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                                      Appellate Court                         Date: 2018.01.03
                                                                              13:47:10 -06'00'




             Brown v. Advocate Health & Hospitals Corp., 2017 IL App (1st) 161918



Appellate Court          ANTHONY BROWN, Individually and as Independent
Caption                  Representative of the Estate of Joyce R. Hobson, Deceased,
                         Plaintiff-Appellee, v. ADVOCATE HEALTH AND HOSPITALS
                         CORPORATION, d/b/a Advocate South Suburban Hospital and
                         Advocate Medical Group; OLALEKAN SOWADE, M.D.; ERIK
                         SWENSON, M.D.; JAMES O’DONNELL, M.D.; AGOP TEPELI,
                         M.D.; GUPTA, M.D., S.C.; and SURGICAL SPECIALISTS, S.C.,
                         Defendants (Advocate Health and Hospitals Corporation, d/b/a
                         Advocate South Suburban Hospital, Defendant-Appellant).



District & No.           First District, Fifth Division
                         Docket No. 1-16-1918



Rule 23 order filed      July 28, 2017
Motion to publish
allowed                  August 28, 2017
Opinion filed            September 15, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 13-L-4430; the
Review                   Hon. Kathy M. Flanagan, Judge, presiding.



Judgment                 Discovery order affirmed; contempt order vacated.


Counsel on               Garrett L. Boehm, Jr., and Tammy L. Wade, of Johnson & Bell, Ltd.,
Appeal                   of Chicago, for appellant.
                                Vivian Tarver-Varnado, of AMB Law Group, LLC, of Chicago, for
                                appellee.



     Panel                      PRESIDING JUSTICE REYES delivered the judgment of the court,
                                with opinion.
                                Justice Lampkin concurred in the judgment and the opinion.
                                Justice Gordon dissented, with opinion.


                                                  OPINION

¶1          Advocate Health and Hospitals Corporation, d/b/a Advocate South Suburban Hospital
       (Advocate), a defendant in a medical malpractice action, violated an order of the circuit court
       of Cook County by refusing to produce certain insurance-related documents for in camera
       inspection. The circuit court held Advocate in “friendly contempt” and imposed a $100 fine,
       which allowed Advocate to file this interlocutory appeal pursuant to Illinois Supreme Court
       Rule 304(b)(5) (eff. Mar. 8, 2016). As discussed herein, we (i) affirm the judgment of the
       circuit court directing Advocate to produce certain documents for in camera inspection and
       (ii) vacate the order finding Advocate in contempt and imposing a monetary penalty.

¶2                                           BACKGROUND
¶3         Joyce R. Hobson, after being hospitalized and undergoing multiple medical procedures at
       Advocate, experienced cardiopulmonary arrest and died on May 23, 2011. Anthony Brown, as
       the administrator of her estate, filed a medical malpractice action against Advocate and other
       defendants in 2013.
¶4         The plaintiff issued discovery requests seeking copies of Advocate’s insurance policies.
       Advocate responded that there is no policy to produce because it is a self-insured entity.
       Pursuant to multiple court orders, Advocate was directed to produce its insurance policies. The
       circuit court also entered a protective order, which provided that any insurance documents
       produced by Advocate would remain strictly confidential and solely be used for purposes of
       this litigation.
¶5         The plaintiff filed a motion to compel, seeking compliance with the previous court orders
       and for sanctions pursuant to Illinois Supreme Court Rule 219 (eff. July 1, 2002). According to
       the plaintiff, Advocate had produced a “few pages of a document that was 99% blank.” 1 In a
       court order entered on June 7, 2016, Advocate was directed “to tender its full trust agreement
       related to the substance of the [motion to compel] and an unredacted copy of the endorsement
       previously tendered for in camera inspection on or before June 14, 2016.”
¶6         During a hearing on June 14, 2016, Advocate represented that it had previously disclosed
       $12.5 million in coverage for the plaintiff’s claim pursuant to a self-insured retention and trust.
       Advocate continued to refuse to produce the trust agreement or related documents and asked to
             1
           Because the document was the subject of the protective order, the plaintiff did not append it to its
       motion to compel.

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       be held in “friendly contempt.” At the conclusion of the hearing, the circuit court directed the
       following statements to Advocate’s counsel:
                   “[J]ust so I can have it clear, you now are stating in open court that you are asking
               me to enter a friendly contempt citation against [Advocate] for purposes of appealing
               my order requiring [Advocate] to produce to me, for in camera inspection, a copy of
               the self-insured trust agreement plus any endorsements showing who is covered, under
               what circumstances people are covered, if employees are covered, all the normal and
               customary issues that are governed by insurance documents and/or policies and/or
               indemnity agreements.”
       Advocate’s counsel answered affirmatively. In a written order entered on June 14, 2016, the
       circuit court held Advocate in friendly contempt for failing to comply with the June 7, 2016,
       order for the reasons stated on the record and imposed a $100 fine. Advocate filed this timely
       appeal pursuant to Rule 304(b)(5). Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016).

¶7                                               ANALYSIS
¶8          Advocate advances three primary contentions on appeal. It initially argues that
       “[i]nsurance documents are not discoverable in a tort action not involving insurance coverage
       because the insurance documents lack relevance to the claims advanced.” Advocate next
       contends that its trust agreement is a confidential financial document rather than an insurance
       document and thus the circuit court abused its discretion in ordering its production. Finally,
       Advocate argues that the contempt order should be vacated because its actions were not
       contemptuous of the circuit court’s authority. We address each argument below.
¶9          A discovery order issued by the circuit court is generally not appealable because it is not a
       final order. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001); Adler v. Greenfield, 2013 IL App (1st)
       121066, ¶ 39. It is well settled, however, that the correctness of a discovery order may be tested
       through contempt proceedings. Adler, 2013 IL App (1st) 121066, ¶ 39; Payne v. Hall, 2013 IL
       App (1st) 113519, ¶ 10. Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016) provides
       that an “order finding a person or entity in contempt of court which imposes a monetary or
       other penalty” is appealable without the special finding required for appeals under Rule 304(a).
       In the instant case, the circuit court fined Advocate $100 for contempt to facilitate an appeal
       pursuant to Rule 304(b)(5).
¶ 10        The standard of review for a contempt order is abuse of discretion. Payne, 2013 IL App
       (1st) 113519, ¶ 10; Illinois Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393
       Ill. App. 3d 782, 785 (2009). A circuit court abuses its discretion when its ruling is arbitrary,
       unreasonable, fanciful, or where no reasonable person would take the view adopted by the
       circuit court. Payne, 2013 IL App (1st) 113519, ¶ 10.
¶ 11        Because Advocate is appealing a finding of contempt based on its noncompliance with a
       discovery order, we must necessarily review the propriety of the discovery order. See Norskog,
       197 Ill. 2d at 69; Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356, ¶ 9;
       Illinois Emcasco Insurance, 393 Ill. App. 3d at 785. Discovery rulings generally are reviewed
       for an abuse of discretion. Klaine, 2014 IL App (5th) 130356, ¶ 10; Adler, 2013 IL App (1st)
       121066, ¶ 40. Although the applicability of a privilege is reviewed de novo (Klaine, 2014 IL
       App (5th) 130356, ¶ 10), Advocate has expressly represented that its objection to production is
       based on relevance, not on confidentiality or privilege grounds.


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¶ 12        Illinois Supreme Court Rule 201 (eff. May 29, 2014) “defines the scope of discovery in
       civil cases and has been interpreted to allow discovery of all information that would be
       admissible at trial as well as information which is reasonably likely to lead to admissible
       evidence.” Klaine, 2014 IL App (5th) 130356, ¶ 14. Rule 201(b)(1) provides, in part, that a
       party generally “may obtain by discovery full disclosure regarding any matter relevant to the
       subject matter involved in the pending action.” Ill. S. Ct. R. 201(b)(1) (eff. May 29, 2014).
       Rule 401 of the Illinois Rules of Evidence defines “relevant evidence” as “evidence having any
       tendency to make the existence of any fact that is of consequence to the determination of the
       action more probable or less probable than it would be without the evidence.” Ill. R. Evid. 401
       (eff. Jan. 1, 2011). Pursuant to Rule 402 of the Illinois Rules of Evidence, all relevant evidence
       generally is admissible, and evidence that is not relevant is not admissible. Ill. R. Evid. 402
       (eff. Jan. 1, 2011).
¶ 13        Advocate argues that the content of the requested insurance documents lacks relevance to
       the tort claims advanced by the plaintiff and thus the discovery orders compelling their
       production should be vacated. As discussed herein, however, we view the issue of
       discoverability as distinct from admissibility in the context of this case.
¶ 14        Citing Seldin v. Babendir, 325 Ill. App. 3d 1058 (2001), and Imparato v. Rooney, 95 Ill.
       App. 3d 11 (1981), Advocate contends that “[e]vidence that a party is insured is generally
       inadmissible at trial.” Seldin and Imparato addressed the propriety of questioning prospective
       jurors regarding their interest in or connections to the insurance industry during voir dire in a
       personal injury action. Seldin, 325 Ill. App. 3d at 1064; Imparato, 95 Ill. App. 3d at 15. The
       courts in both cases noted that evidence informing a jury that a defendant is insured against
       liability is generally inadmissible. Seldin, 325 Ill. App. 3d at 1064; Imparato, 95 Ill. App. 3d
       at 17. Unlike in Seldin or Imparato, however, the instant case involves the discoverability of
       documents, not their ultimate admissibility at trial. See, e.g., Crnkovich v. Almeida, 261 Ill.
       App. 3d 997, 999 (1994) (noting that “the concept of relevance is broader for discovery
       purposes than for purposes of the admission of evidence at trial, since it includes not only what
       is admissible at trial, but also that which leads to what is admissible”); Maxwell v. Hobart
       Corp., 216 Ill. App. 3d 108, 110-11 (1991) (stating that “[p]retrial discovery presupposes a
       range of relevance and materiality much broader than that of admissibility of evidence at
       trial”).
¶ 15        The Illinois Supreme Court in People ex rel. Terry v. Fisher, 12 Ill. 2d 231 (1957),
       recognized an exception to the relevancy requirement of Rule 201, i.e., “that information that
       may be discovered prior to trial be admissible in evidence or lead to admissible evidence.”
       Manns v. Briell, 349 Ill. App. 3d 358, 365 (2004) (discussing Fisher). In Fisher, the defendant
       in a personal injury action arising out of an automobile accident challenged circuit court orders
       compelling him to answer interrogatories regarding the existence and amount of his liability
       insurance. Fisher, 12 Ill. 2d at 231-32. The Illinois Supreme Court rejected “those cases
       limiting pretrial discovery to matters admissible in evidence” but noted that it did “not imply
       that answers to interrogatories can be brought to the attention of the jury.” Id. at 237.
¶ 16        In upholding the discovery orders, the Fisher court noted that, under certain Illinois
       statutes, “liability insurance is not merely a private matter for the sole knowledge of the carrier
       and the insured, but is also for the benefit of persons injured by the negligent operation of
       insured’s motor vehicle.” Id. at 238. Our supreme court further stated:


                                                    -4-
                    “Unlike other assets, a liability insurance policy exists for the single purpose of
                satisfying the liability that it covers. It has no other function and no other value.
                Litigation is a practical business. The litigant sues to recover money and is not
                interested in a paper judgment that cannot be collected. The presence or absence of
                liability insurance is frequently the controlling factor in determining the manner in
                which a case is prepared for trial.” Id.
       The Fisher court noted that a plaintiff ordinarily “has many sources of inquiry by means of
       which he can appraise the likelihood that the judgment he seeks will be enforceable.” Id. at
       238-39. An insurance company, however, “is responsible only within the limits of the policy it
       has issued,” and thus a plaintiff’s knowledge of the identity or financial status of the insurance
       company “does not help him.” Id. at 239.
¶ 17        Advocate essentially argues for a narrow interpretation of Fisher, limiting its applicability
       to discovery disputes involving interrogatories and not document production requests. Neither
       Fisher nor any other decision cited by Advocate, however, expressly provides that insurance
       documents cannot or should not be produced during discovery in a tort action such as the
       instant case. We further note that certain Illinois decisions in other contexts suggest that
       production of an insurance policy may be proper. See, e.g., Monier v. Chamberlain, 35 Ill. 2d
       351 (1966) (noting that the insurance policy was produced in accordance with a production
       order; addressing whether related documents were discoverable); Curtis v. Birch, 114 Ill. App.
       3d 127, 130 (1983) (stating that the plaintiffs should have provided copies of the insurance
       policy on which they based their claim “and, given the liberal discovery rules in this State (87
       Ill. 2d R. 214), there is no excuse for plaintiffs’ failure to have done so”); Schultz v.
       Continental Casualty Co., 79 Ill. App. 3d 1035, 1039 (1979) (reversing trial court orders
       denying the production of the complete insurance policy).
¶ 18        Advocate also cites Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007), addressing written
       interrogatories to parties, and Illinois Supreme Court Rule 214 (eff. July 1, 2014), addressing
       requests for the production of documents. Advocate observes that the standard form
       interrogatories for medical malpractice actions against hospitals—promulgated pursuant to
       Rule 213(j) —permit plaintiffs to obtain information regarding insurance. Advocate posits that
       “[i]f defendants were expected to produce insurance policy documents to plaintiffs, that
       expectation would be reflected in Rule 214.” Rule 214, however, has no corollary to Rule
       213(j), i.e., Rule 214 does not provide for any standard forms of requests for the production of
       documents. Ill. S. Ct. R. 214 (eff. July 1, 2014).
¶ 19        Advocate notes that the Illinois Supreme Court has neither incorporated nor endorsed Rule
       26(a)(1)(A)(iv) of the Federal Rules of Civil Procedure, which requires a party’s production of
       insurance agreements even prior to any discovery requests. Fed. R. Civ. P. 26(a)(1)(A)(iv).
       While Advocate suggests that the fact the Illinois Supreme Court has not adopted a federal rule
       is significant, it fails to provide any support for this proposition. Although we are not bound by
       the Federal Rules of Civil Procedure (e.g., Bianchi v. Savino Del Bene International Freight
       Forwarders, Inc., 329 Ill. App. 3d 908, 928 (2002)), we further recognize the advisory
       committee notes regarding Rule 26 characterize insurance documents as part of the “basic
       information that is needed in most cases to prepare for trial or make an informed decision about
       settlement.” (Emphasis added.) Fed. R. Civ. P. 26 (Notes of Advisory Committee—1993
       Amendment).


                                                   -5-
¶ 20       The Fisher court’s observation that “[l]itigation is a practical business” (Fisher, 12 Ill. 2d
       at 238) is arguably more compelling in the instant case, given the amorphous nature of
       Advocate’s self-insured status. As noted in Fellhauer v. Alhorn, 361 Ill. App. 3d 792, 796
       (2005), the term “self-insurance” has no precise legal meaning. “The concept has led courts
       and legislatures to struggle with questions of how to treat parties acting as their own insurer
       and, in particular, whether self-insurers should be considered the equivalent of an insurer.” Id.
       In a recent decision, this court defined “insurance” as generally referring to “a policy issued by
       an authorized and licensed insurance company whose primary business is to assume certain
       risks of loss of its insureds, in exchange for the payment of a ‘premium.’ ” Philadelphia
       Indemnity Insurance Co. v. Pace Suburban Bus Service, 2016 IL App (1st) 151659, ¶ 32.
       Self-insurance, by contrast, was defined as “the retention of the risk of loss by the one upon
       whom it is directly imposed by law or contract.” (Internal quotation marks omitted.) Id. While
       the dissent suggests that Advocate negotiated its self-insured trust with an insurance company,
       such proposition is not definitively demonstrated by the record.
¶ 21       Other than the $12.5 million amount, Advocate has provided little to no information
       regarding the scope or nature of the self-insured trust and related documents. Even if it is not a
       standard insurance policy per se, Advocate’s self-insured trust presumably exists—at least
       indirectly—for the ultimate benefit of parties such as the plaintiff, like the liability policy at
       issue in Fisher. Furthermore, as the plaintiff observes, a review of the self-insurance
       documents may lead to admissible evidence regarding certain substantive issues in this case,
       e.g., whether an agency relationship existed between certain defendants.
¶ 22       In sum, we reject Advocate’s contention that we “need not reach the question of in camera
       review because [the plaintiff’s] document request seeking irrelevant insurance policies was
       improper in the first instance according to Fisher.” Advocate has not cited any case, statute, or
       rule that plainly exempts it from production of its insurance-related documents.
¶ 23       Turning to the issue of in camera review, we recognize that a trial court may supervise all
       or any part of the discovery process. Ill. S. Ct. R. 201(c)(2) (eff. May 29, 2014). “This power
       includes the authority to review discovery materials in camera to determine any possible
       relevance.” Youle v. Ryan, 349 Ill. App. 3d 377, 381 (2004). The circuit court’s comments
       during the June 14, 2016, hearing indicate that its order entered on June 7, 2016—providing for
       in camera review—superseded the prior orders that directed Advocate to produce the
       documents to the plaintiff. Although Advocate’s notice of appeal references prior orders, the
       issue we consider herein is whether the circuit court erred in ordering an in camera inspection.
¶ 24       Circuit courts are afforded wide latitude in their rulings on discovery matters. Payne, 2013
       IL App (1st) 113519, ¶ 13. Based on our review of the record, the circuit court did not abuse its
       discretion in ordering an in camera inspection of Advocate’s insurance-related documents.
       Absent such a firsthand review, the circuit court would have no means to assess the
       discoverability of the challenged materials.
¶ 25       Citing Manns, 349 Ill. App. 3d 358, Advocate also contends that its trust agreement is a
       confidential financial document rather than an insurance document and thus the circuit court
       erred in ordering its production. As noted above, contrary to Advocate’s assertions, the circuit
       court’s June 2016 orders solely contemplated an in camera review, not production of the
       disputed materials to the plaintiff. In any event, Advocate’s reliance on Manns is misplaced.
¶ 26       The plaintiff in Manns filed a negligence action, alleging personal injuries arising out of an
       automobile accident. Id. at 359. During pretrial discovery, the plaintiff sought documents and

                                                   -6-
       information pertaining to the defendant’s personal financial affairs. Id. The defendant refused
       to answer, contending that the requested materials were irrelevant to any issue in the lawsuit
       and were not subject to discovery until a judgment was entered against him exceeding the
       limits of his liability insurance policy. Id. In reversing the trial court’s finding of contempt, the
       appellate court noted that “[t]here are important differences between a liability insurance
       policy and a defendant’s personal financial assets that do not justify extending the holding in
       Fisher to pretrial discovery of a defendant’s financial affairs.” Id. at 364. The Manns appellate
       court noted that certain rights are created by liability insurance policies, which inure to the
       benefit of injured parties. Id. at 365. Conversely, a plaintiff only has rights regarding a
       defendant’s financial assets after a judgment is entered. Id.
¶ 27        As an initial matter, we presume that an entity’s self-insured trust agreement would be
       more akin to an insurance document than the types of confidential financial documents at issue
       in Manns. The fact that Advocate appears to have disclosed the existence of the $12.5 million
       in self-insurance in response to the plaintiff’s interrogatories regarding insurance belies its
       efforts to distinguish its trust document from a traditional liability policy. More significantly,
       we fail to understand how the circuit court (or this court) could simply accept Advocate’s
       representation that the trust document is “nothing more than one of Advocate’s financial
       documents,” which it utilizes “to set forth its proprietary self-insured business structure.” The
       dissent contends that the self-insured trust is a confidential document containing trade secrets;
       however, the circuit court could not be expected to assess the potential applicability of Manns
       absent an in camera inspection of the disputed documents. The dissent also posits that
       Advocate would not want its employees, physicians, or other medical personnel to know the
       intricate matters contained in the trust. Although our decision herein is limited to the propriety
       of in camera review, we note that a protective order entered by the circuit court strictly limits
       the use or dissemination of any produced insurance documents. We thus conclude that the
       circuit court did not abuse its discretion. See, e.g., Anderson v. St. Mary’s Hospital, 101 Ill.
       App. 3d 596, 600 (1981) (noting that “where there is a genuine dispute as to the nature or
       content of the document sought to be discovered, an attorney must ordinarily comply with the
       trial court’s order for an in camera inspection of the document or be subject to sanctions for
       contempt”).
¶ 28        As a final matter, Advocate asks that we vacate the contempt order, and the plaintiff does
       not object. “Requesting the circuit court to enter a contempt order is a proper procedure to seek
       immediate appeal of a discovery order.” Klaine, 2014 IL App (5th) 130356, ¶ 41; accord Adler,
       2013 IL App (1st) 121066, ¶ 71. “If we find that the discovery order should be upheld, we may
       nevertheless vacate the finding of contempt and assessment of a monetary penalty if we find
       that the defendant’s refusal to produce the documents at issue was not contemptuous of the
       circuit court’s authority but rather was made in good faith based on sound legal arguments for
       purposes of effectuating an interlocutory appeal.” Klaine, 2014 IL App (5th) 130356, ¶ 9. We
       find this to be such a case and thus vacate the circuit court’s June 14, 2016, order, which found
       Advocate to be in contempt of court for failing to produce the contested documents for
       in camera inspection and assessed a monetary penalty. See Chicago Trust Co. v. Cook County
       Hospital, 298 Ill. App. 3d 396, 410 (1998) (vacating a contempt order where the
       hospital-defendant’s refusal to produce documents was “not contemptuous of the court’s
       authority”).



                                                     -7-
¶ 29                                        CONCLUSION
¶ 30       For the foregoing reasons, we affirm the circuit court’s order of June 7, 2016, directing the
       production of certain documents for in camera inspection. We vacate the circuit court’s order
       of June 14, 2016, which found Advocate in contempt and assessed a monetary penalty.

¶ 31      Discovery order affirmed; contempt order vacated.

¶ 32       JUSTICE GORDON, dissenting.
¶ 33       I must respectfully dissent. Advocate represented that it had $12.5 million in coverage for
       plaintiff’s claim pursuant to a self-insured retention and trust agreement. There are obvious
       reasons why a hospital that negotiates a self-insured trust with an insurance company does not
       want anyone to know the financial formulas that are contained in their self-insured trust. These
       documents contain confidential financial information regarding the triggering of payments by
       the insurance company or companies that are providing the excess coverage contained in the
       trust. Advocate’s self-insured trust does not exist for the benefit of injured parties such as the
       plaintiff in this case, like the liability policy at issue in Fisher. I doubt whether Advocate would
       want its employees, physicians, or other medical personnel to know the intricate matters
       contained in this trust. This is basically a confidential document with trade secrets that is not
       relevant in any malpractice case before the entry of a judgment and may not even be relevant
       after judgment if Advocate has the funds to pay to satisfy any judgment entered against it. I
       also do not agree with the majority that it could lead to admissible evidence as to whether an
       agency relationship existed between certain defendants, and there is nothing in the record of
       this case that would indicate that was an issue. I know of no court that has allowed the
       production of a self-insured trust by a hospital, municipality, or large corporation before
       judgment, nor do I find any relevancy in ordering its production. A self-insured trust is not an
       insurance policy and should not be treated as one. I would reverse the circuit court of Cook
       County and vacate the contempt finding and fine.




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