                                         2016 IL App (3d) 150319

                              Opinion filed November 30, 2016
       __________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2016


     BRIAN FALLS, Individually and on Behalf of All )   Appeal from the Circuit Court
     Others Similarly Situated,                       ) of the 12th Judicial Circuit,
                                                      ) Will County, Illinois,
            Plaintiff-Appellant,                      )
                                                      )
            v.                                        ) Appeal No. 3-15-0319
                                                      ) Circuit No. 13-CH-2683
     SILVER CROSS HOSPITAL AND MEDICAL                )
     CENTERS, an Illinois Not For Profit Corporation, )
     Individually and d/b/a Silver Cross Hospital,    )
                                                      ) Honorable John Anderson,
            Defendant-Appellee.                       ) Judge, Presiding.
     ___________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justice Holdridge concurred in the judgment and opinion.
           Justice Lytton concurred in part and dissented in part, with opinion.
     ___________________________________________________________________________

                                                OPINION

¶1          In August 2013, plaintiff filed an action in the circuit court of Will County seeking

     damages for Silver Cross Hospital’s billing and lien practices. The lawsuit alleged Silver Cross

     Hospital’s practices violated the Illinois Consumer Fraud and Deceptive Business Practices Act

     (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2010)). In addition, plaintiff sought

     damages in separate counts of the class action complaint seeking damages for breach of contract.
     Silver Cross Hospital resisted the class action by filing a motion to dismiss the pending lawsuit

     pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).

¶2          The trial court granted Silver Cross Hospital’s motion and dismissed plaintiff’s second

     amended complaint based on section 2-615 grounds. We affirm in part and reverse in part.

¶3                                            BACKGROUND

¶4          On December 1, 2010, Silver Cross Hospital (Silver Cross) entered into a Facility

     Participation Agreement (FPA) with United Healthcare Insurance (United Healthcare). In the

     FPA, United Healthcare granted Silver Cross PPO status for United Healthcare customers.

¶5          In exchange for PPO status provided by the terms of the FPA, Silver Cross agreed to

     allow United Healthcare to pay for the medical services provided to United Healthcare’s insureds

     at a reduced PPO rate for certain medical services. As part of the FPA, Silver Cross also agreed

     to treat all reduced PPO rates paid by United Healthcare as payment in full for all qualified

     services. The FPA provided that United Healthcare would determine the qualified services

     eligible for PPO discounts based on each customer’s benefit plan with the company.

¶6          In addition, the FPA strictly prohibited Silver Cross from engaging in balance billing

     practices to collect more than the reduced PPO rate for qualified services from patients insured

     by United Healthcare. Plaintiff’s brief asserts that the language in this section of the contract

     between United Healthcare and Silver Cross states those two entities “are the only entities with

     rights and remedies under the [FPA].”

¶7          It is undisputed that United Healthcare was the medical insurance provider for plaintiff,

     Brian Falls. On March 6, 2011, plaintiff received emergency care and was admitted into Silver

     Cross for medical treatment resulting from an automobile accident involving a driver insured by

     State Farm. Silver Cross released plaintiff from inpatient care on March 8, 2011. For purposes of




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       this appeal, the parties agree the full value of hospital services plaintiff received from Silver

       Cross totaled $18,129.50. It also appears from the record that all medical services plaintiff

       received from Silver Cross constituted qualified services according to plaintiff’s benefit plan

       with United Healthcare.

¶8             It is also undisputed for purposes of this appeal that plaintiff agreed to be responsible to

       “reimburse” Silver Cross for billed services that were not paid by his medical insurance provider.

       As part of this agreement, plaintiff also consented to allow Silver Cross to provide notice of a

       hospital lien for the full value of hospital services to help secure payment for services rendered.

       The language of the consent form is included in the appendix to this decision.

¶9             On March 29, 2011, Silver Cross issued the required notice, as allowed by the consent

       form, informing plaintiff and others that Silver Cross was asserting a hospital lien in the amount

       of $18,129.50. The lien notice stated that Silver Cross “claims a lien on any money due or owing

       on any claim or causes of action for compensation, damages, contributions, settlements or

       judgment from ANY PERSON OR INSURANCE COMPANY LIABLE who is alleged to have

       caused the injuries and to be liable therefore.”

¶ 10           Thereafter, the record indicates Silver Cross and United Healthcare adjusted the charges

       to reflect the PPO discount United Healthcare would be obligated to pay on behalf of its

       customer, plaintiff, pursuant to the terms of the FPA. On April 20, 2011, United Healthcare paid

       Silver Cross a total of $5957.15 1 for plaintiff’s emergency and inpatient treatment. Silver Cross

       received and accepted United Healthcare’s payment of $5957.15 on May 18, 2011, leaving a

       balance due of $1264.23 that United Healthcare did not pay. The July 13, 2011, statement Silver




               1
               The parties uniformly state that United Healthcare paid Silver Cross $5,957.15. The record documents the
       payment of $5,957.15 included $758 directed to Bassam Kawadry.


                                                              3
       Cross sent to plaintiff also documents that Silver Cross received a payment of $126.87 directly

       from State Farm, which was applied to plaintiff’s account.

¶ 11          After receiving payments in 2011 from both United Healthcare and State Farm, Silver

       Cross did not immediately reduce the hospital lien from the full amount of $18,129.50 to reflect

       those payments. However, on March 1, 2013, Silver Cross issued a revised notice of lien

       reducing the hospital lien to the unpaid balance of $1264.23.

¶ 12          Meanwhile, plaintiff settled the personal injury claim with the third-party tortfeasor for

       $85,000 in May 2012. The settlement draft was jointly issued to both plaintiff and Silver Cross.

¶ 13          On June 20, 2012, plaintiff’s attorney wrote to Silver Cross and formally demanded

       Silver Cross “endorse [plaintiff’s] Settlement Draft as his debt to [Silver Cross’s] facility has

       been paid.” To date, Silver Cross has not endorsed plaintiff’s settlement check and plaintiff has

       not paid the balance of $1264.23 to Silver Cross.

¶ 14          On January 29, 2013, plaintiff filed a federal lawsuit in the Northern District of Illinois.

       The federal lawsuit alleged the 2011 lien in the amount of $18,129.50 exceeded the amount

       Silver Cross could collect directly from the patient in violation of the FPA between Silver Cross

       and plaintiff’s insurance company, United Healthcare. Plaintiff claimed the hospital was engaged

       in billing practices that were unfair to the consumer. While the federal lawsuit was pending,

       Silver Cross issued a revised notice of hospital lien.

¶ 15          On May 15, 2013, the federal judge issued a memorandum opinion and order denying

       Silver Cross’s motion to dismiss plaintiff’s complaint. However, the federal court expressed

       concerns regarding the federal court’s jurisdiction because the automobile accident, Silver

       Cross’s incorporation, and plaintiff’s residence all tied back to the State of Illinois. Following the




                                                         4
       court’s ruling expressing these concerns, plaintiff voluntarily dismissed the federal court action

       on July 8, 2013.

¶ 16             Plaintiff filed the instant case in the circuit court of Will County on August 19, 2013. On

       August 20, 2014, plaintiff filed a second amended class action complaint (second amended

       complaint). In the factual allegations common to all counts, plaintiff alleged Silver Cross

       asserted an $18,129.50 lien, representing the full amount of charges “without any discounts and

       in violation of the terms and conditions of the ‘FPA.’ ” Plaintiff alleged Silver Cross had the

       intent to violate the FPA by filing the inflated lien and “allowing [Silver Cross] to receive

       $18,129[.]50, the full amount of all of its invoices for medical treatment rendered to plaintiff at

       SILVER CROSS.” On August 23, 2013, plaintiff moved for class action certification.

¶ 17             Plaintiff challenges the court’s ruling concerning counts I, II, III, and V of the second

       amended complaint. For purposes of this opinion, we will recite the allegations relevant to those

       counts alone before discussing the court’s respective findings on each count relevant to this

       appeal.

¶ 18             Count I of the second amended complaint alleged that Silver Cross “fraudulently

       misrepresented, concealed, and otherwise fraudulently misled” plaintiff for the purpose of

       placing a hospital lien against their patient and other third parties. Count I of the second amended

       complaint also alleged Silver Cross fraudulently concealed that Silver Cross had previously

       “promised and agreed that the total payment received from United Healthcare, other than

       deductibles and co-payments, would be treated as payment in full for all services rendered.”

       Further, count I of the second amended complaint claims that plaintiff “reasonably relied upon

       the truth of SILVER CROSS’ representations in the [consent form].” Finally, plaintiff claimed




                                                           5
       damages in count I of the second amended complaint that included loss of settlement funds and

       diminished value of plaintiff’s health insurance policy.

¶ 19           In counts II and V of the second amended complaint, plaintiff requested damages arising

       out of Silver Cross’s intentional breach of the terms of the written FPA. Count III of the second

       amended complaint also alleged Silver Cross intentionally breached the written consent form

       between plaintiff and Silver Cross.

¶ 20           On September 16, 2014, Silver Cross filed a combined motion to dismiss all counts of the

       second amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735

       ILCS 5/2-619.1 (West 2012)). On January 13, 2015, the trial court heard arguments on the

       defendant’s combined section 2-619.1 motion. The court entered its decision as a memorandum

       opinion and order on March 10, 2015.

¶ 21           The trial court found count I of the second amended complaint did not state a cause of

       action for a violation of the Consumer Fraud Act because plaintiff failed to allege Silver Cross

       had the requisite intent to defraud. The court also found the pleadings failed to allege actual

       injury to plaintiff.

¶ 22           The court found count II of the second amended complaint failed to allege facts to

       support plaintiff’s standing to assert a breach of the FPA and determined, based on the pleadings,

       that the Health Maintenance Organization Act (HMO Act) (215 ILCS 125/1-2 et seq. (West

       2010)) did not apply. The court stated that count III of the second amended complaint did not

       allege sufficient facts establishing Silver Cross breached its obligations to the patient as stated in

       the written consent form. Further, the court found count V of the second amended complaint

       appeared to rely upon the FPA, which expressly and contractually excludes plaintiff from




                                                         6
       receiving third-party beneficiary status. Finally, the court dismissed all remaining counts of the

       second amended complaint on section 2-615 grounds.

¶ 23          Following this decision, on April 9, 2015, plaintiff asked the court to dismiss all counts of

       the second amended complaint with prejudice, allowing plaintiff to appeal the trial court’s ruling.

       On May 7, 2015, plaintiff filed a timely notice of appeal.

¶ 24                                               ANALYSIS

¶ 25          On appeal, plaintiff challenges the trial court’s decision to grant defendant’s combined

       section 2-619.1 motion to dismiss, specifically regarding counts I, II, III and V of the second

       amended complaint. The trial court granted this relief on section 2-615 grounds, without

       addressing the section 2-619 (735 ILCS 2-619 (West 2012)) contentions raised by Silver Cross in

       the combined motion to dismiss. Defendant asserts the trial court properly allowed defendant’s

       motion to dismiss all counts of the second amended complaint.

¶ 26          A section 2-615 motion to dismiss “should not be granted unless it clearly appears that no

       set of facts could ever be proved that would entitle the plaintiffs to recover.” Behrens v. Harrah’s

       Illinois Corp., 366 Ill. App. 3d 1154, 1156 (2006) (citing Ostendorf v. International Harvester

       Co., 89 Ill. 2d 273 (1982)). On review, this court “should interpret the assertions of the complaint

       in the light most favorable to the plaintiff by accepting as true all well-pleaded facts and the

       reasonable inferences that can be drawn from them.” Gagnon v. Schickel, 2012 IL App (1st)

       120645, ¶ 18. Any exhibits attached to the complaint are to be considered as part of the pleadings

       for purposes of considering a section 2-615 motion to dismiss. Id. We review the grant of a

       motion to dismiss based on section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615

       (West 2012)) de novo. Behrens, 366 Ill. App. 3d at 1156.




                                                         7
¶ 27                                                I. Count I

¶ 28          Plaintiff argues the trial court erroneously dismissed count I of the second amended

       complaint that was based on a purported violation of the Consumer Fraud Act. It is well

       established that the determination of whether a certain practice is unfair requires a case-by-case

       determination based on the facts. Elder v. Coronet Insurance Co., 201 Ill. App. 3d 733, 742

       (1990) (citing Scott v. Association for Childbirth at Home, International, 88 Ill. 2d 279, 290

       (1981)). Our supreme court provides guidance by identifying the relevant factors to be

       considered when evaluating whether “a given course of conduct” is unfair to the consumer

       according to the Consumer Fraud Act. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403,

       417 (2002). These factors include: “(1) whether the practice offends public policy; (2) whether it

       is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to

       consumers.” Id. at 417-18 (citing Federal Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S.

       233, 244 n.5 (1972)). The case law also provides that an “omission or concealment of a material

       fact in the conduct of trade or commerce constitutes consumer fraud.” White v. DaimlerChrysler

       Corp., 368 Ill. App. 3d 278, 283 (2006).

¶ 29          In this case, the trial court determined plaintiff did not sufficiently allege facts to support

       the claim that Silver Cross had the requisite intent to engage in unfair practices. We turn to the

       language of the Consumer Fraud Act to evaluate the propriety of this finding.

¶ 30          The Consumer Fraud Act prohibits “the concealment, suppression or omission of any

       material fact, with intent that others rely upon the concealment, suppression or omission of such

       material fact.” 815 ILCS 505/2 (West 2010). The case law provides that circumstantial evidence

       may establish the violator intended for consumer reliance to result from an act or omission.

       Warren v. LeMay, 142 Ill. App. 3d 550, 573-74 (1986).




                                                         8
¶ 31          We note that count I of the second amended complaint alleges Silver Cross “knowingly

       misrepresented and/or fraudulently concealed from plaintiff and the class the material facts about

       their invoicing and billing practices as they related to the competing terms and conditions of the

       ‘CONSENT FORM’ (Exhibit C) and the ‘FPA’ (Exhibit A).” Plaintiff also alleges Silver Cross

       included language in the consent form that misled plaintiff into consenting to allow “a Hospital

       Lien for the full amount of the hospital services” without first informing plaintiff and the class

       that Silver Cross had contractually agreed to accept less than the “full amount” for hospital

       services provided to the customers of United Healthcare.

¶ 32          The competing language of the consent form at the heart of this controversy only comes

       into play when a patient with a medical insurer entitled to pay a PPO discounted rate for the

       patient’s medical care, such as plaintiff, actually “recovers” an amount of money (damages)

       “from a third party” equal to the full value of medical services. If such a patient recovers

       damages in an amount above the PPO rate Silver Cross accepted as payment in full for qualified

       services from the patient’s insurer, then the consent form permits “the Hospital to reimburse the

       medical and/or insurance provider for any sums previously paid” by the patient’s medical

       insurance provider. 2 The patient is never informed about the consequences of a decision to allow

       the hospital to reject the prior payment from the patient’s insurance provider when the medical

       insurance has paid a PPO discount.

¶ 33          Once Silver Cross returned the $5957.15 paid by United Healthcare, the competing

       language of the consent form creates havoc for the insured patient. On the one hand, the patient

       has been informed in the consent form that: “In the event the current medical insurer is entitled

       to a PPO discount, the patient and/or guarantor agrees and is responsible for reimbursement of

       the PPO discount to the Hospital[.]” Thus, the patient could reasonably believe he or she will
              2
                  The entire consent form appears in the appendix.


                                                                 9
       never pay more than the balance due based on PPO discounts for qualified services rendered by

       the hospital.

¶ 34           On the other hand, unrelated provisions of the same consent form firmly require the

       patient to be “directly responsible for services which are not paid by insurance.” Thus, by

       allowing Silver Cross to return the $5957.15 previously paid by insurance, arguably the patient

       has unknowingly agreed to be responsible for the amount now unpaid by insurance, in this case,

       $18,129.50.

¶ 35           Finally, the same consent form permits Silver Cross to collect the debt owed by the

       patient by filing “a Hospital Lien for the full amount of the hospital services.” When agreeing to

       the contents of the consent form, the patient does not learn and is not informed that Silver Cross

       has a well-established practice of filing a hospital lien for the full amount of services, without

       any consideration of applicable PPO discounts for certain medical insurance providers. The

       unfair practice occurs when the hospital lien is not timely reduced by PPO payments from the

       medical insurer until after the patient settles all claims, if any, against third-party tortfeasors.

¶ 36           Clearly, the amount of debt owed by a patient dictates the amount of a hospital lien by

       statute. Here, Silver Cross filed notice of a hospital lien in the amount of $18,129.50 before the

       patient’s debt was reduced by the payment from the medical insurer. After United Healthcare

       paid $5957.15 on May 18, 2011, plaintiff’s outstanding debt to Silver Cross decreased to

       $1264.23 (the amount United Healthcare did not pay due to deductibles and co-pays).

       Nonetheless, according to the complaint, Silver Cross did not timely reduce the amount of the

       hospital lien to mirror the reduction of plaintiff’s balance due before settlement.

¶ 37           The case law provides that circumstantial evidence may establish the violator intended

       for the consumer to rely on omitted information as part of an unfair practice. The allegations of




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       count I of the second amended complaint reveal that after receiving $5957.15 from the medical

       insurer, Silver Cross stubbornly maintained its lien in the full amount of $18,129.50. If proven,

       the alleged practices by Silver Cross described in the language of count I of the second amended

       complaint could be construed as strong circumstantial evidence indicating that the hospital

       intended to attempt to secure payment of the hospital lien in the full amount of $18,129.50,

       knowing that the remaining debt plaintiff owed to the hospital was only $1264.23.

¶ 38          Generally speaking, we are well aware that hospitals are free to negotiate an agreement

       with the patient to allow the hospital to place a lien for the purpose of securing payment for

       services rendered. Lopez v. Morley, 352 Ill. App. 3d 1174, 1181 (2004); Parnell v. Adventist

       Health System/West, 109 P.3d 69, 80 (Cal. 2005). Yet, the consent form at play in this appeal

       appears to secure the patient’s permission for Silver Cross to return United Healthcare’s PPO

       discounted payment, thereby allowing Silver Cross to renege on the terms of the FPA and pursue

       balance billing by hospital lien with the patient’s uninformed blessing. See Evanston Hospital v.

       Hauck, 1 F.3d 540, 542 (7th Cir. 1993). Arguably, this practice negates the value of the patient’s

       medical insurance plan, resulting in monetary damages. This practice essentially converts patient

       into a 100% self-pay patient for purposes of the amount of the hospital lien.

¶ 39          Moreover, United Healthcare paid Silver Cross a total of $5957.15 on April 20, 2011,

       leaving a self-pay balance for plaintiff of not more than $1264.23. Yet, from April 20, 2011,

       until March 1, 2013, the hospital encumbered $16,865.27 in settlement funds above the disputed

       balance due of $1264.23. We conclude the loss of use of the funds in excess of $1264.23 also

       resulted in measurable damages to plaintiff.

¶ 40          After careful review, we conclude count I of the second amended complaint contained

       sufficient allegations to establish Silver Cross intended for the consumer to rely on incomplete




                                                       11
       information in order to secure the patient’s permission for a hospital lien that was not limited to

       the amount of PPO discounted services. We also agree the complaint properly included

       allegations establishing damages from the billing and lien practices of the hospital.

¶ 41          We reverse the trial court’s decision dismissing count I of the second amended complaint.

¶ 42                                           II. Counts II and V

¶ 43          Plaintiff argues that the trial court erred by dismissing counts II and V of the second

       amended complaint, the breach of contract claims involving the FPA between Silver Cross and

       United Healthcare. Silver Cross argues that the trial court correctly dismissed these counts

       because plaintiff lacked standing to assert the claims. The trial court dismissed these counts

       because plaintiff was not a signatory to the FPA, and thus did not have standing to enforce the

       terms of the FPA as a party to the contract or intended third-party beneficiary.

¶ 44          Generally, whether a party has any third-party beneficiary status under a contract will

       depend upon the intent of the original contracting parties and the express language of the

       contract. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1020 (2009). In this

       case, plaintiff is not a signatory to the FPA, which expressly states: “No Third-Party

       Beneficiaries. [United Healthcare] and [Silver Cross] are the only entities with rights and

       remedies under the Agreement.” Plaintiff urges this court to consider another provision of the

       FPA, a hold harmless payment provision, which protects United Healthcare’s insureds from

       Silver Cross seeking payment of any sum in excess of the agreed PPO discounted rate.

¶ 45          Plaintiff asserts that he qualifies as a “customer” under the terms of the FPA because

       plaintiff benefits from those provisions of the FPA protecting United Healthcare customers from

       paying more than the discounted PPO rate. Relying on Barba v. Village of Bensenville, 2015 IL

       App (2d) 140337, plaintiff argues that general contractual provisions claiming third-party




                                                        12
       beneficiaries do not control the more specific provisions creating protection for the class.

       Plaintiff argues that construing the FPA to extinguish third-party beneficiary status to the class

       creates an unintended absurdity. According to plaintiff, since United Healthcare was not

       financially damaged by Silver Cross’s breach of the FPA after Silver Cross returned all funds

       paid by United Healthcare to the insurer, it becomes unlikely that United Healthcare will attempt

       to enforce the terms of the FPA prohibiting practices similar to balance billing against the

       patient.

¶ 46              This argument is not persuasive. United Healthcare may examine the collection and lien

       practices of Silver Cross and elect to file an action to specifically enforce all terms of the FPA.

       Perhaps United Healthcare will elect to deny Silver Cross future PPO status in future contracts.

       There are various remedies United Healthcare could elect to remedy the purported breach of the

       FPA. Finally, plaintiff argues that the HMO Act, 215 ILCS 125/1-2 et seq. (West 2010)

       demonstrates that plaintiff has status as a third-party beneficiary with respect to the FPA.

       Plaintiff contends that United Healthcare falls within this definition of an HMO. The HMO Act

       provides:

                  “ ‘Health Maintenance Organization’ means any organization formed under the laws of

                  this or another state to provide or arrange for one or more health care plans under a

                  system which causes any part of the risk of health care delivery to be borne by the

                  organization or its providers.” 215 ILCS 125/1-2(9) (West 2010).

¶ 47              In response, Silver Cross argues that United Healthcare does not fit the definition of an

       HMO because United Healthcare does not provide or arrange for one or more health care plans.

       Silver Cross focuses on the definition of a health care plan under the HMO Act. The HMO Act

       provides:




                                                          13
              “ ‘Health care plan’ means any arrangement whereby any organization undertakes to

              provide or arrange for and pay for or reimburse the cost of basic health care services[,

              excluding any reasonable deductibles and copayments,] from providers selected by the

              Health Maintenance Organization and such arrangement consists of arranging for or the

              provision of such health care services, as distinguished from mere indemnification

              against the cost of such services ***.” 215 ILCS 125/1-2(7) (West 2010).

¶ 48          The trial court found that the HMO Act does not apply. Based on the pleadings, we

       conclude United Healthcare does not qualify as a health care plan as defined by the HMO Act.

       We affirm the trial court’s dismissal of counts II and V of the second amended complaint.

¶ 49                                               III. Count III

¶ 50          Plaintiff argues that the trial court erroneously dismissed count III, alleging defendant

       breached the contract between plaintiff and Silver Cross. Specifically, plaintiff argues the

       consent form prohibits the placement of a lien on proceeds or anticipated proceeds of plaintiff’s

       personal injury lawsuit.

¶ 51          Plaintiff recognizes that the Health Care Services Lien Act allows any hospital to “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.” 770 ILCS 23/10(a) (West 2010).

       However, plaintiff contends the language of the consent form waives the statutory power granted

       to a hospital to encumber causes of action of the injured party, initiated against a third party, to

       secure payment for plaintiff’s hospitalization and emergency services. The trial court rejected

       this strained reading of the provision of the consent form.

¶ 52          While it is accepted that existing laws become implied terms of a contract as a matter of

       law (Suarez v. Pierard, 278 Ill. App. 3d 767, 773 (1996)), a contract will be construed against




                                                         14
       the preparer (Dr. Charles W. Smith III, Ltd. v. Connecticut General Life Insurance Co., 122 Ill.

       App. 3d 725, 728 (1984) (citing Saddler v. National Bank of Bloomington, 403 Ill. 218 (1949)).

       When read in its entirety, we conclude that the language of the consent form does not waive

       Silver Cross’s statutory authority to file a hospital lien, pursuant to statute, against plaintiff’s

       personal injury cause of action. We do not express any opinion regarding whether the statute

       allows Silver Cross to maintain the lien in the amount of $18,129.50 after accepting payment

       from United Healthcare in 2011 and thereby reducing the outstanding debt to be paid by the

       patient to $1264.23.

¶ 53           Alternatively, the trial court properly considered the undisputed fact that plaintiff had not

       paid the balance of the debt, $1264.23, remaining after plaintiff’s medical insurer paid its share.

       In response to the trial court’s concern, plaintiff argues that Silver Cross first breached the terms

       of the consent form by initially placing any lien on third-party proceeds to be paid to plaintiff.

       Plaintiff argues that once Silver Cross breached the contract with plaintiff, plaintiff’s failure to

       be responsible by paying all amounts left unpaid by insurance for co-payments and deductibles

       are irrelevant. See Tower Investors, LLC v. 111 East Chestnut Consultants, Inc., 371 Ill. App. 3d

       1019, 1031-32 (2007). However, the trial court concluded that an argument based on this

       doctrine of anticipatory repudiation failed because the trial court did not agree Silver Cross

       violated any promise set forth in the language of the consent form. Thus, we affirm the trial

       court’s dismissal of count III.

¶ 54                                              CONCLUSION

¶ 55           For the foregoing reasons, we reverse the trial court’s decision granting Silver Cross’s

       motion to dismiss count I of the second amended complaint. We affirm the trial court’s decision




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       dismissing counts II, III, and V of the second amended complaint and remand this case to the

       trial court for further proceedings.

¶ 56            Affirmed in part and reversed in part; cause remanded.

¶ 57            JUSTICE LYTTON, concurring in part and dissenting in part.

¶ 58            I agree with the majority’s opinion on all issues except its decision to affirm the trial

       court’s dismissal of counts II and V of plaintiff’s complaint, set forth in section II of the opinion.

       I dissent from the majority’s determination that plaintiff lacks standing to sue as a third-party

       beneficiary of the Facility Participation Agreement (FPA).

¶ 59            The majority’s conclusion that plaintiff lacks standing to sue under the FPA is based

       entirely on the FPA’s clause generally prohibiting third-party beneficiaries. However, “no third-

       party beneficiary” clauses are not always fatal to a third-party beneficiary claim. See Barba v.

       Village of Bensenville, 2015 IL App (2d) 140337, ¶ 25; In re Quincy Medical Center, Inc., 479

       B.R. 229, 237 (Bankr. D. Mass. 2012); Diamond Castle Partners IV PRC, L.P. v.

       IAC/InterActiveCorp, 918 N.Y.S.2d 73, 75 (App. Div. 2011); Marler v. E.M. Johansing, LLC,

       132 Cal. Rptr. 3d 691, 704 (Ct. App. 2011); Prouty v. Gores Technology Group, 18 Cal. Rptr. 3d

       178, 187 (Ct. App. 2004); Vaughn, Coltrane & Associates v. Van Horn Construction, Inc., 563

       S.E.2d 548, 550 (Ga. Ct. App. 2002); Dorr v. Sacred Heart Hospital, 597 N.W.2d 462, 475

       (Wis. Ct. App. 1999); Versico, Inc. v. Engineered Fabrics Corp., 520 S.E.2d 505, 508-09 (Ga.

       Ct. App. 1999); Local Union No. 1812 v. BethEnergy Mines, Inc., 992 F.2d 569, 572 (6th Cir.

       1993).

¶ 60            Whether someone is a third-party beneficiary depends on the intent of the contracting

       parties, as evidenced by the contract language. Martis v. Grinnell Mutual Reinsurance Co., 388

       Ill. App. 3d 1017, 1020 (2009). Contract language evinces an intent to benefit and confer rights




                                                          16
       on a third party when it identifies a third-party beneficiary by name or by description of a class to

       which the third party belongs. Id.

¶ 61          When a contract contains general and specific provisions relating to the same subject, the

       specific provision controls. Barba, 2015 IL App (2d) 140337, ¶ 25. A “no third-party

       beneficiary” clause is typically phrased in broad, general terms. See id. Where a more specific

       provision shows an intent to directly benefit a third party, that provision governs and renders the

       general “no third-party beneficiary” provision inoperative. Id.; see also In re Quincy Medical

       Center, Inc., 479 B.R. at 237 (provision of agreement manifesting intent to benefit class of non-

       party beneficiaries “trumps the boilerplate no-third-party-beneficiary clause”).

¶ 62          Here, section 6.8 of the FPA, entitled “Customer ‘Hold Harmless,’ ” states: “[Silver

       Cross] will not bill or collect payment from the Customer, or seek to impose a lien, for the

       difference between the amount paid under this Agreement and [Silver Cross]’s billed Charge.”

       The clear and unambiguous terms of this section create a contractual obligation to hold

       customers harmless for payment of hospital services in excess of the scheduled amount. A hold

       harmless provision, such as this one, is designed specifically to protect customers. See Dorr, 597

       N.W.2d at 475. Customers are primary beneficiaries of the “hold harmless” provision because its

       major thrust is to limit their expenses. See Nahom v. Blue Cross & Blue Shield of Arizona, Inc.,

       885 P.2d 1113, 1118 (Ariz. Ct. App. 1994).

¶ 63          In this case, the intent of the “hold harmless” provision is to directly benefit United

       Healthcare customers like plaintiff. See Dorr, 597 N.W. 2d at 475. The right to be held harmless

       is of no benefit to United Healthcare because it is contractually obligated to pay the agreed

       amount for the service Silver Cross renders to its insureds. See id. It is also of no benefit to

       Silver Cross because it is prohibited from seeking recourse against patients insured by United




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       Healthcare. See id. The beneficiaries of section 6.8 are United Healthcare customers. See id. at

       475-76. Thus, plaintiff, a United Healthcare customer, can bring an action to enforce the FPA as

       a third-party beneficiary. See id. at 476; see also Jennings v. Rapid City Regional Hospital, Inc.,

       802 N.W.2d 918, 922-23 (S.D. 2011) (patients were third-party beneficiaries of agreement

       between hospital and managed care organization and had standing to enforce agreement);

       Smallwood v. Central Peninsula General Hospital, 151 P.3d 319, 325-27 (Alaska 2006)

       (Medicaid patient was third-party beneficiary of provider agreement between hospital and state

       and could enforce agreement); Nahom, 885 P.2d at 1118 (insured patient was third-party

       beneficiary of participation agreement between hospital and insurer and could seek to enforce

       agreement).

¶ 64          Additionally, section 6.9 of the FPA, entitled “Consequences for Failure to Adhere to

       Customer Protection Requirements,” supports my conclusion that the FPA creates third-party

       beneficiary rights for customers like plaintiff. That section states: “If [Silver Cross] collects

       payment from, brings a collection against, or asserts a lien against a Customer, for Covered

       Services rendered (other than for the applicable co-payment, deductible or coinsurance) contrary

       to section 6.7 or 6.8 of this Agreement, [Silver Cross] shall be in breach of this Agreement.” This

       provision, like the “hold harmless” provision above, is intended to benefit customers. It identifies

       that group by name, and its purpose is to prevent Silver Cross from looking to United Healthcare

       customers for payment in excess of the scheduled amount. See Nahom, 885 P.2d at 1118. This

       provision gives customers the right to sue Silver Cross for breach of contract. See Dorr, 597

       N.W.2d at 475-76.

¶ 65          While the FPA contains a “no third-party beneficiaries” clause expressing a general intent

       not to create third-party beneficiary rights, sections 6.8 and 6.9 of the FPA are more specific




                                                         18
provisions intended to benefit United Healthcare customers and create third-party beneficiary

rights that United Healthcare customers can enforce. See id. at 476. Therefore, I dissent from the

majority’s conclusion that plaintiff, a United Healthcare customer, does not have rights as a

third-party beneficiary to bring an action for breach of the FPA.

                                            APPENDIX

For the reader’s convenience, the language of the consent form is set forth below:

       “A. I [plaintiff] hereby agree to pay Silver Cross Hospital their charges for all services

       rendered during this hospitalization or medical treatment. I also understand that I am

       directly responsible for services which are not paid by insurance. Should the account be

       referred for collection[,] I shall pay reasonable costs of collection including legal fees[.]

       ***

       B. The patient and the undersigned guarantors agree to be liable to Silver Cross Hospital

       for the entire bill for the services rendered for hospital care[.] Silver Cross Hospital

       agrees to bill the current medical insurance provider for the patient and/or undersigned

       guarantor[.] In the event the current medical insurer is entitled to a PPO discount[,] the

       patient and/or guarantor agrees and is responsible for reimbursement of the PPO discount

       to the Hospital[.] [I]n the event that the patient and/or guarantor recovers from a third

       party the sums equal to the amount of the entire bill for the hospital rendered services or

       equal to the amount of any Hospital Lien filed under Illinois Compiled Statutes[,] [t]he

       patient and/or undersigned guarantor agree and authorized [sic] the Hospital to reimburse

       the medical and/or insurance provider for any sums previously paid to the Hospital prior

       to the Hospital receiving reimbursement from the patient and/or guarantor from any third

       party and/or worker[’]s compensation payments[.] In addition[,] the Hospital is allowed

       to file a Hospital Lien for the full amount of the hospital services with any attorney[,]


                                                 19
third party or insurer for and against the patient and/or undersigned guarantor for any

personal injuries caused by any third party (no lien right available for worker[’]s

compensation cases)[.]”




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