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No. 1-04-1509

PRESIDING JUSTICE REID delivered the opinion of the court:

The plaintiff, Chatham Surgicore, Ltd. (Chatham),appeals the trial court's order that granted the defendant's, Health Care Service Corporation, d/b/a Blue Cross Blue Shield of Illinois (Blue Cross), motion under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)) to dismiss its second amended complaint with prejudice. On appeal, Chatham argues that the trial court erred when it dismissed: (1) count V for promissory estoppel and (2) count VI for fraud. For the reasons that follow, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

BACKGROUND

On September 17, 2002, Chatham filed its initial five-count complaint. In response, Blue Cross moved to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 & 2-619 (West 2002). On May 2, 2003, the trial court granted Blue Cross' motion to dismiss.

On June 3, 2003, Chatham filed a six-count amended complaint. On July 15, 2003, Blue Cross again filed a motion to dismiss the amended complaint pursuant to sections 2-615 and 2-619. Thereafter, the trial court granted Blue Cross' motion to dismiss on September 30, 2003.

On December 1, 2003, Chatham filed a six-count second amended complaint. Count I was for a violation of the Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 2002)); count II was for a violation of Illinois common law on restraint of trade; count III was for a violation of public policy; count IV was for disparagement of services; count V was for estoppel; and count VI was for fraud.

The following recitation is based on the allegations that appear in Chatham's second amended complaint. Chatham is an Illinois corporation with its principal place of business in Chicago. Chatham provides out-patient surgical facilities and supplies to patients in need of podiatric services. Blue Cross is in the business of providing health insurance and is one of the largest health insurance providers in the country.

In addition to selling health insurance, Blue Cross also performs administrative services for self-funded plans. Under Blue Cross' plans, individual members who seek insurance through the plan must decide whether to use in-network or out-of-network providers. In-network providers are healthcare providers who have agreed to receive negotiated rates for providing healthcare services to Blue Cross' members in full payment for their services. Out-of-network providers are healthcare providers who provide healthcare services to Blue Cross' members under the terms and conditions of the member agreements covering their health plan. When members choose in-network providers, they receive higher benefits at a lower direct cost than when they choose out-of-network providers.

Chatham and Blue Cross did not have a contractual relationship. Chatham is an out-of-network provider. Out-of-network providers such as Chatham have not agreed to a set reimbursement rate with Blue Cross and, therefore, may charge patients more for providing services. Out-of-network providers are not entitled to receive payment directly from Blue Cross.

Furthermore, Chatham alleged that Blue Cross employed a practice of refusing to honor assignments from the insureds.

From February 1998 to August 2002, Chatham provided its podiatric out-patient facilities and services to the patients identified in Group Exhibit A, which is a spreadsheet of patients treated at Chatham along with their treatment dates that was attached to the second amended complaint. Blue Cross, either as an insurance provider or as a third-party administrator, collected premiums and adjudicated claims under the insurance policies of the individuals in Group Exhibit A. Before treating each of these individuals, Chatham called Blue Cross to verify coverage. During each of the phone calls, Blue Cross represented that its insureds were covered for services provided at Chatham and did not disclose any limitations to its coverage.

After providing treatment to Blue Cross' insureds, Chatham promptly sent Blue Cross its claims for payment. Chatham claims that each claim for payment was properly filed and submitted. Throughout this time period, Blue Cross received Chatham's properly filed claims for payment, but never processed those claims. Chatham continued to treat Blue Cross' insureds, but Blue Cross refused altogether to pay Chatham for the treatment.

On February 5, 2004, Blue Cross filed a motion to dismiss Chatham's second amended complaint pursuant to section 2-615. On April 23, 2004, the trial court granted Blue Cross' motion to dismiss with prejudice. On May 21, 2004, Chatham timely filed its notice of appeal.

In its brief, Chatham informs this court that it is not appealing the dismissal with prejudice of counts I through IV from its second amended complaint. Chatham is only appealing the dismissal of count V for promissory estoppel and count VI for fraud.

ANALYSIS

I

The first issue we will address is whether the trial court erred when it determined that Chatham could not allege facts to sustain a cause of action for promissory estoppel.

"A motion under section 2-615 of the Code of Civil Procedure attacks the legal sufficiency of the complaint. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994). Such a motion does not raise affirmative factual defenses, but alleges only defects appearing on the face of the complaint. Illinois Graphics, 159 Ill. 2d at 484; Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8 (1992). Thus, the question presented by a section 2-615 motion is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996). In ruling on a section 2-615 motion, a trial court is to consider only the allegations of the pleadings. Illinois Graphics, 159 Ill. 2d at 484; Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991). Further, the trial court should dismiss the cause of action only if it is clearly apparent that no set of facts can be proven which will entitle the plaintiff to recovery. Bryson, 174 Ill. 2d at 86-87; Illinois Graphics, 159 Ill. 2d at 488. A court of review determines de novo whether the trial court should have granted dismissal. Beahringer v. Page, 204 Ill. 2d 363, 369 (2003)." Canel v. Topinka, 212 Ill. 2d 311, 317-18 (2004).

"A motion to dismiss does not lie as long as a good cause of action is stated even if that cause of action is not the one intended to be asserted by the plaintiff. (See Luethi v. Yellow Cab Co. (1985), 136 Ill. App. 3d 829, 833; Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, 482 (finding cause denominated as an action for trespass to be sufficient as an action to enjoin interference with a leasehold interest); Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947; 2 C. Nichols, Illinois Civil Practice