2022 IL App (1st) 211410-U No. 1-21-1410 Third Division September 30, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
AMERICAN ECONOMY INSURANCE COMPANY, ) AMERICAN FIRE AND CASUALTY COMPANY, ) Appeal from the Circuit Court AMERICAN STATES INSURANCE COMPANY, ) of Cook County. CONSOLIDATED INSURANCE COMPANY, ) EMPLOYERS INSURANCE COMPANY OF WAUSAU, ) No. 20 L 13373 FIRST NATIONAL INSURANCE COMPANY OF ) AMERICA, HELMSMAN MANAGEMENT SERVICES ) The Honorable LLC, INDIANA INSURANCE COMPANY, LIBERTY ) Diane M. Shelley, INSURANCE CORPORATION, LIBERTY MUTUAL ) Judge Presiding. FIRE INSURANCE COMPANY, LIBERTY MUTUAL ) INSURANCE COMPANY, LM INSURANCE ) CORPORATION, OHIO SECURITY INSURANCE ) COMPANY, PEERLESS INSURANCE COMPANY, ) THE FIRST LIBERTY INSURANCE CORPORATION, ) THE NETHERLANDS INSURANCE COMPANY, THE ) OHIO CASUALTY INSURANCE COMPANY, ) WAUSAU BUSINESS INSURANCE COMPANY, ) WAUSAU UNDERWRITERS INSURANCE COMPANY, ) and WEST AMERICAN INSURANCE COMPANY, ) Plaintiffs-Appellees, ) ) v. ) ) ACCELERATED REHABILITATION CENTERS, LTD., ) Individually and d/b/a Newsome Physical Therapy, Premier) Physical Therapy Services, Athletico Physical Therapy ) ARC, and Occucare, and ATHLETICO, LTD, Individually ) and d/b/a Athletico Physical Therapy, Sports Physical ) Therapy, Prorehab, PC., and Occucare, ) Defendants-Appellants. ) ______________________________________________________________________________ No. 1-21-1410
JUSTICE REYES delivered the judgment of the court. Presiding Justice McBride and Justice Burke concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied defendants’ motion to dismiss or, in the alternative, to compel arbitration where the plaintiffs were not signatories to the contracts that contained arbitration clauses, nor did an exception apply that would operate to bind them to the contracts.
¶2 The instant appeal arises from a lawsuit filed by plaintiffs, a group of insurance companies
all doing business under the trade name of Liberty Mutual Insurance, against defendants,
Accelerated Rehabilitation Services, Ltd., and Athletico, Ltd., two physical therapy providers. 1
In their complaint, plaintiffs alleged that defendants fraudulently submitted bills based on
services that defendants did not actually provide, which plaintiffs paid. Defendants filed a
motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-619 (West 2020)) or, in the alternative, to compel arbitration, claiming
that an arbitration clause contained in defendants’ contracts with third-party administrators
governed plaintiffs’ claims. The circuit court denied the motion to dismiss, and defendants
filed an interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017).
For the reasons that follow, we affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 Plaintiffs are a group of insurance companies which provide workers’ compensation
policies for certain employers. Between 2011 and 2020, a number of employees of these
employers sought physical therapy services from defendants after suffering work-related
injuries, and plaintiffs paid the bills submitted by defendants in connection with these services.
1 According to plaintiffs’ complaint, defendant Athletico, Ltd., acquired defendant Accelerated Rehabilitation Services, Ltd., and all of its brands in 2014. 2 No. 1-21-1410
¶5 In December 2020, plaintiffs filed a four-count complaint against defendants for fraud and
negligent misrepresentation, alleging that their investigations had revealed “fraudulent
deviations” from proper coding rules with respect to billing, which resulted in “substantial
overpayments” to defendants. Specifically, plaintiffs alleged that defendants billed plaintiffs
by using codes that required skilled direct patient contact in circumstances when those services
were not provided.
¶6 Defendants filed a combined motion to dismiss the complaint pursuant to section 2-619.1
of the Code (735 ILCS 5/2-619.1 (West 2020)), claiming that plaintiffs’ complaint was vague
and failed to provide sufficient detail to identify specific instances of alleged fraud, including
when and where they allegedly occurred. The circuit court granted defendants’ motion in part,
dismissing three of the counts without prejudice and with leave to amend.
¶7 Plaintiffs filed an amended complaint in June 2021; while their complaint was
substantively similar to their prior complaint, they also included 50 specific examples of
defendants’ allegedly improper billing. In addition, as in their original complaint, plaintiffs
attached over 2000 pages of exhibits consisting of spreadsheets containing data as to the
amounts paid by plaintiffs for each code at issue. 2
¶8 Defendants filed a motion to dismiss the amended complaint under section 2-619 of the
Code or, in the alternative, to compel arbitration. Defendants claimed that they had investigated
the 50 specific claims that plaintiffs identified in the amended complaint, and at least 25 of
those claims were submitted for payment pursuant to agreements containing mandatory
2 The entries on the spreadsheets do not contain any identifying information as to the patient or the location of the physical therapy clinic, but include only claim numbers, dates of service, the codes charged, and the amounts billed and paid. We note that most of the spreadsheets contained in the record on appeal are cut off at one end, meaning that the column including claim numbers is not included. 3 No. 1-21-1410
arbitration provisions. Defendants contended that they had entered into those agreements with
various third-party administrators (TPAs) which acted as plaintiffs’ agents and plaintiffs were
thereby bound by the provisions in the agreements.
¶9 In support, defendants submitted the affidavit of Beth Trubich (Trubich), a senior manager
of billing for defendants, who averred that payors such as plaintiffs regularly contract with
TPAs to assist with their responsibilities in processing patient claims and payments to health
care providers. In turn, defendants contracted with such TPAs, acting as agents on behalf of
the payors, in connection with their services. As part of these contracts, defendants agreed to
provide their services to the payors’ members at significantly lower reimbursement rates.
Trubich averred that “[o]n information and belief, Payors authorized various TPAs to enter
into agreements with [defendants] for these lower reimbursement rates.” Trubich further
averred that when defendants negotiated with TPAs, all parties were aware that they were
negotiating with entities acting on behalf of the payors. With respect to plaintiffs in the instant
case, Trubich averred that, “[u]pon information and belief, the Plaintiffs in this case are all
Payors that have contracts with [defendants] through various TPAs to provide health care
services to their members at significantly discounted rates.” Specifically, Trubich identified 26
claims listed in plaintiffs’ amended complaint that were processed pursuant to defendants’
agreements with TPAs; the applicable TPA agreements and “Explanation of Benefits” forms
demonstrating payment were also attached to Trubich’s affidavit. Trubich averred that for these
claims, plaintiffs paid discounted reimbursement rates, “which demonstrates that these claims
were paid pursuant to rates negotiated with TPAs.”
¶ 10 In response to defendants’ motion, plaintiffs claimed that all of the claims contained in the
spreadsheets attached to the amended complaint were directly billed to plaintiffs, not to TPAs.
4 No. 1-21-1410
Plaintiffs further argued that even if some of the examples listed in their amended complaint
were sent to TPAs, that did not suggest that all of the claims at issue were processed in the
same way. Plaintiffs also claimed that the arbitration clauses in the agreements between the
TPAs and defendants did not govern their claims in any event, as they were not signatories to
the agreements and the clauses did not cover claims for fraud.
¶ 11 On September 30, 2021, the circuit court entered an order denying defendants’ motion. The
court first found that it could not say as a matter of law that the 26 claims identified by Trubich
were processed through TPAs, as it found that Trubich did not have any foundation for the
statements contained in her affidavit. The court further found that, even assuming that the
TPAs were used for those claims, plaintiffs were not bound by the arbitration clauses as they
were not signatories to the agreements between the TPAs and defendants. Accordingly, the
court denied defendants’ motion to dismiss or, in the alternative, to compel arbitration.
¶ 12 Defendants filed a motion to reconsider and, while the motion was pending, filed a notice
of interlocutory appeal. According to a joint status report filed by the parties, the circuit court
denied defendants’ motion to reconsider on July 11, 2022. This appeal follows.
¶ 13 ANALYSIS
¶ 14 On appeal, defendants claim that the circuit court erred in denying their motion to dismiss
or, in the alternative, to compel arbitration. A motion to compel arbitration is similar to a
section 2-619 motion to dismiss in that it asks the court to dismiss an action in the circuit court
based on an affirmative matter, namely, the exclusive remedy of arbitration. Sturgill v.
Santander Consumer USA, Inc., 2016 IL App (5th) 140380, ¶ 21; Griffith v. Wilmette Harbor
Ass’n, Inc., 378 Ill. App. 3d 173, 179-80 (2007). An order granting or denying a motion to
compel arbitration is injunctive in nature and is therefore appealable under Rule 307(a). Herns
5 No. 1-21-1410
v. Symphony Jackson Square LLC, 2021 IL App (1st) 201064, ¶ 14. In reviewing the denial of
a motion to compel arbitration, questions of law are reviewed de novo, while findings of fact
are reviewed for an abuse of discretion. Clanton v. Oakbrook Healthcare Centre, Ltd., 2022
IL App (1st) 210984, ¶ 43.
¶ 15 When a party files a motion to compel arbitration, the circuit court considers only
“gateway” matters, such as the existence of an agreement to arbitrate and the scope of that
agreement, and does not rule on the merits of the underlying claim. Sturgill, 2016 IL App (5th)
140380, ¶ 22. “The party seeking to compel arbitration has the burden to establish that the
parties have a valid agreement to arbitrate and that the controversy falls within the scope of the
arbitration provision.” Id. If the opposing party denies the existence of the agreement to
arbitrate, the circuit court must render a substantive disposition of the issues raised by the
motion; such a disposition does not dispose of the motion in a conclusory fashion but “is a
more considered disposition in which the trial court separately addresses each issue raised by
the motion, supporting its resolution of each issue with specific factual findings or legal
reasons.” Id. ¶ 24. Where there is a valid arbitration agreement and the parties’ dispute falls
within the scope of the agreement, arbitration is mandatory and the circuit court must compel
it. Griffith, 378 Ill. App. 3d at 180.
¶ 16 In this case, the circuit court found that defendants had not established that the claims at
issue were processed through the TPAs. The court, however, also found that even assuming
that the claims were processed through the TPAs, the TPA agreements were not enforceable
against plaintiffs, as they were not signatories to the agreements. Thus, the court’s decision
was based on its finding that there was no valid agreement to arbitrate between the parties. As
we agree with the circuit court’s findings as to the unenforceability of the agreements against
6 No. 1-21-1410
plaintiffs, we have no need to review its findings about whether the claims at issue were, in
fact, processed through the TPAs. 3
¶ 17 The right to compel arbitration stems from an underlying contract and, therefore, it
generally may not be invoked by a nonsignatory to the contract. Caligiuri v. First Colony Life
Insurance Co., 318 Ill. App. 3d 793, 800 (2000). Courts, however, have recognized certain
exceptions to this general rule, including (1) incorporation by reference, (2) assumption,
(3) agency, (4) veil-piercing or alter ego, and (5) estoppel. Id. Here, defendants contend that
two of these exceptions apply to the instant case: agency and estoppel. Defendants further
claim, in the alternative, that plaintiffs are bound by the arbitration clauses as third-party
beneficiaries of the agreements between defendants and the TPAs. We consider each argument
in turn.
¶ 18 Agency
¶ 19 Defendants first claim that the TPAs were plaintiffs’ agents and, therefore, plaintiffs were
bound by the arbitration clauses. A nonsignatory party may be bound to an arbitration
agreement if it was signed by the party’s agent. Curto v. Illini Manors, Inc., 405 Ill. App. 3d
888, 891 (2010); Daley v. Alden-Town Manor Rehabilitation & Health Care Center, Inc., 2022
IL App (1st) 211619-U, ¶ 33. The scope of an agency relationship depends on the terms of the
agreement between the principal and the agent and the intent of the parties. Curto, 405 Ill. App.
3 We note that agreements to arbitrate will be enforced even in multiparty litigation where only some of the parties are subject to arbitration agreements. Board of Managers of Courtyards at Woodlands Condominium Ass’n v. IKO Chicago, Inc., 183 Ill. 2d 66, 74 (1998). Thus, if some of the claims in the instant case were arbitrable, they would be required to be arbitrated while the remaining claims would be litigated in the circuit court. See id. at 74-75 (if there is a multiplicity of actions, the court may stay the proceeding, or a severable issue within it, pending arbitration). As we explain in our analysis, however, we agree with the circuit court that none of the claims are arbitrable, as plaintiffs were not signatories to the contracts between defendants and the TPAs. 7 No. 1-21-1410
3d at 892. The party claiming an agency relationship has the burden of establishing it by a
preponderance of the evidence. Id.; Daley, 2022 IL App (1st) 211619-U, ¶ 34.
¶ 20 An agent’s authority may be either actual or apparent. Patrick Engineering, Inc. v. City of
Naperville, 2012 IL 113148, ¶ 34. Furthermore, actual authority may be either express or
implied. Id. While defendants do not specifically identify they type of authority they claim the
TPAs had with respect to plaintiffs, their argument that “Plaintiffs have authorized TPAs to
enter into the agreements with Defendants” suggests that their claim is based on express
authority. “Express authority is directly granted to the agent in express terms by the principal
and extends only to the powers the principal confers upon the agent.” Curto, 405 Ill. App. 3d
at 892; Daley, 2022 IL App (1st) 211619-U, ¶ 34. Such authority may be granted through a
written contract, a power of attorney, or a court-ordered guardianship. Curto, 405 Ill. App. 3d
at 892.
¶ 21 In this case, while defendants provided copies of several agreements between the TPAs
and defendants, the record does not include any information as to the relationship between the
TPAs and plaintiffs. At best, Trubich’s affidavit provided that “[o]n information and belief,”
plaintiffs authorized TPAs to enter into agreements with defendants. There is no support for
this statement, however, other than inferences drawn from the usual course of conduct and the
fact that TPAs act on behalf of insurers generally. Even if true, the general duties and scope of
a TPA’s power do not establish that these TPAs were acting as agents on behalf of these
plaintiffs with respect to these agreements.
¶ 22 Defendants contend that if the TPAs were not plaintiffs’ agents, “Plaintiffs could have
easily introduced evidence at the circuit court to refute that theory.” Defendants overlook,
however, that they have the burden of establishing the agency relationship, not plaintiffs, and
8 No. 1-21-1410
that they have the burden of establishing the applicability of the arbitration clause. See Curto,
405 Ill. App. 3d at 892 (the party claiming an agency relationship has the burden of proving
it); Sturgill, 2016 IL App (5th) 140380, ¶ 22 (the party seeking to compel arbitration has the
burden of proving a valid arbitration agreement). An affidavit that merely suggests that an
agency relationship exists, without personal knowledge or other proof of that relationship, does
not suffice to meet that burden. Accordingly, we agree with the circuit court that plaintiffs were
not bound by the arbitration agreements by way of an agency relationship with the TPAs.
¶ 23 Estoppel
¶ 24 Next, defendants claim that plaintiffs were bound by the arbitration agreements through
estoppel. Defendants primarily rely on Everett v. Paul Davis Restoration, Inc., 771 F.3d 380
(7th Cir. 2014), a case which applied “direct benefits estoppel” to bind a nonsignatory to an
arbitration agreement. 4 In that case, the defendant entered into a franchise agreement with a
company and one of its owners, Matthew Everett; the other owner of the company was
Matthew Everett’s wife, plaintiff Renee Everett (Renee). Id. at 382. After the termination of
the franchise agreement, the Everetts transferred almost sole ownership of the company to
Renee (another employee owned 5%), allegedly to avoid a post-termination restrictive
covenant contained in the franchise agreement. Id. at 382-83. The defendant initiated
arbitration, and Renee filed suit in federal court, seeking a declaratory judgment that she was
not bound by the arbitration clause in the franchise agreement since she never signed the
agreement. Id. at 383. The dispute eventually reached the Seventh Circuit Court of Appeals,
4 We note that defendants acknowledge that no Illinois cases have applied this doctrine and rely solely on federal law to support their argument. We have no need to discuss whether direct benefits estoppel may be used to bind a nonsignatory to an arbitration agreement under Illinois law, however, as we agree with the circuit court that defendants have not established its applicability to the instant case in any event. 9 No. 1-21-1410
which was asked to determine whether Renee could be bound by the arbitration clause despite
never signing the franchise agreement.
¶ 25 In its analysis, the Everett court found that “direct benefits estoppel” applied to bind Renee
to the arbitration clause. Under this doctrine, “a non-signatory party is estopped from avoiding
arbitration if she ‘knowingly seeks the benefits of the contract containing the arbitration
clause.’ ” Id. (quoting Zurich American Insurance Co. v. Watts Industries, Inc., 417 F.3d 682,
688 (7th Cir. 2005)). In order for the doctrine to apply, the benefit received by the nonsignatory
must flow directly from the agreement. Id. Thus, as the Everett court explained, “a benefit
derived from the agreement itself is direct. However, a benefit derived from the exploitation
of the contractual relationship of parties to an agreement, but not the agreement itself[,] is
indirect.” Id. at 383-84. In the case before it, the Everett court found that Renee received a
benefit from the franchise agreement itself, including the ownership of a franchise and the
ability to trade upon the name, goodwill, and reputation of the defendant. Id. at 384.
¶ 26 In this case, by contrast, we cannot find that the record shows that plaintiffs received
benefits flowing directly from the agreements between the TPAs and defendants. First, as the
circuit court noted, while defendants contend that plaintiffs received beneficial pricing due to
the agreements, there is no evidence in the record to support that claim. At best, Trubich’s
affidavit provides that “[u]pon information and belief, the Plaintiffs in this case are all Payors
that have contracts with [defendants] through various TPAs to provide health care services to
their members at significantly discounted rates.” Even if true, however, there is no information
10 No. 1-21-1410
as to defendants’ typical fees for these services, or the discounted rate allegedly received by
plaintiffs’ members. 5
¶ 27 Additionally, any direct benefits flowing from the TPA agreements were received by
defendants and the TPAs—defendants benefitted by being listed in the TPAs’ provider
networks, and the TPAs benefitted by building a network of providers offering efficient and
cost-effective health care services for covered individuals. If, as defendants allege, the reduced
rates charged by them pursuant to that contractual relationship were passed on to plaintiffs,
that benefit flowed from plaintiffs’ ability to exploit the contractual relationship between
defendants and the TPAs, not from the TPA agreements themselves. This, by definition, is an
indirect benefit. See Everett, 771 F.3d at 383-84 (“a benefit derived from the exploitation of
the contractual relationship of parties to an agreement, but not the agreement itself[,] is
indirect”). Accordingly, we cannot find that the doctrine of direct benefits estoppel served to
bind plaintiffs to the arbitration clauses contained in the TPA agreements.
¶ 28 Third-Party Beneficiary
¶ 29 Finally, defendants contend that plaintiffs were bound by the TPA agreements as third-
party beneficiaries. There are two types of third-party beneficiaries under Illinois law—
intended and incidental—and only intended beneficiaries have any rights under the contract.
Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 14. An intended
third-party beneficiary is “one whom the parties intended to directly benefit from the contract.”
5 We note that the Workers’ Compensation Commission has established fee schedules setting forth maximum rates for certain medical procedures, treatments, and services (see 820 ILCS 305/8.2 (West 2020)), and the TPA agreements contained in the record on appeal set reimbursement rates based on those fee schedules. It is unclear from the “Explanation of Benefits” documents contained in the record on appeal whether the documents list defendants’ typical fees or fees based on the fee schedule, or the relationship between defendants’ typical fees and the allegedly discounted rates received under the TPA agreements. 11 No. 1-21-1410
Bank of America National Ass’n v. Bassman FBT, L.L.C., 2012 IL App (2d) 110729, ¶ 27. By
contrast, an incidental third-party beneficiary is one who receives an unintended benefit from
the contract. Id. “The operative question is whether the parties to the contract intended to confer
a direct benefit on the purported third-party beneficiary.” (Emphasis in original.) Id. There is
a strong presumption that the parties to a contract intend the contract to apply only to them and
not to third parties. Id.; Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017,
1020 (2009). “That the contracting parties know, expect, or even intend that others will benefit
from their agreement is not enough to overcome the presumption that the contract was intended
for the direct benefit of the parties.” Martis, 388 Ill. App. 3d at 1020.
¶ 30 Here, defendants claim that plaintiffs were intended beneficiaries of the agreements
between the TPAs and defendants—in fact, they claim that “the TPA agreements exist solely
to provide a direct financial benefit to insurers.” We do not find this argument persuasive. Even
assuming plaintiffs did obtain a financial benefit resulting from the agreements, that does not
automatically transform them into intended third-party beneficiaries to the agreements.
Moreover, defendants’ argument overlooks the fact that both defendants and the TPAs directly
benefited from the agreements—as explained above, defendants received the benefit of being
listed in the TPAs’ provider network, while the TPAs received the benefit of an expansive
network of health care providers providing cost-effective services. As the circuit court noted,
defendants also received an additional benefit in that use of the TPAs streamlined the
processing and payment of claims, meaning that defendants could more easily be paid for
services rendered. Thus, defendants’ claim that the TPA agreements existed “solely” to provide
a direct financial benefit to insurers is simply incorrect. The fact that plaintiffs received some
12 No. 1-21-1410
benefit from the TPA agreements did not make them third-party beneficiaries and, accordingly,
the circuit court properly found that they were not bound by the agreements.
¶ 31 CONCLUSION
¶ 32 For the reasons set forth above, the circuit court properly denied defendants’ motion to
dismiss or, in the alternative, to compel arbitration. Even if the TPA agreements applied to all
of the claims at issue, plaintiffs were not bound by the arbitration clauses contained in those
agreements, as they were not signatories to the agreements and the record does not show that
an exception that would bind them to the agreements applies.
¶ 33 Affirmed.