsideration is within the circuit court'sdiscretion, subject to reversal only upon abuse of such discretion." United States Fidelity & Guaranty Co. v.Alliance Syndicate, Inc., 286 Ill. App. 3d 417, 419 (1997).

We note that the intended purpose of a motion to reconsider is to bring to the court's attention (1) newlydiscovered evidence which was not available at the time of the first hearing, (2) changes in the law, or (3) errors inthe court's previous application of existing law. Merchants Bank v. Roberts, 292 Ill. App. 3d 925, 929 (1997). Ingranting defendant's motion to reconsider, the trial court stated, "[t]he court is of the view that the filed ratedoctrine controls the entire case. The plaintiff's motion to reconsider was taken by the court simply as a device bywhich the court - to afford the court an opportunity for its ruling to be consistent with all of that."

It is unclear whether plaintiff is challenging the trial court's grant of defendant's motion to reconsider for afailure to meet the Merchants Bank test. However, one argument she does explicitly make is that becausedefendant did not assert the filed rate doctrine as an affirmative defense in its answer or reply, it was untimely toassert it in a motion for summary judgment according to section 2-613(d) of the Code of Civil Procedure. 735 ILCS5/2-613(d) (West 1998). It has long been held that section 2-616(a) (735 ILCS 5/2-616(a) (West 1998)) permits aparty to amend its pleadings to include an affirmative defense at any time prior to final judgment. Further, the trialcourt's determination of whether to allow or deny an amendment of a pleading is discretionary and will not bereversed absent an abuse of discretion. In re Estate of Hoover, 155 Ill. 2d 402, 416 (1993). Consequently, whetherplaintiff is challenging the trial court's acceptance of the filed rate doctrine as an affirmative defense or its grant ofdefendant's motion for reconsideration, we analyze the trial court's actions for this issue under an abuse ofdiscretion standard.⁽³⁾

After granting defendant's motion for reconsideration, the circuit court determined that plaintiff's policywas governed by Colorado law. Plaintiff's first argument is that the court erred in this decision. Because plaintiff'spolicy does not contain a choice of law provision, Illinois courts must apply Illinois' choice of law rules todetermine the governing law. Diamond State Insurance Co. v. Chester-Jensen Co., 243 Ill. App. 3d 471, 485(1993). Illinois' choice of law rules apply the law of the state with the most significant contacts. Hofeld v.Nationwide Life Insurance Co., 59 Ill. 2d 522, 529 (1975). According to Hofeld, given a de novo review, this courtis to apply the following factors to determine the most significant contacts:

"[I]nsurance contract provisions may be governed by the location of the subject matter, the place ofdelivery of the contract, the domicile of the insured or the insurer, the place of the last act to giverise to a valid contract, the place of performance, or other place bearing a relationship to thegeneral contract." Hofeld, 59 Ill. 2d at 528.

In light of this test, plaintiff lists the following factors attributable to her policy: (1) she is domiciled inIllinois; (2) Bankers is an Illinois corporation with its headquarters in Illinois; (3) Illinois is the place ofperformance, as premium notices have been delivered in Illinois, premium payments as well as claims are directedto Banker's office in Illinois, and Bankers disburses payments for plaintiff's claims from its Illinois office; and (4)Horwitz brought this suit in Illinois to enforce her rights under the Illinois Insurance Code.

As we previously noted, Bankers continued to treat Horwitz's policy as a Colorado policy after she movedto Illinois. In so doing, it notified her that it was treating her policy as such and gave her the option of having anew Illinois policy issued. When plaintiff declined, Bankers charged her the premium rates that had been filed withthe CDOI, which were actually cheaper than the rates in Illinois. In fact, the CDOI asserted its jurisdiction andconsidered plaintiff's complaints. In a letter dated March 25, 1992, the CDOI stated: "The Colorado Department ofInsurance Agrees, based on evidence provided, that Ms. Horwitz's contract is a Colorado contract and, because ofthat, jurisdiction rests with Colorado, not Illinois." Six months later, the CDOI wrote another letter to Mr. Gilbert,Horwitz's father and attorney:

"[T]he initial policy issued to your daughter, Fern Horwitz is a Colorado contract and falls withinour jurisdiction to discipline Bankers Life Insurance Company, should any violation of Coloradostatute be uncovered. The review which we are presently conducting is a final one to determine ifcompelling evidence exists for the Colorado Division of Insurance to take action against BankersLife Insurance Company."

This court recently noted that "[i]n conducting a significant-contacts analysis, Illinois courts do not merelycount the contacts. See Malatesta v. Mitsubishi Aircraft International, Inc., 275 Ill. App. 3d 370, 379, 655 N.E. 2d1093, 1099 (1995). Instead, they apply a more sophisticated 'interest analysis' that involves a three-step process:(1) isolate the issue presented; (2) identify the relevant policies embraced in the laws in conflict; and (3) examinethe contacts and determine which jurisdiction has a superior interest in having its policy applied. Malatesta, 275Ill. App. 3d at 379-80." Wreglesworth v. Arctco, Inc., 316 Ill. App. 3d 1023, 1031 (2000). While we are mindfulthat Horwitz is domiciled and Bankers is incorporated in Illinois, the place of performance is in Illinois, and the suitwas brought in Illinois, the core issue remains whether the calculation of the premiums charged to Horwitzconstituted a breach of contract on the part of Bankers. Because the policy was originally issued in Colorado andHorwitz was charged Colorado rates using Colorado tables which were filed with the Colorado Division ofInsurance, we find that Colorado has the more significant relationship with the occurrence and the parties and thatColorado law should apply.

Plaintiff next argues that because the filed rate doctrine operates as a preemptive defense and is assertableonly as an affirmative defense, its omission from defendant's answer constitutes waiver. She states, "in order toavoid surprise, [section 2-613] requires affirmative defenses to be expressly set forth in the reply." City of Chicagov. Burgard, 285 Ill. App. 3d 478, 480 (1996). Accordingly, if the defense is not raised, it is precluded even thoughit may appear in the evidence. Mount States Mortgage Center, Inc. v. Allen, 257 Ill. App. 3d 372, 381-82 (1993).

However, as defendant notes, "failure to plead an affirmative defense in the initial answer is not necessarilya waiver." Rognant v. Palacios, 224 Ill. App. 3d 418, 422 (1991). Rather, section 2-616(a) permits a party toamend its pleadings to include an affirmative defense any time prior to judgment. Consequently, this court hasrejected arguments that affirmative defenses asserted in motions for summary judgment were waived when thedefendants failed to include them in their answers. Salazar v. State Farm Mutual Automobile Insurance Co., 191Ill. App. 3d 871, 876 (1989). In doing so, this court has also noted that waiver is particularly inappropriate wherethe party asserting it has had ample time to respond to the defense and, as a result, has not been unfairly prejudiced. Rognant, 224 Ill. App. 3d at 421-22.

In the present case, the trial court specifically rejected plaintiff's contention that she had been prejudiced. In response to plaintiff's motion for reconsideration, and following briefing, the court stated: "I think that there isno procedural waiver. In any event, I think that [the fact that Bankers has asserted the filed rate doctrine] has notworked a prejudice to plaintiff's side of the case." Indeed, both cases cited by plaintiff to support her waiverargument involved affirmative defenses that were raised much later than the filed rate doctrine was here. SeeDickman v. E.I. DuPont de Nemours & Co., 278 Ill. App. 3d 776, 79-81 (1996) (after a bench trial); Afshar, Inc. v.Condor Air Cargo, Inc., 250 Ill. App. 3d 229, 229-31 (1993) (after the trial had begun). We find that it was withinthe discretion of the trial court to allow defendant's motion for reconsideration as well as to allow the affirmativedefense in defendant's motion for summary judgment.

Plaintiff's second claim regarding the filed rate doctrine is that judicial estoppel prohibits Bankers'assertion of the doctrine in its motion for summary judgment. Specifically, plaintiff alleges that in Bankers'previous answer to the complaint and other affirmative statements, it stated that the filing rates were not relevant. Accordingly, she continues, Bankers waived the defense, elected a different defense, and should now be estoppedto assert otherwise.

At the core of this argument was plaintiff's request in the circuit court for defendant to admit the following:

"In Illinois, applications for premium increases are required to be filed with State authorities before[Bankers] can assess policyholders any premium increase."

Bankers responded:

"Bankers objects to this request as vague, ambiguous, calling for a legal conclusion, and as seekingthe admission of a 'fact' not relevant to this case. Bankers specifically objects to the followingterms as vague and ambiguous: 'applications,' the unidentified actor in the passive phrase 'arerequired to be filed,' 'State authorities,' 'assess,' and 'any premium.' Without waiving its objections,Bankers denies that it is required by any authority to 'apply' for premium increases before itchanges its premium rates for policies written on its form CR-97N, but admits that it files changesin its tables of rates for policies on its form CR-97N with the Illinois Department of Insurance onan as needed basis."

Despite this response, defendant argued in its motion for reconsideration that the filed rate doctrine precludesplaintiff from bringing a case due to the fact that it filed its premium increases with the CDOI.

"The doctrine of judicial estoppel provides that when a party assumes a certain position in a legalproceeding, that party is estopped from assuming a contrary position in a subsequent legal proceeding." People v.Coffin, 305 Ill. App. 3d 595, 598 (1999). The doctrine has five requirements:

"First, the two positions must be taken by the same party. Second, the positions must be taken injudicial proceedings. Third, the positions must be given under oath. Fourth, the party taking thepositions must have been successful in maintaining the first position, receiving some benefitthereby in the first proceeding. Fifth, the two positions must be totally inconsistent--the truth ofone must necessarily preclude the truth of the other." (Emphasis in original.) Department ofTransportation v. Coe, 112 Ill. App. 3d 506, 509-10 (1983).

We find that plaintiff has failed to prove all five requirements. First, all of the actions and statements uponwhich plaintiff bases her argument were made in this action, and therefore, the separate proceedings requirement isnot met. Second, plaintiff concedes that defendant did not prevail on any of its other allegedly contradictorypositions or receive any benefit from those positions, and therefore, the successful assertion and benefitrequirement is not met. Finally, nothing Bankers said or did was ever inconsistent with the filed rate doctrine. Because none of Colorado's statutes require defendant to "apply" for increased premium rates, defendant deniedplaintiff's statement that "applications for premium rates are required to be filed." Instead, Bankers specificallyadmitted that it "files" changes in its rates on an "as needed basis" or, in other words, as required by the applicablestatutes and regulations. Accordingly, Bankers cannot be judicially estopped from asserting this new affirmativedefense.

Plaintiff's last argument regarding the filed rate doctrine is that it should not be extended to her breach ofcontract or Illinois Consumer Fraud Act claims because it does not satisfy any of the criteria necessary for itsproper application, as normally it is a doctrine of utility and shipping rate-setting law - not insurance contractpricing. This claim directly challenges the trial court's summary judgment holding as legally insufficient and, aspreviously stated, will be reviewed de novo.

For a history of the filed rate doctrine, plaintiff cites Keogh v. Chicago & Northwestern Ry. Co., 260 U.S.156, 163, 67 L. Ed. 183, 188, 43 S. Ct. 47, 50 (1922), where the United States Supreme Court held that a privateplaintiff could not claim damages under the antitrust laws where the allegedly excessive shipping rates at issue hadbeen filed with the Interstate Commerce Commission (ICC). In its reasoning, the Court examined the regulatoryframework of the Interstate Commerce Act and noted that the regulation allowed the recovery of damages forillegal rates for actions brought to the ICC. Therefore, the Court concluded that Congress could not have intendedthat there be an additional remedy of unreasonable rates. Keogh, 260 U.S. at 162, 67 L. Ed. at 187, 43 S. Ct. at 49. Recovery was barred because the shipper's damages were hypothetical since "no court or jury could say that, if therate had been lower, Keogh would have enjoyed the difference between the rates or that any other advantage wouldhave accrued to him. The benefit might have gone to his customers, or conceivably, to the ultimate consumer." Keogh, 260 U.S. at 164-65, 67 L. Ed. at 189, 43 S. Ct. at 50.

Second, the court found that carrier rate regulation was intended to prevent charging discriminatory rates orrebates which would operate to give preferences over competitors. Keogh, 260 U.S. at 163, 67 L. Ed. at 188, 43 S.Ct. at 50. The Court's rationale was that uniform treatment of shippers could not be achieved if different measuresof relief were available to different shippers in actions. Keogh, 260 U.S. at 163, 67 L. Ed. at 188, 43 S. Ct. at 50. This doctrine was logically extended from federal regulation to state agency regulation in Wegoland Ltd. v.NYNEX Corp., 27 F.3d 17 (2d Cir. 1994).

Based upon the unmet criteria of Keogh, plaintiff asserts that this court should not apply the filed ratedoctrine to health insurance premiums in Illinois because the most basic rationale for promoting the doctrine ismissing here - Horwitz is challenging a premium set on terms not permitted by the contract and is not seekingredress of an illegal rebate or discount. Further, the doctrine should not be applied because this is not a utility orshipping case (Wegoland, 27 F.3d at 18), and the whole rate structure for the industry has not been challenged-only the defendant's actions under the terms of the insurance contract. In other words, this is not a case of"monopolistic and oligopolistic" industries, where application of the doctrine would protect the consumer by"fostering stability." Wegoland, 27 F.3d at 20. Indeed, plaintiff argues, because this was filed as a class action,this court should determine that the rationale of uniform treatment overcomes the concern that the trial court cannotfashion appropriate class-wide relief.

Moreover, plaintiff points to the lack of a persuasive regulatory framework as standing for the implicationthat Congress did not intend that there be an additional remedy, as was present in the ICC in Keogh, to precludeeither a private right of action under the Illinois Insurance Code or a common law breach of contract. Rather, thestate insurance commissions do not attempt to occupy the field and instead leave interpretation of policies' renewallanguage open to court interpretation. United States Gas Co. v. Illinois Commerce Commission, 163 Ill. 2d 1, 26(1994) (holding that the filed rate doctrine did not apply where the federal statutory scheme did not "occupy thefield").

Plaintiff maintains that the state insurance commissions do not attempt to occupy the field or its regulation. First, plaintiff focuses on the commissions' lack of investigatory review. For this, she points to defendant's ownassertions that it could "charge whatever it wanted," file the rates, and have them stamped. To this date, plaintiffnotes that neither Colorado nor Illinois has objected to these rates.

Second, plaintiff attempts to distance the facts of this case from those in Anzinger v. Illinois State MedicalInter-Insurance Exchange, 144 Ill. App. 3d 719 (1986). There, this court held that the plaintiff physicians could notmaintain an action under the Illinois Insurance Code to recover premiums paid to their malpractice insurer thatwere ultimately determined (on judicial review of a determination by the Director of Insurance) to be excessive anddiscriminatory. Anzinger, 144 Ill. App. 3d at 725. The present facts, according to plaintiff, can be distinguishedbecause: (1) plaintiff is asserting a breach of contract; (2) there is no mandatory and exclusive statutory schemeregulating appeals and procedure for an affirmative determination by a regulatory agency; and (3) there is noevidence that any regulatory body in this case affirmatively reviewed the reasonableness of Bankers' renewalpremiums or that the premiums conform to the language of the policy.

In fact, plaintiff concludes, Illinois and federal case law shows that the filed rate doctrine is inapplicable. First, she cites Euclid Insurance Agencies, Inc. v. American Association of Orthodontists, No. 95 C 3308 (N.D. Ill.February 5,1998). There, in a breach of contract claim, the insureds claimed that the defendant breached theagreement by charging excessive premium rates. The court disposed of the filed rate doctrine and allowed thebreach of contract action to proceed:

"The filed rate doctrine, however, does not apply to bar Count III. In the agreement, [defendant]assented to make 'adjustments. . . over time based on experience and actuarial calculations.' TheAssociation [plaintiff] is not challenging the reasonableness of [defendant's] rates. Rather, theAssociation is claiming that [defendant] failed to honor its contractual obligation to adjust ratesbased on experience and actuarial calculations. Although the reasonableness of [defendant's]insurance rates and the fact that the rates were governed by regulatory agencies may be factors indeciding this issue, they are not dispositive. Furthermore, counterclaim defendants cite no statuteor case which prohibited or limited [defendant's] ability to fulfill its commitment. Therefore, a jurymust decide if [defendant] complied with the agreement by appropriately adjusting rates. Euclid,slip op. at __.

Similarly, in Dickerson v. Life of America Insurance Co., 893 F. Supp. 1085 (M.D. Ga. 1995), the district courtdenied summary judgment to the insurance company in a similar "closed block" case.

Plaintiff also asserts that an action brought under the Illinois Consumer Fraud Act has never been held tohave been barred under the filed rate doctrine and that the Consumer Fraud Act does not limit recovery under thefiled rate doctrine defense.

Defendant responds that the filed rate doctrine may be applicable to insurance claims and is not limited toutility and shipping rate-setting law, to monopolistic and oligopolistic industries, or to situations in which stateregulators "attempt to occupy the field."⁽⁴⁾ Rather, defendant claims, the doctrine applies whenever the rates inquestion have been filed with a governmental agency that is charged with regulating those rates. See ArkansasLouisiana Gas Co. v. Hall, 453 U.S. 571, 578-79, 69 L. Ed. 2d 856, 864-65, 101 S. Ct. 2925, 2930-31 (1981).

For this, defendant greatly stresses this court's decision in Anzinger, where, defendant claims, this courtapplied the filed rate doctrine to the insurance context without labeling it as such. This court, defendant argues,adopted the reasoning of a United States Supreme Court decision, which held that "there could be no private rightof action for reparations since under the statutory scheme of regulation, it was the agency whose function it was, inthe first instance, to determine whether the filed rates were reasonable. Therefore, * * * to allow any common lawright to recover for excess charges would be inconsistent with the commission's primary jurisdiction to determinerates." Anzinger, 144 Ill. App. 3d at 724, citing T.I.M.E. Inc. v. United States, 359 U.S. 464, 3 L. Ed. 2d 952, 79 S.Ct. 904 (1959). The Anzinger court continued:

"Under the Insurance Code in Illinois, the legislature has still given the exclusive initialdetermination of the reasonableness and nondiscriminatory nature of rates charged for medicalmalpractice insurance to the agency, i.e., the Director here. The recognition of an implied right torecover where the rates have been subsequently determined to be excessive and discriminatorywould, we believe, as did the Supreme Court in T.I.M.E. Inc., be inconsistent with the purpose ofthe Act and the specific limited remedies provided under our statutory scheme." Anzinger, 144 Ill.App. 3d at 724-25.

Defendant also points to decisions in other courts that have applied the filed rate doctrine in the insurancecontext, often to bar the precise relief that plaintiff seeks in the present case. In the case In re Empire Blue Cross &Blue Shield Customer Litigation, 164 Misc. 2d 350, 622 N.Y.S.2d 843 (1994), aff'd sub nom., Minihane v.Weissman, 226 A.D.2d 152, 640 N.Y.S.2d 102 (1996), for example, the plaintiffs alleged that their health insurerhad defrauded policyholders by submitting false information in support of the premium rates it filed with theinsurance department, and sought damages based on the alleged overpayments under theories of breach of contractand statutory and common law fraud. The court rejected roughly the same arguments that plaintiff has made hereand held that the filed rate doctrine barred those claims. Empire Blue Cross, 164 Misc. 2d at 355, 358-59, 622N.Y.S.2d at 845, 848-49.

Similarly, in N.C. Steel, Inc. v. National Council on Compensation Insurance, 347 N.C. 627, 496 S.E.2d369 (1998), the plaintiffs asserted a statutory fraud claim based upon an alleged scheme by insurers to chargeartificially inflated premium rates for workers' compensation coverage. The court there held that the filed ratedoctrine applied to insurance rates and barred the plaintiffs' claims. N.C. Steel, 347 N.C. at 631, 637, 496 S.E.2d at371-72, 375. Defendant admits, however, that Colorado courts have yet to apply the filed rate doctrine in theinsurance context, although the Colorado Supreme Court has applied it in the utility context (Public Service Co. v.Public Utilities Comm'n, 644 P.2d 933, 939 (Colo. 1982)) and the transportation context (Denver & Rio GrandeWestern R.R. Co. v. Marty, 353 P.2d 1095, 1097 (Colo. 1960)).

In distinguishing both the Euclid and Dickerson cases cited by plaintiff, Bankers first points out thatEuclid, an unpublished trial court decision, appears to hold that the plaintiff's breach of contract claim broughtagainst an insurer for failing to adjust rates was not barred by the filed rate doctrine and that the portions of Euclidcited by plaintiff were decided under Missouri law. Euclid, slip op. at __. Further, defendant notes that, withregard to Dickerson, plaintiff does not rely on the court's opinion in that case, which does not mention the filed ratedoctrine. Instead, plaintiff cites an article that only reported that Dickerson had been settled and that the defendanthad asserted that the plaintiffs' claims were preempted under the fixed rate doctrine.

By contrast, defendant argues that the statutory and regulatory scheme pursuant to which Bankers made itsfilings in Colorado supports application of the filed rate doctrine. In particular, the Colorado Insurance Coderegulates the business of insurance "to the end that insurance rates shall not be excessive, inadequate, or unfairlydiscriminatory." Colo. Rev. Stat.