May 24, 2001

No. 2--00--0511

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Ruth Lundy, filed a class action lawsuit againstdefendants, Illinois Farmers Insurance Company, Farmers InsuranceExchange, and Farmers Group, Inc. (collectively, Farmers), allegingthat Farmers acted fraudulently in requiring its authorized repairshops to use inferior-quality replacement parts on automobiles thatwere covered under Farmers insurance policies. Farmers moved todismiss plaintiff's second amended complaint or stay the cause ofaction pursuant to section 2--619 of the Code of Civil Procedure(Code) (735 ILCS 5/2--619 (West 1998)) on the ground that plaintiffhad failed to comply with the appraisal clause contained in thepolicy at issue. The trial court denied Farmers' motion and thisappeal ensued. The only issue before us is whether the trial courterred in denying Farmers' motion to dismiss or stay plaintiff'scause of action.

We have jurisdiction over this case under Supreme Court Rule307(a)(1) (166 Ill. 2d R. 307(a)(1)), which provides that an appealmay be taken from an interlocutory order granting, modifying,refusing, dissolving, or refusing to dissolve or modify aninjunction. Courts have treated the denial of a motion to stay asa denial of a request for a preliminary injunction. Beard v. MountCarroll Mutual Fire Insurance Co., 203 Ill. App. 3d 724, 727(1990).

In her second amended complaint, plaintiff alleged that shepurchased an automobile insurance policy from Farmers. The policyprovided that Farmers would pay for a loss to the insured vehiclecaused by accidental means, minus any applicable deductible. Thepolicy limited the amount of its liability for a loss to "[t]hecost to repair or replace damaged or stolen property with other oflike kind or quality, or with new property less an adjustment forphysical deterioration and/or depreciation." The policy containedan appraisal provision that stated as follows:

"You or we may demand appraisal of the loss. In that event,we will each appoint and pay a competent and disinterestedappraiser and will equally share other appraisal expenses. The appraisers, or judge of a court having jurisdiction, willselect an umpire to decide any differences. We will shareequally the expense of the umpire. Each appraiser, and theumpire if needed, will state separately the actual cash valueof the property before the accident and the amount of loss. An award in writing by any two of the appraisers and umpirewill determine the amount payable, which shall be bindingsubject to the terms of this insurance."

The policy further provided that the insured could not sue theinsurer unless there was full compliance with the terms of thepolicy.

In May 1997, plaintiff's car was damaged in a collision. Plaintiff alleged that Farmers required her to take her car toVillage Pontiac-GMC for repairs. Village Pontiac-GMC was in theFarmers network of body shops, known as the "Circle ofDependability" or "Select Shops," that were authorized to writerepair estimates for Farmers. A document attached to plaintiff'ssecond amended complaint and entitled "SECTION TWO: CIRCLE OFDEPENDABILITY FACILITY" states:

"In a mutual effort to maintain quality repairs at the lowestcost, the repair facility will use cost-saving techniquesincluding but not limited to Salvage Parts, Rebuilt Parts,After Market Parts and plastic repair. Farmers upholds anystate laws that prohibit the use of some specified savingstechniques."

Plaintiff alleged that Village Pontiac-GMC's estimatesrequired the installation of an "imitation" radiator and condenserand a used wheel. In addition, the estimate did not include a seatbelt check; color, sand, and buff; tinting; or corrosionprotection. According to plaintiff, all of the above werenecessary in order to return her car to its preloss condition. Farmers paid $6,186.64 to repair the car based on the estimatesfrom Village Pontiac-GMC.

Plaintiff alleged that Farmers engaged in deceptive practicesby representing in its policies that it would restore coveredvehicles to their pre-loss condition but requiring body shops touse substandard "imitation" parts rather than more expensiveoriginal equipment manufacturer parts for the repairs. Plaintiff'ssecond amended complaint included claims on behalf of herself andthe alleged class members under the Consumer Fraud and DeceptiveBusiness Practices Act (815 ILCS 505/1 et seq. (West 1998)), theUniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West1998)), common-law fraud, fraudulent inducement, breach offiduciary duty, and breach of contract. Plaintiff also soughtdeclaratory and injunctive relief.

In response to plaintiff's first amended complaint, Farmersfiled a motion to dismiss pursuant to section 2--615 of the Code(735 ILCS 5/2--615 (West 1998)) and a motion for involuntarydismissal pursuant to section 2--619 of the Code. Farmers arguedin its section 2--615 motion that the first amended complaintfailed to state a cause of action under any of plaintiff'stheories. In its section 2--619 motion, Farmers contended that theIllinois Department of Insurance, rather than the circuit court,had primary jurisdiction over the dispute. The trial court deniedthe section 2--619 motion and denied the majority of the reliefFarmers sought in its section 2--615 motion.

Farmers demanded appraisal for the first time in a letterdated January 18, 2000. The following day, Farmers filed a motionpursuant to section 2--619 to dismiss or stay plaintiff's cause ofaction and compel arbitration. The trial court denied Farmers'motion on the grounds that the authority Farmers relied onregarding the enforceability of arbitration agreements did notapply to the facts of this case and that an appraisal would notaddress the issues raised in the complaint. Farmers filed a timelynotice of appeal from the trial court's judgment.

Before we address the merits of this appeal, we feel compelledto comment on both parties' excessive use of footnotes in theirbriefs. Supreme Court Rule 341(a) (177 Ill. 2d R. 341(a)) statesthat "[f]ootnotes, if any, shall be used sparingly." Supreme CourtRule 344(b) (155 Ill. 2d R. 344(b)) also indicates that"[f]ootnotes are discouraged." Plaintiff's 20-page brief contains16 single-spaced footnotes and Farmers' 27-page reply briefcontains 15 single-spaced footnotes. Both parties' footnotes, forthe most part, contain substantive material that should have beenpresented in the body of the briefs. Moreover, in the case ofFarmers' reply brief, had the footnotes been integrated into thebody of the brief, the brief would have exceeded the pagelimitation set forth in Rule 341(a).

We have previously noted that "[a]dherence to the pagelimitations and guidelines for footnote usage is not aninconsequential matter," and parties who ignore these rules do soat their peril. Kerger v. Board of Trustees of Community CollegeDistrict No. 502, 295 Ill. App. 3d 272, 275 (1997). Consequently,on our own motion, we strike all of the footnotes from Farmers'reply brief. We also admonish both parties to comply with Rule341(a) in the future.

Turning to the merits, we consider whether the trial courterred in denying Farmers' motion to dismiss or stay plaintiff'scause of action and compel arbitration. The only question areviewing court must decide in an interlocutory appeal is whetherthere was a sufficient showing to sustain the trial court's ordergranting or denying the relief sought. J&K Cement Construction,Inc. v. Montalbano Builders, Inc., 119 Ill. App. 3d 663, 667(1983). We conclude that there was sufficient evidence to sustainthe trial court's order denying Farmers' motion.

Farmers advances several reasons why it believes the trialcourt was required to dismiss or stay plaintiff's cause of action. First, Farmers argues that the federal Arbitration Act (9 U.S.C.A.