Byard Edwards, Jr. VS Paul Larry Greer and/or Greer Insurance Services, L.L.C. and Fortis Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2076 BYARD EDWARDS JR VERSUS PAUL LARRY GREER AND OR GREER INSURANCE SERVICES L L C AND FORTIS INSURANCE COMPANY On Appeal from the 21st Judicial District Court Parish of Tangipahoa Louisiana E Docket No 2002 003896 Division Honorable Brenda Bedsole Ricks Judge Presiding SEP 1 4 2007 Byard Plaintiff Appellant Edwards Jr In Hammond LA Jenel Secrease Law Office of Byard Edwards Jr 906 C M Fagan Drive Suite A4 Proper Person Attorney for Plaintiff Appellant Byard Edwards Jr Hammond LA 70403 Donald A Hoffman Mary Ann Hoffman Wegmann Seydel LLC New Orleans Attorneys for Appellees Paul Larry reer and Defendants K Wade Trahan Attorneys Paul J Hebert Defendant Ottinger Hebert reer Insurance Services L L C LA LL C for Appellee Fortis Insurance Company 1313 W Pinhook Road P O Drawer 52606 Lafayette LA 70505 2606 CHIEF JUDGE JOAN BERNARD ARMSTRONG AD HOC BEFORE ARMSTRONG KIRBY AND BELSOME JJ Judgment 1 rendered AFFIRMED BELSOME J DISSENTS WITH REASONS and the The Honorable Joan Bernard Armstrong Chief Judge the Honorable Michael E Kirby Judge Honorable Roland L Belsome Jr Judge all members of the Fourth Circuit Court of Appeal are serving judges ad hoc by special appointment of the Louisiana Supreme Court 1 as The plaintiff appellant Byard 2006 summary judgment dismissal of his claims Larry Greer for appeal asking set forth we Fortis Company September 14 Paul against the defendants Greer Insurance Services L L C Greer and Fortis Insurance Yrt the appeals Edwards Greer Insurance The defendants answered the For the damages for frivolous appeal affirm the judgment of the trial and court reasons hereinafter deny the defendants request for damages for frivolous appeal The Insurance policy with Fortis insurance fact that his out of the claim arises plaintiffs Company reimbursed him for less medical expenses in connection with his treatment for he felt he had coverage receive on out right a out an to felt s was superior FOliis out of to network from Louisiana or The that Fortis failed policy Instead the he entitled representations to to physician The plaintiff allegations that Greer treat all doctors regardless plaintiff had bind Fortis in that a of on defendants based and that the rate plaintiff elected Texas to any in than regard a right to rely on In other words the to have received based coverage and what he would in network coverage was cancer suing for the difference between what he received pursuant is coverage as in network as apparent authority plaintiff on treatment in medical him that his Fortis coverage would of their location Greer basis because the of network named Greer and his company represented prostate expect Fortis allowed the plaintiff a reduced of network plaintiff whom the to major medical plaintiff to pay plaintiff alleges based upon his made to him is not alleging that Fortis denied according to the that the amount provisions paid was less than what legitimate and reasonable reliance by FOliis agent 1 Greer of its In addition to upon alleging a disputed material fact exists regarding the authority of Greer to bind Fortis by his representations to the nationwide coverage the plaintiff that must ambiguities undisputed rule that holder and against the insurer represented to him that rate specific or plaintiff s complaint the Fortis out of network The by Greer savings of The obtaining provider as The plaintiff does promised not contract was on is to the according specific specific any amount to in network or The deductible the fact that Greer led him distinguish between policy allege that Greer not for any believe that coverage and coverage that out of network opposed 10 000 00 plaintiff to contrary coverage to what was represented under the Fortis in network an deductible of to him policy has 20 provides reimbursement for only of the 2 500 00 only a a and reimbursement of80 further complains that at the time he book because Fortis of the United States was Greer informed him that he did coverage with Fortis was the largest insurance United States and that any doctor would be covered out in network be construed in favor of the that he 12 500 00 deductible and medical bill must compensated plaintiff contends the be construed in his favor he would be is based policy did full plaintiff had plaintiff also contends that the ambiguous and unclear and at any the effectively implying that as long considering not need a company in the as he did not go any doctor in the United States would be in network On June 13 Medical Insurance provider 2001 the specifying plaintiff signed a American LifeCare network 2 Louisiana Company Application as the for preferred who 25 July On signed 2001 Greer delivered the Fortis to the policy acknowledgment that he received the policy an plaintiff The Fortis Policy Schedule indicated that For most services the Rate of network for provider is than the The list of provider subject to change You are of network out an more PaYment for a Rate of PaYment network providers is responsible for calling the network manager verify the participation status of a provider prior to to treatment to Contrary out of network what is alleged by the plaintiff the policy while the in network of payment of 30 rate sets rate forth an of paYment is 50 The plaintiff was capital stated in bold provided also letters with a Fortis insurance card which AUTHORIZATION CALL REQUIRED 1 800 454 5105 On submitted F ortis November 7 a 2001 written request seeking am that he have Dr Slawin to perform be more nerve Prior to November 12 so that the perform to be as a a network provider sparing plaintiff s the local surgery which his treatment the 2001 my out of provider pocket expense local physician recommended the prostate surgery because Dr Slawin qualified than College of Medicine plaintiff Thank you Manning Dr Allen W the pre determination of benefits from that I be treated requesting be minimized to a advice s statement network benefit deemed Fortis for Greer have Dr Slawin considered to concluding with this I to to pursuant urologist was not Dr Slawin knew how available locally plaintiff was informed by from the Scott that 3 was faxed letter dated Depmiment of Urology at Baylor Dr Slawin is of network provider with Insurance Co Claims are paid only at out an Fortis ppo 30 with out of network 14 By letter dated November of Urology Department the 8 516 00 cost check in the a borne not week later providers 2001 sum the of by Fortis 5 961 20 to The November 20 In this context Mr gentleman consulted by the plaintiff because to question when do an evaluation of the plaintiff cancer Edwards network was had received man was of cost out Mr expert following or not provider a not he a prior network Yes On November 20 2001 Dr Slawin the asked the irrelevant because he knew the surgery that this provider Correct A whether surgery to amount was experience in standpoint of Byard Edwards selection of Doctor Slawin to perform his Mr a claim of his So from the prostate at 2001 deposed Q plaintiff s of was Willman the field the 70 surgery a a cover plaintiffs performed on the Scott sent plaintiff 39 296 99 of network Fortis provider David Willman perfonned prostate rate asked was on 14 993 93 towards paid for the surgery the surgery The the this plaintiff s following question when deposed Q reviewing the policy the bills invoices constructing the ledger your conclusion with regards to Fortis was that they paid in accordance to the terms and conditions of the policy and no further funds or benefits are owed by Fortis as best you can determine A fter at A Thus Fortis paid this time Yes with this all sums testimony the plaintiff s expert acknowledged that due the plaintiff under the policy Mr Willman went Blue Shield Blue Cross on to testify that he sold the major medical policy after 4 plaintiff the a Blue Cross plaintiff cancelled Mr Willman testified that the his coverage with Fortis Cross providers Rouge area or he furnished to the the New Orleans recalled that he informed the plaintiff was area he was plaintiff that web site for provider information in other that had the states providers it would have providers located not have plaintiff been a sure he could which but he also access the Blue Cross Manager for Insurance Services plaintiff been given Louisiana either the Baton directory of network a Directory which listed only those As Dr Slawin is located in Texas he would in Louisiana been listed in the Louisiana had been furnished with told him whether Dr Slawin network not to areas The affidavit of Susan Porter Office of America limited directory of Blue a was Louisiana an Therefore directory directory in network even if the it would not have provider or and out of provider Consequently the plaintiffs allegations concerning the failure of Greer and Fortis to furnish him with a Louisiana Directory of providers raises no genuine issue of material fact Mr Willman Dr Slawin The s name the plaintiff s expert confirmed would following facts 1 The have not are an July on in a Louisiana deposition directory undisputed plaintiff Policy appeared in his attorney received the Fortis 25 2001 four months before his treatment 2 Policy provides The Fortis in network and 3 The Fortis payment for and out coverage for both of network providers policy shows that the out of network the rate providers of is 50 payment 5 providers for rate of is 30 in network that 4 The Fortis Insurance Card or the attending physician for authorization to to prior the insured requires telephone Fortis medical receiving benefits The jurisprudence the unambiguous the agent to 95 0616 La has consistently held that the insured is bound by of his language In the contrary policy and Bailey 1 Cir 119 95 App Furthermore v cannot Robert V rely on representation of Neuhoff Ltd Partnership 665 So 2d 16 the First Circuit noted that interpreting Louisiana Revised Statute 22 628 have held that the representations of an agent cannot enlarge or extend coverage beyond what is provided for in the policy See e g Sharff Ohio v cases Cas Ins App 2d Cir La 1992 Marsh Co La 2d So 1311 15 W 605 So 2d writ denied Reserve v La 1314 608 Life 657 So 2d 196 Co 516 Ins App 2d Cir 1987 Shelby McKenzie 661 see also H Alston Johnson III Louisiana Civil Law Treatise Insurance Law and Practice 9 4 1986 Supp 1995 Id 95 0616 p 8 665 So 2d at p 20 fn 5 In this way Bailey calls peliinent pmi prohibits No verbal our attention in changes to La the coverage 22 628 which in policy language agreement in conflict with extending R S of modifying or contract of any insurance shall be valid unless it is in physically made a writing and policy or other it is incorporated part of the written evidence of insurance or in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance La R S 22 628 applies consistent with La R S 22 by statute to 1 213 to Insurance policies in general contract Changes This policy including the endorsements and the attached papers if any and in case of industrial insurance the written application is which is among the provisions mandated be included in health and accident policies Entire It the constitutes 6 entire contract of No insurance agent has authority to change this No waive any of its provisions policy change in this policy shall be valid until approved to or by an executive officer of the approval be endorsed hereon or Form 236 010 LA of the Fortis insurer and unless attached hereto policy in the instant case contains the following provisions 2 Plan Changes No change in this plan will be valid unless approved by an executive officer of Fortis Insurance Company and attached to this plan No agent or employee of FOliis Insurance Company has authority to waive or change any plan provision or waive any requirements within the application Entire This Contract3 policy the entire Again near and the attached application constitute contract the end of the policy this concept is repeated on Form 236 2961 LA POLICy4 ENTIRE The entire agreement is made up of this policy The court in Marsh La App 2 Cir 1987 provisions such as Reserve explained those Plaintiffs v the Life Ins Co 516 public policy behind 2d So the statutes quoted from the Fortis policy above allege they were assured by the insurance agent that the surgery would be covered under the policy provisions and that these representations were the major inducement for them in purchasing the alleged the policy As noted above representations by the insurance agent could not act to extend or enlarge the coverage afforded by the policy The public policy reasons behind this rule of law are readily apparent It insures that each party is aware of the other party s obligations under the 2 3 4 terms of the Emphasis original Emphasis original Upper case original 7 policy Therefore 1311 the 1315 and the of such allegations conduct the part of the create or establish a on insurance agent could not genuine issue of material fact The same Cas Ins Co reasoning was expressed 605 So 2d 657 661 La App succinctly in Sharff v Ohio more 2 Cir 1992 Policy coverage is determined by the written policy and cannot be extended or enlarged even by an LRS agent s representations about coverage 22 628 Marsh v Reserve Life Ins Co 516 So 2d 1311 La App 2d Cir 1987 McDaniel v Moore 351 2d So 855 La App 2d Cir 1977 Therefore as a matter of law as regards the plaintiffs claim under the Fortis policy it is immaterial what representations made to the The plaintiff plaintiff s coverage as would have been provided clearly and unambiguously does page of the policy entitled For most benefits for same out for in network coverage provide such not Schedule the Rate an of network The policy On the third coverage Form 236 S0 l LA to it is stated that of Payment for a network provider is more than the Rate of Payment for an out of network provider This There is quoted services claim boils down coverage assertion that he should have received the Mr Greer may have passage is presented nothing ambiguous about it a straightforward language The next page of this forth the actual schedule of payments is in clear Schedule sets making it abundantly clear that there definite difference between the payment rates for in network versus out of network claims Therefore we find no error in the summary judgment dismissal of the plaintiffs claims against FOliis As addition note regards the plaintiff s claims against to the foregoing analysis showing Mr Greer and his agency in no claim under the that the front of the policy contains the very 8 large policy we uppercase boldface RIGHT TO EXAMINE FOR TEN DAYS notice is This warning thereafter explained immediately Please read your policy for any reason you are return it to days after us or our If carefully satisfied not agent within 10 you have received it All premiums will be refunded and your coverage will be void It is before the that the undisputed events leading plaintiff received this policy several months this to litigation began between in network coverage and and the so policy that unfold The differences we find clearly are so coverage matter as a of law allegations of misrepresentation against Mr Greer raise no genuine issue of material fact any out of network in the immediately apparent to There is no basis for the alleged representations of in network chance to As coverage once he had a on reasonable examine the policy to the Kerrigan claim for frivolous appellees guided by this Court 1162 plaintiff s continued reliance s appeal damages discussion of the issue in Troth Stiles L L P 06 0457 p 5 La Corp 4 Cir 124 07 App 1166 La C CP frivolous art 2164 which allows appeal is penal in damages for nature and must a be strictly construed in favor of the appellant Levy v Levy 2002 0279 pp 17 18 La App 4 Cir 10 2 02 829 So 2d 640 650 Appeals are favored in the law and no penalties should be awarded for a frivolous appeal unless it is manifestly clear that the appeal was taken solely for delay or that the appealing counsel does not sincerely believe in the view of the law that he is advocating Haney v Davis 2004 1716 p 11 La App 4 Cir 19 1 06 925 So 2d 591 598 Any doubt regarding the frivolous nature of an appeal must be resolved in favor of the appellant Id As stated in Tillmon 8 2000 0395 p So 2d 137 131 La this v Thrasher App court 9 4 Cir Waterproofing 3 28 01 is reluctant to 786 grant v we are Deutsch 951 2d So frivolous appeal damages because of the chilling effect it may have on the appellate process Accordingly mean the that it is frivolous considered to be weak in it is frivolous The misled and his appeal not mere fact that the plaintiff The fact that the addition plaintiff to being appeal does plaintiff s appeal unsuccessful appears to have held appears to have been lost his a may does not even be mean that sincere belief that he was not It sincerely pursued clearly was filed for purposes of delay For the foregoing reasons the judgment of the trial court is affirmed AFFIRMED 10 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2076 BYARD EDWARDS JR VERSUS PAUL LARRY GREER AND OR GREER INSURANCE SERVICES L L C AND FORTIS INSURANCE COMPANY On the 21 Appeal from st Judicial District Court Parish of Tangipahoa Louisiana Docket No 2002 003896 Division Honorable Brenda Bedsole Ricks E Judge Presiding BELSOME J DISSENTS WITH REASONS I join in the I respectfully majority dissent from the of material fact exists with be held liable for Although or with the decision majority extend coverage majority s beyond what is written policy create an nature in of Mr Greer to deliver the s a issue motion for summary judgment agent may policy I representations s as not disagree Mr statements to Mr to Mr to whether Fortis representations The resolution of those issues should be left disposed of in a an provider book issue of material fact Mr Greer may be held liable for Mr Greer Edwards genuine Edwards and upon contention that it is immaterial what The no agent Paul Greer may I agree Louisiana jurispludence holds that Edwards with his not detennination that to his detriment Edwards and the failure of Mr Greer or s deny damages for frivolous appeal that he made to Mr reasonably relied Greer made to Mr Edwards and to to whether Fortis respect representations which Mr Edwards enlarge s to Mr to the factfinder Accordingly and I would reverse the summary Company judgment dismissal of claims against Mr Greer and Greer Insurance Services L L C Fortis Insurance
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
