Hayberg v. Physicians Emergency Serv., Inc.

Annotate this Case

Download PDF

[Cite as Hayberg v. Physicians Emergency Serv., Inc., 2008-Ohio-6180.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO ANNETTE HAYBERG, Plaintiff-Appellant, - vs - : OPINION : CASE NO. 2008-P-0010 : PHYSICIANS EMERGENCY SERVICE, INC., : : Defendant, : ROBINSON MEMORIAL HOSPITAL, : Defendant-Appellee. : Civil Appeal from the Court of Common Pleas, Case No. 2006 CV 1179. Judgment: Reversed and remanded. Timothy H. Hanna, Parker, Leiby, Hanna & Rasnick, L.L.C., 388 South Main Street, #402, Akron, OH 44311 (For Plaintiff-Appellant). Paul L. Jackson, Roetzel & Andress, L.P.A., 222 South Main Street, Akron, OH 44308 (For Defendant-Appellee). COLLEEN MARY O TOOLE, J. {¶1} Appellant, Annette Hayberg, appeals from the January 15, 2008 judgment entry of the Portage County Court of Common Pleas, granting the motion for summary judgment of appellee, Robinson Memorial Hospital, and denying appellant s motion for summary or declaratory judgment against appellee. On October 6, 2003, appellant, while riding as a passenger in a motor {¶2} vehicle operated by her husband, Lewis Hayberg, was injured in an automobile accident proximately caused by his negligence.1 Appellant was treated by appellee as a result of her injuries. At the time of the accident, appellant, as a result of her husband s employment with General Motors, was an enrollee of the General Motors Health Plan ( Plan ). Anthem Blue Cross and Blue Shield ( Anthem ) was the third-party administrator of the Plan. {¶3} After treating appellant, appellee, on appellant s behalf, submitted the bills to the Plan. Those bills were paid at a discounted rate of $11,295.39 in November of 2003. Around the same time of that payment, appellee learned from appellant that the medical bills would ultimately be the responsibility of Nationwide, due to the negligence of appellant s husband. Appellee then submitted those same medical bills to Nationwide. {¶4} Nationwide paid appellee $13,861.45, the exact amount of the medical bills incurred by appellant, in December of 2003. Appellee ultimately refunded the Plan. According to the deposition testimony of Linda Suzanne Evitts, a supervisor of cash posting with appellee, she made a mistake in not timely processing the refund to the Plan. 1. Appellant filed a lawsuit against her husband in the Summit County Court of Common Pleas in January of 2005. That case was settled in June of 2006. As part of that settlement, the insurance carrier for appellant s husband, Nationwide Insurance Company ( Nationwide ), paid various medical providers more than $32,000 for expenses incurred by appellant. 2 {¶5} On September 28, 2006, appellant filed a complaint for declaratory judgment (count one), violation of statutory law (counts two and six), fraud (counts three and seven), conversion (counts four and eight), and unjust enrichment (counts five and nine), against appellee and defendant Physicians Emergency Service, Incorporated.2 Appellee filed an answer on November 20, 2006.3 {¶6} On July 12, 2007, appellee filed a motion for summary judgment pursuant to Civ.R. 56. On September 24, 2007, appellant filed a memorandum in opposition to appellee s motion for summary judgment and a cross-motion for summary judgment or in the alternative declaratory judgment. On October 3, 2007, appellee filed a reply brief in support of its motion for summary judgment. {¶7} Pursuant to its January 15, 2008 judgment entry, the trial court granted appellee s motion for summary judgment and denied appellant s motion for summary or declaratory judgment. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignments of error: {¶8} [1.] The trial court erred to the prejudice of [appellant] in granting [appellee s] motion for summary judgment and denying [appellant s] cross-motion for declaratory and summary judgment under Counts One and Six of the Complaint. {¶9} [2.] The trial court erred to the prejudice of [appellant] in granting [appellee s] motion for summary judgment and denying [appellant s] cross-motion for summary judgment under Count Seven of the Complaint. 2. Defendant Physicians Emergency Service, Incorporated was voluntarily dismissed on April 26, 2007, and is not a named party to the instant appeal. 3. Appellee filed an amended answer on July 6, 2007. 3 {¶10} [3.] The trial court erred to the prejudice of [appellant] in granting [appellee s] motion for summary judgment and denying [appellant s] cross-motion for summary judgment under Count Eight of the Complaint. {¶11} [4.] The trial court erred to the prejudice of [appellant] in granting [appellee s] motion for summary judgment and denying [appellant s] cross-motion for summary judgment under Count Nine of the Complaint. {¶12} In each of appellant s four assignments of error, she asserts that the trial court erred in granting appellee s motion for summary judgment and denying her crossmotion for summary judgment. {¶13} This court reviews de novo a trial court s order granting summary judgment. Hudspath v. Cafaro Co., 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, at ¶8, citing Hapgood v. Conrad, 11th Dist. No. 2000-T-0058, 2002-Ohio-3363, at ¶13. A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Id. {¶14} Since summary judgment denies the party his or her day in court it is not to be viewed lightly as docket control or as a little trial. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [(1996), 75 Ohio St.3d 280, 296], the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party s claim. The evidence must be in the record or 4 the motion cannot succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be entered against the nonmoving party based on the principles that have been firmly established in Ohio for quite some time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, ***. Welch v. Ziccarelli, 11th Dist. No. 2006-L-229, 2007-Ohio-4374, at ¶40. (Parallel citation omitted.) {¶15} The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, *** is too broad and fails to account for the burden Civ.R. 56 places upon a moving party. The court, therefore, limited paragraph three of the syllabus in Wing to bring it into conformity with Mitseff. (Emphasis added.) Id. at ¶41. (Parallel citations omitted.) (Emphasis sic.) {¶16} The Supreme Court in Dresher went on to hold that when neither the moving nor nonmoving party provides evidentiary materials demonstrating that there are no material facts in dispute, the moving party is not entitled a judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the 5 absence of a genuine issue of fact on a material element of the nonmoving party s claim. Id. at 276. (Emphasis added.) Id. at ¶42. (Emphasis sic.) {¶17} In her first assignment of error, appellant argues that the trial court erred in granting appellee s motion for summary judgment and denying her cross-motion for declaratory and summary judgment under counts one and six of the complaint. Under her first assignment of error, she presents two issues for our review: (1) since appellee was under contract with Anthem, it was prohibited from seeking compensation from appellant in excess of the contracted rates plus approved co-payments and deductibles; and (2) appellee violated R.C. 1751.60 by seeking and retaining compensation in excess of the contracted rates plus approved co-payments and deductibles under the contract with Anthem. {¶18} Because appellant s issues are interrelated, we will address them together. {¶19} A trial court has broad discretion in deciding whether to entertain a declaratory judgment. Sekora v. General Motors Corp. (1989), 61 Ohio App.3d 105, 110. In order to obtain declaratory relief, (a) plaintiff must establish (1) a real controversy between the parties, (2) a justiciable controversy, and (3) that speedy relief is necessary to preserve the rights of the parties. (***) ***. Cafaro Leasing Co, Ltd. v. K-M I Assoc., 11th Dist. No. 2006-T-0115, 2007-Ohio-6723, at ¶27. (Citations omitted.) {¶20} R.C. 1751.60(A) provides: Except as provided for in divisions (E) and (F) of this section, every provider or health care facility that contracts with a health insuring corporation to provide health care services to the health insuring corporation s enrollees or subscribers shall seek compensation for covered services solely from the health 6 insuring corporation and not, under any circumstances, from the enrollees or subscribers, except for approved copayments and deductibles. {¶21} R.C. 1751.01(K) states: Enrollee means any natural person who is entitled to receive health care benefits provided by a health insuring corporation. {¶22} R.C. 1751.01(M) provides: Health care facility means any facility, except a health care practitioner s office, that provides preventive, diagnostic, therapeutic, acute convalescent, rehabilitation, mental health, mental retardation, intermediate care, or skilled nursing services. {¶23} R.C. 1751.01(P) states: Health insuring corporation means a corporation, as defined in division (I) of this section, that, pursuant to a policy, contract, certificate, or agreement, pays for, reimburses, or provides, delivers, arranges for, or otherwise makes available, basic health care services, supplemental health care services, or specialty health care services, or a combination of basic health care services and either supplemental health care services or specialty health care services, through either an open panel plan or a closed panel plan. {¶24} In the case at bar, appellant is an enrollee of Anthem s Plan as defined under R.C. 1751.01(K). Appellee is a health care facility pursuant to R.C. 1751.01(M). Also, Anthem is a health insuring corporation as defined under R.C. 1751.01(P). {¶25} The clear legislative purpose of R.C. 1751.60 is to make sure that individuals who are covered under health plans realize the benefit of those plans and are not forced to pay any amounts in excess of the co-payments and deductibles they are required to pay under the contracts between health care facilities and the health insuring corporations who negotiate the discounts and write-offs on their behalf. In 7 addition, R.C. 1751.60 protects the health insuring corporations who negotiate the adjustments and discounts through third party administrators like Anthem in the instant matter. {¶26} Again, Nationwide paid appellee $13,861.45, the exact amount of the medical bills incurred by appellant, in December of 2003. Appellee ultimately refunded Anthem $11,295.39. Anthem paid appellant s medical bills in compliance with the contract. Here, appellee billed and accepted $2,566.06 more than it was entitled to from Nationwide in violation of R.C. 1751.60. Under the statute, appellee was required to seek compensation for covered services solely from Anthem and was only permitted to seek approved co-payments and deductibles (which in this case was nothing) from Nationwide. {¶27} Accordingly, the trial court erred by granting appellee s motion for summary judgment, and denying appellant s motion for declaratory and summary judgment under counts one and six of the complaint. {¶28} Appellant s first assignment of error is with merit. {¶29} In her second assignment of error, appellant alleges that the trial court erred in granting appellee s motion for summary judgment and denying her crossmotion for summary judgment under count seven of the complaint. {¶30} In her third assignment of error, appellant contends that the trial court erred in granting appellee s motion for summary judgment and denying her crossmotion for summary judgment under count eight of the complaint. 8 {¶31} In her fourth assignment of error, appellant maintains that the trial court erred in granting appellee s motion for summary judgment and denying her crossmotion for summary judgment under count nine of the complaint. {¶32} Because appellant s second, third, and fourth assignments of error are interrelated, we will address them in a consolidated fashion. {¶33} Preliminarily, we note that appellee argues that appellant s claims are preempted by ERISA because the claims somehow relate to the Plan s subrogation rights. However, appellant s claims against appellee in billing both Nationwide and Anthem for the same services and billing Nationwide for more than appellant s approved co-payments and deductibles in compliance with R.C. 1751.60 in no way relates to the Plan s subrogation rights. This case is not preempted by ERISA. {¶34} In Ohio, fraud requires a claimant to demonstrate an injury proximately caused by the claimant s justifiable reliance upon another s false representation. Wisen v. Wisen, 11th Dist. No. 2004-L-181, 2005-Ohio-6898, at ¶18. {¶35} R.C. 2913.47(B), which deals with insurance fraud, provides: {¶36} No person, with purpose to defraud or knowing that the person is facilitating a fraud, shall do either of the following: {¶37} (1) Present to, or cause to be presented to, an insurer any written or oral statement that is part of, or in support of, an application for insurance, a claim for payment pursuant to a policy, or a claim for any other benefit pursuant to a policy, knowing that the statement, or any part of the statement, is false or deceptive; {¶38} (2) Assist, aid, abet, solicit, procure, or conspire with another to prepare or make any written or oral statement that is intended to be presented to an insurer as 9 part of, or in support of, an application for insurance, a claim for payment pursuant to a policy, or a claim for any other benefit pursuant to a policy, knowing that the statement, or any part of the statement, is false or deceptive. {¶39} The tort of conversion involves any exercise of control wrongfully exerted over the personal property (including money) of another inconsistent with or in denial of that party s rights. Rider v. Rider (Mar. 31, 2000), 11th Dist. No. 98-T-0202, 2000 Ohio App. LEXIS 1429, at 7-8. {¶40} Unjust enrichment is derived from the equitable principal that no person ought to retain a benefit which, if retained by him or her, would result in inequity and injustice. Girard v. Leatherworks Partnership, 11th Dist. No. 2004-T-0010, 2005-Ohio4779, at ¶41, citing Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183. {¶41} In the case at bar, appellee committed fraud by seeking and retaining compensation in excess of the contracted rates plus approved co-payments and deductibles under the contract with Anthem. There is an issue of material fact as to whether appellee defrauded the $2,566.06 from appellant by intentionally reducing the amount available to appellant under Nationwide s liability policy. The record establishes that appellee knowingly concealed material facts which it had a duty to disclose. {¶42} Again, Anthem paid appellee $11,295.39 in full payment of the $13,861.45 appellee submitted to Anthem for payment. Based upon the record, it appears appellant was not responsible for any further payment to appellee for approved copayments and deductibles under the contract. Despite the fact the appellant did not owe appellee anything, appellee still billed Nationwide $13,861.45 for the same services. Also, it is doubtful that appellee would have refunded the money to Anthem if 10 this lawsuit had not been filed. Appellant s injury was proximately caused by Nationwide s and Anthem s reliance on the concealments. {¶43} In addition, there is a question of fact whether appellee converted money from appellant by seeking and retaining compensation in excess of the contracted rates plus approved co-payments and deductibles under the contract with Anthem. Appellee intentionally collected $2,566.06 more than it would have received under the contract after applying the write-offs and refunding Anthem its subrogated payment out of the monies it received from Nationwide. Thus, appellee converted the $2,566.06 from appellant by intentionally reducing the amount available to appellant under Nationwide s liability policy. {¶44} Further, appellee was unjustly enriched by seeking and retaining compensation in excess of the contracted rates plus approved co-payments and deductibles under the contract with Anthem. By accepting the $13,861.45 from Nationwide knowing that appellant was not responsible for any further payment to appellee for co-payments and deductibles under the contract, appellee intentionally collected $2,566.06 more than it would have received under the contract after applying the write-offs and refunding Anthem its subrogated payment out of the monies it received from Nationwide. Thus, appellee was unjustly enriched by the $2,566.06 appellant was entitled to under Nationwide s liability policy. {¶45} Clearly, a jury question exists as to whether appellee is engaged in the practice of double billing and keeping additional monies. 11 {¶46} The trial court erred by granting appellee s motion for summary judgment, and denying appellant s motion for summary judgment under counts seven, eight, and nine of the complaint. {¶47} Appellant s second, third, and fourth assignments of error are with merit. {¶48} For the foregoing reasons, appellant s assignments of error are well-taken. The judgment of the Portage County Court of Common Pleas is reversed and the matter is remanded for further proceedings consistent with this opinion. It is ordered that appellee is assessed costs herein taxed. The court finds there were reasonable grounds for this appeal. TIMOTHY P. CANNON, J., concurs in judgment only, DIANE V. GRENDELL, P.J., dissents with a Dissenting Opinion. ________________________ DIANE V. GRENDELL, P.J., dissents with a Dissenting Opinion. {¶49} The trial court correctly granted summary judgment in favor of defendantappellee, Robinson Memorial Hospital, against the claims of plaintiff-appellant, Annette Hayberg. Accordingly, I dissent from the majority s decision to reverse the trial court. {¶50} The relevant facts, construed in Hayberg s favor, are as follows. On October 6, 2003, Hayberg was injured in an automobile accident allegedly caused by the negligence of her husband. Following the accident, Hayberg was taken to Robinson 12 Memorial Hospital where she received treatment for her injuries. The total charge for Hayberg s treatment was $13,861.45. {¶51} The husband possessed automobile liability insurance from Nationwide Insurance Company with $100,000 bodily injury liability per person. Hayberg possessed medical insurance from the General Motors Health Care Program, a selffunded ERISA plan administered by Anthem Blue Cross & Blue Shield. {¶52} On November 4, 2003, Robinson Memorial received payment from Anthem, on Hayberg s behalf, in the discounted amount of $11,295.39. {¶53} On December 5, 2003, Robinson Memorial received payment from Nationwide, on Hayberg s behalf, in the amount of $13,861.45. {¶54} According to the terms of the General Motors Program: If benefits are paid under the GM Program and later it is determined that another party should have been responsible for the expenses, the GM Program is entitled to be reimbursed. {¶55} On June 16, 2006, Hayberg signed a Release of All Claims, acknowledging Nationwide s payment of medical and other expenses in the amount of $32,574.06, including $13,861.45 paid to Robinson Memorial, and the receipt of $67,425.94, in exchange for her release of all claims against Nationwide and her husband. {¶56} On December 15, 2006, Robinson Memorial refunded Anthem the $11,295.39 previously paid for Hayberg s medical expenses. {¶57} The rationale for Hayberg s claims against Robinson Memorial is that, by accepting payment from Nationwide in the amount of $13,861.45 rather than from Anthem in the discounted amount of $11,295.39, she has been wrongly deprived of 13 $2,566.06 inasmuch her medical and other expenses would have been that much less in her settlement with Nationwide. Although it is true that Hayberg would have received $2,566.06 more in cash from the $100,000 settlement with Nationwide had Robinson Memorial accepted payment from Anthem, this fact does not justify Hayberg s claims against the hospital. In other words, Robinson Memorial was under no duty or obligation to accept payment from Anthem rather than Nationwide. On the contrary, Hayberg approved of Nationwide s payment of her medical expenses, which included $13,861.45 in services from Robinson Memorial. Moreover, the General Motors Program, through Anthem, was entitled to reimbursement of the monies paid on Hayberg s behalf. Hayberg was not wrongfully deprived of money to which she was entitled. {¶58} Hayberg s first claim (Counts One and Six of the Complaint) is based upon Robinson Memorial s purported violation of R.C. 1751.60(A), which provides: every provider or health care facility that contracts with a health insuring corporation to provide health care services to the health insuring corporation s enrollees or subscribers shall seek compensation for covered services solely from the health insuring corporation and not, under any circumstances, from the enrollees or subscribers, except for approved copayments and deductibles. {¶59} This statute is completely inapplicable in the present situation, since Robinson Memorial never sought compensation from Hayberg. {¶60} Without citing any authority, the majority concludes that R.C. 1751.60 is meant to protect the health insuring corporations who negotiate the adjustments and discounts through third party administrators like Anthem. 14 The majority concludes, illogically, that Robinson Memorial was required to seek compensation for covered services solely from Anthem and was only permitted to seek approved co-payments and deductibles (which in this case was nothing) from Nationwide. Nationwide represents a third party s interests in these proceedings and does not, as the majority suggests, stand in the shoes of Hayberg. It is also difficult to understand how Anthem, as a health insuring corporation, is protected under the statute by this court denying its right to reimbursement for Hayberg s medical expenses from Nationwide. {¶61} Properly construed, R.C. 1751.60 prohibits Robinson Memorial from seeking compensation from Hayberg, it does not prevent the hospital from receiving payment from a third party willing to assume liability for the debt. Assuming, arguendo, that Robinson Memorial was limited to only receiving payment from Anthem, then Nationwide, not Hayberg, would have a potential claim under statute. {¶62} The fact that Anthem paid a discounted rate is immaterial to the issue of Robinson Memorial s liability. There is no dispute the cost of the medical services provided to Hayberg is $13,861.45. Anthem paid a discounted rate and was reimbursed accordingly. {¶63} Finally, there is precedent for the proposition that Hayberg waived her rights under the statute, whatever those may be, by acquiescing to Nationwide s payment of her medical expenses, as evidenced by the Release of All Claims. See Parmatown Spinal & Rehab. Ctr., Inc. v. Lewis, 8th Dist. No. 81996, 2003-Ohio-5069, at ¶26 (litigant waived the protection of the statute by seeking to have the claims paid by the third-party tortfeasor). 15 {¶64} Hayberg s remaining claims against Robinson Memorial are for Fraud (Count Seven of the Complaint), Conversion (Count Eight of the Complaint), and Unjust Enrichment (Count Nine of the Complaint). The underlying factual premise of this case does not support any of these claims. {¶65} The elements of Fraud include, in part, a representation or, where there is a duty to disclose, concealment of a fact, *** made falsely *** with the intent of misleading another into relying upon it ***. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169 (citation omitted). Hayberg claims that Robinson Memorial had a duty to disclose certain facts to Nationwide and Anthem in processing the claims for Hayberg s medical expenses, such as the facts that neither Hayberg nor Robinson Memorial had a contractual right to payment under the Nationwide liability policy and that Anthem had paid those expenses at a discounted rate. {¶66} Accepting these allegations as true, Hayberg has failed to make any argument that Robinson Memorial made false statements to her or concealed information from her that it was under a duty to disclose. Hayberg cannot raise a claim of Fraud based on what Robinson Memorial failed to disclose to Nationwide or Anthem. There is simply no evidence that Fraud was committed against Hayberg. {¶67} Hayberg s Conversion and Unjust Enrichment claims are premised on Robinson Memorial reducing the amount of money directly available to her under the Nationwide policy by accepting Nationwide s payment of $13,861.45 for her medical expenses after those expenses had been paid by Anthem at the discounted rate of $11,295.39. 16 {¶68} [C]onversion is the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96 (citation omitted). This court has held, it is well settled that an action for conversion of money will lie if identification is possible and there is an obligation to deliver the specific money in question. Sec. Fed. S. & L. Assn. of Cleveland v. Keyes (June 29, 1990), 11th App. No. 89-G-1524, 1990 Ohio App. LEXIS 2732, at *5-*6; Dice v. White Family Cos., 173 Ohio App.3d 472, 2007-Ohio-5755, at ¶17 (citation omitted). {¶69} Unjust Enrichment entails the retention of [a] benefit by the defendant under circumstances where it would be unjust to do so without payment. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183 (citation omitted). {¶70} These claims must fail for the reason that Robinson Memorial did nothing wrongful by accepting payment from Nationwide and reimbursing Anthem the money it had previously paid. The terms of the General Motors Program require it to be reimbursed when it is determined that a third party be liable for medical expenses: In that way, financial liability remains where it belongs -- with the party responsible for incurring the expenses, and the GM Program costs are reduced. {¶71} The actual cost of Hayberg s medical expenses were $13,861.45. This is the amount paid by Nationwide on her behalf and with her acquiescence. While it might be financially advantageous for Hayberg to have Anthem/the General Motors Program be responsible for paying her medical expenses, financial advantage is not sufficient to constitute a violation of R.C. 1751.60 or the common law claims raised in the present 17 case. {¶72} Accordingly, the judgment of the trial court should be affirmed. 18

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.