Bemis v. Employers Mutual Casualty Company

NOTICE
2015 IL App (5th) 130402
Decision filed 05/06/15. The
text of this decision may be NO. 5-13-0402
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

FRANK C. BEMIS, D.C., d/b/a Frank Bemis & Associates, ) Appeal from the
and DR. FRANK C. BEMIS & ASSOCIATES, ) Circuit Court of
CHIROPRACTORS, S.C., Individually and on Behalf of ) Madison County.
Others Similarly Situated, )
)
Plaintiffs-Appellants, )
)
v. ) No. 05-L-164
)
EMPLOYERS MUTUAL CASUALTY COMPANY and )
EMC PROPERTY & CASUALTY COMPANY, a Wholly )
Owned Subsidiary of Employers Mutual Casualty Company, )
)
Defendants-Appellees )
)
(Employers Mutual Casualty Company and EMC Property )
& Casualty Company, a Wholly Owned Subsidiary of ) Honorable
Employers Mutual Casualty Company, Third-Party Plaintiffs; ) William A. Mudge,
and Fair Isaac Corporation, Third-Party Defendant). ) Judge, presiding.
_______________________________________________________________________

JUSTICE MOORE * delivered the judgment of the court, with opinion.
Justices Stewart and Schwarm concurred in the judgment and opinion.

*
Justice Spomer was originally assigned to participate in this case. Justice Moore

was substituted on the panel subsequent to Justice Spomer's retirement and has read the

briefs and listened to the tape of oral argument.

1
 OPINION

¶1 The plaintiffs, Frank C. Bemis, D.C., doing business as Frank Bemis &

Associates, and Dr. Frank C. Bemis & Associates, Chiropractors, S.C. (Bemis), appeal

the July 18, 2013, judgment of the circuit court of Madison County, which dismissed

their class action claims against the defendants, Employers Mutual Casualty Company

and EMC Property & Casualty Company, a wholly owned subsidiary of Employers

Mutual Casualty Company (Employers Mutual), after the circuit court, on April 5, 2012,

decertified the following class based on this court's decision in Coy Chiropractic Health

Center, Inc. v. Travelers Casualty & Surety Co., 409 Ill. App. 3d 1114 (2011):

"All healthcare providers in Illinois whose reimbursement for medical services

to an Illinois workers' compensation claimant were [sic] paid at a reduced rate by

Defendants pursuant to a First Health PPO discount from February 1, 2004

through [August 16, 2010]."

For the following reasons, we affirm.

¶2 FACTS

¶3 On August 22, 2007, Bemis filed a motion for class certification regarding claims

Bemis previously made against Employers Mutual, which were restated in a first

amended class action complaint filed on July 15, 2008. Many of the facts of this case

mirror those in Coy, although there are some important differences. As in Coy (id. at

1115), Bemis entered into contracts with First Health and its predecessor, Community

Care Network (CCN), to participate in a preferred provider agreement under which

Bemis agreed to accept discounted reimbursements from payor insurance companies,
2
health care plans, or claims administrators with whom First Health and CCN had

contracted. Like Coy (id.), Bemis alleges that Employers Mutual discounted bills it

received from Bemis without steering patients to him because Employers Mutual did not

offer financial incentives to its insureds for utilizing Bemis as their provider. As in Coy

(id.), the allegations in the first amended complaint arise in the context of workers'

compensation insurance, where insurance companies could not, by law, require

employees to treat with a specific provider, except in very limited circumstances. 1

¶4 The first amended complaint in the instant case contains the same theories of

liability as the complaint in the Coy case. In count I, Bemis alleged that Employers

Mutual's practice of discounting bills without providing financial incentives amounted to

a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act

(Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2008)) because Employers Mutual

misrepresented to Bemis and the class that they were entitled to a preferred provider

organization (PPO) discount. See Coy, 409 Ill. App. 3d at 1116. In count II, Bemis

alleged unjust enrichment by Employers Mutual as a result of this practice. See id. In

count III, Bemis alleged an alternative cause of action for a breach of contract. See id.

Finally, in count IV, Bemis alleged a civil conspiracy based on Employers Mutual's

1
Effective June 28, 2011, the Workers' Compensation Act was amended to permit

employers to use a preferred provider program approved by the Illinois Department of

Insurance, and to require an injured employee to be treated from a preferred provider

network. 820 ILCS 305/8.1a (West 2012).

3
practice of entering into PPO networks with no intention to provide financial incentives

to its insureds for utilizing the network. See id.

¶5 Exhibit A to the first amended complaint is a document entitled "Community Care

Network Professional Care Provider Agreement" (provider agreement) entered into

between First Health's predecessor, CCN, and Bemis, dated April 28, 1998. This

provider agreement differs somewhat from the provider agreements involved in the Coy

case, in that the provider agreement in the instant case does not specifically refer to a

workers' compensation program or workers' compensation services. See id. at 1116-17.

However, the provider agreement also does not exclude workers' compensation programs

or services. Section 2.01 of the provider agreement reads as follows:

"Provider hereby agrees to provide Health Care Services or Benefits to

Beneficiaries or Claimants as set forth in Insuring Agreements, at the

Reimbursement Amounts determined and established through Payor Agreements

with Payors, which Payor Agreements are incorporated herein by reference. Such

Reimbursement Amounts are set forth in Exhibit A attached hereto and

incorporated herein."

¶6 In section 1.06, the provider agreement defines "Payor Agreement" as "an

instrument between a Payor and CCN or its authorized representative which provides for

CCN providers, including Provider pursuant to this Agreement, to render Health Care

Services or Benefits at Reimbursement Amounts determined and established by CCN and

such Payor." In section 2.02, the provider agrees to accept the reimbursement amounts in

Exhibit A as payment in full for health care services or benefits provided to beneficiaries
4
or claimants. In section 4.01, "Provider authorizes CCN to act on its behalf to contract

for the provision of Health Care Services or Benefits, at Reimbursement Amounts set

forth in Exhibit A."

¶7 Section 5 of the provider agreement, entitled "Covenants of Provider," contains

several provisions relevant to the issues on appeal. In section 5.07, the provider agrees

that:

"Except in an emergency and/or when medical necessity dictates, to admit

Beneficiaries or Claimants, in each instance where hospitalization is required, to a

hospital contracting with CCN unless a Beneficiary or Claimant specifically

requests otherwise after having been notified by Provider that the requested

hospital is not a CCN hospital."

In section 5.09, the provider agrees as follows:

"To refer Beneficiaries or Claimants, in each instance in which referral is required,

to other CCN providers, unless Provider, in his/her professional judgment,

determines that the Beneficiary's or Claimant's needs require otherwise and

Beneficiary or Claimant so agrees after being notified by Provider that the

proposed provider is not a CCN Provider."

As in Coy, there is no provision in the preferred provider agreement promising Bemis

that patients would be steered to him via the use of financial incentives. See id.

¶8 A document was appended to the first amended class action complaint containing

similar information as was contained in the "Explanation of Reimbursement" that was

attached to the complaint in Coy. See id. at 1117. According to this document, Bemis
5
billed Employers Mutual for two chiropractic manipulations that were performed on a

workers' compensation claimant in September of 2004. Bemis charged $31 for each

manipulation, and according to the document, Employers Mutual discounted each charge

by $7. A notation after the itemization of the discounts states, "Preferred Provider

Organization: FIRST HEALTH."

¶9 The remaining facts of the instant case deviate from the facts in Coy. Unlike Coy,

where the payor agreement between First Health's predecessor, CCN, and Travelers

appeared of record, no payor agreement between First Health or CCN and Employers

Mutual appears of record in the case at bar, and as will be set forth in more detail below,

no such payor agreement exists. On November 13, 2008, Employers Mutual filed an

amended third-party complaint against Fair Isaac Corporation (Fair Isaac), stating claims

against Fair Isaac for contractual and common law indemnity, as well as unjust

enrichment. According to the third-party complaint, on or about June 26, 1998,

Employers Mutual entered into a software license agreement with Fair Isaac's

predecessor corporation, CompReview, Inc., and on or about November 13, 2003, an

additional services addendum to the software license agreement with Fair Isaac itself.

Both agreements were attached to the third-party complaint.

¶ 10 Pursuant to the software license agreement and its addendum, Fair Isaac provided

computer software to Employers Mutual which provided electronic access to preferred

provider networks such that the preferred provider networks would review bills received

by Employers Mutual in order to determine whether the bills were subject to a PPO

agreement. After the software determined the applicability of a PPO reduction, Fair Isaac
6
then advised Employers Mutual of the amount of said reduction by providing Employers

Mutual with an explanation of benefits. According to the third-party complaint,

Employers Mutual relied on Fair Isaac to properly advise it as to whether a PPO

reduction could be taken in any particular case and Employers Mutual paid Fair Isaac a

fee based, in part, on the percentage of the PPO reductions taken.

¶ 11 Following a period of class certification discovery, Bemis filed a "Memorandum

in Support of Class Certification." In the memorandum, with citation to the deposition of

Employers Mutual's employees, further detailed below, Bemis explains the procedure

Employers Mutual used to apply PPO discounts to medical bills submitted for payment

on workers' compensation claims. According to Bemis's memorandum, Employers

Mutual's claims processors enter information from the bills into a computer program

called Smart Advisor, which is a program that Employers Mutual contracted with Fair

Isaac to use to provide access to PPO networks. After the bills have been entered into

Smart Advisor, "they are sent through the software to the PPO network administrators

who then apply the PPO network discounts." The bills are then sent back to Employers

Mutual through the Smart Advisor program.

¶ 12 Sometime later, it appears that Bemis filed a "First Amended Memorandum in

Support of Class Certification." Although there are exhibits to this first amended

memorandum in the record, as well as responses from Employers Mutual and Fair Isaac,

this court is unable to locate the memorandum itself. Interestingly, in its brief on appeal,

Employers Mutual argues that Bemis has conceded that First Health authorized Fair Isaac

to enter into an agreement with Employers Mutual giving it access to the First Health
7
network, and in support thereof, provides the following quote from the description of the

bill discounting process contained within Bemis's first amended memorandum, but states

that "citation to the record is omitted":

"After the bills have been entered into Smart Advisor, they are sent through the

software to First Health who then applies the PPO network discounts. Comp

Review [now known as Fair Isaac] only provides the electronic bridge between

Employers and First Health."

Bemis's reply brief does not address this argument or explain the absence of its "First

Amended Memorandum in Support of Class Certification."

¶ 13 The exhibits to Bemis's "First Amended Memorandum in Support of Class

Certification" contain, inter alia, the relevant contracts between Employers Mutual and

Fair Isaac and its predecessor corporation, CompReview, Inc. (CompReview).

Employers Mutual entered into a software license agreement with CompReview on June

26, 1998, in which CompReview granted Employers Mutual a license to use

CompReview's "bill review and repricing computer program" for certain designated

states, including Illinois, for a monthly fee. The software license agreement contains

provisions for the "selection, implementation, and placement of *** PPO Networks" to

be automated within the software. The software license agreement provides that, whether

initiated by Employers Mutual or CompReview, all PPO networks are to be directed

through CompReview, which has the right to accept or deny a PPO network based on the

ability to automate the network, or by the "inability for [CompReview] to recognize

benefit by automating such said network."
8
¶ 14 In the software license agreement, Employers Mutual agrees that if more than one

PPO network is utilized, priority as to which network would be used to discount any

given bill would be given "in a predetermined order agreed to between [CompReview]

and the PPO Networks that provide [CompReview] access to the names of their Providers

and Contract Rates." As alleged in Employers Mutual's amended third-party complaint,

the software license agreement contains provisions for indemnification of Employers

Mutual. The scope of these indemnification provisions and the merit of Employers

Mutual's third-party complaint against Fair Isaac are not at issue in this appeal.

¶ 15 It does not appear from the exhibits to the initial software license agreement that

CCN or First Health were included in the software package. However, in 2004,

Employers Mutual and Fair Isaac, as a successor corporation of CompReview, entered

into a "Change Request to Services," in which Employers Mutual elected to "receive"

First Health as "an additional PPO Network" and agreed to pay all associated fees.

According to this document, Employers Mutual would have access to the First Health

network in several states, including Illinois, as of February 1, 2004. It appears from this

document that First Health was considered a network for repricing workers'

compensation bills, and that Fair Isaac's fee for providing this electronic access to First

Health's network was to be 25% of any discounts that Employers Mutual received as a

result of this access.

¶ 16 Exhibit A to the "Change Request to Services," entitled "Requirements," contains

terms that Employers Mutual agreed to follow in reference to "First Health PPO Network

Services." Noteworthy in terms of the disposition of this appeal, Employers Mutual
9
agreed to "offer the First Health Network to its eligible workers within specified

geographic areas" and to "encourage claimants to use services of contract Providers

through use of work place posters, provision of directories and educational material" or

other means "unless prohibited by law."

¶ 17 On September 12, 2006, Employers Mutual and Fair Isaac entered into an

"Application Service Provider Agreement" (2006 Agreement), whereby Employers

Mutual gave Fair Isaac a license to use its bills, claim, and medical information, content,

and data, and Fair Isaac granted Employers Mutual a license to use its bill processing

services. With regard to any "third[-]party products" provided by Fair Isaac, Employers

Mutual agreed to comply with the terms and conditions of any contractual obligations to

use or access such products, which Fair Isaac promised to provide to Employers Mutual.

In the 2006 Agreement, Fair Isaac promised as follows:

"4.4 PPO Network Obligations. [Fair Isaac] warrants to make reasonably

commercial efforts to ensure that [Employers Mutual's] use of the Services,

including but not limited to Bill repricing, does not violate any federal, state or

local statutes, laws or regulations or the contractual rights and/or obligations

imposed on PPO Networks and Providers by the contractual arrangements

between the PPO Network and the Providers, and that based on [Fair Isaac's]

agreements with PPO Networks and Providers, [Employers Mutual] had the right

to apply the Contract Rate to a properly submitted bill.

***

10
 5.1 [Fair Isaac] Indemnification. [Fair Isaac] agrees to indemnify

[Employers Mutual] and its directors, officers and employees and shall hold it and

such persons harmless against any and all claims (including third[-]party claims),

losses, costs, damages, liabilities and expenses, including without limitation, legal

fees and costs incurred by [Employers Mutual,] arising out of or in connection

with a determination that [Employers Mutual] was not entitled to access the PPO

Networks or Contract Rates and apply such to Bills submitted to [Fair Isaac] by

[Employers Mutual]."

¶ 18 Exhibit A-1 to the 2006 Agreement is an "Order Form: SmartAdvisor with

Capstone Decision Manager." This form "describes the Hosting Services and certain

other Services provided to [Employers Mutual] under the terms and conditions of the

[2006 Agreement]." Paragraph 9 of the order form states that Fair Isaac will provide

Employers Mutual with access to the PPO networks designated therein. This paragraph

states that Employers Mutual is to be bound, to the same extent as Fair Isaac, by all PPO

network-imposed contractual obligations required for access to such PPO network, and

that the 2006 Agreement is subject to any PPO network-imposed obligation or any other

form of requirement imposed by a PPO network. With regard to First Health, the order

form contained the same requirements as the 2004 "Change Request to Services."

Sample First Health network contracts were also attached to the 2006 Agreement

between Employers Mutual and Fair Isaac. However, these samples were provider

agreements. There were no sample payor agreements attached to the 2006 Agreement, at

least as it is contained within the record on appeal submitted to this court.
11
¶ 19 The depositions of, inter alia, Employers Mutual's medical management

employee, Mary Jane Allgood, and its medical claims service manager, Kathleen

Knutsen, are contained in the record on appeal. Both of these employees testified that the

Fair Isaac software that Employers Mutual purchased provides an "electronic bridge"

which "exports" the bills submitted to Employers Mutual to First Health, and that First

Health "re-prices" the bills according to the "contract rates" and sends them back to

Employers Mutual for payment.

¶ 20 On April 27, 2010, a hearing was held before the Honorable Daniel J. Stack on

Bemis's amended motion for class certification. On August 16, 2010, Judge Stack issued

a detailed order in which he analyzed the prerequisites for a class action as set forth in

section 2-801 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-801

(West 2010)) and certified the class. On September 15, 2010, Employers Mutual filed a

petition for leave to appeal Judge Stack's order certifying the class in this court pursuant

to Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 26, 2010), which this court denied on

November 12, 2010. Bemis v. Employers Mutual Casualty Co., No. 5-10-0449 (2010)

(unpublished order). On December 20, 2010, Employers Mutual filed a petition for leave

to appeal the order certifying the class to the Illinois Supreme Court pursuant to Illinois

Supreme Court Rule 315 (eff. Feb. 26, 2010), which was denied on March 30, 2011.

Bemis v. Employers Mutual Casualty Co., No. 111595 (Ill. Mar. 30, 2011).

¶ 21 On March 14, 2011, this court issued its opinion in Coy Chiropractic Health

Center, Inc. v. Travelers Casualty & Surety Co., 409 Ill. App. 3d 1114 (2011), modified

upon denial of reh'g May 9, 2011. On April 25, 2011, Employers Mutual filed a motion
12
for reconsideration and to decertify the class in the instant case on the basis of the Coy

opinion. On April 5, 2012, the Honorable William A. Mudge, who had been assigned the

case following Judge Stack's retirement, entered an order granting the motion for

reconsideration and decertifying the class. On April 12, 2012, Bemis filed a motion for

reconsideration or clarification of Judge Mudge's order, which he denied on May 1, 2012.

On May 9, 2012, Bemis filed a petition for leave to appeal the decertification order in this

court pursuant to Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 26, 2010), which this

court denied on June 5, 2012. Bemis v. Employers Mutual Casualty Co., No. 5-12-0200

(2012) (unpublished order). Bemis then filed a petition for leave to appeal the

decertification order to the Illinois Supreme Court, pursuant to Illinois Supreme Court

Rule 315 (eff. Feb. 26, 2010), and that petition was denied on September 26, 2012.

Bemis v. Employers Mutual Casualty Co., No. 114576 (Ill. Sept. 26, 2012). On October

31, 2012, Employers Mutual filed a motion in the circuit court for the entry of judgment

in its favor, which Judge Mudge granted on July 18, 2013. On August 14, 2013, Bemis

filed a notice of appeal from the judgment.

¶ 22 ANALYSIS

¶ 23 As we set forth in Coy, " '[t]he decision regarding class certification is within the

discretion of the trial court and will not be disturbed on appeal unless the trial court

abused its discretion or applied impermissible legal criteria.' " 409 Ill. App. 3d at 1118

(quoting Cruz v. Unilock Chicago, Inc., 383 Ill. App. 3d 752, 761 (2008), citing Smith v.

Illinois Central R.R. Co., 223 Ill. 2d 441, 447 (2006)). Although the decision of whether

to certify a class typically rests upon the factors set forth in section 2-801 of the Code
13
(735 ILCS 5/2-801 (West 2012)), in Coy, this court followed the Illinois Supreme Court's

analysis in Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 72 (2007), finding that

"there is no need to determine whether the prerequisites of the class action are satisfied if,

as a threshold matter, the record establishes that the plaintiffs have not stated an

actionable claim." Coy, 409 Ill. App. 3d at 1118. Here, Judge Mudge based his order

decertifying the class on his finding that, based on our opinion in Coy, Bemis did not

establish an actionable claim against Employers Mutual. On appeal, Bemis first argues

that our decision in Coy was wrongly decided. Second, Bemis argues that this case can

be distinguished from Coy because there is no payor agreement between First Health and

Employers Mutual, and there is no evidence in the record to show that First Health

authorized Fair Isaac to act as its representative in granting Employers Mutual access to

the network. We will address each of these arguments in turn.

¶ 24 We first address Bemis's argument that this court's decision in Coy was made in

error. In Coy, we held that because the plaintiffs' provider agreements with First Health

did not contain provisions promising any particular steerage or financial incentives, the

plaintiffs could not state a cause of action against the insurance company for a breach of

contract. Id. at 1119. For the same reasons, we found that the insurance company's

statement to the plaintiffs, that they were entitled to take a discount in accordance with

the First Health network, was not an actionable misrepresentation under the Consumer

Fraud Act. Id. at 1122. Bemis argues that these findings were made in ignorance of clear

Illinois Supreme Court precedent, which holds that the laws in operation at the time of an

agreement become part of the contract by operation of law. See, e.g., Schiro v. W.E.
14
Gould & Co., 18 Ill. 2d 538, 544-45 (1960). According to Bemis, because administrative

regulations governing PPO networks (see 50 Ill. Adm. Code 2051.55(c)(1)(A), amended

at 22 Ill. Reg. 5126 (eff. Dec. 9, 1997), and repealed at 34 Ill. Reg. 161 (eff. Dec. 16,

2009); and 50 Ill. Adm. Code 2051.280(a), adopted at 34 Ill. Reg. 163, 177 (eff. Dec. 16,

2009)) require that incentives be provided to insureds or beneficiaries for utilizing a

network provider, such a requirement must be read into any purported payor agreement

as an implied term. This argument fails for the following reasons.

¶ 25 First, the administrative regulations, cited above, govern PPO administrators, such

as First Health, and set forth provisions that are required of payor agreements. In Coy,

we based our holding that the plaintiffs could not state a claim for a breach of contract

against the insurance company on the fact that the plaintiffs were not promised financial

incentives in their provider agreements, which were the only contracts to which they were

a party. 409 Ill. App. 3d at 1119. Our discussion of the promises made in the payor

agreement at issue was a secondary discussion pointing out that, "[e]ven if it could be

said that the plaintiffs are third-party beneficiaries to the payor agreement," the insurance

company only promised to direct patients to network providers "as permitted by

applicable law." Id. The first amended class action complaint does not state a cause of

action for a breach of contract based on Bemis's purported status as a third-party

beneficiary, but instead, its allegations presume that the provider agreement between

Bemis and First Health and the payor agreement between First Health and/or its

authorized representative are to be considered one contract. There are many potential

problems with that theory (see Walsh Chiropractic, Ltd. v. StrataCare, Inc., 752 F. Supp.
15
2d 896, 905-07 (S.D. Ill. 2010)), but this court need not make a determination of whether

the two agreements could be considered one instrument, because, as detailed below, there

are legal inconsistencies that are inherent in the proposition that any administrative

regulation purporting to require financial incentives would be an implied term in this

case.

¶ 26 On rehearing in Coy, we briefly addressed the plaintiffs' argument that the

regulations governing PPO administrators should be considered an implied term of the

payor agreement, and thus, the provider agreement, by operation of law. 409 Ill. App. 3d

at 1121. The payor agreement in Coy, and the software license agreement in the case at

bar, both require the insurance company to provide steerage "as permitted by applicable

law" in the case of the former, and "unless prohibited by law" in the case of the latter.

During the relevant time period, in the context of workers' compensation, applicable

Illinois law did not allow for financial incentives for employers to steer injured workers

to network providers. See 820 ILCS 305/8(a) (West 2010). 2 To imply financial

incentives as a contractual term in workers' compensation cases would ignore the plain

language of the Workers' Compensation Act that prohibits such incentives. This is a

2
Although the provider agreement in Coy specifically mentioned workers'

compensation, Bemis's provider agreement required Bemis to accept reimbursement at

contract rates from any First Health network payor, and nothing in the provider

agreement, nor the administrative regulations Bemis cites, excludes workers'

compensation patients.

16
contradiction that negates Bemis's argument.

¶ 27 The irreconcilable conflict that results from a fair application of the rule that

Bemis advocates, that the law in effect at the time of a contract becomes part of the

contract by operation of law, is a result of the incomplete nature of Bemis's statement of

the applicable rule. A complete statement of this rule contains an important caveat, and

that is, the rule applies only when the contract itself does not contradict application of the

law to be implied as a term. See Illinois Bankers' Life Ass'n v. Collins, 341 Ill. 548, 553

(1930); In re Estate of Savage, 73 Ill. App. 3d 656, 659 (1979); Larned v. First Chicago

Corp., 264 Ill. App. 3d 697, 699 (1994); Lincoln Towers Insurance Agency, Inc. v.

Boozell, 291 Ill. App. 3d 965, 969 (1997); Brandt v. Time Insurance Co., 302 Ill. App. 3d

159, 170 (1998); Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill. App. 3d

14, 18-19 (2003). For example, in Schiro, where the Illinois Supreme Court held that a

building contract contained an implied term requiring compliance with applicable

building ordinances, the contract left open the standards to which the building was to be

built. Schiro v. W.E. Gould & Co., 18 Ill. 2d 538, 544 (1960). In fact, the Illinois

Supreme Court reasoned that "the parties to the contract would have expressed that which

the law implies 'had they not supposed that it was unnecessary to speak of it because the

law provided for it.' (12 I.L.P., 399.)" Id. The court went on to explain that

"[c]onsequently, the courts, in construing the existing law as part of the express contract,

are not reading into the contract provisions different from those expressed and intended

by the parties *** but are merely construing the contract in accordance with the intent of

the parties." Id. The same is not true in the case at bar, where Bemis agreed to accept
17
discounts from all First Health network payors, which would include those covering

workers' compensation patients where, during the relevant time period, applicable law

prevented financial incentives. We find that it is for this reason that the payor agreement

in Coy, and the software license agreement in the case at bar, required payors to provide

steerage in accordance with, or unless prohibited by, applicable law.

¶ 28 The foregoing analysis illustrates our statement in Coy that, assuming that the PPO

arrangement at issue violated the above-cited administrative regulations due to the

limiting language in the payor agreement, or in this case, software license agreement,

requiring Employers Mutual to steer "unless prohibited by law," the remedy for that

violation is not a cause of action for breach of contract against Employers Mutual

because these regulations, which are set forth by the Department of Insurance, govern the

PPO administrators, such as First Health. 3 409 Ill. App. 3d at 1121. "It is the province of

the Department of Insurance, and not this court, to determine whether the payor

agreements met the requirements of the regulations." Id. For the foregoing reasons, we

reaffirm our holding in Coy and turn our attention to Bemis's argument that it was error to

decertify the class based on Coy due to the absence of a contract in the record proving

that Fair Isaac was an authorized representative of First Health when Fair Isaac provided

Employers Mutual with access to the First Health network.

¶ 29 In order to assess the viability of Bemis's causes of action against Employers

3
The record reflects that Bemis filed a class action against First Health, which was

settled.

18
Mutual in light of the absence, in the record, of a contract that demonstrates Fair Isaac

was an authorized representative of First Health, we must examine each cause of action

in turn. First, we find that the absence of this contract between First Health and Fair

Isaac does not change our analysis of Bemis's claim for breach of contract against

Employers Mutual. A breach of contract claim necessarily assumes that a contract did

exist between these parties. If Fair Isaac was not an authorized representative of First

Health, then in no case could it be said that a contract existed between Bemis and

Employers Mutual, under either an incorporation by reference theory or a third-party

beneficiary theory, because the software license agreement could not be construed as a

"payor agreement" as that term is defined in the provider agreement. Accordingly, the

absence of a contract of record between First Health and Fair Isaac does not distinguish

the breach of contract claim in the case at bar from the one in Coy, and the circuit court

was correct in finding that Bemis cannot state a cause of action for breach of contract

against Employers Mutual based on this record.

¶ 30 We now turn to Bemis's cause of action for a violation of the Illinois Consumer

Fraud Act (815 ILCS 505/1 et seq. (West 2008)). As we set forth in Coy, "[t]he elements

of a Consumer Fraud Act action are as follows:

'(1) a deceptive act or practice by the defendant, (2) the defendant's intent that the

plaintiff rely on the deception, (3) the occurrence of the deception in the course of

conduct involving trade or commerce, and (4) actual damage to the plaintiff (5)

proximately caused by the deception.' " 409 Ill. App. 3d at 1122 (quoting Avery v.

State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 180 (2005)).
19
¶ 31 The deceptive act or practice on the part of Employers Mutual that Bemis alleges

is Employers Mutual's notation on the explanation of benefits it sent Bemis which stated

that the bill was being discounted based on "Preferred Provider Organization: FIRST

HEALTH." In Coy, we found that it was clear from the record that there was no

deceptive act or practice by the defendant, because the defendant did belong to the First

Health network. Our finding was based on the fact that the payor agreement between

First Health and the defendant, which provided the defendant access to the First Health

network, was contained in the record. Id. Here, as Bemis aptly points out, there is no

payor agreement between First Health and Employers Mutual. Instead, the record

contains a software license agreement between Fair Isaac and Employers Mutual,

purporting to grant access to the First Health network via the Smart Advisor software,

and containing provisions substantially similar to those contained in the payor agreement

in Coy. Bemis argues that this distinction raises a question regarding whether Employers

Mutual's statement in the explanation of benefits it sent to Bemis, which suggested it had

access to the First Health network, was deceptive. According to Bemis, although the

provider agreement between Bemis and First Health defines "payor agreement" as "an

instrument between a Payor and CCN or its authorized representative," absent a contract

between First Health and Fair Isaac, there is no evidence in the record on which to base a

determination that Fair Issac was an "authorized representative" of First Health. We

disagree.

¶ 32 We find evidence in the record to establish that First Health authorized Fair Isaac

to provide access to its network. As detailed in Bemis's memorandum in support of class
20
certification, and the deposition testimony of the claims handlers for Employers Mutual,

and as reflected in the software license agreement itself, the Smart Advisor software

created a bridge to First Health, and First Health verified Employers Mutual's status as a

First Health payor. We find that the fact that First Health accepted the transmission of

Employers Mutual's bills over Fair Isaac's network, applied the PPO discount, and sent

the bill back over Fair Isaac's network to Employers Mutual provides proof that Fair

Isaac was an "authorized representative" of First Health. Even if First Health merely

provided Fair Isaac access to its network provider database for use in its Smart Advisor

software, such an act would constitute an authorization as well. Accordingly, the

software license agreement is to be considered a "payor agreement" pursuant to the terms

of Bemis's provider agreement, and any representation by Employers Mutual that it

belonged to the First Health network is not actionable under the Consumer Fraud Act.

¶ 33 With regard to Bemis's claim for unjust enrichment, we find that the analysis we

employed in Coy applies and supports Judge Mudge's decision to decertify the class

because no such cause of action can be stated as between the parties. 409 Ill. App. 3d at

1122-23. Employers Mutual cannot be said to have retained a benefit to Bemis's

detriment because the record establishes that it had a legitimate payor agreement with an

authorized representative of First Health. See id. at 1123. Nor is this a case where Bemis

rendered services to Employers Mutual such that a quasi-contract arose for the reasonable

price of those services. See id. Rather Bemis's services were to the injured employee

and/or his employer, who is obligated to pay for the injured employee's treatment by

virtue of Illinois workers' compensation law. Id. For these reasons, Judge Mudge did not
21
err in decertifying this class based on a theory of unjust enrichment. And because any

claim for civil conspiracy requires wrongdoing on the part of Employers Mutual, that

claim would not give rise to a cause of action that would justify certification of the class.

See Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62 (1994) ("Civil conspiracy consists of a

combination of two or more persons for the purpose of accomplishing by some concerted

action either an unlawful purpose or a lawful purpose by unlawful means." (citing Smith

v. Eli Lilly & Co., 137 Ill. 2d 222 (1990))). Thus, because we have determined that the

record belies all of the legal theories Bemis pleads in his first amended class action

complaint, the circuit court did not err in decertifying the class. See Coy, 409 Ill. App. 3d

at 1118 (citing Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 72 (2007)).

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, the judgment of the circuit court of Madison County in

favor of Employers Mutual is affirmed.

¶ 36 Affirmed.

22
 2015 IL App (5th) 130402
NO. 5-13-0402
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_____________________________________________________________________________________

FRANK C. BEMIS, D.C., d/b/a Frank Bemis & Associates, ) Appeal from the
and DR. FRANK C. BEMIS & ASSOCIATES, ) Circuit Court of
CHIROPRACTORS, S.C., Individually and on Behalf of ) Madison County.
Others Similarly Situated, )
)
Plaintiffs-Appellants, )
)
v. ) No. 05-L-164
)
EMPLOYERS MUTUAL CASUALTY COMPANY and )
EMC PROPERTY & CASUALTY COMPANY, a Wholly )
Owned Subsidiary of Employers Mutual Casualty Company, )
)
Defendants-Appellees )
)
)
(Employers Mutual Casualty Company and EMC Property & )
Casualty Company, a Wholly Owned Subsidiary of ) Honorable
Employers Mutual Casualty Company, Third-Party Plaintiffs; ) William A. Mudge,
and Fair Isaac Corporation, Third-Party Defendant). ) Judge, presiding.

_____________________________________________________________________________________

Opinion Filed: May 6, 2015
_____________________________________________________________________________________

Justices: Honorable James R. Moore, J.

Honorable Bruce D. Stewart, J., and
Honorable S. Gene Schwarm, J.,
Concur
____________________________________________________________________________________

Attorneys Timothy F. Campbell, Campbell & McGrady Law Office, 3017 Godfrey Road,
for P.O. Box 505, Godfrey, IL 62035; Robert W. Schmieder II, Mark L. Brown,
Appellants SL Chapman, LLC, 330 North Fourth Street, Suite 330, St. Louis, MO 63102
_____________________________________________________________________________________

Attorneys Thomas R. Pender, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, One
for North Franklin Street, 10th Floor, Chicago, IL 60606
Appellees
_____________________________________________________________________________________