A state appeals panel has agreed the owner of a Northwest Side French catering company can’t pursue its class action complaint accusing its insurance provider of surreptitious telephone recordings.
Cook County Circuit Court Judge Anna Demacopolous dismissed complaint the complaint brought by bakery and catering company Cook Au Vin against Mid-Century Insurance Company in March 2022, ruling the company lacked standing to sue regarding a conversation between its attorney, William Meyer, and the insurer, a subsidiary of Farmers Insurance Group.
According to court records, Cook Au Vin, which opened in 2005, wanted Mid-Century to pay more than $360,000 from its general commercial liability policy for losses sustained during government-ordered Covid closures starting in March 2020. It filed the claim on July 2, 2020, and the call in question happened the same day when Mid-Century Claim representative Erin Dufner called Meyer.
When Dufner notified Meyer the call was being recorded, according to a transcript, Meyer interjected to indicate a preference that not be the case. Dufner said she didn’t know whether it would be possible to turn off the recording device. After a brief exchange about contact information, Meyer again objected to the recording.
“Both I and my client do not consent to recording of phone calls,” Meyer said, informing Dufner of his belief she violated a state eavesdropping law.
Cook Au Vin challenged the dismissal before the Illinois First District Appellate Court. Justice Debra Walker wrote the panel’s opinion, issued May 24; Justices Margaret Stanton-McBride and Jesse Reyes concurred.
“The eavesdropping statute prohibits the surreptitious recording of a private conversation by one who is not a party to the conversation,” Walker wrote. And although the restaurant acknowledged “Meyer and Dufner were the actual parties to the recorded conversation,” she continued, it insisted it also was a party in interest due to Meyer’s role as its attorney-agent in relation to the insurance policy.
The panel said there are situations in which a corporation can be legally considered party to a private conversation when an employee or officer is speaking strictly as a company representative, but “Meyer’s role as plaintiff’s attorney is legally distinguishable from that of a corporate officer,” Walker wrote.
Even Meyer’s role as Cook Au Vin’s hired attorney was sufficient to establish standing, the panel continued, dismissal also would be proper under a different part of the law because Mid-Century adequately argued the restaurant’s complaint had incurable defects.
The law Mid-Century allegedly violated “requires consent only if the eavesdropping device is used in a surreptitious manner to record a private conversation,” Walker wrote. “(Cook Au Vin’s) lack of consent is not a factor unless we find that Mid-Century made a surreptitious recording and that it did so to record a private conversation.”
The transcript showed Dufner announced the call was recorded, the panel said, which negated any surreptitiousness. Cook Au Vin insisted Dufner was late to disclose this fact, but Walker wrote the transcript shows “Dufner informed Meyer of the recording as soon as she had the opportunity to do so. When Dufner called Meyer and identified herself, Meyer requested a moment to get his notes so he could write down her name and telephone number. Dufner gave him that information and then immediately informed Meyer that the call was being recorded.”
The panel also noted the conversation was in no way secret or something Mid-Century “could not otherwise have heard.” While Cook Au Vin insisted it, through Meyer, expected the phone call to be private, the panel said that expectation was unreasonable to the degree needed to sustain the complaint.
“Dufner called Meyer to obtain information to process plaintiff’s insurance claim, and plaintiff has not alleged that it did not expect Dufner to forward that information to other employees at Mid-Century,” Walker wrote. “Furthermore, Mid-Century had a valid reason for recording the conversation. Dufner informed Meyer that the call was being recorded for customer service purposes. If Dufner had to take written notes on the conversation, she might have misquoted information given by Meyer. An audio recording in this situation is the best evidence of the words spoken.”
While the restaurant said Dufner’s claimed inability to stop the recording revealed an improper excuse for recording, the panel said that logic was conclusory and unsupported by factual evidence.
Cook Au Vin has been represented by attorneys from Fuksa Khorshid, of Chicago.
Representing Mid-Century is the Chicago firm of Locke Lord.