In this appeal, Blackhawk and Travelers contend the interest award of $37,229 entered against them in 2016 is flawed for multiple reasons, including that while this appeal was pending, this court determined in 2017 that Medicos, Ambulatory, and other medical service providers who sued for statutory interest in Marque Medicos do not have a private right of action for the failure of an employer or insurer to comply with the interest provision of the Act. Marque Medicos Fullerton, LLC v. Zurich American Insurance Co. , 2017 IL App (1st) 160756, 416 Ill.Dec. 190, 83 N.E.3d 1027, pet. for leave to appeal denied , No. 122568, 419 Ill.Dec. 626, 93 N.E.3d 1043 (Ill. Nov. 22, 2017). Medicos and Ambulatory respond that in this instance, however, they successfully proved the elements of their promissory estoppel claim seeking statutory interest.
¶ 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, 416 Ill.Dec. 190, 83 N.E.3d 1027, 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.
The providers do not dispute that this section does not expressly provide for a private right of action but argue that a private right of action is implied. We rejected this identical argument in Marque Medicos Fullerton, LLC v. Zurich American Insurance Co. , 2017 IL App (1st) 160756, ¶¶ 56–61, 416 Ill.Dec. 190, 83 N.E.3d 1027, and we decline to depart from this decision today. ¶ 18 In order to determine whether a statute implies a private right of action, we must consider whether (1) the plaintiff is a member of the class that the statute is intended to benefit, (2) the plaintiff's injury is one the statute was designed to prevent, (3) a private right of action is consistent with the underlying purpose of the statute, and (4) implying a private right of action is necessary to provide an adequate remedy for statutory violations.
This includes the interest provision of Section 8.2(d)(3). See Marque Medicos Fullerton, LLC v. Zurich Am. Ins. Co., 83 N.E.3d 1027, 1035, appeal denied, 93 N.E.3d 1043 (Ill. 2017) ("direct payment obligations . . . including the interest required to be paid by section 8.2(d)(3), are among the many other provisions in the Act designed to encourage the 'prompt' payment of compensation") (emphasis added). To effectuate that goal, if an employer has insured its workers' compensation liability in an insurer, then the insurer must be responsible for any interest accrued on late payments.
The Court of Appeals also held—as it did in Marque Medicos Fullerton, LLC v. Zurich American Insurance Co. and as recognized by this Court—that there is no implied private right of action under the IWCA for medical providers. See Marque Medicos Fullerton, LLC v. Zurich American Ins. Co., 83 N.E.3d 1027 (Ill. App. Ct. 2017). Finally, and most relevant here, the Court of Appeals rejected the providers' attempt to sue Liberty under the ICFA.
"The preexisting duty rule provides that where a party does what it is already legally obligated to do, there is no consideration as there is no detriment." Marque Medicos Fullerton, LLC v. Zurich Am. Ins. Co. , 2017 IL App (1st) 160756, ¶ 65, 416 Ill.Dec. 190, 83 N.E.3d 1027, 1043 (internal quotation marks omitted). Thus, "[c]onsideration cannot flow from an act performed pursuant to a preexisting legal duty."
There is, however, Illinois case law suggesting that a preexisting duty means that a contractual promise to carry out that duty may not be challenged as a breach of contract. See, e.g.,Marque Medicos Fullerton, LLC v. Zurich Am. Ins. Co. , 2017 IL App (1st) 160756, ¶ 67, 416 Ill.Dec. 190, 83 N.E.3d 1027, 1044 (1st Dist. 2017) (citation omitted) ("Plaintiffs’ own complaints therefore concede that defendants’ purported consideration for any asserted implied-in-fact contracts was to be performed pursuant to preexisting legal duties.
"All four factors must be met before a private right of action will be implied." Marque Medicos Fullerton, LLC v. Zurich American Insurance Co., 2017 IL App (1st) 160756, ¶ 57. Whether a statute creates an implied private right of action is an issue of statutory interpretation and, thus, presents a question of law that we review de novo.
Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 23 (quoting McInerney v. Charter Golf, Inc., 176 Ill.2d 482, 487 (1997)). Valid consideration must exist on the part of both parties. Marque Medicos Fullerton, LLC v. Zurich American Insurance Co., 2017 IL App (1st) 160756, ¶ 65." 'Any act or promise which is of benefit to one party or disadvantage to the other is a sufficient consideration to support a contract.'" Carter, 2012 IL 113204, ¶ 23
¶ 6 The defendants filed a motion to dismiss under section 2-619 alleging, inter alia, that the plaintiff lacked standing to sue as there was no contractual relationship between the plaintiff and the defendants and that the Act did not create a private right of action for benefits to medical services providers, citing Marque Medicos Fullerton, LLC v. Zurich American Insurance Co., 2017 IL App (1st) 160756. The motion further alleged that the plaintiff had accepted payment of the $43,486.99, which was tendered as an accord and satisfaction of all obligations.