                                                                             Opinion filed July 6, 2017
                                    2017 IL App (4th) 160552
                                                                             Modified upon denial of
                                         NO. 4-16-0552                       rehearing August 14, 2017


                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

CASSANDRA TURNER,                                           )      Appeal from
Plaintiff-Appellant,                                        )      Circuit Court of
v.                                                          )      McLean County
ORTHOPEDIC AND SHOULDER CENTER, S.C.,                       )      No. 15L25
Defendant-Appellee.                                         )
                                                            )      Honorable
                                                            )      Rebecca Simmons Foley,
                                                            )      Judge Presiding.


               JUSTICE APPLETON delivered the judgment of the court, with opinion.
               Presiding Justice Turner and Justice Knecht concurred in the judgment and
               opinion.

                                           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


                                                -2-
              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


                                              -3-
               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.



                                              -4-
¶ 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

                                               -5-
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 (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


                                               -6-
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 (2005), and Golembiewski v. Hallberg Insurance Agency, Inc., 262 Ill. App. 3d 1082 (1994),

a plaintiff “[had to] establish more than a simple breach of contract” to “prevail on a claim under

the [Consumer Fraud and Deceptive Business Practices Act]” (815 ILCS 505/1 et seq. (West

2014)).



¶ 31                          2. The Trial Court’s Reasoning as to
               Count II, the Theory of Intentional Infliction of Emotional Distress

¶ 32           Count II of the second amended complaint alleged that defendant had

intentionally inflicted emotional distress on plaintiff by (1) sending “invalid lien[s]” to the

automobile insurers; (2) refusing to voluntarily provide plaintiff’s attorney, James Ginzkey, a

copy of the “Participating Provider Agreement;” (3) sending the “threatening letter” to Ginzkey,

which he in turn forwarded to plaintiff; and (4) failing to inform the author of the “threatening

letter,” the law firm of Frederick & Hagle, that there was a “Participating Provider Agreement.”

                                                -7-
¶ 33           The trial court noted that, according to plaintiff’s own allegations, the only

adverse “mental conditions” she had suffered as a result of these acts or omissions by defendant

were loss of sleep and loss of appetite. The record lacked evidence of “ ‘distress *** so severe

that no reasonable [person] could [have been] expected to endure it.’ ” Public Finance Corp. v.

Davis, 66 Ill. 2d 85, 90 (1976) (quoting Restatement (Second) of Torts § 46, cmt. j (1965)). The

record also lacked evidence of “extreme and outrageous” conduct. Id. at 89.



¶ 34                           3. The Trial Court’s Reasoning as to
                                the Petition To Adjudicate the Lien

¶ 35           In addition to her second amended complaint, plaintiff had filed a petition that the

trial court adjudicate defendant’s lien to be invalid and nonexistent. See 770 ILCS 23/30 (West

2014) (“On petition filed by the injured person or the health care professional or health care

provider and on the petitioner’s written notice to all interested adverse parties, the circuit court

shall adjudicate the rights of all interested parties and enforce their liens.”). In her petition,

plaintiff gave two reasons why the lien should be “adjudicated to zero.”

¶ 36           The first reason was that by signing the “Participating Provider Agreement,”

defendant had contractually waived its right to claim any lien or to seek any recovery from

plaintiff. The trial court was unconvinced because instead of “seeking payment from either

plaintiff or her attorney as her agent,” defendant was “making a claim against a fund of monies

to be paid by a private defendant.” In this context, the court cited Rogalla v. Christie Clinic,

P.C., 341 Ill. App. 3d 410 (2003).

¶ 37           The second reason that plaintiff gave for the proposed invalidation of the lien was

that defendant had failed to comply with section 10(b) of the Health Care Services Lien Act

                                               -8-
(Lien Act) (770 ILCS 23/10(b) (West 2014)), in that none of the notices had been sent (1) to her,

(2) to the responsible driver, or (3) by registered or certified mail. The trial court found

“insufficient evidence” of (1), (2), and (3). Besides, such “technical violation[s]” would be

insufficient to defeat a health-care services lien, the court concluded.

¶ 38           This appeal followed.



¶ 39                                       II. ANALYSIS

¶ 40                                 A. Forfeiture of the Theory
                           of Intentional Infliction of Emotional Distress

¶ 41           In her opening brief, plaintiff makes no argument in support of her theory of

intentional infliction of emotional distress. Therefore, that theory is forfeited. See Ill. S. Ct. R.

341(h)(7) (eff. Jan. 1, 2016) (“Points not argued are [forfeited] ***.”); Vancura v. Katris, 238 Ill.

2d 352, 370 (2010).



¶ 42                  B. Breach of Contract, Dressed Up as Consumer Fraud

¶ 43           We review summary judgments de novo, meaning that we perform the same

analysis a trial court would perform. Bowman v. Chicago Park District, 2014 IL App (1st)

132122, ¶ 43; City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633 (1996). Section 2-1005(c) of

the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 2014)) provides: “The [requested

summary] judgment sought shall be rendered without delay if the pleadings, depositions, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” Thus,

under section 2-1005(c), the trial court—and therefore we—should ask two questions. First, do

                                                -9-
the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact? Id. Second, if the answer to that question is yes,

is the moving party consequently entitled to a judgment as a matter of law? Id.

¶ 44           When it comes to count I of the second amended complaint, we see no dispute

regarding material facts, nor do we see any possibility that reasonable persons could draw

different inferences from the undisputed material facts. See Chicago Transit Authority v. Clear

Channel Outdoor, Inc., 366 Ill. App. 3d 315, 323 (2006). The claim of consumer fraud is based

on documents, the authenticity of which defendant does not dispute.

¶ 45           We proceed, then, to the second question: given the undisputed material facts, is

defendant legally entitled to a judgment on plaintiff’s claim of consumer fraud? See 735 ILCS

5/2-1005(c) (West 2014). The answer is yes because the purported consumer fraud is a dressed-

up breach of contract. “A breach of contractual promise, without more, is not actionable under

the Consumer Fraud Act.” Avery, 216 Ill. 2d at 169. “When allegations of consumer fraud arise

in a contractual setting, the plaintiff must prove that the defendant engaged in deceptive acts or

practices distinct from any underlying breach of contract.” Greenberger v. GEICO General

Insurance Co., 631 F.3d 392, 399 (7th Cir. 2011) (citing Avery, 216 Ill. 2d 100). The alleged

consumer fraud and the breach of contract cannot “rest on the same factual foundation.” Id.

¶ 46           The very language of plaintiff’s second amended complaint proclaims that the

asserted consumer fraud was a breach of contract. Plaintiff alleges that defendant committed

consumer fraud by doing the following three things:

                       “(a) refusing to bill BLUE CROSS for services rendered to plaintiff,

               despite being contractually obligated to do so;


                                               - 10 -
                         (b) refusing to accept payment from BLUE CROSS for services rendered

               to plaintiff, despite being contractually obligated to do so; [and]

                         (c) fraudulently billing plaintiff $34,027.40 plus costs and attorney fees

               when [defendant] was contractually entitled to less than $8,000.” (Emphases

               added.)

The contract to which plaintiff refers is the “Participating Provider Agreement.” Plaintiff and

defendant have a difference of opinion on the interpretation and application of that agreement.

“[A] mere difference of opinion regarding contract interpretation” is not consumer fraud. Cook v.

AAA Life Insurance Co., 2014 IL App (1st) 123700, ¶ 30. As we soon will explain, it is

defendant that has the incorrect opinion as to the meaning and effect of the “Participating

Provider Agreement.” Even so, “[e]very individual breach of contract between two parties does

not amount to a cause of action cognizable under the [Consumer Fraud] Act.” Bankier v. First

Federal Savings & Loan Ass’n of Champaign, 225 Ill. App. 3d 864, 875 (1992).

¶ 47           But this is not a breach of contract “between [the] two parties,” plaintiff argues.

Id. Rather, the contract that defendant breached, the “Participating Provider Agreement,” was

between defendant and Blue Cross.

¶ 48           Even so, a third party may sue for a breach of contract made for that third party’s

direct benefit. “[I]f a contract be entered into for a direct benefit of a third person not a party

thereto, such third person may sue for breach thereof. The test is whether the benefit to the third

person is direct to him or is but an incidental benefit to him arising from the contract. If direct[,]

he may sue on the contract; if incidental[,] he has no right of recovery thereon.” Carson Pirie

Scott & Co. v. Parrett, 346 Ill. 252, 257 (1931). The appellate court has explained:


                                                - 11 -
                         “Whether someone is a third-party beneficiary depends on the intent of the

                  contracting parties, as evidenced by the contract language. [Citation.] It must

                  appear from the language of the contract that the contract was made for the direct,

                  not merely incidental, benefit of the third person. [Citation.] Such an intention

                  must be shown by an express provision in the contract identifying the third-party

                  beneficiary by name or by description of a class to which the third party belongs.

                  [Citation.]” Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017,

                  1020 (2009).

¶ 49              The “Participating Provider Agreement” contains “an express provision ***

identifying the third-party beneficiary *** by description of a class to which the third party

belongs.” Id. Paragraph 7 of article IV—the paragraph stating that defendant shall have no right

of recourse against “the Covered Person”—includes the following sentence: “The Covered

Persons *** shall be third[-]party beneficiaries of this clause.” Plaintiff is a “Covered Person,”

and, as such, plaintiff is an intended third-party beneficiary of the “Participating Provider

Agreement” between defendant and Blue Cross. By suing for consumer fraud—a consumer fraud

premised on a breach of that agreement—she really is suing for breach of a contract of which she

is an intended third-party beneficiary. Her real theory is breach of contract, and “[a] breach of

contractual promise, without more, is not actionable under the Consumer Fraud Act.” Avery, 216

Ill. 2d at 169.



¶ 50                     C. The Question of Whether Defendant Has a Valid
                        Health-Care Services Lien on the Settlement Proceeds

¶ 51                             1. The Irrelevance of Legislative History

                                                  - 12 -
¶ 52           On February 16, 2012, House Bill 5823 proposed amending the Lien Act so as to

provide that “if a health insurance, a health plan, or private or public benefits are available to pay

a medical bill, the lien of the health care professional or health care provider shall be limited to

the rates established by the private or public fund.” 97th Ill. Gen. Assem., House Bill 5823, 2012

Sess. On March 27, 2012, however, House Amendment No. 1 to House Bill 5823 deleted that

quoted language. Defendant reasons: “The legislature made clear[,] in rejecting the relevant

language in House Bill 5823[,] that it did not intend to force health care providers to accept the

drastically reduced health insurance payments in these cases.”

¶ 53           Unless the Lien Act contains an ambiguity, this legislative history is irrelevant.

See Kunkel v. Walton, 179 Ill. 2d 519, 536 (1997); Kaider v. Hamos, 2012 IL App (1st) 111109,

¶ 11; Bailey v. Illinois Liquor Control Comm’n, 405 Ill. App. 3d 550, 559-60 (2010). Defendant

identifies no such ambiguity. Defendant argues, however, that our citation of a dictionary, later

in this opinion, is “evidence of ambiguity” in the Lien Act. We disagree. Courts commonly cite

dictionaries to establish that the words of a statute, understood in their plain and commonly

accepted sense, are not ambiguous. See, e.g., In re M.I., 2016 IL 120232, ¶ 26; Hocraffer v.

Trotter General Contracting, Inc., 2013 IL App (3d) 120539, ¶¶ 10, 13; In re Application for

Tax Deed, 285 Ill. App. 3d 930, 933 (1997).

¶ 54           Reading the Lien Act in its plain and ordinary sense, we see no provision that

could reasonably be interpreted as forcing health-care providers to accept health insurance

payments as full satisfaction.

¶ 55           Health-care providers, however, could contractually agree to do so.




                                                - 13 -
¶ 56                      2. How the Present Case Differs From Rogalla

¶ 57           Reasoning from Rogalla, the trial court found no contradiction between

defendant’s lien and the “Participating Provider Agreement” because, instead of “seeking

payment from either Plaintiff or her attorney as her agent,” defendant was “making a claim

against a fund of monies to be paid by a private defendant.” Instead of making a claim directly

against plaintiff, defendant made a claim against a debt owed to plaintiff—defendant asserted a

lien.

¶ 58           A lien is somewhat different from, say, a personal-injury complaint in that a lien

is against property instead of the property owner. See Rogalla, 341 Ill. App. 3d at 420. The

United States District Court for the Northern District of Illinois has criticized this distinction as a

“pure solecism.” Falls v. Silver Cross Hospital & Medical Centers, No. 13 C 695, 2013 WL

2112188, at *3 (N.D. Ill. May 15, 2013). Admittedly, it might sound artificial and formalistic to

say, “I am not making a claim against you; rather, I am making a claim against your bank

account.” After all, a bank account and a right to insurance proceeds are the same sort of

property: a chose in action. Young v. Chicago Federal Savings & Loan Ass’n, 180 Ill. App. 3d

280, 285 (1989); In re Estate of Kane, 30 Ill. App. 2d 470, 472 (1961); People ex rel. Vancil

Motor Co. v. Weaver, 313 Ill. App. 317, 320 (1942). Keep in mind, however, why we made this

distinction in Rogalla: we were reconciling two provisions of a contract.

¶ 59           The contract in Rogalla was a medical services agreement between Christie Clinic

and PersonalCare Health Management, Inc. (PersonalCare), a health maintenance organization

(HMO) of which the plaintiff was a member. Rogalla, 341 Ill. App. 3d at 412. On the one hand,

the agreement provided that Christie Clinic was not to “ ‘assert any claim for compensation


                                                - 14 -
against Members in excess of the copayments authorized by PersonalCare’s HMO.’ ” Id. at 415.

On the other hand, the agreement provided: “ ‘Christie [Clinic] and PersonalCare shall have the

right to seek to recover charges incurred as a result of providing Medical/Hospital Services

which are the liability of a third party.’ ” Id. at 416. In Rogalla, we called this latter provision a

“subrogation clause.” Id. at 414.

¶ 60           Strictly speaking, the term “subrogation clause” was only partly apt. Subrogation

arises when the subrogee involuntarily pays a debt on behalf of a third party; having done so, the

subrogee becomes entitled to assert the rights of the original creditor. Dunlap v. Peirce, 336 Ill.

178, 190 (1929); Aames Capital Corp. v. Interstate Bank of Oak Forest, 315 Ill. App. 3d 700,

706 (2000). To the extent that Christie Clinic was contractually “obligated to pay *** third-party

health-care providers for services rendered to [the] plaintiff” (Rogalla, 341 Ill. App. 3d at 412),

Christie Clinic was indeed a subrogee: it stepped into the shoes of the original creditors, the

third-party health-care providers. But to the extent that the charges originated from Christie

Clinic—to the extent that Christie Clinic itself was the health-care provider—Christie Clinic was

not a subrogee. The original creditor cannot be a subrogee; Christie Clinic could not have

stepped into the shoes it already had on its feet. Therefore, this time, to avoid any potential

confusion, we will call the provision in question a “third-party clause” rather than a “subrogation

clause.”

¶ 61           We had to find a way to give effect to both of those provisions, if at all possible:

both the exemption clause and the third-party clause. See St. Paul Fire & Marine Insurance Co.

v. Frankart, 69 Ill. 2d 209, 216 (1977). There was a way. A canon of construction taught that if

both a general clause and a specific clause of a contract addressed the same subject, full effect


                                                - 15 -
was to be given to the more specific clause and the general clause was to be given whatever

modification the specific clause made necessary. Henderson v. Roadway Express, 308 Ill. App.

3d 546, 549 (1999). The question of whether Christie Clinic could assert a health-care services

lien against the tortfeasor (the driver who had injured the plaintiff in the motor vehicle accident)

was more specifically addressed by the third-party clause than by the exemption clause. Thus,

the third-party clause, being more specifically relevant, was to be understood as modifying the

more general exemption clause. See Rogalla, 341 Ill. App. 3d at 417. Outside the context of the

medical services agreement in Rogalla, it might indeed seem artificial and unconvincing to draw

a distinction between collecting from a person and collecting from a chose in action belonging to

that person, but drawing that distinction was the only reasonable way to reconcile the two

provisions in the agreement.

¶ 62           In this discussion of Rogalla, we do not mean to imply that the inclusion of a

third-party clause is a precondition of a statutory health-care services lien. See Barry v. St.

Mary’s Hospital Decatur, 2016 IL App (4th) 150961, ¶ 55 (“[T]he absence of such a clause is of

no import because even without that clause, the provider still has the right to seek a lien pursuant

to the Lien Act.”). The only significance of the third-party clause in Rogalla is that it qualified

the exemption clause—which, unqualified, might have been interpreted as relinquishing the

statutory right to a health-care services lien. See Rogalla, 341 Ill. App. 3d at 418 (“[T]he

[subrogation] clause reserves Christie Clinic’s statutory right to seek relief from third-party

tortfeasors.”). By interpreting the third-party clause as a qualifying provision, Rogalla reconciled

two contractual provisions that appeared to stand in tension with one another.




                                               - 16 -
¶ 63            There is no occasion to do any such reconciling in the present case, for unlike the

medical services agreement in Rogalla, the “Participating Provider Agreement” lacks a third-

party clause or subrogation clause. So, Rogalla is distinguishable for that reason alone.

¶ 64            Another difference is that, unlike the medical services agreement in Rogalla, the

“Participating Provider Agreement” in this case contains a full-payment clause: “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 ***.”

The full-payment clause is significant because section 10(a) of the Lien Act uses the word “lien”

(“Every *** health care provider that renders any service in the treatment *** of an injured

person *** shall have a lien upon all claims and causes of action of the injured person for the

amount of the *** health care provider’s reasonable charges up to the date of payment of

damages to the injured person.” (Emphasis added.) 770 ILCS 23/10(a) (West 2014)). We should

give the words of a statute their ordinary meanings (and if a statute specially defines a word, we

should give the words of the special definition their ordinary meaning). People ex rel. Daley v.

Datacom Systems Corp., 146 Ill. 2d 1, 15 (1991). A dictionary is a useful resource in which to

find the ordinary meanings of words. Id.

¶ 65            The Lien Act does not specially define “lien,” and therefore we will give that

word its ordinary meaning, which can be found in a dictionary. See id. A “lien” is “[a] legal right

or interest that a creditor has in another’s property, lasting usu[ally] until a debt or duty it secures

is satisfied.” Black’s Law Dictionary 933 (7th ed. 1999). A “creditor” is “[o]ne to whom a debt is

owed.” Id. at 375. Thus, to have a health-care services lien on plaintiff’s chose in action (the

settlement proceeds), defendant had to be plaintiff’s creditor; plaintiff had to owe a debt to


                                                 - 17 -
defendant for health-care services. The existence of such a debt depended not on the Lien Act

but, rather, on the contractual relationship between defendant and plaintiff. Under the

“Participating Provider Agreement,” of which plaintiff was an intended third-party beneficiary,

defendant was not plaintiff’s creditor, and defendant had no “reasonable charges” against her,

because Blue Cross’s payment of its “Usual and Customary Fee allowance” was, as defendant

had agreed, “full payment for each [covered] service.” Without an unpaid debt owed by plaintiff,

there can be no valid lien on her property. See Barry, 2016 IL App (4th) 150961, ¶ 66 (“Because

there is no longer a debt owed to [the hospital] ***, liens for [it] can no longer be maintained.”);

N.C. v. A.W., 305 Ill. App. 3d 773, 775 (1999) (“[I]f there is no debt in the first instance, there is

no need for a lien.”); Black’s Law Dictionary 933 (7th ed. 1999). Therefore, in our de novo

interpretation of the Lien Act and the “Participating Provider Agreement” (see Advincula v.

United Blood Services, 176 Ill. 2d 1, 12 (1996); Pennsylvania Life Insurance Co. v. Pavlick, 265

Ill. App. 3d 526, 529 (1994)), we conclude that the trial court should have granted plaintiff’s

“Petition To Adjudicate Lien to Zero.”

¶ 66            In its petition for rehearing, defendant objects that in reaching this conclusion, we

rely on a third-party beneficiary theory that plaintiff never raised, either in the trial court or on

appeal, and that, in fact, plaintiff expressly disavows in her brief.

¶ 67           Actually, in so many words, plaintiff did raise a third-party-beneficiary theory in

the trial court. Paragraphs 4 and 5 of the second amended complaint allege, for example:

               “4. The [‘Participating] Provider Agreement[’] has no provision preserving the

               Provider’s [(defendant’s)] lien rights, and has no provision that the Agreement is

               not to be construed so as to create any rights in a third party.


                                                - 18 -
                       5. [Defendant] and BLUE CROSS intended that plaintiff, as a ‘Covered

               Person’ under the [‘Participating] Provider Agreement,[’] receive a benefit for the

               performance of the Agreement.”

¶ 68           The gist of those quoted paragraphs is that by agreeing to regard Blue Cross’s

payment of a covered person’s medical bills as payment in full, with no right of recourse against

the covered person, defendant and Blue Cross intended covered persons to be third-party

beneficiaries of the “Participating Provider Agreement.”

¶ 69           We do not understand plaintiff as disavowing that theory on appeal. Defendant, to

the contrary, sees such a disavowal in the following excerpts from plaintiff’s brief:

               “But plaintiff never alleged that she had a contract with defendant; nor did

               plaintiff ever allege that defendant breached a contract with plaintiff. The actual

               allegations of plaintiff’s second amended complaint appear to have been utterly

               ignored ***.

                                               ***

                       *** Plaintiff never alleged that she had standing to sue defendant for

               defendant’s breach of the Blue Cross [‘Participating] Provider Agreement.[’]

               What plaintiff alleged is that filing invalid liens[,] defendant is defrauding

               plaintiff.”

¶ 70           It is quite true that the “Participating Provider Agreement” is not a contract

between plaintiff and defendant; that is why plaintiff is a third-party beneficiary. Granted,

plaintiff disclaims any allegation of “standing to sue defendant for defendant’s breach of the

[‘Participating Provider Agreement’],” but then, paradoxically, in the next sentence, she asserts


                                               - 19 -
such standing by arguing that defendant is liable to her for fraud because its health-care lien

breaches the “Participating Provider Agreement.” Also, elsewhere in her brief, plaintiff argues:

“A health care professional waives his statutory lien rights when he signs a Provider Agreement

relinquishing all rights of recourse against his insured patient; he also waives his normal billing

rate for services by agreeing to accept a lesser amount from the insurer.” And later in her brief,

plaintiff argues: “[Defendant] and BLUE CROSS intended that plaintiff, as a ‘Covered Person’

under the [‘Participating] Provider Agreement,[’] receive a benefit for the performance of the

Agreement.” Plaintiff argues, in other words, that she is an intended third-party beneficiary of

the “Participating Provider Agreement” between defendant and Blue Cross. Thus, we disagree

that plaintiff has “waived the issue of whether she has third[-]party beneficiary rights under the

[‘Participating] Provider Agreement[’] between [Blue Cross] and [defendant].”

¶ 71           Besides, we have held that, to contest the reasonableness of a health-care

provider’s charges, the covered person does not even have to be an intended direct third-party

beneficiary of the contract between the provider and the health insurer. In Barry, the “Preferred

Facility Agreement” explicitly disclaimed any intention to create third-party beneficiaries. Barry,

2016 IL App (4th) 150961, ¶¶ 83-84. Even so, we held that the liens for the first two medical

bills had lost their validity when the patient’s health insurer paid those bills at the discounted rate

stipulated in the “Preferred Facility Agreement.” Id. ¶ 66.

¶ 72           The reason was this: it would have been untenable for a health-care provider to

characterize as unreasonable a rate to which the provider had contractually agreed. In its contract

with the insurer, the provider surely would not have agreed to accept a certain rate as full

payment unless the rate were reasonable. Having agreed to accept that rate as full payment, how


                                                - 20 -
could the provider reasonably charge the covered person more—apart from the question of

whether, under contract law, the covered person may enforce the contract between the provider

and the insurer? Section 10(a) of the Lien Act provides: “Every health[-]care professional and

health[-]care provider that renders any service in the treatment, care, or maintenance of an

injured person *** shall have a lien upon all claims and causes of action of the injured person for

the amount of the health[-]care professional’s or health[-]care provider’s reasonable charges

***.” (Emphasis added.) 770 ILCS 23/10(a) (West 2014). Thus, the criterion in section 10(a) is

reasonableness, not third-party beneficiary status. See Gekas v. Williamson, 393 Ill. App. 3d 573,

579 (2009) (we should not “deviate from the plain language of the statute by reading into it

exceptions, limitations, or conditions that have no basis in the text”).

¶ 73           “Generally, reasonableness is a question of fact rather than a question of law,

unless reasonable minds could not differ.” Brame v. City of North Chicago, 2011 IL App (2d)

100760, ¶ 13. If covered persons are intended direct third-party beneficiaries of the agreement

between the health-care provider and the health insurer, and if the agreement states that a certain

rate, to be paid by the insurer, shall be full payment for the covered services, with no right of

recourse against the covered person, no reasonable mind would regard a higher rate to be a

reasonable charge. Charging a higher rate and recouping the difference from the covered person

(we do not refer to copayments and deductibles) would violate the contractual rights of both the

insurer and the covered person. If, despite the disclaimer of third-party beneficiaries in Barry,

pursuing a lien for medical bills that had been paid at the contractually agreed-upon discounted

rate would be unreasonable (see Barry, 2016 IL App (4th) 150961, ¶ 66), it would be even more




                                                - 21 -
unreasonable to do so if the covered persons were intended third-party beneficiaries of the

discounted rate.



¶ 74                                   3. Consistency With Barry

¶ 75           In oral arguments, counsel for plaintiff implied that we could reach this

conclusion (that defendant’s asserted health-care services lien should be adjudicated as zero, or

nonexistent) only by abandoning our decision in Barry. He asked, rhetorically, whether it was

“possible” that we were “wrong” in Barry.

¶ 76           We see no reason to abandon Barry. Nor do we see any contradiction between

Barry and our decision in this case.

¶ 77           In Barry, there were three medical bills (Barry, 2016 IL App (4th) 150961, ¶ 5),

and for each of them, the hospital filed a health-care services lien with the tortfeasor’s insurer,

State Farm (id. ¶¶ 6-11). The hospital conceded, and we agreed, that the liens for the first two

medical bills were no longer viable, since, after the hospital filed the liens for those bills, the

plaintiff’s insurer, Consociate Health Insurance (Consociate), paid those bills at the discounted

rate to which the hospital and Consociate had agreed in the “Preferred Facility Agreement.” Id.

¶ 66. A health-care services lien could be only for “reasonable charges,” and it would have been

difficult for the hospital to deny the reasonableness of the discounted rate, considering that the

hospital had agreed to that rate. 770 ILCS 23/10(a) (West 2014).

¶ 78           Thus, one of the holdings in Barry is that once the patient’s insurer pays a medical

bill at the discounted rate to which the hospital and the insurer contractually agreed, there can be

no valid health-care services lien for that bill. Barry, 2016 IL App (4th) 150961, ¶ 66. In the


                                                - 22 -
present case, Blue Cross paid the medical bills at the discounted rate to which defendant and

Blue Cross had agreed. Therefore, under Barry, defendant has no valid lien. See id. It is true that

after cashing the checks from Blue Cross, defendant sent the money back to Blue Cross.

Defendant does not explain, however, why this unsolicited refund should make any difference,

given that Blue Cross rendered its agreed-upon contractual performance. See Wasserman v.

Autohaus On Edens, Inc., 202 Ill. App. 3d 229, 239 (1990) (“A person who pre[v]ents the

performance of an alleged condition to a contract cannot take advantage of his conduct to claim

that the resulting failure of the condition relieves him of his obligation under the contract.”).

¶ 79           Merely for the sake of argument, though, let us assume that by sending the money

back to Blue Cross, defendant made itself comparable to a medical provider that never billed the

patient’s insurer in the first place. The discussion of the third medical bill in Barry then would

become relevant. The third medical bill in Barry had not been paid because the hospital had not

sent it to the plaintiff’s insurer, Consociate. Barry, 2016 IL App (4th) 150961, ¶¶ 10-11. Instead,

for that bill, the hospital immediately filed a lien with the tortfeasor’s insurer, State Farm. Id.

According to the hospital, it was acting on the plaintiff’s instructions by doing so. Id. ¶ 11.

Evidently, the plaintiff disputed he had so instructed the hospital. He sued the hospital for filing a

lien with State Farm in lieu of submitting the bill to Consociate. Id. ¶ 47. For essentially three

reasons, we were unconvinced that the hospital had a duty to submit this third medical bill to

Consociate before filing a lien with State Farm.

¶ 80           First, the Lien Act did not say that, to acquire a lien, the medical provider had to

first submit the bill to the patient’s insurer. Id. ¶ 50. We lacked authority to write that

requirement into the statute. Id. In the present case, we are of the same view. It was not the Lien


                                                - 23 -
Act that required defendant to send the bills to Blue Cross and accept payment at the discounted

rate. Rather, it was the “Participating Provider Agreement” that required defendant to do so.

¶ 81           Second, in Barry, we disagreed with the plaintiff that the “Preferred Facility

Agreement” between the hospital and Consociate required the hospital to bill Consociate. Id.

¶ 59. Granted, the agreement included a section in which the hospital agreed to bill Consociate

within 60 days after furnishing health-care services. Id. ¶ 56. Nevertheless, Consociate was the

secondary insurer, and State Farm was the primary insurer, and the agreement also included a

section entitled “ ‘Coordination of Benefits.’ ” The “ ‘Coordination of Benefits’ ” section

provided that if there was a third-party tortfeasor, the hospital would seek payment from the

tortfeasor first and then, if the amount the hospital recovered from the tortfeasor was less than

100% of the discounted rate, the hospital could seek the difference from Consociate. Id. ¶¶ 57-

58. Besides, the “Preferred Facility Agreement” explicitly disclaimed third-party beneficiaries,

and therefore, even if the plaintiff in Barry had a sound argument from the language of the

contract, it was a contract that he had no right to enforce. Id. ¶¶ 83-84. In the present case, by

contrast, the “Participating Provider Agreement” between defendant and Blue Cross explicitly

states that “Covered Persons,” such as plaintiff, are intended third-party beneficiaries, and we do

not see any contractual language entitling defendant to seek recovery from a third-party

tortfeasor before accepting full payment, at the discounted rate, from Blue Cross. Rather,

defendant simply “agree[d] to accept the Plan’s Usual and Customary Fee allowance as full

payment for each service covered by the Plan.”

¶ 82           Third, in Barry, we were unpersuaded by the plaintiff’s argument that the consent

form, which he had signed at the hospital, obligated the hospital to bill Consociate. Id. ¶ 60.


                                              - 24 -
“[T]he consent form [did] not contain any language requiring [the hospital] to bill a patient’s

insurance before it [could] pursue a lien.” Id. In the present case, by contrast, defendant drafted a

financial agreement and had plaintiff sign it, and in the financial agreement, defendant promised

to “assist [plaintiff] in obtaining insurance benefits by filing [c]laims for services.”

¶ 83           In sum, then, we find there is no contradiction between Barry and our decision in

this case.



¶ 84                       D. The Request for a Certificate of Importance

¶ 85           Defendant requests that, pursuant to Illinois Supreme Court Rule 316 (eff. July 1,

2017), we certify this case for review by the supreme court. This power should be used

sparingly. People v. Cherry Valley Public Library District, 356 Ill. App. 3d 893, 900 (2005).

Although we can see how this case might be important to health-care providers, this case seems

to us, basically, to be simple and straightforward: to have a health-care services lien against

plaintiff’s settlement proceeds, defendant had to be plaintiff’s creditor, and under the

“Participating Provider Agreement,” plaintiff owed defendant nothing after Blue Cross made the

payments agreed upon therein. Because this case, as far as we can see, raises no exceptionally

difficult question, we think it best that defendant proceed through the usual channels by

petitioning the supreme court for leave to appeal. See Ill. S. Ct. R. 315 (eff. July 1, 2017); Cherry

Valley Library District, 356 Ill. App. 3d at 900. The supreme court is in a better position than we

to decide whether it should accept this case for further review. See John Crane, Inc. v. Admiral

Insurance Co., 2013 IL App (1st) 1093240-B, ¶ 73. Therefore, we deny the request for a

certificate of importance. See Ill. S. Ct. R. 316 (eff. July 1, 2017).


                                                 - 25 -
¶ 86                                   III. CONCLUSION

¶ 87           For the foregoing reasons, we affirm the trial court’s judgment in part and reverse

it in part: we affirm the summary judgment in defendant’s favor on counts I and II of the second

amended complaint, but we reverse the denial of plaintiff’s petition to invalidate defendant’s

asserted health-care services lien.

¶ 88           Affirmed in part and reversed in part.




                                              - 26 -
