The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT THOMPSON, individually
and on behalf of similarly situated
individuals,
Plaintiff, Case No. 24-CV-01096-SPM
v.
BANNER LIFE INSURANCE
COMPANY,
Defendant.
MEMORANDUM AND ORDER
McGLYNN, District Judge:
This matter comes before the Court for consideration of a Motion to Dismiss
for Failure to State a Claim (Doc. 19) filed by Defendant Banner Life Insurance
Company (“Banner”). Having been fully informed of the issues presented, this Court
GRANTS Banner Life Insurance’s Motion to Dismiss.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Robert Thompson filed the instant suit in the Circuit Court for the
Fourth Judicial Circuit in Effingham County, Illinois on October 30, 2023. See
Thompson v. Banner Life Ins. Co., No. 023LA32 (Ill. Cir. Ct.). Thompson brought this
action as a putative Class Action Complaint on behalf of himself and other similarly
situated individuals who applied for life insurance coverage within the applicable
limitations period. (See Doc. 1, Ex. B). Thompson alleges that, when applying for life
insurance with Defendant Banner, he was required to “answer questions concerning
his family medical history, i.e. the manifestation of diseases or disorders in his family
members. Such questions included whether Plaintiff’s family members had a history
of high blood pressure, cancer, diabetes, heart disease, and other medical conditions.”
(See Doc. 1, Ex. B, ¶ 28). Thompson argues that this information is considered
“genetic information” under the auspices of the Illinois Genetic Information Privacy
Act, 10 ILL. COMP. STAT. 513/1 et seq. (“GIPA”) such that he is entitled to recovery of
statutory damages. (See id., ¶¶ 29–32).
Banner removed this case to federal court pursuant to 28 U.S.C. § 1446 on
April 12, 2024. (See Doc. 1). Banner first filed a Motion to Dismiss for Failure to State
a Claim on May 31, 2024. (Doc. 13). Plaintiff Thompson filed an Amended Complaint
(Doc. 16) in accordance with Federal Rule of Civil Procedure 15(a)(1) on June 13,
2024. (See Doc. 17). Banner filed the instant Motion on June 27, 2024. (See Docs. 19,
20). Plaintiff Thompson filed a Memorandum in Opposition on July 11, 2024 (Doc. 21)
to which Banner replied (Doc. 22).
APPLICABLE LAW AND LEGAL STANDARDS
In analyzing a motion to dismiss for failure to state a claim filed pursuant to
Federal Rule of Civil Procedure 12(b)(6), this Court must determine whether or not
the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court of Appeals
for the Seventh Circuit has explained that “‘[p]lausibility’ is not a synonym for
‘probability’ in this context, but it asks for ‘more than a sheer possibility that a
defendant has acted unlawfully.’” Bible v. United Student Aid Funds, Inc., 799 F.3d
633, 639 (7th Cir. 2015) (quoting Olson v. Champaign County, 784 F.3d 1093, 1099
(7th Cir. 2015)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations . . . [the] [f]actual allegations must be
enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S.
at 555.
District courts are required by the Court of Appeals for the Seventh Circuit to
review the facts and arguments in Rule 12(b)(6) motions “in the light most favorable
to the plaintiff, accepting as true all well-pleaded facts alleged and drawing all
possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008). “The purpose of a motion to dismiss is to test the sufficiency of the
complaint, not to decide the merits.” Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990).
Because the instant suit was filed in Illinois and both parties have applied
Illinois law, the Court applies the same. See Ryerson Inc. v. Fed. Ins. Co., 676 F.3d
610, 611–12 (7th Cir. 2012).
ANALYSIS
GIPA was passed in 1998 as a means to serve the public interest via limitations
on how information gleaned from genetic testing could be used because such
information “can be valuable to an individual.” GIPA § 5 (1998). Thompson brings
this action purportedly pursuant to § 20(b) of GIPA, which states that “[a]n insurer
shall not use or disclose protected health information that is genetic information for
underwriting purposes.” Thompson argues that “Plaintiff and the Class underwent
medical physical exams performed by healthcare providers, during which questions
regarding their family medical history, i.e. the manifestation of a disease or disorder
in family members were asked” and that “the third-party healthcare providers
collected Plaintiff’s and the other Class members’ protected health information that
is genetic information.” (Doc. 16, ¶¶ 53–54). Thompson alleges that “Defendant then
obtained and used this information for underwriting purposes by, inter alia, using it
to assess Plaintiff’s and the Class members’ eligibility for life insurance coverage and
compute their premiums” and, therefore, that “Defendant used Plaintiff’s and the
Class members’ genetic information in violation of the GIPA.” (Id., ¶¶ 55–56).
Thompson argues that because “[t]he information obtained from Plaintiff and the
Class by Defendant is the type of information protected by GIPA[,] . . . Plaintiff and
the other Class members have been aggrieved by Defendant’s above violations of their
statutorily protected rights to privacy in their genetic information as set forth in
GIPA.” (Id., ¶¶ 58–59 (citing GIPA § 10)). He argues that these violations entitle him
and the putative class members to “statutory damages of $15,000 for each reckless or
intentional violation of GIPA and, alternatively, damages of $2,500 for each negligent
violation of GIPA.” (Id., ¶ 60 (citing GIPA § 40(a)(1)–(2)).
In its Memorandum of Law in Support of the Motion to Dismiss (Doc. 20),
Banner argues that Thompson has misread and misapplied GIPA because life
insurance was not included within the definition of “insurers.” (See id., pp. 7–19).
Banner argues that “[t]his is a straightforward statutory interpretation case” because
Thompson “would have this Court apply Section 20(b) of [GIPA] to life insurance
companies despite the plain language of the statute—clearly making known that it
does not apply to life insurers.” (Id., p. 7). Banner argues that “this Court must predict
how the Illinois Supreme Court would apply the statute.” (Id., p. 11 (citing Pisciotta
v. Old Nat’l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007))). Banner states that “[t]he
Illinois Supreme Court has held, as a fundamental canon of statutory construction,
that “[t]he primary goal in interpreting a statute is to ascertain and give effect to the
intent of the legislature.” (Id. (quoting People v. Stewart, 215 N.E.2d 752, 756 (Ill.
2022))). Banner argues that the language “other activities related to the creation,
renewal, or replacement of a contract of health insurance or health benefits” indicates
that the Illinois Legislature intended to limit GIPA to health insurers only. (Id., p. 12
(quoting GIPA § 20(b)(4))). Banner also cites Seventh Circuit and Supreme Court
caselaw indicating that a subsequent part of a statute can refer back to an earlier
provision. (Id., p. 13 (citing Sw. Airlines Co. v. Saxon, 596 U.S. 450, 459 (2022); Kleber
v. CareFusion Corp., 914 F.3d 480, 482 (7th Cir. 2019))). Banner also argues that “the
definition of ‘protected health information’ limits Section 20(b)’s regulatory scope to
insurers who use information for underwriting purposes that was ‘created or received
by a health care provider, health plan, employer, or health care clearinghouse.’” (Id.,
p. 13 (citing GIPA § 10; 45 C.F.R. § 160.103)).
Besides the text of the statute itself, Banner also looks to GIPA’s legislative
history. (See id., p. 15). Stating that “[t]he Illinois statute in question has been in
force for many years,” Banner argues that “[i]n 1997, when GIPA was proposed,
GIPA’s sponsors in the Illinois Senate and Illinois House of Representatives stated
unequivocally that life insurance was excluded from GIPA’s regulatory scope.” (Id.
(citing S. Tr. 90-26, Reg. Sess., at 44 (Ill. 1997); S. Tr. 90-27, Reg. Sess., at 142 (Ill.
1997); H.R. Tr. 90-43, Reg. Sess., at 184, 188–89, 190–91 (Ill. 1997))). Banner states
that “Public Health Act 98-1046 amended GIPA to add the General Assembly’s
express finding that ‘[l]imiting the use or disclosure of, and requests for, protected
health information to the minimum necessary to accomplish an intended purpose,
when being transmitted by or on behalf of a covered entity under HIPAA, is a key
component of health information privacy.’” (Id., pp. 15–16 (quoting 2014 Ill. Legis.
Serv. P.A. 98-1046 (H.B. 5925) (emphasis added))). Banner argues that this means
that Section 20(b) was not meant to apply to life insurers. (See id., p. 16). Because
“legislatures do not ‘hide elephants in mouseholes,’” Banner argues that “there is only
one plausible conclusion: Section 20(b) was intended to protect the disclosure of
information protected under HIPAA in connection with the underwriting of health
insurance policies and health benefit[s]. Section 20(b) was not intended to regulate
the underwriting of life insurance policies.” (Id., p. 17 (quoting People ex rel. Ryan v.
Agpro, Inc., 824 N.E.2d 270, 274 (Ill. 2005))).
Finally, Banner argues that “[a]ccording to Plaintiff’s construction of Section
20(b), in 2015, the Illinois General Assembly prohibited life insurers from conducting
medical examinations or considering family medical history when issuing life
insurance policies.” (Id., p. 18). “For over 125 years,” Banner argues, “family medical
history has been recognized in Illinois as material to the risk involved in underwriting
life insurance policies. (Id. (citing Bloomington Mut. Life Ben. Ass’n v. Cummins, 53
Ill. App. 530, 539 (1894))). Banner argues that “Plaintiff’s construction of Section
20(b), if correct, would have a widespread impact on life insurance markets. However,
in the nine years and counting since the General Assembly enacted Section 20(b), the
sale of life insurance in Illinois has continued as normal.” (Id., p. 19).
In response, Thompson argues that “Defendant’s argument is contrary to the
plain language of the statute and the fact that while the Illinois Legislature could
have explicitly limited Section 20(b) to just health insurance policies as it did in other
sections, it did not do so.” (Doc. 21, p. 5). Thompson argues that “based on the plain
text of 410 ILCS 513/20(b), the Court’s inquiry should not be whether GIPA applies
to life insurance or not – there are no limitations in the language to suggest to the
contrary – but whether the ‘protected information that is genetic information’, as
defined by HIPAA, was unlawfully used by an ‘insurer’ as stated in 410 ILCS
513/20(b).” (Id., p. 7). To this point, Thompson argues first that “there is no limiting
language in Section 20(b) that it only applies to health insurance.” Thompson argues
that “the rule [Banner] attempts to invoke is the ‘reverse ejusdem generis’ which
means that in any given sentence that has a list of items, then any catch-all provided
at the end applies to each of the items listed before it.” (Id., p. 9). Thompson argues
that “Defendant does not cite to any case law how this rule would apply to separate
and unique provisions like each of the subsections of 20(b)(1)–(4), where each
subsection has a distinct and unique example of an ‘underwriting purpose.’” (Id.). He
also argues that “Defendant fails to explain how these ‘underwriting’ provisions in
the context of health insurance are any different in the context of life insurance.”
(Id.). Thompson argues that “[l]ooking at the clear definition provided by HIPAA,
under Plaintiff’s well-pled allegations it is clear that Defendant’s third-party
healthcare provider engages in the provisioning of health care services including, for
example, providing diagnostic services to assess the physical condition of an
individual, as is alleged here by Plaintiff.” (Id., p. 10).
Next, Thompson argues that “[w]hile Defendant largely dismiss[es] the 2014
amendment to GIPA as nothing more than a formality to update the laws to be
coextensive with HIPAA, the amendment actually expanded the scope of the statute
so that it would now also regulate ‘covered entities,’ ‘health care operations,’ ‘health
care providers,’ and other health-related persons and entities defined by and
regulated by HIPAA.” (Id., p 12 (citing Doc. 20, pp. 9–10)). He argues that “the
Legislature’s intent, based on the statutory text, was to only adopt these definitions
for the purposes of GIPA, rather than to limit the applicability of GIPA to only HIPAA
covered-entities as Defendant wrongfully suggests.” (Id., p. 13 (citing Doc. 20, pp. 9–
10)). Thompson states that he “is not bringing any claims under HIPAA, and as
discussed above, GIPA only borrows definitions from HIPAA. Further, if the Illinois
Legislature wanted to limit Section 20(b) to just HIPAA ‘covered-entities’, it would
have limited Section 20(b) in the same manner as it limited 20(a) and 20(c).” (Id., p.
13). “Instead, Section 20(b) only borrows HIPAA’s definition of ‘protected health
information’ and ‘genetic information’ and nothing in GIPA suggests that 20(b) only
applies to HIPAA-regulated entities.” (Id.). Thompson argues that “[i]f the Illinois
Legislature intended to limit 513/20(b) to just a health plan it would have said so.”
(Id., p. 14 (citing Bd. of Educ. Of Richland Sch. Dist. No. 88a v. City of Crest Hill,
2020 IL App (3d) 190225, ¶ 33, aff’d, 2021 IL 126444, ¶ 33; Indian Valley Golf Club,
Inc. v. Vill. of Long Grove, 135 Ill. App. 3d 543, 552 (2d Dist. 1985))).
Thompson also argues that “the new proposed amendments only demonstrate
the Legislature’s intent that GIPA’s protections against life insurers using genetic
information, as Section 20(b) already provides, should be further expanded to section
(a), section (c), and a new proposed section (f).” (Id., p. 15). Finally, Thompson argues
that Banner’s argument that because “life insurance application forms with questions
about family medical history have been regularly approved for use within the state
of Illinois, GIPA must necessarily be inapplicable to life insurers” is belied by the
plain text of the statute. (Id., p. 16).
In its Reply (Doc. 22), Banner emphasizes that “[t]he list in Section 20(b) is
precisely like the lists in the cases cited in Banner Life’s Memorandum of Law” and
“[a]ccordingly, the catchall phrase in Section 20(b) modifies and limits what comes
before it, and in this instance the ‘underwriting purposes’ regulated by Section 20(b)
apply to the underwriting of contracts of health insurance or health benefits.” (Id., p.
5 (citing Doc. 20, pp. 12–13)). Banner argues that this Court should follow the holding
in Reynolds v. State Farm Life Ins. Co., No. 2023-LA-000465 (Ill. Cir. Ct. June 5,
2024), in which the trial judge concluded that “[t]he Court finds that Section 20(b)
does not apply to life insurance underwriting. Taken as a whole, read in context,
giving affect to all of its provisions, I don’t believe it applies to life insurers.” (Doc. 22,
Ex. A, pp. 24–28, 35). Banner also argues that “this Court need not look to legislative
intent to interpret the language of Section 20(b)” because “the language of Section
20(b) is unambiguous.” (Id., p. 6 (citing People v. Easley, 519 N.E.2d 914, 916 (Ill.
1988)). Additionally, Banner argues that “the Illinois legislature used the word
‘insurer’ to narrow the scope of Section 20(b) to regulate only one of the seventeen
types of ‘health plans’ regulated by HIPAA.” (Id., p. 7). Banner also argues that “it is
Plaintiff’s obligation to show that the statute applies to life insurance underwriting”
and that Thompson “has the law backwards” in alleging that Banner’s argument is
“some affirmative defense.” (Id.).
Considering the above, the first question before the Court is whether or not a
family medical questionnaire qualifies as “genetic information” in accordance with
GIPA. Recall that GIPA expressly adopts the definition of genetic testing “ascribed to
it under HIPAA, as specified in 45 C.F.R. § 160.103.” GIPA § 10. Section 160.103
states that
Genetic information means: . . . (i) The individual’s genetic tests; (ii)
[t]he genetic tests of family members of the individual; (iii) The
manifestation of a disease or disorder in family members of such
individual; or (iv) Any request for, or receipt of, genetic services, or
participation in clinical research which includes genetic services, by the
individual or any family member of the individual.
The Supreme Court has expressly stated that “[w]hen Congress takes the trouble to
define the terms it uses, a court must respect its definitions as ‘virtually conclusive.’”
Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 59 (2024) (quoting
Sturgeon v. Frost, 587 U.S. 28, 56 (2019)); see Garland v. Cargill, 602 U.S. 406, 428
(2024) (footnote omitted) (“[I] is never our job to rewrite . . . statutory text under the
banner of speculation about what Congress might have done.” (quoting Henson v.
Santander Consumer USA Inc., 582 U.S. 79, 89 (2017)).
As an additional data point, the U.S. Equal Employment Opportunity
Commission states that genetic information “includes information about an
individual’s genetic tests and the genetic tests of an individual’s family members, as
well as information about the manifestation of a disease or disorder in an individual’s
family members (i.e. family medical history).” Genetic Information Discrimination,
U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/genetic-information-
discrimination (last visited July 16, 2024). “Family medical history is included in the
definition of genetic information because it is often used to determine whether
someone has an increased risk of getting a disease, disorder, or condition in the
future.” Id. Thus, it is clear that “genetic information” by definition includes the
family medical questionnaires issued by Banner to Thompson.
However, when moving to the provision hotly debated by the parties, it is clear
that GIPA was meant to apply to accident insurance and to health insurance and not
to life insurance. First, the definitions section of the statute states that “‘Insurer’
means (i) an entity that is subject to the jurisdiction of the Director of Insurance and
(ii) a managed care plan.” GIPA § 10. Note that this definition does not state that an
insurer must be either subject to the jurisdiction of the Director or a managed care
plan; it states that an insurer must be subject to both. “Managed care plan” is defined
as “a plan that establishes, operates, or maintains a network of health care providers
that have entered into agreements with the plan to provide health care services to
enrollees where the plan has the ultimate and direct contractual obligation to the
enrollee to arrange for the provision of or pay for services.” Id. This definition does
not include life insurance providers, who are not governed by a managed care plan.
Moving to the hotly debated section of GIPA at issue (§ 20), the plain language
of the statute states that “[a]n insurer may not seek information derived from genetic
testing for use in connection with a policy of accident and health insurance.” GIPA §
20(a). This focus is carried through into section 20(c). See id. § 20(c) (“An insurer may
consider the results of genetic testing in connection with a policy of accident and
health insurance if the individual voluntarily submits the results and the results are
favorable to the individual.”). While §§ 20(b) and 20(d) use the word “insurer” without
reference to “accident and health insurance” as written in §§ 20(a) and (c), the canon
of ejusdem generis applies here to indicate that the meaning of “insurer” in §§ 20(b)
and 20(d) is limited to “accident and health insurance” only. See, e.g., United States
v. Sec. Mgmt. Co., 96 F.3d 260, 265 (7th Cir. 1996). Moreover, even though Thompson
argues that “insurer” should have his broader definition, § 10 of GIPA expressly
defines “insurer” as including a “managed care plan.” See id. § 10. If the Illinois
Legislature had wished to include life insurers in this definition, they would have
expressly done so. Their failure to do so indicates that they did not intend for GIPA
to be applied to life insurers as Thompson alleges here. Thompson’s attempt to
expand the definition of “insurer” when the statute clearly defines it and uses the
narrow definition in multiple places borders on frivolity.
The Court notes that this lawsuit is one of various purported class action
lawsuits that have recently sought to include life insurance medical history
questionnaires within GIPA’s ambit. See Brian I. Hays & Michael J. McMorrow, New
Illinois Genetic Information Privacy Act Class Actions Against Life Insurers Bark Up
the Wrong Family Tree, EMP. BENEFIT PLAN REV., Vol. 78, Feb. 2024). Moreover, this
action is one of seven filed by the same law firm. (See Doc. 20, p. 7 n.1 (citing Anderson
v. Am. Gen. Life Ins. Co., No. 24-cv-03684 (N.D. Ill.) (motion to dismiss filed May 28,
2024); Johnson v. Pac. Life Ins. Co., No. 24-cv-01057 (N.D. Ill.) (motion to dismiss
filed Apr. 11, 2024); Miller v. Mass. Mut. Life Ins. Co., No. 24-cv-00982 (N.D. Ill.)
(voluntarily dismissed by plaintiff on June 4, 2024); Thompson v. Prudential Ins. Co.,
23-cv-03904 (S.D. Ill.) (motion to dismiss filed Mar. 27, 2024); Biesen v. Nw. Mut. Life
Ins. Co., 2023-CH-09329 (Ill. Cir. Ct.) (dismissed on Apr. 18, 2024); Reynolds v. State
Farm Life Ins. Co., No. 2023-LA-000465 (Ill. Cir. Ct.) (order issued in favor of life
insurer on Jun. 5, 2024). Like in these other lawsuits, Thompson attempts to broaden
GIPA’s scope to initiate a deluge of class action lawsuits against life insurers.
The Court is not convinced by Thompson’s arguments for a broader meaning
of “insurer.” As discussed supra, the terms in § 10 are clearly defined as excluding
life insurance and multiple provisions in § 20 expressly exclude life insurance. See
GIPA §§ 10, 20. Section 20 applies the specific bounds of “accident and health
insurance” and does not include any other forms of insurance. See id. § 20(a), (c).
Moreover, the legislative history and lack of lawsuits in the nine years since § 20(b)
was implemented indicates that Thompson’s application of GIPA was not intended.
In absence of any caselaw from the Seventh Circuit in support of Thompson’s
argument, the Court declines to vastly expand GIPA to include tort lawsuits against
life insurance companies using family medical history questionnaires like that
provided by Thompson to Banner as part of his life insurance application. If the
Illinois Legislature intended for life insurance companies to be included within the
ambit of GIPA, they would have expressly included them within §§ 10 and 20; the
failure to do so indicates that the omission was intentional.
CONCLUSION
For the reasons set forth above, Defendant Banner Life Insurance Company’s
Motion to Dismiss (Doc. 19) is GRANTED. Because Plaintiff Thompson cannot state
a claim for relief under the Illinois Genetic Information Privacy Act and, therefore,
because further amendment of his Complaint would be futile, this action is
DISMISSED with prejudice. The Clerk of Court is DIRECTED to close this case
on the Court’s docket.
IT IS SO ORDERED.
DATED: August 5, 2024
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge