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First Midwest Bank1/20/2005
s considered merely ancillary or incidental, and the defendant is not deemed to be in the business of providing information and is not liable for negligent misrepresentation. Tolan & Son, 308 Ill. App. 3d at 29, citing General Electric Capital Corp., 797 F. Supp. at 1442. Examples of defendants in this category include manufacturers and sellers of tangible goods such as computers and construction materials (Black, Jackson & Simmons Insurance Brokerage, Inc. v. International Business Machines Corp., 109 Ill. App. 3d 132, 440 N.E.2d 282 (1982)(manufacturers and sellers of computers and software), overruled in part on other grounds, Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 166, 679 N.E.2d 1198 (1997); Knox College v. Celotex Corp., 117 Ill. App. 3d 304, 453 N.E.2d 8 (1983)(manufacturers and sellers of roofing materials); (Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill. 2d 146, 503 N.E.2d 246 (1986)(manufacturers of electrical devices); Menard, Inc. v. U.S. Equities Development, Inc., No. 01 C 7142 (N.D. Ill. February 28, 2002)(mem. op.)(construction supply firm)). An additional example includes an architect and engineer retained to design and build townhomes who did not advise their client that the site's soil was highly compressible and could not support the buildings' foundations. Tolan & Son, 308 Ill. App. 3d at 31." Fox Associates, Inc. v. Robert Half International, Inc., 334 Ill. App. 3d 90, 93-95 (2002).
"The allegation that a defendant is in the business of providing information for the guidance of others is a legal conclusion that must be supported by well-pled factual allegations. Tolan & Son, 308 Ill. App. 3d at 28. To determine whether a party is in the business of supplying information, the precise facts of the specific case must be analyzed. Tolan & Son, 308 Ill. App. 3d at 27. The determination is dependent upon the nature of the information at issue and its relation to the kind of business being conducted. Tolan & Son, 308 Ill. App. 3d at 28. `"The critical question * is whether the information is an important part of the product offered. business[ ] will be deemed to be in the business of supplying information if the information furnished along with the non-informational goods or services is central to the business transaction. [Citation.]"' Tolan & Son, 308 Ill. App. 3d at 29." Fox Associates, 334 Ill. App. 3d 95-96.
First Midwest argues that the trial court erred when it granted Stewart Title's motion to dismiss count II of its second amended complaint. First Midwest claims that count II sufficiently stated a cause of action for negligent misrepresentation. It is First Midwest's contention that Clear Title, Stewart Title's agent, issued a commitment for title insurance which failed to contain a reference to the existence of a recorded restrictive covenant against the premises which prohibited the use of the property for business or commercial purposes. First Midwest points out that the Bergerons wanted to use the premises for both residential and business purposes. First Midwest complains that it would not have approved of the initial $300,000 loan or any subsequent loan to the Bergerons if it had known of this restriction.
First Midwest contends that the purposes for which the property could be used was a statement of material fact to all the parties of the transaction. Consequently, First Midwest maintains that Stewart Title's failure to report the restrictive covenant constitutes a false statement of material fact.
First Midwest avers that Stewart Title is in the business of researching titles and providing title insurance to buyers and sellers of real estate and to lenders that make
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