Marque Medicos Archer, LLC v. Liberty Mutual Insurance Company

2018 IL App (1st) 163351
FIRST DISTRICT
SECOND DIVISION
June 26, 2018

No. 1-16-3351

MARQUE MEDICOS FARNSWORTH, LLC, )

and MEDICOS PAIN & SURGICAL )

SPECIALISTS, S.C., )

) Appeal from the
Plaintiffs-Appellants, ) Circuit Court of
) Cook County, Illinois.
v. )
) No. 13 L 13457
LIBERTY MUTUAL INSURANCE COMPANY )
and ADVANCED URETHANE ) Honorable
TECHNOLOGIES, INC., d/b/a/ REM ) James E. Snyder,
Innovations, Inc., and/or Sleep Innovations, Inc., ) Judge Presiding.
)
Defendants-Appellees. )
)

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Pucinski and Hyman concurred in the judgment and opinion.

OPINION

¶1 This case arises out of defendant-appellant Liberty Mutual Insurance Company’s

(Liberty) alleged failure to fully pay plaintiffs-appellees, Marque Medicos Farnsworth, LLC, and

Medicos Pain & Surgical Specialists, S.C. (collectively, the providers), for services they

rendered to an injured employee of codefendant-appellant, Advanced Urethane Technologies,

Inc., d/b/a REM Innovations, Inc., and/or Sleep Innovations, Inc. (Sleep Innovations). 1 The trial

1
This case is related to Marque Medicos Archer, LLC v. Liberty Mutual Insurance Co., 2018 IL
App (1st) 163350, also decided today, in which Marque Medicos Archer and Medicos Pain & Surgical
Specialists, S.C., alleged that Liberty Mutual failed to fully pay for services the providers rendered to an
injured employee of a different corporation. Because the causes of action asserted by the providers and
dismissed by the trial court are not identical and because the parties did not move to consolidate the cases,
we decide them separately.
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court dismissed with prejudice the providers’ claims for breach of contract, breach of contract

implied in law, breach of contract implied in fact, and recovery under section 155 of the Illinois

Insurance Code (215 ILCS 5/155 (West 2012)). Because we conclude that the providers have no

direct action against Liberty for its delay in paying medical bills, we affirm.

¶2 BACKGROUND

¶3 The providers filed suit against defendants in November 2013, alleging that they had not

been paid for treatment they provided to Martha Llamas, an injured employee of Sleep

Innovations. In their third amended complaint, at issue here, the providers alleged that Llamas

suffered a work-related injury on March 25, 2009, for which they provided treatment between

March 26, 2009, and January 26, 2011. At the outset of her treatment, Llamas authorized

payment to be made directly to the providers for insurance benefits payable to her. Initially, the

providers billed Sleep Innovations but were soon directed to submit their bills directly to Liberty,

which issued the workers’ compensation insurance policy to Sleep Innovations.

¶4 The insurance policy provides that Liberty would “pay promptly when due the benefits

required of [Sleep Innovations] by the workers compensation law,” and goes on to state that

Liberty is “directly and primarily liable to any person entitled to the benefits payable by this

insurance” and enforcement of this provision may be against Liberty or Sleep Innovations. The

policy also prohibits Sleep Innovations from making payments, assuming obligations, or

incurring expenses “except at [its] own cost.”

¶5 On May 1, 2009, Llamas filed a claim before the Illinois Workers’ Compensation

Commission (IWCC) for disability benefits and medical expenses, which was ultimately settled

in December 2012. The settlement agreement named Llamas as petitioner and Sleep Innovations

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as respondent, but left blank the space to name respondent’s insurance or service company. The

terms of the settlement provided that respondent would pay “all necessary and related medical

expense pursuant to the fee schedule or negotiated rate, whichever is less, that have been

submitted to respondent prior to contract approval.” The settlement agreement was silent on the

amount of medical bills outstanding as of the date of its execution. The complaint did not allege

and the record does not disclose that, prior to the settlement, Liberty ever took the position that

all or any portion of the medical expenses reflected in the bills sent to it were not necessary or

related to Llamas’s injuries or that the documentation in the bills was insufficient.

¶6 Liberty eventually made late payments of medical bills in the amount of $80,000 to the

providers, but over $5200 in bills are still outstanding. In addition, Liberty failed to pay any

statutory interest on both the unpaid bills as well as the late paid bills, and the amount of interest

due as of the date of the complaint exceeded $24,000.

¶7 Based on these allegations, the providers alleged four counts against both defendants: (1)

breach of contract (based on the insurance policy), (2) violation of section 8.2(d) of the Workers’

Compensation Act (Act) (820 ILCS 305/8.2(d) (West 2012)), (3) breach of contract implied in

law, and (4) breach of contract implied in fact; one count was alleged only against Liberty,

namely, recovery under section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West

2012)).

¶8 Defendants filed a motion to dismiss the complaint pursuant to section 2-615 of the Code

of Civil Procedure (735 ILCS 5/2-615 (West 2012)). Ultimately, the trial court dismissed with

prejudice the providers’ claims for breach of contract, breach of contract implied in law, breach

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of contract implied in fact, and violation of section 155 of the Illinois Insurance Code. The

providers timely appealed.

¶9 ANALYSIS

¶ 10 A motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure challenges

the legal sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger

King Corp., 222 Ill. 2d 422, 429 (2006). Examining the legal sufficiency of a complaint requires

us to accept as true both well-pleaded facts and reasonable inferences that we can draw from

those facts. Id. Further, we must construe the complaint’s allegations in the light most favorable

to the plaintiff. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). A cause of action

should not be dismissed unless there is no set of facts that can be proved that would allow

recovery. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). We review

de novo an order dismissing a complaint under section 2-615. Id.

¶ 11 Turning first to the providers’ claim for breach of contract, this is premised on the

allegation that the providers are third-party beneficiaries of the workers’ compensation policy

issued by Liberty to Sleep Innovations. We answered this question in the negative in Marque

Medicos Fullerton, LLC v. Zurich American Insurance Co., 2017 IL App (1st) 160756, ¶¶ 1-4, in

which medical providers who provided care to injured employees brought putative class actions

against employers’ workers’ compensation insurers on the basis that their failure to timely pay

for services violated the Act. We decline to depart from Zurich today.

¶ 12 There is a strong presumption against conferring contractual benefits on noncontracting

third parties. Barry v. St. Mary’s Hospital Decatur, 2016 IL App (4th) 150961, ¶ 82. To

overcome this presumption, it is not sufficient if the parties know, expect, or even intend that

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others will benefit from the agreement (see Estate of Willis v. Kiferbaum Construction Corp.,

357 Ill. App. 3d 1002, 1008 (2005)); instead, the language of the agreement must show that the

contract was made for the direct, not merely incidental, benefit of the third party (Carson Pirie

Scott & Co. v. Parrett, 346 Ill. 252, 257 (1931)). This intention may be shown by an express

provision in the contract identifying the third party by name or by a description of the class to

which the third-party beneficiary belongs. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill.

App. 3d 1017, 1020 (2009). The court in Zurich considered these principles and concluded that

medical providers are incidental rather than direct beneficiaries of workers’ compensation

policies. Zurich, 2017 IL App (1st) 160756, ¶ 53. We agree.

¶ 13 Significantly, the providers are not mentioned by name in the insurance contract attached

to the complaint, nor does the policy contain a description of a class to which the providers

belong. Just as in Zurich, we reject the providers’ claims that the policy language providing that

the insurer is “ ‘directly and primarily liable to any person entitled to benefits payable by this

insurance,’ ” is sufficiently specific to constitute a class description. (Emphasis added.) Id. ¶ 48.

¶ 14 The providers attempt to distinguish Martis, on which Zurich relied, arguing that the

Martis court did not consider how the policy language intersected with section 8.2(d) of the Act,

which provides for payments for medical treatments and services directly to providers rather than

the injured employee. See 820 ILCS 305/8.2(d) (West 2012). But the plaintiffs in Zurich made a

similar attempt to distinguish Martis, which the court rejected, explaining that the fundamental

purpose of the Act is to “ ‘afford protection to employees by providing them with prompt and

equitable compensation for their injuries.’ ” (Emphasis omitted.) Zurich, 2017 IL App (1st)

160756, ¶ 51 (quoting Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 180-81 (1978)). The direct

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payment obligation of section 8.2(d) merely serves to further this purpose and ensure that injured

employees receive prompt payment of benefits owed to them. Id. ¶ 52. Thus, the court held that

even assuming the direct payment language entitled providers to benefits under the Act, these

benefits were incidental and did not render them third-party beneficiaries of the insurance

contract. Id. ¶ 53.

¶ 15 The existence of the settlement agreement between Llamas and Sleep Innovations does

not alter our conclusion. The settlement agreement did not exist at the time Liberty issued Sleep

Innovations the workers’ compensation policy, and it is only the circumstances in existence at

the time of execution of the contract that determines whether they intended to benefit a third

party to the agreement. See Carson Pirie Scott, 346 Ill. at 258. In other words, to the extent that

the settlement agreement confers a benefit on the providers, it does not follow that the workers’

compensation policy was likewise intended to confer a benefit. The parties to the policy are

different than those to the settlement agreement, and both documents were executed at different

times for different purposes.

¶ 16 The providers next challenge the dismissal of their claim for breach of contract implied in

law. A contract implied in law, also referred to as a quasi-contract, is not a contract at all, and

exists independent of any agreement or consent of the parties. Village of Bloomingdale v. CDG

Enterprises, Inc., 196 Ill. 2d 484, 500 (2001). Instead, it is premised on an implied promise by

the recipient of goods or services to pay for something of value that it has received. Karen

Stavins Enterprises, Inc. v. Community College District No. 508, County of Cook, 2015 IL App

(1st) 150356, ¶ 7. The cause of action is based on the principle that no one may unjustly enrich

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himself at another’s expense. Trapani Construction Co. v. The Elliot Group, Inc., 2016 IL App

(1st) 143734, ¶ 41.

¶ 17 In order to state a cause of action for a breach of contract implied in law, a plaintiff must

allege “specific facts in support of the conclusion that it conferred a benefit upon the defendant

which the defendant has unjustly retained in violation of fundamental principles of equity and

good conscience.” Karen Stavins Enterprises, 2015 IL App (1st) 150356, ¶ 7. It is sufficient to

note that the complaint alleges no facts specifying the benefit the providers bestowed on

defendants; they provided a benefit—namely, medical services—only to the injured employee.

As such, the providers have failed to state a cause of action for breach of contract implied in law.

¶ 18 Nor have the providers stated a claim for breach of contract implied in fact. A contract

implied in fact is imposed by the court where there is some expression or promise that can be

inferred from the facts and circumstances. Citizen’s Bank-Illinois, N.A. v. American National

Bank & Trust Co. of Chicago, 326 Ill. App. 3d 822, 831 (2001). It contains all the elements of an

express contract, namely, “an offer, a strictly conforming acceptance to the offer, and supporting

consideration.” Brody v. Finch University of Health Sciences/The Chicago Medical School, 298

Ill. App. 3d 146, 154 (1998).

¶ 19 At issue here is whether the providers adequately alleged the element of consideration.

Zabaneh Franchises, LLC v. Walker, 2012 IL App (4th) 110215, ¶ 17 (“ ‘Valid consideration, on

the part of both parties, is one of the essential requirements for the formation of a contract ***.’ ”

(quoting Agrimerica, Inc. v. Mathes, 199 Ill. App. 3d 435, 441 (1990))). Consideration is a

detriment to the offeror or benefit to the offeree, or “some bargained-for exchange between

them.” Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 112 (1999). Significantly, there is no

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consideration when a party promises to do what it is legally obligated to do. Diederich Insurance

Agency, LLC v. Smith, 2011 IL App (5th) 100048, ¶ 12 (citing White v. Village of Homewood,

256 Ill. App. 3d 354, 357 (1993)).

¶ 20 Here, just as in Zurich, the providers allege that an implied in fact contract was formed in

which defendants agreed to pay Llamas’s medical bills and any statutory interest directly to the

providers in exchange for the providers’ agreement to follow the defendants’ “instructions

regarding billing.” But in the providers’ complaint, they allege that defendants were obligated

under the insurance contract and the Act to pay Llamas’s medical bills and statutory interest.

Because acts performed pursuant to preexisting legal duties cannot constitute valid consideration

and because valid consideration on the part of both parties is necessary for the formation of a

contract, the providers have not stated a claim for breach of contract implied in fact. See Zurich,

2017 IL App (1st) 160576, ¶¶ 66-67.

¶ 21 Finally, the providers allege a cause of action pursuant to section 155 of the Illinois

Insurance Code (215 ILCS 5/155 (West 2012)). Section 155 provides:

“In any action by or against a company wherein there is in issue the liability of a

company on a policy or policies of insurance or the amount of the loss payable

thereunder, or for an unreasonable delay in settling a claim, and it appears to the court

that such action or delay is vexatious and unreasonable, the court may allow as part of the

taxable costs in the action reasonable attorney fees, other costs, plus [certain penalties.]”

Id.

¶ 22 Our supreme court has held that the section 155 remedies extend only to the insured party

and assignees of the insurance policy, and not to third parties. Zurich, 2017 IL 160756, ¶ 71

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(citing Yassin v. Certified Grocers of Illinois, Inc., 133 Ill. 2d 458, 466 (1990)). This long­

standing rule prompted the court in Zurich to conclude that medical providers, as third-parties to

the contracts between the insurer and insured employers, are not entitled to recover under section

155 of the Illinois Insurance Code. Id. We agree.

¶ 23 The Zurich court distinguished Garcia v. Lovellette, 265 Ill. App. 3d 724 (1994), on

which the providers here also rely. Zurich, 2017 IL App (1st) 160756, ¶ 72. In Garcia, the

plaintiff, a passenger in the defendant insured’s car at the time of an accident, argued that she

was entitled to recovery under section 155 for the insurer’s allegedly unreasonable and vexatious

delay in paying her medical bills. Garcia, 265 Ill. App. 3d at 725-26. The insurer contended that

the plaintiff was a third-party claimant and, as such, lacked standing to bring a cause of action

pursuant to section 155. Id. at 726. This court disagreed, based on the fact that the insurance

policy defined an occupant of the named insured’s car as an insured, thereby entitling the

plaintiff to bring a section 155 claim. Id. at 728. Here, in contrast, the policy does not name the

providers as insureds, and we have already concluded that they are not third-party beneficiaries

of the policy. It is irrelevant that Llamas assigned her rights to collect insurance benefits to the

providers, as Llamas, too, is not an insured under the workers’ compensation policy.

¶ 24 The conclusion we reach today should not be construed to mean that we condone

Liberty’s conduct in failing to pay outstanding medical bills and interest as it is obligated to do

under both the Act and its insurance policy. Accepting the well-pled allegations of the providers’

complaint as true, Liberty’s conduct in (i) accepting premiums under a policy of insurance that

renders it “directly and primarily liable” for benefits payable under the Act, (ii) authorizing a

settlement agreement that plainly contemplates payment of those benefits, and (iii) claiming after

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the fact that no benefits are payable threatens the stability and predictability of benefits the Act is

designed to provide. See McMahan v. Industrial Comm’n, 183 Ill. 2d 499, 514 (1998) (“The

refusal of an employer to pay for an injured employee’s medical expenses is as contrary to the

purposes of the [Act] as an employer’s refusal to compensate the employee for lost earnings. ***

Indeed, to the extent that nonpayment of medical expenses may imperil the employee’s ability to

obtain future treatment, the consequences of the employer’s actions may actually be far worse.”).

Many employees, like Llamas, accept a lump sum settlement to cover not only past medical care

but also medical care reasonably anticipated to be necessary in the future. But if a workers’

compensation carrier can authorize a settlement whereby the employer undertakes to pay past

due bills and then fail to remit policy proceeds to cover that obligation, the pool of medical

providers willing to render services to patients suffering work-related injuries will necessarily

diminish.

¶ 25 During oral argument, counsel for Liberty took the position that Sleep Innovation’s

commitment in the settlement agreement “to pay all necessary and related medical expenses”

was essentially illusory. This is because Liberty, to whom all of the medical bills had been

submitted and who was obligated to “promptly” pay those bills, had not agreed that the medical

expenses incurred by Llamas were “necessary and related.” In other words, Liberty’s position is

that it may remain silent when medical bills are submitted directly to it, authorize its

policyholder to enter into a settlement whereby the policyholder undertakes to pay those

outstanding bills, and then leave both its policyholder and the injured worker on the hook for

unpaid bills after the fact.

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¶ 26 We do not read the Act as giving Liberty the option to refrain from raising any issues

regarding the reasonableness of bills submitted to it until after its policyholder has, with its

approval, committed to pay them. Rather, the Act contemplates that when an insurer receives

bills allegedly relating to a work-related injury, the insurer will promptly raise any issues

regarding whether the services rendered were reasonable and related to the employee’s injury or

whether the detail in the bills is insufficient to make that determination. 820 ILCS 305/8.2(d)

(West 2012). As far as the record here discloses, Liberty never raised any such issues after

receipt of bills from Marque Medicos Farnsworth, LLC.

¶ 27 Accepting the complaint’s allegations as true, as we must, such conduct appears to be a

textbook example of “vexatious and unreasonable” claims handling practices under section 155

of the Illinois Insurance Code (215 ILCS 5/155 (West 2012)). In a companion case decided

today, Marque Medicos Archer, LLC v. Liberty Mutual Insurance Co., 2018 IL App (1st)

163350, ¶¶ 5-6, we discussed that, as alleged in the complaint in that case, the Director of

Insurance conducted a market conduct examination of Liberty’s claims handling practices

specifically related to the payment of interest on adequately documented provider bills and that,

as a result, Liberty entered into a stipulation and consent order whereby Liberty committed to

institute and maintain procedures for the payment of interest. We take judicial notice here of the

results of the market conduct examination. In re Nylani M., 2016 IL App (1st) 152262, ¶ 36 (“A

court may take judicial notice of matters generally known to the court and not subject to

reasonable dispute.”). The Director of Insurance should pay close attention to whether Liberty is,

in fact, living up to its obligations under the stipulation and consent order. To that end, we are

directing the clerk of the court to send a copy of the opinion to the Director of Insurance.

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¶ 28 But as egregious as Liberty’s conduct appears to be, it does not translate into recognition

of a direct action by providers against Liberty. Rather, when the legislature enacted section 8.2 of

the Act by amendment in 2011, it simultaneously created a remedy for its violation. In particular,

section 8.2(e-20) provides that after a final award by the IWCC, a provider may resume efforts to

collect unpaid bills from the employee and “the employee shall be responsible for payment of

any outstanding bills *** as well as the interest awarded under subsection (d) of this Section.”

820 ILCS 305/8.2(e-20) (West 2012). At first blush, the ability to pursue the injured employee

for payment of outstanding medical bills appears to run counter to the overarching purpose of the

Act to protect the interests of injured workers. But the legislature may well have assumed that an

employee who receives an award from the IWCC is the party responsible for paying outstanding

medical bills from the award. When, as here, that is not the case, the methods of enforcing a

workers’ compensation carrier’s obligation to pay outstanding medical bills are varied and

somewhat circuitous.

¶ 29 Under the Act, the IWCC lacks authority to enforce its own awards and decisions.

Millenium Knickerbocker Hotel v. Illinois Workers’ Compensation Comm’n, 2017 IL App (1st)

161027WC, ¶ 21 (citing Smith v. Gen Co. Corp., 11 Ill. App. 3d 106, 110 (1973)). Therefore, in

order to enforce an employer’s obligation to pay an award, the employee must look elsewhere.

¶ 30 One possible scenario is that when the providers pursue payment of outstanding bills

from the employee, the employee, in an effort to enforce the IWCC award, can present a certified

copy of the award to the circuit court under section 19(g) of the Act (820 ILCS 305/19(g) (West

2012)), in order to reduce the award to judgment. The employer, upon whom the obligation to

pay is imposed under the award (and the judgment entered on the award), can, in turn, pursue a

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third-party action against its insurer for breach of the workers’ compensation insurance policy

and, presumably, for a violation of section 155 of the Illinois Insurance Code (215 ILCS 5/155

(West 2012)). If the circuit court finds that there has been a failure to pay the employee in

accordance with the IWCC award, section 19(g) further mandates an award of attorney fees and

costs incurred by the employee not only in the circuit court action but also in the proceedings

before the IWCC.

“In a case where the employer refuses to pay compensation according to such final award

or such final decision upon which such judgment is entered the court shall in entering

judgment thereon, tax as costs *** the reasonable costs and attorney fees in the

arbitration proceedings and in the court entering the judgment for the person in whose

favor the judgment is entered ***.” (Emphasis added.) 820 ILCS 305/19(g) (West 2012).

And the fees and costs recovered by the employee as well as the employers’ own attorney fees

and costs would be compensable damages proximately caused by the insurer’s breach of

contract. In the end, the recalcitrant insurer would end up paying its own, its insured’s and the

employee’s attorney fees and costs, plus whatever sums the court deemed appropriate under

section 155. See 215 ILCS 5/155(1) (West 2012) (providing for an award of up to $60,000 in

addition to attorney fees and costs). Accordingly, the price of an insurer’s decision to stonewall

payment of benefits due under an IWCC award is, indeed, steep.

¶ 31 Alternatively, there are two provisions of the Act that provide for the award by the IWCC

of additional compensation to the employee in the case of nonpayment of benefits. First, section

19(k) of the Act authorizes the employee to seek and the IWCC to award additional

compensation equal to 50% of the amount otherwise payable to the employee if the employer

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vexatiously delays in paying benefits due under the Act. 820 ILCS 305/19(k) (West 2012). In the

event the IWCC determines that a penalty is appropriate under section 19(k), section 16 of the

Act further authorizes an award of attorney fees and costs “against such employer and his or her

insurance carrier.” Id. § 16. Second, section 19(l) contemplates that an employee may file a

written demand for payment of benefits for necessary medical care payable under section 8(a).

Id. § 19(l). In the event of such written demand, the employer must respond within 30 days,

articulating in writing the reason for the delay. Section 19(l) further provides:

“In case the employer or his or her insurance carrier shall without good and just cause

fail, neglect, refuse, or unreasonably delay the payment of benefits under Section 8(a)

***, the Arbitrator or the Commission shall allow to the employee additional

compensation in the sum of $30 per day for each day that the benefits under Section 8(a)

*** have been so withheld or refused, not to exceed $10,000.” (Emphasis added.) Id.

¶ 32 What is common to all of these alternative courses of action is that they must be

undertaken by the employee for whose benefit these provisions were enacted. Which brings us to

another, less circuitous means of avoiding this problem in the future. Attorneys handling

workers’ compensation cases on behalf of claimants must be cognizant of their clients’ potential

post-award exposure to claims by medical providers for unpaid bills. As noted, if, as happened

here (and apparently in a number of other cases involving Liberty), the employer does not fulfill

its undertaking to pay outstanding medical bills, providers are permitted to pursue payment from

the injured employee. With that in mind, competent counsel should insist that any settlement

agreement contain a sum certain that the employer has agreed to pay for outstanding medical

bills and also contain a representation that the employer has consulted with its insurance carrier

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and secured the carrier’s commitment to pay that amount upon execution of the settlement. The

settlement here contained no such detail and merely provided that Sleep Innovations “will pay all

necessary and related medical expenses *** that have been submitted prior to contract approval

and that contain all the required data elements.” This lack of specificity permitted Liberty to “lay

in the weeds” to the employee’s, the providers’ and, ultimately, its own policyholder’s detriment.

¶ 33 CONCLUSION

¶ 34 We affirm the trial court’s dismissal of the providers’ claims for breach of contract,

breach of contract implied in law, breach of contract implied in fact, and recovery pursuant to

section 155 of the Illinois Insurance Code. We further order the clerk of the court to send a copy

of this opinion to the Director of Insurance.

¶ 35 Affirmed.

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