                                  2015 IL App (1st) 141690

                                                                          THIRD DIVISION
                                                                          May 13, 2015

                                        No. 1-14-1690


                                        IN THE
                             APPELLATE COURT OF ILLINOIS
                                  FIRST JUDICIAL DISTRICT

 CENTRO MEDICO PANAMERICANO, LTD., )                       Appeal from the
 an Illinois corporation, s/b/a Fullerton )                Circuit Court of
 Kimball Medical and Surgical Center,     )                Cook County.
                                          )
        Plaintiff-Appellant,              )
                                          )
                       v.                 )
                                          )                12 L 006838
 LABORERS' WELFARE FUND OF THE            )
 HEALTH AND WELFARE DEPARTMENT OF )
 THE CONSTRUCTION AND GENERAL             )
 LABORERS' DISTRICT COUNCIL OF            )
 CHICAGO AND VICINITY,                    )                The Honorable
                                          )                Sanjay T. Tailor
        Defendant-Appellee.               )                Judge, presiding.
                                          )

       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Justices Hyman and Mason concurred in the judgment and opinion.

                                            OPINION

¶1     This interlocutory appeal arises from the trial court's order granting summary judgment in

an insurance coverage lawsuit to defendant Laborers' Welfare Fund of the Health and Welfare

Department of the Construction and General Laborers' District Council of Chicago and Vicinity.

On appeal, plaintiff Centro Medico Panamericano, Ltd., an out-patient surgical center, contends

that the trial court erroneously granted defendant's motion for summary judgment because
  No. 1-14-1690


defendant's service representatives made plaintiff an oral unambiguous promise about the extent

of insurance coverage. Plaintiff also contends that the trial court erred in concluding that the

Employee Retirement Income Security Act of 1974 (29 U.S.C. § 18 (2000) (ERISA)), preempted

plaintiff's claim for promissory estoppel. In addition, plaintiff contends that the trial court erred

by considering inadmissible hearsay and failing to grant plaintiff's Illinois Supreme Court Rule

191(a) (eff. Jan. 4, 2013) motion to strike. We affirm.

¶2                                    BACKGROUND

¶3     We recite only those facts necessary to understand the issues raised on appeal. Between

June 2007 and October 2011, plaintiff provided medical services for 21 procedures on 16

patients. Before each procedure, plaintiff placed a verification call to defendant's service

representatives to verify whether the procedure was covered by each patient's health insurance

policy. During the verification calls, plaintiff provided defendant with the provider's name, the

patient's name, insurance information, and the procedure and services to be performed.

Defendant responded by confirming coverage and the amount of benefits available for each

procedure, which was a percentage of plaintiff's billed charges. Defendant paid plaintiff on each

of the claims totaling $35,491.05, pursuant to the plan's "usual and customary charges" for out-

of-network providers, including any applicable deductibles or coinsurance, which was

significantly less than the amount billed. Upon payment, defendant also provided an explanation

of benefits for each claim and explained why payments were not paid in full. Defendant also

included information about its detailed appeal procedure, but no participant appealed.

¶4     In June 2012, five years after the first disputed claim, plaintiff filed this promissory

estoppel suit against defendant contending that it was entitled to approximately $98,000 more on

its claims, arguing that defendant's service representatives orally promised that defendant would
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pay a fixed percentage of whatever amount plaintiff billed, no matter how high or excessive. In

response, defendant filed a motion for summary judgment, including the affidavits of its claims

director Lori Williams and expert Rebecca Busch, contending that plaintiff could not establish its

promissory estoppel claim under Illinois law. Defendant also contended that because this dispute

over the level of benefits paid to plaintiff related to an ERISA plan, plaintiff's claim was

preempted.

¶5     According to Williams' affidavit, defendant was a multiemployer ERISA welfare fund

and provided for the payment to eligible participants of health benefits detailed in its written plan

of benefits (the Plan). Defendant only paid benefits in accordance with the Plan as interpreted by

the trustees or persons delegated by them to decide benefit issues in their sole discretion. The

Plan prevented excessive charges by only allowing payment for "usual and customary charges"

defined in the Plan. The definition of "usual and customary charges" depended on whether the

provider was in-network or out-of-network. For in-network providers (PPOs), defendant had a

negotiated rate for services. Defendant, however, had no negotiated rate with out-of-network

providers, such as plaintiff. Therefore, to limit exposure to excessive claims from these out-of-

network providers, the Plan would pay only "usual and customary charges" defined as a "charge

that [was] no higher than the 90th percentile of the Plan's most currently available healthcare

charge data, or where there [was] insufficient data, a value or amount established by the Fund."

Since July 2007, defendant based those amounts on data provided by Blue Cross Blue Shield.

¶6     In addition, defendant's participant service representatives received over 14,000 calls per

month from providers and participants inquiring about coverage and benefit levels for covered

services. In response to such calls, these representatives verified whether each participant had

coverage for that month. If the records reflected the coverage, the representative confirmed that
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to the caller and advised that the coverage was subject to the terms of the Plan. Defendant

trained and expected its representatives to give the parameters of coverage under the Plan,

including deductibles, and coinsurance, and explain that charges were subject to the usual and

customary allowance as currently in effect under the Plan.

¶7     Furthermore, the record reflected that representatives from both parties took notes

summarizing the substance of the verification calls. There was no testimony, however, from

anyone present on any of the calls. Plaintiff's insurance verification forms demonstrated that, in

addition to verifying coverage, the parties discussed levels of benefits and limitations on

coverage under the Plan, including deductibles and coinsurance. The records from three of the

calls also made express reference to "usual and customary" limitation, and one log made specific

reference to the "Blue Cross Blue Shield" allowed amount. Further, six of defendant's call

records referenced the "Blue Cross Blue Shield" amount. Moreover, in her deposition, plaintiff's

office manager Mary Jane Flojo admitted that on each of the calls the parties would have

discussed or understood that benefit levels were subject to usual and customary limitation,

although this may not have meant the same thing to both parties. She believed coverage was

always 80 % of whatever plaintiff charged. Plaintiff also required all of its patients to sign

contracts agreeing to be personally and fully responsible for payment.

¶8     Before the hearing on the motion for summary judgment, plaintiff moved pursuant to

Illinois Supreme Court Rule 191(a) to strike numerous paragraphs in Williams' affidavit as

inadmissible hearsay, which contradicted her deposition testimony. Plaintiff also moved to strike

paragraphs in Busch's affidavit because she did not have any personal knowledge of her

averments. After hearing oral arguments, the trial court granted defendant's motion for summary

judgment. The court concluded that there was no evidence of an unambiguous promise by
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defendant to pay the amounts claimed by plaintiff, and regardless, the promissory estoppel claim

was preempted by ERISA. Therefore, the trial court denied plaintiff's motion to strike the

affidavits as moot. Plaintiff timely filed this notice of appeal.

¶9                                             ANALYSIS

¶ 10   Plaintiff contends that the trial court erred in granting defendant's motion for summary

judgment because defendant's service representatives made plaintiff an oral unambiguous

promise about the extent of insurance coverage. We first note that since we may affirm on any

basis in the record, we need not consider whether this claim was preempted under ERISA. See

American Service Insurance Co. v. Iousoupov, 2014 IL App (1st) 133771, ¶ 32.

¶ 11   Summary judgment is proper where the pleadings, admissions, depositions and affidavits

demonstrate there is no genuine issue as to any material fact so that the movant is entitled to

judgment as a matter of law. Ioerger v. Halverson Construction Co., 232 Ill. 2d 196, 201 (2008);

735 ILCS 5/2-1005 (West 2010). In determining whether a genuine issue of material fact exists,

the court must consider such items strictly against the movant and liberally in favor of its

opponent. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). We review the trial court's order

granting summary judgment de novo. Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d

385, 389 (2009).

¶ 12   To establish a claim for promissory estoppel a plaintiff must prove that (1) defendant

made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff's

reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its

detriment. Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 233 Ill. 2d 46, 51 (2009).

¶ 13   Based on the record on appeal, the trial court properly granted defendant's motion for

summary judgment because plaintiff failed to establish a prima facie case for promissory
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estoppels, namely, that defendant made plaintiff an unambiguous promise to the extent of

insurance coverage. Here, plaintiff did not provide any evidence, such as testimony from any of

its claim representatives or an actual transcript of the calls, suggesting that defendant's

representatives made plaintiff an unambiguous oral promise. In fact, plaintiff's insurance

verification forms reflect that the parties discussed levels of benefits and limitations on coverage

under the Plan, including deductibles and coinsurance. Plaintiff's written records from three of

the calls made express reference to "usual and customary," and one log made specific reference

to the "Blue Cross Blue Shield" allowed amount. In addition, six of defendant's records

referenced this standard. Furthermore, Williams attested that defendant trained its representatives

to give the parameters of coverage under the Plan and explain that charges were subject to the

usual and customary allowance. Nothing in the record suggests that defendant's representatives

failed to do so. Thus, we cannot say that defendant definitively made plaintiff an unambiguous

promise based on the record before us. See Robinson v. BDO Seidman, LLP, 367 Ill. App. 3d

366, 372 (2006) (where the plaintiff failed to sufficiently allege that the defendant's promises for

permanent employment were unambiguous or allege additional facts in his promissory estoppel

claim from which such promises could be inferred); cf. Chatham Surgicore, Ltd. v. Health Care

Service Corp., 356 Ill. App. 3d 795, 803 (2005) (promissory estoppel was established when the

parties had a common intention that the plaintiff's patients were covered under the insurance

policy and then the defendant declined payment).

¶ 14   In the alternative, plaintiff contends since it subjectively believed that its own charges

established what was usual and customary, and defendant's representatives failed to dispel this

belief, in fact an ambiguous promise was made to plaintiff's detriment. It is well settled under

contract law that if the words in the contract are clear and unambiguous, they must be given their
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plain, ordinary and popular meaning. Central Illinois Light Co. v. Home Insurance Co., 213 Ill.

2d 141, 153 (2004). However, if the language of the contract is susceptible to more than one

meaning, it is ambiguous. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). Thus, if the

contract language is ambiguous, a court can consider extrinsic evidence to determine the parties'

intent. Id.

¶ 15    We find plaintiff's argument unpersuasive. Defendant's uncontroverted expert testified

that it is common knowledge in the health care industry that there are many differing standards

of usual and customary charge limitations and it is common for a benefit plan to establish its own

usual and customary limit on allowable payments. It is, however, not common or expected that

an insurer or benefit plan would consent to paying a provider based on the provider's unilaterally

determined usual and customary charge. Plaintiff has provided no compelling reason why

insurance companies, as a standard industry practice, would agree to terms that so unilaterally

favor medical institutions, to the detriment of the insurance companies. Furthermore, plaintiff's

office manager admitted that usual and customary limitation may not have meant the same thing

to both parties, and plaintiff did nothing such as request written documentation from defendant to

clarify this misconception. Again, plaintiff offers no evidence that an unambiguous promise was

even made and provides no extrinsic evidence to support its claim that the parties shared a

common intent under contract law. See also Demos v. National Bank of Greece, 209 Ill. App. 3d

655, 661 (1991) (where the court concluded that because the specification of the interest rate to

be charged is a significant element of a contract to loan money and the "plaintiff expressly

pleaded no allegations (and none could be implied) as to interest, duration, and terms of

repayment, the court found no error" in the lawsuit's dismissal (citing McErlean v. Union


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National Bank of Chicago, 90 Ill. App. 3d 1141, 1146-47 (1980)). Accordingly, since plaintiff

cannot meet its burden and establish its prima facie case for promissory estoppel, its claim fails.

¶ 16   Plaintiff further contends that the trial court erred by considering inadmissible hearsay

and failing to grant plaintiff's Illinois Supreme Court Rule 191(a) motion to strike paragraphs of

Williams's testimony. Under Illinois Supreme Court Rule 191(a):

       "Affidavits in support of and in opposition to a motion for summary judgment * * * shall

       be made on the personal knowledge of the affiants; shall set forth with particularity

       the facts upon which the claim, counterclaim, or defense is based; shall have attached

       thereto sworn or certified copies of all documents upon which the affiant relies; shall

       not consist of conclusions but of facts admissible in evidence; and shall affirmatively

       show that the affiant, if sworn as a witness, can testify competently thereto. If all of the f

       acts to be shown are not within the personal knowledge of one person, two or more

       affidavits shall be used." Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

Therefore, "if from the document as a whole, it appears that the affidavit is based upon the

personal knowledge of the affiant and there is a reasonable inference that the affiant could

competently testify to its contents at trial, Rule 191 is satisfied." (Internal quotation marks

omitted.) Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 349

(2010). It is the function of a trial court to determine the admissibility of evidence, and its

rulings will not be disturbed absent an abuse of discretion. Id. at 350.

¶ 17   In the case sub judice, we cannot say that the trial court abused its discretion. As

defendant's claim director, Williams had personal knowledge of the training, instruction, and

standard practice of defendant's service representatives in responding to provider calls, including

what the representatives told providers about the Plan coverage and the notes that representatives
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recorded during the calls. She can certainly testify to this standard practice even though she was

not a party to the calls, as well as the common business practices within the company. Thus, the

trial court did not abuse its discretion in this matter.

¶ 18                                    CONCLUSION

¶ 19    Based on the foregoing, we affirm the judgment of the circuit court of Cook County.

¶ 20    Affirmed.




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