CHATHAM SURGICORE, LTD., an Illinois	)	Appeal from the

Corporation,						)	Circuit Court of

								)	Cook County.

		Plaintiff-Appellant,		)

								)

	v.							)

								)	No. 02 L 11734

HEALTH CARE SERVICE CORPORATION, a		)

Mutual Legal Reserve Company, d/b/a	)	

Blue Cross Blue Shield of Illinois,	)	Honorable

								)	Stuart A. Nudelman,

		Defendant-Appellee,			)	Judge Presiding.

	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 §

1413, at 518-19 (5th rev. ed. 1990).)  A complaint need only

allege facts which establish the right to recovery; not only are

allegations of law or conclusions not required, they are

improper. (See 3 R. Michael, Illinois Practice § 24.2, at 340

(1989); Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477; see also Haas v. Mid-America Fire & Marine Insurance Co. (1976), 35 Ill. App. 3d 993, 998.)  It is, moreover, the allegations of a complaint which define a cause of

action, not the name or title that may be used by the plaintiff. 

Lovgren v. Citizens First National Bank (1989), 126 Ill.2d 411, 419.”  Illinois Graphics Co. v. Nickum,  159 Ill. 2d 469, 488-89 (1994).

	“To establish a claim based on promissory estoppel, plaintiff must allege and prove that (1) defendants made an

unambiguous promise to plaintiff, (2) plaintiff relied on such

promise, (3) plaintiff's reliance was expected and foreseeable by

defendants, and (4) plaintiff relied on the promise to its

detriment.  [Citations.]  Plaintiff's reliance must be reasonable

and justifiable.  [Citations.]  Plaintiff may recover on a theory

of promissory estoppel despite the absence of a contract.

[Citations.]”  Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 309-10 (1990).

	The following are the allegations contained in Chatham’s

second amended complaint under count V for estoppel:

		“129.  Chatham provided services to various

patients listed in Group Exhibit A.  The patients

listed in Group Exhibit A were all covered under health

insurance policies issued to them by Blue Cross under

one of its many products and contracts, or were subject

to claims being administered by Blue Cross as a [third-

party administrator (TPA)], and the services provided

to the patients were services that were covered under

the various health insurance polices.

		130.  Prior to providing medical treatment to the

patients listed in Group Exhibit A, representatives

from Chatham called Blue Cross to verify the insurance

coverage available to each of the patients who were

covered under various Blue Cross policies, or policies

in which Blue Cross was a TPA.

		131.  Chatham did not have access to any of the

various health insurance policies that covered the

patients, and therefore had to rely upon the

information provided by Blue Cross agents in order to

determine the manner in which Chatham would be

reimbursed for the medical services it was providing.

		132.  At the time Blue Cross received the calls

from Chatham concerning the coverage questions, Blue

Cross knew, or should have known the benefits available

for its insureds, and any limitations upon that

coverage.

		133.  Blue Cross knew that Chatham would rely upon

the information provided in deciding whether to provide

podiatric services to the patients covered under

various health insurance policies from Blue Cross.

		134.  Chatham did in fact reasonably rely on the

statements provided by agents of Blue Cross, and

provided podiatric services to those insureds of Blue Cross without making alternate payment provisions from

the patients.

		135.  After providing services to the patients,

Chatham submitted a proper claim to Blue Cross for

payment of benefits under the health insurance

contracts of the patients.

		136.  Blue Cross has failed to process the claims,

or in the alternative, processed the claims and made

payment directly to the patients despite the assignment

of benefits.

		137.  By failing to process the claims, Blue Cross

has acted in a manner contrary to representations its

agents made to Chatham, the provider of services.

		138.  Blue Cross is estopped to act in a manner

contrary to the statements its agents made while

confirming insurance coverage with Chatham, and not

notifying Chatham of the various limitations on

coverage and payment that Blue Cross knew existed when

it quoted benefits.

		139.  As a result of the reliance on Blue Cross’

misrepresentations, Chatham has been damaged in the

amount of $3,264,715.85 as itemized in Group Exhibit

A.”

	Here, the trial court erred when it determined that Chatham failed to state a cause of action for promissory estoppel in its

second amended complaint.  We remind the parties that 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.  Taking this into

consideration, Chatham’s second amended complaint stated a cause

of action for estoppel.

	Initially, we find that Chatham’s second amended complaint

sufficiently alleged that Blue Cross promised to pay it for

services which it had rendered.  We believe that Rehabilitation Institute of Chicago v. Group Administrators, Ltd., 844 F. Supp. 1275 (N.D. Ill. 1994), is instructive.  In Rehabilitation Institute, the plaintiff, Rehabilitation Institute of Chicago (RIC), commenced an action in the circuit court of Cook County. 

Thereafter, the defendant, Group Administrators, Ltd. (GAL),

filed a notice of removal to the federal court and a motion to

dismiss.  In response, RIC contested GAL’s motion to dismiss and

also filed a motion to remand the case to state court.

	RIC was a domestic charitable corporation that maintained a

hospital and rendered medical services.  For a period of time,

RIC provided medical services to a Mr. Casey for self-inflicted

injuries.  GAL administered Casey’s health insurance plan under

the Employment Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 (1988)).

	During this period, RIC contacted GAL to determine whether

Casey’s care was covered under the ERISA plan.  GAL assured RIC

that there was no exclusion for self-inflicted injuries and

described specifically the coverage that was available.  As a

result of these assurances, RIC provided Casey with the care he

needed.

	Subsequently, GAL refused to reimburse RIC, and RIC filed

suit.  RIC maintained that GAL should be estopped under Illinois

law from refusing to remit payment for services that it

represented were covered by Casey’s ERISA plan.  Inter alia, GIC  argued that RIC’s complaint failed to state a cause of action.

	The Rehabilitation Institute findings as it pertains to this issue follow:

		“In its motion to dismiss, Group Administrators

maintains that Rehab Institute failed to allege that

any promise was made pertaining to Mr. Casey's coverage

and treatment.  However, plaintiff's complaint clearly

alleges that Group Administrators' agent represented

that ‘coverage was available’ for the treatment.  In

light of the purpose behind Rehab Institute's query

(determining whether or not it would be reimbursed by

the insurance company for its care of Mr. Casey), this

statement satisfies the promise element for purposes of stating a promissory estoppel claim.  In this context

it is also clear that Group Administrators knew or

should have known that its representation would induce

action on the part of Rehab Institute (i.e., that Rehab Institute would admit and treat Mr. Casey on the basis

of its representation as to available coverage).  The

complaint also contains specific allegations that Rehab

Institute acted in reasonable reliance on this promise,

and that it was injured as a result.  Accordingly,

Rehab Institute has adequately pled a cause of action

under the doctrine of promissory estoppel.”

Rehabilitation Institute, 844 F. Supp. at 1278-79.

	When Chatham contacted Blue Cross to verify that insurance

coverage was available to each of the patients who were listed in

Group Exhibit A, Blue Cross’ agents repeatedly represented to

Chatham that those individuals were covered for services rendered

at Chatham.  Under Rehabilitation Institute, Blue Cross knew or should have known that these statements would induce Chatham to

treat the patients listed on Group Exhibit A.  As such, these

statements satisfy the promise element for purposes of stating a

promissory estoppel claim.

	We acknowledge that Blue Cross did not use the express form

of a promise.  However, Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co. of Chicago, 110 Ill. App. 3d 492, 497 (1982), tells us that an express promise is

unnecessary.  In Bank Computer Network, the court made the following statement:

		“[T]he promise essential to a claim of promissory

estoppel need not be expressed, only unambiguous. (See

Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 407 N.E.2d 792.)  ‘In order that there may be an

agreement, the parties must have a distinct intention

common to both and without doubt or difference.  *** 

The intention of the parties must in some way be

communicated, since a person's intention can be

ascertained by another only by means of outward

expressions such as words and acts.’ (Bank of Marion v. Robert “Chick” Fritz, Inc. (1973), 9 Ill. App. 3d 102, 108, 291 N.E.2d 836, 840, aff’d (1974) 57 Ill. 2d 120, 311 N.E.2d 138.)”  Bank Computer Network, 110 Ill. App. 3d at 497.

	Blue Cross’ promises to pay were unambiguous because they

were both definite and complete.  We find that it can be

reasonably inferred from Chatham’s second amended complaint that

when Blue Cross made its assurances, it knew who would be

providing the services, what services would be provided and who would be receiving those services.  Although count V for

promissory estoppel failed to allege an unambiguous promise to

pay, this deficiency is cured because a paragraph in count VI for

fraud made such an allegation.  Specifically, the paragraph

states: 

		“140.  When Chatham called to confirm coverage for

Blue Cross’ insureds, Blue Cross, through its agents,

always represented that the individuals were covered

for the services to be rendered at Chatham, without

disclosing any limitations on the coverage.”

	As to the issue of justifiable reliance, Chatham alleged

that because it did not have access to the individual patient’s

insurance policies, it relied upon the information provided by

Blue Cross agents in deciding whether to provide podiatric

services to the patients; it reasonably relied on these

statements from Blue Cross; and it provided podiatric services to

those insured of Blue Cross without making alternate payment

provisions from the patients.  These facts are clearly alleged in

Chatham’s second amended complaint.  At this stage in the

proceedings, that is all that Chatham had to do.  Chatham does

not have to prove that it reasonably and justifiably relied.  It

only has to allege these facts.

	As such, we find that Chatham sufficiently stated a cause of action for estoppel, and the trial court’s decision is reversed.

II	

	Chatham argues that the trial court erred when it determined

that its second amended complaint failed to allege a cause of

action for fraud. 

	Fraud may be perpetrated by fraudulent misrepresentation or

by fraudulent concealment.  Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1085 (1998).  A high standard of specificity is imposed on

pleadings asserting fraud.  Hirsch, 299 Ill. App. 3d at 1085.  The facts constituting the alleged fraud must be stated "with

sufficient specificity, particularity, and certainty to apprise

the opposing party of what he is called upon to answer."  Hirsch, 299 Ill. App. 3d at 1085.  The pleading "must contain specific

allegations of facts from which fraud is the necessary or

probable inference, including what representations were made,

when they were made, who made the misrepresentations and to whom

they were made."  Hirsch, 299 Ill. App. 3d at 1085; Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 496-97 (1996).

	To state a cause of action for fraudulent misrepresentation,

a plaintiff must allege that the defendant made a representation

of material fact, the defendant knew or believed the

representation was untrue, the plaintiff had a right to and did

rely on the representation, the representation was made for the purpose of inducing the plaintiff to act or refrain from acting,

and the representation led to the plaintiff's injury.  Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 420 (2003).

	“[A] promise to perform an act in the future made by one who

intends not to perform is not actionable fraud, unless the false

promise of future performance is part of a scheme or device to

defraud another of her property. [Citations.]”  Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 940 (1997).

	Chatham maintains that it pled fraud with the requisite

specificity.  Chatham contends that Blue Cross intentionally

deceived it in an effort to get Chatham to provide services to

its insureds although it knew that it would not pay for those

services.  Chatham maintains that this deceptive and misleading

conduct constitutes a cause of action for fraud.  In particular,

Chatham contends that Blue Cross’ conduct allows it to seek

recovery under fraud by misrepresentation or fraud by scheme.

	The theory of fraud under which Chatham can recover depends

on how Blue Cross’ statement is characterized.  Chatham maintains

that it is fraud by misrepresentation if the statements are

characterized as a misrepresentation of material fact, whereas it

is a fraudulent scheme if Blue Cross’ statement are taken as a

promise to pay in the future coupled with Blue Cross’ intent to

induce.

	As to its claims that it failed to plead fraud with the

requisite amount of specificity, Chatham contends that it first

pled what misrepresentation Blue Cross made.  Specifically,

Chatham contends that its second amended complaint alleged that

Blue Cross always and repeatedly represented that its insureds

were covered for treatment at Chatham.  Chatham then claims that

Blue Cross made the assurances before the date of each patient’s

treatment, which is recorded in Group Exhibit A.  

	With regard to the elements that concern who made the

misrepresentations and to whom they were made, Chatham claims

that these can be “implied” from its second amended complaint.  Chatham claims that it can be implied that Blue Cross, through

its agents, made the misrepresentations to Chatham.  To make this

implication, Chatham asks this court to look at paragraphs 140

and 141 of its second amended complaint, which state:

		“140.  When Chatham called to confirm coverage for

Blue Cross’ insureds, Blue Cross, through its agents,

always represented that the individuals were covered

for the services to be rendered at Chatham, without

disclosing any limitations on the coverage.

		141.  Although the agents made these

representations to Chatham, Blue Cross knew these

representations were false, and that Blue Cross would not pay benefits to Chatham for the treatment to its

insureds.”

	Lastly, Chatham recognizes that promises of future conduct,

even if made without a present intention to perform, do not

constitute fraud.  Furthermore, Chatham recognizes that there is

an exception to this rule where, “such promises are actionable if

‘the false promise or representation of future conduct is alleged

to be the scheme employed to accomplish the fraud.’”  HPI Health Care Services, Inc. v145, 168 (1989), citing Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334 (1977).

	Relying on Commonwealth Eastern Mortgage Co. v. Williams, 163 Ill. App. 3d 103, 114 (1987)(“To fall within the exception, a

party must allege sufficient facts from which a scheme can be

inferred.”), Chatham contends that its second amended complaint

should survive the pleading stage because a fraudulent scheme can

be inferred from the facts which it alleged.  Chatham points to

the long time frame during which it constantly contacted Blue

Cross and was informed that different patients were covered for

its services.  During this time, Chatham notes, Blue Cross also

received properly filed claims for payment.  Although this

occurred, Blue Cross never processed the claims and still

“continued to promise payment by assuring coverage in no

uncertain terms.”  Based on these facts, Chatham argues Blue Cross employed a scheme of repeated and numerous false promises

and assurances.

	The trial court’s decision to dismiss count VI for fraud was

proper.  Chatham failed to plead fraud by misrepresentation or

scheme with the requisite specificity.  In particular, Chatham

failed to identify specifically what representations were made,

when they were made, who made them and to whom they were made. 

These allegations cannot be inferred or implied from Chatham’s complaint because they must be pled with specificity.  Chatham’s second amended complaint completely fails to make specific

factual allegations to support either theory of fraud.

CONCLUSION

	For the foregoing reasons, the decision of the trial court

is affirmed in part and reversed in part, and this matter is

remanded.

	Affirmed in part and reversed in part; cause remanded.

	Greiman, J. and Quinn, J., concur.