Plaintiff, Valerie Rogalla, appeals the order dismissing with prejudice her second-amended class-action complaint(complaint) pursuant to sections 2-615 and 2-619(a)(9) of theCode of Civil Procedure. 735 ILCS 5/2-615, 2-619(a)(9) (West2000). Plaintiff argues the circuit court erred in dismissingher complaint. We affirm.

I. BACKGROUND

On April 5, 2002, plaintiff filed her complaint againstdefendants, Christie Clinic, P.C. (Christie Clinic), PersonalCareHealth Management, Inc. (PersonalCare), and Trover Solutions,Inc., f/k/a Healthcare Recoveries, Inc. (Trover). In her complaint, plaintiff alleges the following.

PersonalCare is a corporation that operates a healthmaintenance organization (HMO), of which plaintiff was a member. PersonalCare and Christie Clinic had entered a medical servicesagreement (Agreement), under which Christie Clinic agreed toprovide services to PersonalCare's HMO members. According to theAgreement, Christie Clinic would seek no payment fromPersonalCare HMO members other than copayments and deductibles.

On December 5, 1994, plaintiff suffered severe injurieswhen her vehicle collided with a truck driven by Rodney Lippolt. Plaintiff received treatment for her injuries from ChristieClinic, and she paid all relevant copayments and deductibles.

Because the Agreement was a "capitation" contract,PersonalCare made no payments to Christie Clinic for the medicalservices provided to plaintiff following the accident other thanthe capitation fee. In addition to the services it providedplaintiff, Christie Clinic was obligated to pay, and did pay,third-party health-care providers for services rendered toplaintiff.

On February 23, 1995, plaintiff and her husband filedsuit against Emery Air Freight Corporation and Lippolt in thecircuit court of Champaign County (case No. 95-L-266). Theseparties later settled.

Later, PersonalCare asserted a lien in the amount of$149,865 against plaintiff's settlement recovery. PersonalCare,in its lien, stated the amount was for "medical expenses paid." On August 12, 1999, Trover represented by letter PersonalCarepaid $132,659.42 on behalf of plaintiff and PersonalCare was owedthat amount. According to plaintiff, these amounts includecharges from Christie Clinic and third-party medical providersthat PersonalCare had no obligation to pay and either did not payor paid at a discounted rate.

On September 21, 1999, plaintiff paid Trover $79,289.84in reliance on the representations from Trover and PersonalCare.

On July 22, 1999, Christie Clinic also claimed a lienagainst plaintiff's settlement. Christie Clinic asserted a lienof $28,750.50, which included charges accounted for inPersonalCare's lien.

Each defendant, alleging pleading deficiencies, movedto dismiss the second-amended complaint. At oral argument on themotions, the trial court granted the section 2-619 motions todismiss. Later, by docket entry, the circuit court granted allmotions to dismiss. Plaintiff appeals.

II. ANALYSIS

Defendants separately moved to dismiss the countsagainst them. Defendants argued the counts were insufficientunder sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619 (West2000)). We review de novo appeals from section 2-615 and 2-619dismissals and consider whether a dismissal was proper as amatter of law. See Glisson v. City of Marion, 188 Ill. 2d 211,221, 720 N.E.2d 1034, 1039 (1999); Thomas v. Hileman, 333 Ill.App. 3d 132, 136, 775 N.E.2d 231, 234 (2002).

We turn to the individual claims.

A. Claims Against Christie Clinic

Plaintiff asserts two claims against Christie Clinic: a third-party beneficiary, breach-of-contract claim and a fraudclaim. Christie Clinic moved to dismiss these claims under bothsection 2-615, for failure to state a claim, and section 2-619. We first consider Christie Clinic's section 2-615 motion todismiss.

For a section 2-615 motion to dismiss, we accept theallegations in the complaint as true. Ziemba v. Mierzwa, 142Ill. 2d 42, 47, 566 N.E.2d 1365, 1366 (1991). The complaintincludes not only the complaint itself, but also exhibits attached to it. Mars, Inc. v. Heritage Builders of Effingham,Inc., 327 Ill. App. 3d 346, 355, 763 N.E.2d 428, 437 (2002). Ifallegations in the complaint conflict with the exhibit, theexhibit controls. Mars, 327 Ill. App. 3d at 355, 763 N.E.2d at437. We examine the complaint to "determine whether the allegations ***[,] construed in a light most favorable to the plaintiff, are sufficient to establish a cause of action upon whichrelief may be granted." Stroger v. Regional TransportationAuthority, 201 Ill. 2d 508, 516, 778 N.E.2d 683, 688 (2002).

1. Third-Party Beneficiary

Count I asserts a third-party beneficiary, breach-of-contract claim against Christie Clinic. Plaintiff contends theAgreement between Christie Clinic and PersonalCare gave herthird-party beneficiary rights, because it was created with theintent to confer a direct benefit upon plaintiff and other classmembers. Count I further alleges Christie Clinic breached theAgreement by violating the hold-harmless provision, which, shecontends, prohibits Christie Clinic from seeking payments otherthan deductibles and copayments from HMO members, includingplaintiff. Plaintiff alleges Christie Clinic breached theAgreement by (1) collecting or attempting to collect from plaintiff and other class members charges for services covered by theAgreement; and (2) improperly claiming liens against fundsbelonging to plaintiff and other class members. Plaintiff states"$28,750.50 [has] been tied up since August 6, 1999."

To recover as a third-party beneficiary, plaintiff mustplead facts that would establish the contract was breached. SeeSegall v. Berkson, 139 Ill. App. 3d 325, 332, 487 N.E.2d 752, 757(1985). Christie Clinic disputes plaintiff's argument and statesthe Physicians Lien Act (770 ILCS 80/1 (West 2000)) authorizesthe lien and the lien did not breach the Agreement.

The Physicians Lien Act allows physicians to attachliens upon settlements and judgments for the reasonable chargesfor the treatment provided:

"Every licensed physician practicing inthis State who renders services by way oftreatment to injured persons, except servicesrendered under the provisions of the Workers'Compensation Act or the Workers' OccupationalDiseases Act, shall have a lien upon allclaims and causes of action for the amount ofhis reasonable charges up to the date ofpayment of such damages." 770 ILCS 80/1(West 2000).Christie Clinic maintains the Agreement, when read as awhole, preserves its rights under the Physicians Lien Act. Christie Clinic points to article III, section W, the subrogationclause, and maintains this clause reserves its right "to seek torecover charges incurred as a result of providingMedical/Hospital Services which are the liability of a thirdparty." Christie Clinic further states the hold-harmless provision is not violated by the lien because the lien is an actionagainst the settlement fund, not an action against plaintiff.

Plaintiff maintains, however, the Physicians Lien Actdoes not apply. According to plaintiff, the hold-harmless clauserenders plaintiff liable for no amount of the medical servicesprovided by Christie Clinic other than copayments and deductibles, which plaintiff allegedly paid. The hold-harmless clausestates the following:

"Christie will look solely to PersonalCare for compensation for Covered Services provided to Members, except for copayments authorized by PersonalCare under the applicable Member Certificate relating to Medical Services set forth in Attachment B. *** Neither Christie, Christie Members, nor any authorized Health Services Contractor of Christie shall *** assert any claim for compensation against Members in excess of the copayments authorized by PersonalCare's HMO."

Plaintiff continues there is no debt because it hasbeen forgiven by contract. Because there is no debt, plaintiffasserts, there can be no lien. In support of her argument,plaintiff relies primarily on two cases from the Second District: N.C. v. A.W., 305 Ill. App. 3d 773, 713 N.E.2d 775 (1999), andRichmond v. Caban, 324 Ill. App. 3d 48, 754 N.E.2d 871 (2001).

Both N.C. and Richmond considered whether physicians'liens were appropriate when an insured was injured by a thirdparty. In N.C., the plaintiff was injured in an automobileaccident by the defendant and treated by Northern IllinoisMedical Center (NIMC). Plaintiff's hospital bill totaled over$22,000, but plaintiff's insurer paid NIMC $4,200, "in fullpayment *** pursuant to NIMC's contract with [the insurer]." Theplaintiff sued the defendant for damages. N.C., 305 Ill. App. 3dat 774, 713 N.E.2d at 775-76. NIMC filed a physician's lien forthe difference between the bill and the amount paid.

The Second District began with NIMC's contract with theinsurer. According to that contract, the insurer would encourageits members to obtain services from the hospital, and the hospital would bill the insurer at reduced rates. This contract alsoreleased the insured from liability for uncovered expenses,except for deductibles, coinsurance, copayments, and noncoveredservices, after the insurer paid the hospital at the agreed rate. The Second District held "the contract between NIMC and [theinsurer] extinguished all debts once plaintiff's insurer paidNIMC at the agreed rate. *** [T]he debt was extinguished pursuant to the contract [and] NIMC no longer had any putative lienrights." N.C., 305 Ill. App. 3d at 775, 713 N.E.2d at 776.

In Richmond, the Second District considered the relationship between the Hospital Lien Act (770 ILCS 35/1 (West1998)) and the hold-harmless provision of the Health MaintenanceOrganization Act (HMO Act) (215 ILCS 125/2-8(a) (West 1998)). Richmond, 324 Ill. App. 3d at 53-54, 754 N.E.2d at 875-76. Blythe, the plaintiff, was injured in an automobile accident andincurred $24,238 in medical expenses at Copley Memorial Hospital(Hospital). "At the time of the accident, Dreyer [(the administrator of the HMO policy)] directed *** policyholders to use [thehospital's] medical services, and, in exchange, [the hospital]charged Dreyer reduced rates for the services." Richmond, 324Ill. App. 3d at 50, 754 N.E.2d at 873. Knowing it would receiveless than one-third of the value of its services if it submitteda claim to Dreyer, the hospital instead "attempted to maximizeits recovery by filing a lien against Blythe's settlement proceeds." Richmond, 324 Ill. App. 3d at 52, 754 N.E.2d at 874. The court held the Physicians Lien Act permitted the hospital tofile a lien against Blythe's estate. Because of the hold-harmless provision of the HMO Act, however, the court held thehospital "had no right to 'any recourse' against Blythe or herparents except for (1) applicable co[] payments or deductiblesfor the medical services covered by petitioners' policy or (2)fees for services not covered by the policy." Richmond, 324 Ill.App. 3d at 54, 754 N.E.2d at 876.

Plaintiff concludes the Physicians Lien Act does notgive rise to a claim but allows liens when physicians seek torecover unpaid obligations. Because there were no unpaid obligations, the act of attaching the lien breached the Agreement.

Christie Clinic asserts, however, neither N.C. norRichmond involved a capitation contract between the medicalprovider and the insurer, like the Agreement here. Under acapitation contract, according to the complaint, PersonalCarepays Christie Clinic a monthly fee and Christie Clinic providesservices to PersonalCare HMO members. Christie Clinic assertsalthough it agreed not to seek payment from plaintiff, ChristieClinic preserved its rights to seek medical charges resultingfrom the actions of third parties. Christie Clinic points to thesubrogation clause of the Agreement and to our decision in FirstMidwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 701 N.E.2d1107 (1998), overruled on other grounds in Donaldson v. CentralIllinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d 314(2002).

Article III, section W, of the Agreement, thesubrogation clause, authorizes Christie Clinic to subrogateitself into the shoes of the plaintiff: "Christie andPersonalCare shall have the right to seek to recover chargesincurred as a result of providing Medical/Hospital Services whichare the liability of a third party."

In Rogers, the plaintiff, Jerry Mallady, sued thedefendants, Paul Ty Rogers and the Town of Arcola, for damagesresulting from a collision between a snowplow driven by Rogersand Jerry's automobile. See Rogers, 296 Ill. App. 3d at 419, 701N.E.2d at 1109. On appeal, the defendants argued, in part, thedamages awarded to the plaintiff should be reduced. The defendants maintained they should not have to pay the medical expensesbecause plaintiff was not liable for $377,582.92 in medicalexpenses as he was covered by HMO insurance. The plaintiffargued, however, the collateral-source rule applied. We agreed. See Rogers, 296 Ill. App. 3d at 431-32, 701 N.E.2d at 1117. Wefound "a wrongdoer should not benefit from expenditures made bythe injured party, or take advantage of contracts or otherrelations which exist between the injured party and third persons." Rogers, 296 Ill. Ap. 3d at 432, 701 N.E.2d at 1118. Thedebt of the third party continued.

The Rogers defendants alternatively argued to applysection 2-1205.1 of the Code of Civil Procedure (735 ILCS 5/2-1205.1 (West 1992)) to reduce the damages. According to section2-1205.1, "a judgment will be reduced by any amount in excess of$25,000 of the benefits provided for medical or hospital charges,but such reduction does not apply to the extent that there is aright of recoupment through subrogation, lien, or otherwise." Rogers, 296 Ill. App. 3d at 433, 701 N.E.2d at 1118. We agreedwith the plaintiff's argument that because the costs were subjectto recoupment under the PersonalCare HMO agreement, the reductionunder section 2-1205.1 did not apply. Rogers, 296 Ill. App. 3dat 433, 701 N.E.2d at 1118.

The Rogers HMO agreement provided the following:

"'IX. RIGHT OF REIMBURSEMENT. Forbenefits provided by PersonalCare under thiscertificate, PersonalCare shall be entitledto reimbursement and shall succeed to anyright of recovery *** against a third partyresponsible for the member incurring benefits.

* * *

The member, or any acting on his behalf,agrees:

* * *

D. That PersonalCare:

1. Shall have a lien on all funds recovered in connection to the loss to theextent of its payment ***.'" (Emphasis inoriginal.) Rogers, 296 Ill. App. 3d at 433-34, 701 N.E.2d at 1118.

We rejected the Rogers defendants' argument that the"payment" was limited to the capitation payment because"PersonalCare would have made this payment even if Jerry had notreceived any treatment." Instead, we recognized the medicalservices were obviously "not cost-free." Rogers, 296 Ill. App.3d at 434, 701 N.E.2d at 1119. We then determined the amountChristie Clinic allocated toward plaintiff's treatment was the"reasonable and customary medical expenses 'paid' by PersonalCareto the hospitals for [plaintiff's] treatment," as determined byan allocation of the capitation payment to plaintiff's treatment. Rogers, 296 Ill. App. 3d at 434, 701 N.E.2d at 1119. We concluded "PersonalCare's payments to Covenant and Christieconstitute[d] 'payments' subject to recoupment." Rogers, 296Ill. App. 3d at 434, 701 N.E.2d at 1119.

Neither N.C., Richmond, nor Rogers is directly on pointto the facts of this case, but the analysis in Rogers applieshere. Rogers clearly establishes the debt or obligation of thetortfeasor is not excused by a capitation payment by the HMOinsurer to the medical provider. Rogers also establishes thatthe amount of the debt of the tortfeasor is measured not by theHMO member's portion of the monthly or yearly capitation paymentbut by "the amount of reasonable and customary medical expenses'paid'" from the overall capitation payment. Rogers, 296 Ill.App. 3d at 434, 701 N.E.2d at 1119.

Plaintiff correctly asserts Rogers concerns an HMOagreement and not a medical services agreement, like the Agreement here. This distinction, however, is not important. What welearn from Rogers, and what is relevant here, are two things: (1) the obligation by the third-party tortfeasor is not forgivenor lessened by HMO coverage; and (2) the provider may recouppayments incurred as a result of the third party. This is thetortfeasor's debt to plaintiff and the provider, it is not theplaintiff's debt.

The Agreement's hold-harmless provision does not limitChristie Clinic's ability to seek a lien only to the amountsChristie Clinic could obtain from the HMO member. In the Agreement, Christie Clinic reserved its rights under the PhysiciansLien Act to subrogate the claims of plaintiff. Plaintiff arguesthe subrogation right is an obligation improperly imposed onplaintiff, a third-party beneficiary. The subrogation clause,however, does not give Christie Clinic a right of subrogation itdid not have before. Instead, the clause reserves ChristieClinic's statutory right to seek relief from third-party tortfeasors.

We agree with the circuit court's analysis of N.C. andhold to adopt N.C. would be inconsistent with the principles setforth in Rogers:

"I think that the position taken in N.C.,quite frankly *** is simply inconsistent withour entire theory of tort recovery in personal injury cases and the collateral[-]source rule. It does seem to me that thereis an irreconcilable, logical tension herebetween the situation in which a plaintiff isquite properly allowed to obtain a statementof services from a medical provider and utilize that in negotiating a settlement, or forthat matter, in proving the damages to ajury; that the jury is allowed to considerthat sum which reflects the fair, reasonable,and customary charges in the community forthose services in assessing damages and returning a verdict, but then we turn aroundand we tell the people that provided thoseservices, you cannot recover against that. Then the entire theory and rationale fordamages seems to suffer a bit of a setback[.]

* * *

*** [U]nder the N.C. case then, theservice provider can't possibly recover because they have forgiven [the debt]; they'vedone the right thing and forgiven the debt,therefore there's no debt for the physician'slien to attach to, and the tortfeasor ends upwith a windfall."

This approach makes sense. The tortfeasor causes aninjury that must be treated. Christie Clinic provides treatmentto plaintiff--treatment it would not have had to provide absentthe actions of the tortfeasor. Under plaintiff's theory,Christie Clinic then loses resources because of the fault of thetortfeasor but then cannot recover those resources. If plaintiffrecovers the reasonable value of these services, then ChristieClinic as the provider of those services should be able torecover for the amounts it was wronged. Otherwise, plaintiffreceives a windfall at Christie Clinic's expense, something thePhysicians Lien Act and general tort principles would not allow. We also note the Physicians Lien Act is not an actionagainst plaintiff and does not violate the hold-harmless provision of the Agreement. Although no published decision hasconsidered whether a physician lien is an action against a fundor a party, the Illinois Supreme Court has considered a similarlien, an attorney's lien, and found the lien was an actionagainst the settlement fund and not one against the originalplaintiff.

In People v. Philip Morris, Inc., 198 Ill. 2d 87, 90,93, 759 N.E.2d 906, 908-09, 910 (2001), Illinois Special Counsel,who was appointed to litigate the State's tobacco claims, attached a lien under section 1 of the Attorneys Lien Act (770 ILCS5/1 (West 1998)) against the tobacco settlement fund. Thecircuit court of Cook County ordered the State and tobaccodefendants to deposit 10% of settlement payments into an accountpending a decision on the lien petition. Philip Morris, 198 Ill.2d at 93, 759 N.E.2d at 910. The State opposed the petition,arguing the circuit court lacked subject-matter jurisdiction overthe lien proceeding because the lien was an action against theState. The circuit court certified the following question forappeal:

"'Does the [c]ircuit [c]ourt have jurisdiction to adjudicate a petition under the Attorney's Lien Act brought by counsel for theState of Illinois, against the proceeds of asettlement, where the State of Illinois wasthe plaintiff in the underlying action andwhere the settlement funds have never comeinto the possession or control of theState?'" Philip Morris, 198 Ill. 2d at 93,759 N.E.2d at 910.

The Philip Morris court rejected the State's argumentthat the attorney's lien was a breach of contract action againstthe State. The court held "[t]he attorney's only interest is inthe proceeds of the litigation or its settlement." PhilipMorris, 198 Ill. 2d at 97, 759 N.E.2d at 913. The court held,"In sum, [the] lien proceeding is not a claim against the Stateof Illinois. Rather, it is a statutory claim against a fund ofmonies to be paid by private defendants." Philip Morris, 198 Ill.2d at 102, 759 N.E.2d at 915.

The analysis equally applies here. As alleged,Christie Clinic's only interest is in the proceeds of the settlement, and Christie Clinic's lien is "a statutory claim against afund of monies to be paid" by third-party tortfeasors, not aclaim against plaintiff. Therefore, Christie Clinic's allegedactions do not violate Christie Clinic's agreement not to seekfunds from HMO members in the hold-harmless provision of theAgreement.

The allegations as pleaded thus do not establish abreach of the Agreement. Plaintiff has therefore failed to pleadan essential element of her cause of action. We therefore affirmthe circuit court's grant of the section 2-615 motion to dismisscount I of plaintiff's second-amended complaint.

Having affirmed the dismissal of count I on section 2-615 grounds, we need not consider Christie Clinic's section 2-619(a)(9) motion in regards to count I.

2. Fraud

In count II, plaintiff asserts a claim of fraud againstChristie Clinic. Plaintiff contends Christie Clinic collectedand continued to collect from PersonalCare HMO members with theintent plaintiff and the class rely on one or more of the following acts or omissions: (1) Christie Clinic failed to disclose tothe plaintiff or class members certain material terms of thehealth-care contract with PersonalCare, including the hold-harmless clause and the fact the contract is a capitation contract; and (2) Christie Clinic, knowing it to be false, stated itpaid third parties and was entitled to reimbursement. Plaintiffand the class relied upon these representations or omissions inpaying Christie Clinic amounts they would not have paid had theyknown of the nondisclosed hold-harmless clause and capitationprovisions of the health-care contract. Plaintiff alleges sheand the class were injured by having made payments to ChristieClinic or by Christie Clinic's tying up use of monies by liens.

Christie Clinic moved to dismiss this claim undersection 2-615 and argued plaintiff failed to state her fraudclaim. We agree.

It is well settled fraud claims must be pleaded withparticularity. See Small v. Sussman, 306 Ill. App. 3d 639, 646,713 N.E.2d 1216, 1221 (1999). Here, no particular factualallegations link the alleged misrepresentations or omissions tothe alleged injury. The only particular alleged harm inflictedby Christie Clinic is the "tying up" of the amounts in thephysician lien. However, nothing plaintiff did in "reliance" onthe misrepresentations or omissions resulted in the lien. Plaintiff alleged "[she] and the class members relied upon saidrepresentations or omissions in making payment to DefendantChristie," but this allegation is not particular enough. Thereare no specific factual allegations plaintiff herself made anypayments to Christie Clinic as a result of the alleged misrepresentations or omissions. Indeed, the allegation itself iscontradicted by the more specific damages allegation, whichasserts plaintiff's only damages were loss of the use of the$28,750.50 subject to the lien. For this more particular damagesallegation, we cannot see how any of plaintiff's alleged actionsresulted in her damages.

In her appellant brief, plaintiff now asserts hercomplaint alleges fraud by Christie "in persuading plaintiff topart with over $79,000." Plaintiff has not alleged she relied onChristie Clinic's representations or omissions in paying Troveror PersonalCare $79,000. Nor has plaintiff alleged ChristieClinic received payments and intended to deceive plaintiff intopaying Trover or PersonalCare $79,000. In fact, in paragraph 23of the complaint, plaintiff asserts she paid Trover over $79,000in reliance on representations from Trover and PersonalCare. Wenote paragraph 23 says "Christie," but this reference appears tobe a typographical error. In paragraph 23, plaintiff referencesexhibit B to the complaint. Exhibit B is the lien asserted byPersonalCare. Nowhere in exhibit B does Christie Clinic assertanything. Thus, even if the reference to Christie Clinic was nota typographical error, because there is a conflict between theallegation and the exhibit, the exhibit controls. Mars, 327 Ill.App. 3d at 355, 763 N.E.2d at 437. Plaintiff has not pleaded sherelied on any statements or omissions by Christie Clinic inparting with her $79,000.

Plaintiff has failed to plead sufficiently a fraudclaim against Christie Clinic. We affirm the section 2-615dismissal of count II, and we need not address Christie Clinic'ssection 2-619 motion regarding count II.

B. Claims Against PersonalCare

Plaintiff claims PersonalCare wrongfully secured a lienon her settlement and wrongfully sought and procured a settlementof its claim from her. Plaintiff asserts three claims againstPersonalCare: third-party beneficiary breach of contract, fraud,and unjust enrichment. In count III of the complaint, plaintiffcontends PersonalCare breached the Agreement with Christie Clinicby (1) asserting claims greater than amounts actually paid tohealth-care providers; and (2) improperly claiming liens. Incount IV, plaintiff asserts PersonalCare committed fraud, whenit, with the intent to deceive, committed the following: (1)failed to disclose material terms of the Agreement; (2) failed todisclose it is not liable for and has not paid the charges inquestion; and (3) falsely claimed it had paid charges it had notpaid. Count V asserts an unjust enrichment claim againstPersonalCare, claiming PersonalCare was unjustly enriched byreceiving payments in excess of amounts actually paid.

PersonalCare moved to dismiss the complaint under bothsections 2-619(a)(9) and 2-615. In its section 2-619(a)(9)motion, PersonalCare asserts plaintiff's claims are barred byother affirmative matters. First, PersonalCare contends itsrelationship with plaintiff is governed by a contract, the HMOGroup Medical and Hospital Service Certificate (Certificate),which, it asserts, authorizes it to collect the reasonable valueof the medical treatment services. Second, PersonalCare assertsplaintiff's claim is barred by the doctrine of accord and satisfaction because plaintiff has settled the dispute. And last,PersonalCare maintains the arbitration clause of the Certificaterequires plaintiff's claims be arbitrated.

A complaint may be dismissed under section 2-619 "whenthe asserted claim is barred by other affirmative matter thatdefeats the claim or voids its legal effect." Turner v.Fletcher, 302 Ill. App. 3d 1051, 1055, 706 N.E.2d 514, 517(1999). The term "'affirmative matter' refers to something inthe nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions ofmaterial fact contained in or inferred from the complaint." Glisson, 188 Ill. 2d at 220, 720 N.E.2d at 1039. The term"encompasses any defense other than a negation of the essentialallegations of the plaintiff's cause of action." (Emphasis inoriginal.) Palumbo Bros., Inc. v. Wagner, 293 Ill. App. 3d 756,760, 688 N.E.2d 837, 840 (1997).

We begin by examining PersonalCare's argument theCertificate authorizes it to recoup more than plaintiff's shareof the capitation payments. PersonalCare maintains the Certificate authorizes it to secure a lien for the "reasonable cashvalue of the benefits provided in the form of services." PersonalCare points to article IX of the Certificate, whichstates "[t]hat PersonalCare *** [s]hall have a lien on all fundsrecovered in connection with the loss to the extent of itspayments" and allows, when funds are received in settlement,PersonalCare to be reimbursed by the lesser of "[t]he amount paidby PersonalCare for the loss" or "[f]ifty percent (50%) of thesettlement." PersonalCare next asserts the Certificate defines"payment made" as "reasonable cash value of the benefits providedin the form of services." PersonalCare cites Hartford Accident &Indemnity Co. v. Case Foundation Co., 10 Ill. App. 3d 115, 294N.E.2d 7 (1973), and maintains because the Certificate defines"payment made" in one part, the same definition applies throughout.

Plaintiff contends the Certificate does not apply anddisputes PersonalCare's proposed interpretation of "payments." First, plaintiff argues its claims are based not on the Certificate, but on the Agreement. Second, plaintiff states the Certificate's definition of "payment made" applies only to the sectionit is within.

Plaintiff's first argument misses the mark. As thecircuit court held, plaintiff's relationship with PersonalCare isgoverned by the Certificate. Plaintiff could not be a third-party beneficiary or have any relationship with PersonalCare orChristie Clinic absent the Certificate. Thus, its provisionsapply.

We do, however, agree the definition for "paymentsmade" does not apply throughout. We will not apply the samedefinition to the entire contract when it is clear the definitiondoes not apply throughout. Here, the terms "payment made" and"amount of the payments made" are different from the term "payments," which occurs throughout the article IX right-of-reimbursement paragraphs. Indeed, accepting PersonalCare's definition would mean the same definition would apply to the use of theword "payments" in article X, which discusses "payments" receivedby HMO members.

We have, however, interpreted the term "payment" fromarticle IX in Rogers. There, we held the term "payment" was notlimited to the plaintiff's HMO member's share of the capitationpayment, but was the amount of the total capitation paymentallocated to the treatment of that particular HMO member. SeeRogers, 296 Ill. App. 3d at 434, 701 N.E.2d at 1119. Thus, itcannot be fraud, breach of contract, or unjust enrichment forPersonalCare to accept funds greater than the amount actuallypaid for plaintiff's share of the capitation payment. We therefore affirm the circuit court's section 2-619(a)(9) dismissal ofcounts III, IV, and V of the complaint.

Neither this court nor the circuit court was asked todetermine how much Christie Clinic or PersonalCare would beentitled to from plaintiff's settlement fund. We do not make anydecision on that issue other than finding plaintiff cannot proveChristie Clinic and PersonalCare breached the Agreement, committed fraud, or were unjustly enriched by attaching their liens.

By holding plaintiff's claims are barred by an affirmative matter, we need not address PersonalCare's remaining section2-619(a)(9) arguments or its section 2-615 motion.

C. Claim Against Trover

Count VI asserts a fraud claim against Trover. Italleges Trover has collected and is attempting to collect moniesfrom PersonalCare HMO members for services provided by third-party health-care providers, even though PersonalCare is notobligated to pay and has not paid for said services. Trover,knowing the falsity of the assertion or with reckless disregardas to whether or not the assertion was true, fraudulently asserted to plaintiff and the class that PersonalCare had madepayments to health-care providers when those payments had not infact been made.

Count VI further alleged Trover made these representations with the intent to deceive plaintiff and the class intobelieving PersonalCare had paid the charges. In reliance onthese representations, count VI alleges, plaintiff and the classpaid Trover amounts neither Trover nor PersonalCare had any rightto receive.

Trover moved to dismiss count VI under section 2-619.1(735 ILCS 5/2-619.1 (West 2000)). Under section 2-619(a)(9),Trover establishes by affidavit it was an agent for PersonalCare. Trover argues it was on PersonalCare's behalf it secured the lienand sought a settlement from plaintiff. Trover maintains becausePersonalCare had a valid claim for the payments as allocated toplaintiff's treatment, the fraud claim against it must be dismissed.

Plaintiff contends Trover's motions were procedurallyimproper. Plaintiff maintains Trover's section 2-615 motionimproperly incorporated its section 2-619 motion and should bedismissed. Plaintiff also argues the section 2-615 motionimproperly combined the motion and the memorandum. We, however,need not decide whether the section 2-615 motion should bedismissed because we find the circuit court properly dismissedcount VI under section 2-619(a)(9).

In its section 2-619(a)(9) motion, Trover establishedby affidavit it acted as the agent of PersonalCare in settlingwith plaintiff's claim. Because Trover was acting asPersonalCare's agent and because we have already heldPersonalCare could assert a lien for more than the plaintiff'sshare of the capitation payment, the circuit court properlydismissed count VI.

III. CONCLUSION

We affirm the judgment of the circuit court of Champaign County in dismissing counts I and II pursuant to section 2-615 and counts III, IV, V, and VI pursuant to section 2-619(a)(9).

Affirmed. 

APPLETON and McCULLOUGH, JJ., concur.