Lead Opinion
{¶ 2} On October 6, 2003, appellant, while riding as a passenger in a motor 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. *3
{¶ 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. *4
{¶ 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 cross-motion 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,
{¶ 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),
{¶ 15} "The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991),
{¶ 16} The Supreme Court in Dresher went on to hold that whenneither 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 *6 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.
{¶ 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),
{¶ 20} R.C.
{¶ 21} R.C.
{¶ 22} R.C.
{¶ 23} R.C.
{¶ 24} In the case at bar, appellant is an "enrollee" of Anthem's Plan as defined under R.C.
{¶ 25} The clear legislative purpose of R.C.
{¶ 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.
{¶ 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 cross-motion 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 cross-motion for summary judgment under count eight of the complaint. *9
{¶ 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 cross-motion 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.
{¶ 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,
{¶ 35} R.C.
{¶ 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 *10 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,
{¶ 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,
{¶ 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 co-payments 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 *11 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. *12
{¶ 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.
Notes
Dissenting Opinion
{¶ 49} The trial court correctly granted summary judgment in favor of defendant-appellee, 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 *13 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 self-funded 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 *14 $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.
{¶ 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.
{¶ 61} Properly construed, R.C.
{¶ 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,
{¶ 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),
{¶ 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. *17
{¶ 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),
{¶ 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),
{¶ 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.
{¶ 72} Accordingly, the judgment of the trial court should be affirmed. *1