from Circuit Court of McLean County No. 15L25, Honorable
Rebecca Simmons Foley, Judge Presiding.
APPLETON JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice Turner and Justice Knecht
concurred in the judgment and 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 healthcare
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."
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
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
9 B. The Motor Vehicle Accident and the Consequent Medical
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
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
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
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 ...