Kuwik v. Starmark Star Marketing and Admin., Inc.

Decision Date22 July 1993
Docket NumberNo. 74228,74228
Citation619 N.E.2d 129,156 Ill.2d 16,188 Ill.Dec. 765
Parties, 188 Ill.Dec. 765 Lori KUWIK, Appellee, v. STARMARK STAR MARKETING AND ADMINISTRATION, INC., et al., Appellants.
CourtIllinois Supreme Court

Peterson & Ross, Chicago (Howard C. Ryan, Joseph J. Hasman and Sherri L. Giffin, of counsel), for appellants.

Maureen Flaherty, Lehrer, Flaherty & Canavan, P.C., Wheaton, for appellee.

Justice NICKELS delivered the opinion of the court:

Plaintiff, Lori Kuwik, filed an action in the circuit court of Du Page County against defendants Starmark Star Marketing and Administration (Starmark), Benefit Trust Life Insurance Company (Benefit), E. Mitsis (Mitsis) and Arthur J. Fischer (Fischer) (collectively, defendants) for libel. The trial court entered summary judgment for all defendants and plaintiff appealed. The appellate court reversed ((1992), 232 Ill.App.3d 8, 173 Ill.Dec. 543, 597 N.E.2d 251), and we granted defendants' petition for leave to appeal (134 Ill.2d R. 315).

Plaintiff is a doctor of chiropractic medicine and practices at Fox Valley Health Services in St. Charles, Illinois. On February 22, 1989, plaintiff examined Kathy Hammond, who complained of extreme fatigue, recurring bronchitis and tonsilitis, lymphadenopathy, chronic sore throat, and premenstrual syndrome. Plaintiff suspected Candida syndrome and chronic Epstein-Barr virus. On March 6, 1989, plaintiff ordered a series of lab tests which revealed the presence of Candida and Epstein-Barr virus antibodies in Hammond's body.

Hammond submitted her medical bill from plaintiff to Hammond's insurance company, Starmark, for payment. In response, Hammond received a letter from Starmark dated August 15, 1989, signed by Mitsis, which stated in part:

"This letter is in response to a review on claims submitted from Fox Valley Health Services.

Our Medical Department has reviewed medical records and information relating to services rendered on March 6, 1989. It has been determined that based on the information on file, services rendered are 'outside the scope of the practicing physician's license', [sic ] as stated under the definition of a physician in your policy. Therefore no benefits are payable for these services."

The letter also informed Hammond that she could "take this matter up with the Illinois Department of Insurance."

Hammond showed the letter to plaintiff, who subsequently filed a formal complaint with the Illinois Department of Insurance on September 23, 1989. The Department of Insurance forwarded a copy of plaintiff's complaint to Benefit, Starmark's parent company, and requested a response.

On October 23, 1989, Benefit sent the following letter, signed by Fischer, an attorney in Benefit's legal department, to Larry Barregarye of the Department of Insurance:

"Dear Mr. Barregarye:

* * * * * *

In order to respond to the comments of Dr. Lori Kuwik, I had this file reviewed by our medical director, Dr. Marvin Zolot. Dr. Zolot's position is that in order for a provider to order lab tests for a patient, the provider must first determine which test might be appropriate by doing a medical history in performing a physical examination.

In addition the provider must be trained in disciplines which teach the evaluation and treatment of the diseases which the tests may reveal. As our medical director has pointed out, an optometrist would not treat heart disease nor would a physical therapist do any evaluation or investigation into infectious diseases.

Tests for Epstein Barr virus or Systemic Candiasis testing is outside the scope and knowledge as well as the license of the provider in this case. However, our medical director has indicated that the company can provide $35 towards the Epstein Barr Titer and $25 towards the Candida Titer tests for a total of $60 in benefits."

Plaintiff filed her complaint for libel on July 27, 1990, and alleged that defendants' August 15, 1989, and October 23, 1989, letters were false and defamatory with respect to her qualifications to practice her profession. Plaintiff further alleged that defendants maliciously published the letters in an attempt to injure her and ruin her profession.

Fischer was deposed on May 7, 1991, and revealed the following. Fischer is an attorney licensed to practice law in Illinois and is a vice-president, associate general counsel, and assistant secretary at Benefit. Starmark is a wholly owned subsidiary of Benefit, which underwrites Starmark's policies. Starmark employees consult with Benefit's legal and medical departments about pending claims.

Fisher stated that the question of whether a particular physician was operating outside the scope of his license would be answered jointly by the legal and medical departments. Generally, such a decision would not be made by one department alone. Fisher also stated that if an inquiry should be made to him concerning the scope of practice of a chiropractor, he would refer to the licensing statute.

Fisher also noted that he sent Zolot a memo asking him to investigate plaintiff's complaint after Fischer received the inquiry from the Department of Insurance. Zolot responded with this written memo:

"Our position is that in order for a provider to order laboratory tests, they must 1st [sic ] determine which laboratory tests might be appropriate by doing a history and performing a physical. In addition, the provider must be trained in disciplines which teach the evaluation and treatment of the disease which the tests may reveal. Optometrists do not treat heart disease; physical therapists do not dabble in infectious disease, et cetera. Epstein-Barr virus + [sic ] or systemic Candidiasis is outside the scope of the knowledge and indeed the scope of the license. (Toby is checking the wording of the Chiro license.)"

Fischer explained that "Toby" is Toby Weitzenfeld, a paralegal. Although the memo indicated that Weitzenfeld was checking the wording of a chiropractic license, Fisher never talked to Weitzenfeld about any results of the research. There was also nothing in plaintiff's file from the paralegal. Fischer could not recall whether he himself researched the Illinois licensing statute for physicians after receiving Zolot's memo, but knew he did not ask anyone to research the matter for him. After the lawsuit was filed, Fischer conducted an investigation and did not find any request of the legal department to provide information concerning licensing procedures for physicians in Illinois in 1989.

Fischer admitted that he based his opinion in the October 23, 1989, letter to the Department of Insurance on Zolot's opinion, and not on the law. Fischer did not know why he did not refer to the Illinois statute before sending the letter to the Department of Insurance. At the time he sent the letter, Fischer believed the statement was true, but has since learned that the statement was not correct. Fischer did not have any knowledge regarding chiropractors' education or licensing at the time the letter was sent, and had no medical training himself. However, Fischer knows now, after researching the licensing restrictions on physicians in Illinois, that the only restrictions on chiropractors at the time the letter was sent concerned dispensing prescriptions and performing surgery. Fischer also learned that a doctor of chiropractic could become licensed to prescribe drugs and perform surgery through further training and examination, and thus become licensed to practice all branches of medicine. Fischer did not look into plaintiff's training.

Fischer also identified the following memorandum concerning Hammond's claim dated August 9, 1989:

"Per Dr. Zolot's review, no benefits are payable. The tests that were performed are not appropriate treatment for the patients [sic ] symptoms. The symptoms are not related to spinal manip. treatment. This chiropractor is practicing outside the scope of his license. Deny charges."

On July 11, 1991, defendants filed a motion for summary judgment. This motion was based on defendants' affirmative defense that the two letters were qualifiedly privileged as a matter of law and on the argument that no material fact existed to show the privilege was abused. The trial court agreed with defendants and on September 30, 1991, entered summary judgment as to all defendants.

Plaintiff appealed the trial court's entry of summary judgment, and the appellate court reversed. The appellate court found an issue of material fact concerning whether defendants' statements about plaintiff were made in good faith, a requirement for the finding of a conditional privilege. The appellate court found that the issue was one for the trier of fact. The court also noted that an issue of material fact existed regarding whether the letters were sent with actual malice. 232 Ill.App.3d 8, 173 Ill.Dec. 543, 597 N.E.2d 251.

On appeal to this court, defendants argue that the appellate court erred in finding an issue of material fact as to whether they acted in good faith in sending the two letters. Defendants argue that in Illinois, the question of whether a privilege exists is a question of law, and thus, whether good faith existed for the communication to be privileged is also a question of law. Moreover, defendants argue, there is no dispute as to any underlying fact concerning their behavior in sending the letters, and thus there is nothing for the trier of fact to resolve. All the court must do, defendants argue, is look at the undisputed facts and determine whether good faith, and thus a qualified privilege, exist as a matter of law. Defendants argue that the trial court was correct in finding good faith on their part in sending the letters, and a qualified privilege to exist. Defendants also argue that no issue of material fact exists concerning whether they abused their qualified privilege.

Plaintiff disagrees and argues the appellate court properly found a question of fact to exist as to whether defendants displayed good faith...

To continue reading

Request your trial
168 cases
  • Geske & Sons, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 9, 1997
    ...of fact or law Geske's tortious interference claims raised.11 On appeal, Geske submits that Kuwik v. Starmark Star Mktg. & Admin., Inc., 156 Ill.2d 16, 188 Ill.Dec. 765, 619 N.E.2d 129 (1993), establishes the correct standard by which to assess its libel claim. We cannot accept this submiss......
  • Haywood v. Lucent Technologies, Inc., 00 C 4445.
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 1, 2001
    ...interest of the public is concerned. Parker, 258 Ill.Dec. 304, 756 N.E.2d 286, 296-97 (citing Kuwik v. Starmark Star Mktg. & Admin., Inc., 156 Ill.2d 16, 188 Ill.Dec. 765, 619 N.E.2d 129 (1993)). A court must determine as a matter of law and general policy whether the occasion created a rec......
  • Kamelgard v. Macura
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 23, 2009
    ...the defendant had a duty to make and did not disseminate any further than necessary. Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill.2d 16, 188 Ill.Dec. 765, 619 N.E.2d 129, 132-35 (1993); In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708, 533 N.E.2d 790 (1988); Smock v. Nolan......
  • Mauvais-Jarvis v. Wong
    • United States
    • United States Appellate Court of Illinois
    • March 28, 2013
    ...only.’ ” Zych, 363 Ill.App.3d at 834, 300 Ill.Dec. 561, 844 N.E.2d 1004 (quoting Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill.2d 16, 25, 188 Ill.Dec. 765, 619 N.E.2d 129 (1993)). The protection provided by a qualified privilege is lost if: “(1) false statements are made ......
  • Request a trial to view additional results
7 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Illinois Pretrial Practice. Volume 2 - 2014 Contents
    • August 12, 2014
    ...Bishop of Chicago, 366 Ill App3d 309, 851 NE2d 233, 303 Ill Dec 335 (1st Dist 2006), §3:504 Kuwik v. Starmark Star Mktg. & Admin., Inc. , 156 Ill2d 16, 24, 619 NE2d 129, 188 Ill Dec 765 (1993), §20:82 Kwasniewski v. Schaid , 153 Ill2d 550, 553, 607 NE2d 214, 180 Ill Dec 320 (1992), §8:300 t......
  • To Be or Not to Be, Malice Is the Question: an Analysis of Nebraska's Fair Report Privilege from a Press Perspective
    • United States
    • Creighton University Creighton Law Review No. 36, 2002
    • Invalid date
    ...§ 8.2. 59. Id. 60. Id. 61. Id. at §§ 9.3.1 - 3.2. 62. Id. at § 9.3.1 (citing Kuwik v. Star Mktg. & Admin., Inc.,156 Ill. 2d 16, 619 N.E.2d 129, 135-36 (1993)). 63. ROBERT D. SACK, SACK ON DEFAMATION § 9.3.1. ("Thus, if it can be shown that a speaker, who claims that a defamatory statement w......
  • To Be or Not to Be, Malice Is the Question: an Analysis of Nebraska's Fair Report Privilege from a Press Perspective
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 36, 2022
    • Invalid date
    ...§ 8.2. 59. Id. 60. Id. 61. Id. at §§ 9.3.1 - 3.2. 62. Id. at § 9.3.1 (citing Kuwik v. Star Mktg. & Admin., Inc.,156 Ill. 2d 16, 619 N.E.2d 129, 135-36 (1993)). 63. ROBERT D. SACK, SACK ON DEFAMATION § 9.3.1. ("Thus, if it can be shown that a speaker, who claims that a defamatory statement w......
  • All Discovery
    • United States
    • James Publishing Practical Law Books Archive Illinois Pretrial Practice. Volume 1 - 2014 Contents
    • August 8, 2014
    ...intention to injure another or reckless disregard of the defamation plaintiff’s rights. [ Kuwik v. Starmark Star Mktg. & Admin., Inc. , 156 Ill 2d 16, 24, 619 NE2d 129, 188 Ill Dec 765 (1993).] An absolute privilege applies even if the defendant was motivated by malice or other bad motives.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT