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12/31/87 Josephine Zervos, v. Solo Cup Company

December 31, 1987

JOSEPHINE ZERVOS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

SOLO CUP COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 823, 165 Ill. App. 3d 809, 117 Ill. Dec. 472 1987.IL.1972

Appeal from the Circuit Court of Cook County; the Hon. Benjamin S. Mackoff, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This action was brought by Josephine Zervos, the plaintiff, against Solo Cup Company, the defendant, seeking a declaration that she was entitled to benefits under defendant's group hospital and major medical plan (plan). This plan was administered by defendant under ERISA (29 U.S.C. 1001 et seq. (1975)).

Plaintiff alleged that while working for defendant, and covered under the plan, she was diagnosed as suffering from a physical condition known as morbid obesity. Her physician recommended surgery to treat her condition. Subsequently, her doctor performed a gastric by-pass operation. As a result of this surgical procedure, she sustained substantial hospital and doctor bills. She submitted these bills to the plan's administrators, who refused to pay the claim because they determined that the procedure was elective surgery and therefore not covered.

After her claim was refused a second time, plaintiff instituted this action. The trial Judge found for plaintiff and entered a judgment of $12,473.16. The court, however, refused plaintiff's request for attorney fees. On plaintiff's post-trial motion for fees, the court again refused plaintiff's request. Plaintiff appeals the denial of attorney fees, and defendant cross-appeals the judgment in favor of plaintiff.

This appeal presents the following two issues: (1) whether the trial court erred in refusing plaintiff's request for attorney fees; (2) whether the trial court erred when it reversed the decision of the plan's trustees and ordered defendant to pay plaintiff's medical bills. For the following reasons, the judgment of the trial court is reversed and remanded in part, and affirmed in part. I

As a threshold matter, we address defendant's argument that since plaintiff did not plead ERISA, she cannot seek fees under its terms. In addition, defendant contends that under section 2-1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1203(a)), a post-trial motion is an inappropriate vehicle to amend the complaint and request attorney fees.

Defendant's arguments depend on an overly technical reading of plaintiff's complaint. On the face of the complaint it is apparent that plaintiff is suing for benefits denied her under defendant's health plan. The plan, which is incorporated into the complaint as an exhibit, states very clearly in the first few pages that it is created pursuant to ERISA. Thus, plaintiff's claim arises under ERISA.

Plaintiff's post-trial motion did not seek to amend her complaint. Instead, the motion was directed against the trial court's judgment which denied her attorney fees. Under section 2 -- 1203(a), a party may petition the court for a "modification of the judgment or to vacate the judgment or other relief." Clearly, plaintiff's motion seeks a modification of the judgment and accordingly, the motion was proper.

Even though plaintiff did not pray for attorney fees under ERISA, "the prayer for relief does not limit the relief obtainable." (Ill. Rev. Stat. 1983, ch. 110, par. 2-604.) The trial court could have allowed an amendment of the prayer for relief to include a claim for fees under ERISA. The prejudice to defendant in allowing this amendment would be minimal, since defendant was well aware that ERISA governed the action having raised ERISA in its answer. Moreover, the amendment is not radically different than the original complaint because plaintiff was originally requesting fees, though under a different statute. Thus, the trial court could have granted plaintiff's post-trial motion and awarded fees under ERISA.

We now turn to the merits of plaintiff's appeal. She raises the issue of whether the trial court erred in denying her request for fees. The trial court ruled that plaintiff could not recover her fees because there was not a preponderance of evidence showing the plan trustees acted in bad faith. The ...


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