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                                     Appellate Court                              Date: 2017.02.10
                                                                                  09:17:44 -06'00'




           Falls v. Silver Cross Hospital & Medical Centers, 2016 IL App (3d) 150319



Appellate Court          BRIAN FALLS, Individually and on Behalf of All Others Similarly
Caption                  Situated, Plaintiff-Appellant, v. SILVER CROSS HOSPITAL AND
                         MEDICAL CENTERS, an Illinois Not-for-Profit Corporation,
                         Individually and d/b/a Silver Cross Hospital, Defendant-Appellee.



District & No.           Third District
                         Docket No. 3-15-0319


Filed                    November 30, 2016



Decision Under           Appeal from the Circuit Court of Will County, No. 13-CH-2683; the
Review                   Hon. John Anderson, Judge, presiding.



Judgment                 Affirmed in part and reversed in part; cause remanded.



Counsel on               John H. Alexander, of John H. Alexander & Associates, and Larry D.
Appeal                   Drury (argued) and Robert A. Langendorf, all of Chicago, for
                         appellant.

                         Bryan M. Webster (argued), Joel G. Chefitz, and Hallie Ritzu, of
                         McDermott Will & Emery LLP, of Chicago, for appellee.



Panel                    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 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

                                                 -2-
       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 $5957.151 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 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 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.
          1
           The parties uniformly state that United Healthcare paid Silver Cross $5957.15. The record
       documents the payment of $5957.15 included $758 directed to Bassam Kawadry.

                                                    -3-
¶ 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 its 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
       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
       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


                                                    -4-
       addressing the section 2-619 (735 ILCS 5/2-619 (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.

¶ 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).
¶ 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.

                                                    -5-
¶ 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
       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
       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


          2
           The entire consent form appears in the appendix.

                                                    -6-
       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
       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 beneficiaries do not control the more specific provisions creating protection for the


                                                    -7-
       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:
               “ ‘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.


                                                    -8-
¶ 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
       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 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

                                                    -9-
       (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 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 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

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       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
       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 workers[’] compensation
             payments[.] In addition[,] the Hospital is allowed to file a Hospital Lien for the full
             amount of the hospital services with any attorney[,] 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 workers[’] compensation cases)[.]”




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