In the Matter of Andre T. Bell.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-1643

Cindy Buhl, plaintiff,

Northstar Pain Care, P.A.,
Appellant,

vs.

Illinois Farmers Insurance Company,
Respondent,

Value Medical Resources Inc.,
Respondent.

Filed February 9, 1999
Affirmed
Amundson, Judge

Hennepin County District Court
File No. 96-18977

Patrick M. Connor, Clair E. Schaff, Connor, Satre & Schaff, L.L.P., 580 Lumber Exchange, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

Scott K. Goldsmith, Goldsmith & Associates, Ltd., 920 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for respondent Illinois Farmers Insurance Company)

Jon S. Swierzewski, Renee L. Jackson, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent Value Medical Resources Inc.)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant Northstar Pain Care P.A. (Northstar) challenges the district court's summary judgment in favor of respondents Illinois Farmers Insurance Company (Farmers) and Value Medical Resources Inc. (Value Medical) on Northstar's claims for: (1) declaratory judgment against Farmers; and (2) damages from Value Medical for tortious interference with Northstar's existing and prospective contractual relations. We affirm.

FACTS

On August 5, 1995, Cindy Buhl was injured in an automobile accident. At the time of the accident, Buhl was a passenger in a vehicle insured by Farmers. Buhl was uninsured at the time. Buhl first sought treatment with Dr. Steven Trobiani, Northstar's medical director, who referred Buhl for a course of myofascial release therapy (MRT). Buhl sought no-fault benefits from Farmers to cover these treatments. Each time Buhl received MRT, Northstar billed Farmers for five separate services. These charges included: (1) myofascial release therapy; (2) neuromuscular re-education; (3) joint mobilization; (4) traction; and (5) therapeutic activity.

Farmers' no-fault policy provides coverage for "reasonable and necessary" medical expense. To determine whether expenses are "reasonable and necessary," bills are often submitted to an independent reviewer for a recommendation. Farmers, however, makes the final decision on whether to pay bills in full, at a reduced rate, or not at all. Value Medical was the independent reviewer used in this present matter. Value Medical notified Farmers that it believed many of Northstar's charges were unreasonable. Based on Value Medical's recommendations and its own review of the bills, Farmers paid Northstar at a reduced rate.

In December 1996, Buhl and Northstar commenced suit against Farmers and Value Medical, claiming that: (1) Buhl was entitled to a determination pursuant to Minn. Stat. § 65B.45 that Farmers was responsible for the full cost of Northstar's treatment of Buhl; (2) Northstar and Buhl were entitled to declaratory judgment regarding the application of Minn. Stat. § 65B.45 to prevent Farmers' denial of benefits; (3) Value Medical tortiously interfered with Northstar's contracts; and (4) Value Medical tortiously interfered with Northstar's prospective contractual relations.

Buhl refused to respond to written discovery and failed to respond to respondents' motions for summary judgment. The district court dismissed Buhl's claims against respondent Farmers, and Buhl has not sought review of that dismissal.

Northstar refused to submit to depositions, leaving respondents without any depositions from either Buhl or Northstar when the discovery period expired. With this apparent absence of discovery, respondents moved for summary judgment. The district court granted their motions and entered judgment in favor of respondents. Northstar now appeals the dismissal of this action.

D E C I S I O N

Standard of Review

On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). We view the evidence in the light most favorable to the nonmoving party. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995).

Declaratory Judgment

The Declaratory Judgment Act empowers district courts "to declare rights, status and other legal relations whether or not further relief is or could be claimed." Minn. Stat. § 555.01 (1996). Northstar asserts that its rights, status, or legal relations are affected by a portion of the Minnesota No-Fault Act, which specifically provides for declaratory relief for the injured party and the reparation obligor. Minn. Stat. § 65B.45, subd. 3 (1996). Notably, however, this statute does not provide a mechanism for the treating clinic or physician of an injured party to move the district court for declaratory relief. "When a statute designates the persons who may bring a claim, only the persons so designated have the right to bring such an action." Gloria Dei Lutheran Church Missouri Synod v. Gloria Dei Lutheran Church, 513 N.W.2d 488, 490 (Minn. App. 1994) (citations omitted).

While plaintiff Buhl was a part of the litigation at the time of the commencement of this suit, her claims were dismissed, and she is no longer a party to this suit. Therefore, Northstar can no longer rely on Buhl's presence to state a claim for declaratory relief under Minn. Stat. § 65B.45. The district court, thus, found that it lacked jurisdiction under this statute to make a "declaration" of the validity of a Northstar's services and charges. We agree.

Northstar further argues that it is entitled to relief on the grounds that

[a]ny person * * * whose right, status, or other legal relations are affected by a statute * * * may have determined any question of construction or validity arising under the * * * statute * * * and obtain a declaration of rights, status, or other legal relations thereunder.

Minn. Stat. § 555.02 (1996). The mere existence of this statute, however, does not permit Northstar to bring a declaratory action. "Under Minnesota law, a justiciable controversy must exist before the courts have jurisdiction to render a declaratory judgment." Thuma v. Kroschel, 506 N.W.2d 14, 20 (Minn. App. 1993) (citing St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn. 1977)), review denied (Minn. Dec. 14, 1993). A justiciable controversy exists when the declaratory relief sought requires the court to only "adjudicate present rights on established facts and not to render an advisory opinion." Thuma, 506 N.W.2d at 20. Without Buhl, the courts would merely be rendering an advisory opinion with respect to Northstar's right to receive full payment from Farmers. Any such determinations would require the court to engage in administrative decision-making.

Although Northstar could seek payment from Buhl, who in turn could maintain a declaratory judgment action against Farmers pursuant to Minn. Stat. § 65B.45, Northstar does not have any present rights against Farmers pursuant to this statute. Therefore, a justiciable controversy is absent. The district court properly granted summary judgment in favor of respondents on Northstar's declaratory judgment claim.

II. Tortious Interference with Contract

Northstar also argues it presented sufficient evidence to survive summary judgment on its claim against Value Medical for tortious interference with its contract with Buhl. To establish a claim for tortious interference with a contractual relationship, a plaintiff must establish:  (1) the existence of a contract; (2) the alleged wrongdoer's knowledge of the contract; (3) intentional procurement of the contract's breach; (4) without justification; and (5) damages. Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998).

Northstar is unable to establish the elements of tortious interference. In its attempt to establish the first element of this tort, the existence of a contract, Northstar argues that there was an implied contract between it and Buhl based on their doctor/patient relationship. Even if Northstar could somehow establish the existence of a contract between Northstar and Buhl, they have not established that Value Medical had any knowledge of this implied contract. Value Medical was merely retained by Farmers to assist in its review of bills. The only contact Value Medical had with Northstar was to review the bills Northstar sent to Farmers. Northstar has not established that such minimal contact resulted in Value Medical's knowledge of Northstar's claimed contracts with its patients.

Further, Northstar presented no evidence that Value Medical acted intentionally or improperly to procure the breach of Northstar's alleged contract with Buhl. Interference is improper when it is without legal justification. Nordling v. Northern States Power Co., 478 N.W.2d 498, 506 (Minn. 1991). In determining whether the conduct was justified, we consider whether the interference was done with bad motive or malice. Id. "There is no wrongful interference with a contract where one asserts 'in good faith a legally protected interest of his own'." Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (quoting Restatement (Second) of Torts § 773 (1979)).

Here, Northstar was simply engaged in pursuing its own legitimate business interests, advising insurance companies on the reasonableness of health-care providers' charges. This business purpose necessarily involves recommendations that may have adverse consequences on some health-care providers. Northstar, however, did not provide the district court with any evidence to suggest that Value Medical acted improperly or with a bad motive in making its recommendations to Farmers.

Finally, Northstar failed to present the district court or Value Medical with any evidence of damages resulting from the alleged breach. Although Northstar alleges that it has been damaged by the nonpayment of services provided to Buhl, it has not shown that it even sought the unpaid amounts from Buhl.

Given that Northstar has not provided sufficient evidence to establish any of the elements of this claim, the district court properly granted summary judgment in favor of Value Medical with respect to Northstar's tortious interference with contract claim.

III. Tortious Interference with Prospective Contractual Relations

Northstar also makes a claim for wrongful interference with prospective contractual relations. Minnesota does recognize a cause of action for wrongful interference with prospective contractual relations. United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632 (Minn. 1982).

In United Wild Rice, the supreme court set forth the requirements for a tortious interference with prospective contractual relations claim, adopting the Restatement (Second) of Torts definition, which states:

One who intentionally and improperly interferes with another's prospective contractual relation * * * is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relations, whether the interference consist of

(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or

(b) preventing the other from acquiring or continuing the prospective relation.

United Wild Rice, 313 N.W.2d at 632-33 (quoting Restatement (Second) of Torts § 766B (1979)). The actor's conduct must clearly be improper before liability for interference with prospective contractual relations will attach.

In an attempt to support its claim for interference with prospective contractual relations, Northstar claims that Value Medical improperly contacted the Minnesota Attorney General, the Minnesota Insurance Commissioner, and other insurance company customers, warning them of Northstar's wrongful billing practices. Northstar asserts that these actions resulted in a loss of business for Northstar because medical providers were reluctant to refer patients to Northstar after learning of some insurers' reluctance to pay Northstar's bills.

Northstar, however, did not provide sufficient evidence to show that Value Medical was acting improperly to induce its customers to discontinue or prevent future contractual relations with Northstar. In fact, Value Medical's alleged improper conduct was quite remote from the claimed interference with prospective contracts. Thus, Northstar has failed to present any evidence that Value Medical tortiously interfered with its prospective contracts, and the district court properly granted Value Medical summary judgment on this claim.

Motion to Strike

"The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases." Minn. R. Civ. App. P. 110.01. "Appellate review is limited to the record." Fredrich v. Independent Sch. Dist. No. 720, 465 N.W.2d 692, 694 (Minn. App. 1991), review denied (Minn. Apr. 29, 1991). Respondents moved to strike pages A-12 through A-16 and page A-21 of appellant's appendix. Respondents have also moved to strike the portions of appellant's brief which refer to or rely on these pages of the appendix. Because these pages were not filed with the district court and do not appear in the record of this case, respondents' motion to strike is granted.

Affirmed.