Turner v. Orthopedic & Shoulder Ctr.

• Decision Date: 06 July 2017
• Docket Number: NO. 4-16-0552.,4-16-0552.
• Citation: 2017 IL App (4th) 160552,82 N.E.3d 801
• Parties: Cassandra TURNER, Plaintiff–Appellant, v. ORTHOPEDIC AND SHOULDER CENTER, S.C., Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 160552

82 N.E.3d 801

Cassandra TURNER, Plaintiff–Appellant,

v.ORTHOPEDIC AND SHOULDER CENTER, S.C., Defendant–Appellee.

NO. 4-16-0552.

Appellate Court of Illinois, Fourth District.

Opinion filed July 6, 2017

Modified upon denial of rehearing August 14, 2017

James P. Ginzkey, of Bloomington, for appellant.

Peter W. Brandt and Rachel J. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee.

OPINION

JUSTICE APPLETON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Cassandra Turner, brought this action against defendant, Orthopedic and Shoulder Center, S.C., for consumer fraud (see 815 ILCS 505/1 et seq. (West 2014)) and intentional infliction of emotional distress (see Restatement (Second) of Torts § 46 (1965) ). Both theories were premised on defendant's charging her more for medical services than the amounts that defendant had agreed to charge, in its contract with plaintiff's health insurer, Blue Cross Blue Shield of Illinois (Blue Cross). The allegedly fraudulent charge was in the form of a health-care services lien that defendant asserted against the settlement proceeds in plaintiff's personal-injury case (Turner v. Simpsen , No. 14–L–176 (Cir. Ct. McLean Co.)). See 770 ILCS 23/10 (West 2014).

¶ 2 Defendant moved for a summary judgment on both theories, and the trial court granted the motion. In the same order, the court denied a petition by plaintiff to adjudicate defendant's lien to be zero. See 770 ILCS 23/30 (West 2014). Plaintiff appeals.

¶ 3 In our de novo review of the summary judgment, we reach the following conclusions. First, plaintiff has forfeited her theory of intentional infliction of emotional distress because, in her opening brief, she makes no reasoned argument in support of that theory. Second, asserting the health-care services lien was a breach of contract, but it was not consumer fraud. Therefore, we affirm the summary judgment on the two counts of the second amended complaint, but we reverse the denial of plaintiff's "Petition To Adjudicate Lien to Zero." We also deny defendant's petition for rehearing.

¶ 4 I. BACKGROUND

¶ 5 A. The "Participating Provider Agreement"

¶ 6 On March 30, 2011, defendant entered into a "Participating Provider Agreement" with Blue Cross. Lawrence Li signed the agreement on behalf of defendant, and Stephen F. Hammen, a vice president, signed it on behalf of Blue Cross.

¶ 7 In the "Participating Provider Agreement," defendant agrees to accept Blue Cross insurance as full payment for any covered service it renders to Blue Cross patients. This understanding between defendant and Blue Cross is expressed, for instance, in article IV, paragraph 3(A), of the agreement (in which the "Contracting Provider" is defendant and the "Plan" is Blue Cross):

"(A) The Contracting Provider agrees to accept the Plan's Usual and Customary Fee allowance as full payment for each service covered by the Plan Insured's Usual and Customary Contract, and the total amount payable by both the Plan and the Plan Insured, when the Plan Insured has any deductible, coinsurance[,] or co-payment balance for which the Plan Insured is responsible, shall not exceed the Plan's Usual and Customary Fee determination."

¶ 8 Article IV, paragraph 7, negates defendant's right, under any circumstances, to seek payment from the patient for covered services, except for copayments and deductibles:

"7. The Contracting Provider agrees that in no event, including, but not limited to, nonpayment by the Plan of the amounts due the Contracting Provider under this contract, insolvency of the organization[,] or any breach of this contract by the organization, shall the Contracting Provider or its assignees or subcontractors have a right to seek any type of payment from, bill, charge, collect a deposit from, or have any recourse against (i) the Covered Person; (ii) persons acting on the Covered Person's behalf (other than the Plan); and/or (iii) the employer or group contract holder for services provided pursuant to this Agreement, except for the payment of applicable copayments or deductibles for services covered by the Plan or fees for services not covered by the Plan. The requirements of this clause shall survive any termination of this Agreement for services rendered prior to such termination, regardless of the cause of such termination. The Covered Persons, the persons acting on the Covered Person's behalf (other than the Plan)[,] and the employer or group contract holder shall be third party beneficiaries of this clause. This clause supersedes any oral or written agreement now existing or hereafter entered into between the Contracting Provider and the Covered Person, persons acting on the Covered Person's behalf (other than the Plan)[,] and the employer or group contract holder."

¶ 9 B. The Motor Vehicle Accident and the Consequent Medical Treatment

¶ 10 On July 14, 2014, plaintiff was involved in a motor vehicle accident, in which she sustained injuries.

¶ 11 From July to October 2014, defendant treated her for these injuries.

¶ 12 C. The Notices of Lien

¶ 13 On July 16, 2014, defendant sent a notice of a health-care services lien in the amount of $19,877.29 to Progressive Casualty Insurance Company, which was plaintiff's automobile insurer.

¶ 14 On July 17, 2014, defendant sent a notice of lien in the revised amount of $19,847.29 to Country Financial, which was the tortfeasor's automobile insurer.

¶ 15 On September 19, 2014, defendant sent a notice of lien in the revised amount of $30,048.55 to Country Financial.

¶ 16 On December 17, 2014, defendant sent a notice of lien in the revised amount of $34,027.40 to Country Financial.

¶ 17 Defendant sent none of these notices to either plaintiff or the alleged tortfeasor, Aja Simpsen.

¶ 18 D. Blue Cross Pays Defendant at the Discounted Rate, and Without Being Asked To Do So, Defendant Pays Blue Cross Back

¶ 19 Plaintiff had Blue Cross health insurance. Defendant billed Blue Cross a total of $29,008.55 for its treatment of plaintiff. Blue Cross's usual and customary allowance, however, was only $6495.63, so that is the amount it paid defendant.

¶ 20 After cashing the check from Blue Cross, defendant paid Blue Cross back, although Blue Cross never requested that defendant do so. Defendant issued one check to Blue Cross in the amount of $6093.44 and another check in the amount of $402.19. ($6093.44 plus $402.19 equals $6495.63.)

¶ 21 E. The Tort Action and Its Settlement

¶ 22 On November 2, 2014, plaintiff, by her attorney, James Ginzkey, filed a personal-injury action, in which she named Simpsen as the person who was liable for the injuries she had sustained in the automobile accident.

¶ 23 On December 16, 2014, plaintiff settled the personal-injury case. Ginzkey deposited the settlement proceeds into a trust account, pending resolution of defendant's asserted health-care services lien.

¶ 24 F. Defendant's Demand Letter to Ginzkey

¶ 25 On February 25, 2015, on behalf of defendant, the law firm of Frederick & Hagle sent Ginzkey a letter "concerning the money that is owed to [Dr. Lawrence Li] by [plaintiff]" (we quote from the letter). The letter notes that plaintiff "signed a financial [agreement] with Dr. Li when she became his patient" and that she promised, therein, to " ‘pay collection costs up to 50% of the balance owed to [defendant],’ " as well as " ‘reasonable attorney fees incurred to effect collection of this account.’ " "[I]t is our position," the letter says, "that[,] as of this moment[,] your client is going to be pay[ing] my attorney's fees, and we are going to seek 50% of the balance owed, which is $34,027.40." The letter warns that unless Ginzkey, as the trustee of the settlement proceeds, turns over this balance to defendant, he will be "subject to punitive damages," like the attorney in Cirrincione v. Johnson , 184 Ill. 2d 109, 234 Ill.Dec. 455, 703 N.E.2d 67 (1998). "Dr. Li is entitled to the usual and customary charges for the services that he rendered in this matter," the letter claims. "He does not have to accept health insurance that pays at a drastically reduced price." (In the financial agreement, referenced in this letter, defendant agreed, "as a courtesy," to "assist [plaintiff] in obtaining insurance benefits by filing [c]laims for services when she ha[d] assigned those benefits to [defendant].") The letter concludes with an ultimatum: "We demand that you turn over to Dr[.] Lawrence Li the sum of $34,027.40. If this is not done within 14 days, we shall [file] a suit against your client and against you for unreasonably withholding his money."

¶ 26 G. The Combined Summary Judgment and Determination of Lien

¶ 27 On July 19, 2016, the trial court entered an order, which (1) granted defendant's motion for summary judgment on both counts of the second amended complaint and (2) determined defendant's health-care services lien to be valid.

¶ 28 1. The Trial Court's Reasoning as to Count I, the Theory of Consumer Fraud

¶ 29 The first count of the second amended complaint set forth a theory of consumer fraud in that defendant:

"(a) refus[ed] to bill BLUE CROSS for services rendered to plaintiff, despite being contractually obligated to do so;

(b) refus[ed] to accept payment from BLUE CROSS for services rendered to plaintiff, despite being contractually obligated to do so; [and]

(c) fraudulently bill[ed] plaintiff $34,027.40 plus costs and attorney fees when [defendant] was contractually entitled to less than $8,000."

¶ 30 The trial court reasoned that (a), (b), and (c) were merely allegations that defendant had breached a contract, namely, the "Participating Provider Agreement," and that according to such cases as Avery v. State Farm Mutual Automobile Insurance Co. , 216 Ill. 2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801 (2005), and Golembiewski v. Hallberg Insurance Agency, Inc. , 262 Ill. App. 3d 1082, 200 Ill.Dec. 113, 635 N.E.2d 452 (1994), a plaintiff "[had to] establish more than a simple breach of contract" to "prevail on a claim...