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Canyon Ambulatory Surgery Center v. SCF Arizona (CA1 9/16/10)

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This is mostly an argument over workers compensation bills but contains a few practice pointers.

Canyon treated workers’ compensation patients. In March 2003 SCF, the state workers’ compensation carrier, hired as a cost-cutting measure an outside company, Qmedtrix, to review bills submitted to it and determine whether they were reasonable, according to a formula Qmedtrix had worked out. This resulted in less money to Canyon, which sued. In various ways the trial court threw out all its allegations and this opinion affirms each result.

Canyon argued that the workers’ compensation statutes, by implication, require SCF to pay for the medical services they require it to provide injured workers. This claim was dismissed. Paying less than a provider asks for is not a violation. Well, maybe not. There is a statute that requires payment but Canyon didn’t cite it to the trial court. The Court of Appeals decides, in a footnote, that this was an issue not raised below and therefore refuses to consider it. This actually seems more analogous to citing additional cases on appeal than to raising a new issue; the moral, in any event, is to make sure you’ve found all the statutes to begin with.

Canyon argued that by not paying it SCF violated the insurance policies it issued, from whose beneficiaries (the injured workers) Canyon had assignments. SCF raised a number of arguments against this, which the appellate court finessed by pointing out that the trial court’s dismissal of this claim had been without prejudice and was therefore not appealable. (The lower court had also finessed it, using a play out of the classic trial-judge playbook: when in doubt about dismissal, dismiss without prejudice. He was concerned that some new evidence about to be produced might change things; in that situation, though, the answer is to deny dismissal and let the defendant try again later.)

Canyon argued that the Qmedtrix formula constituted a “rule” that SCF, as a State agency, couldn’t use without going through the Administrative Procedures Act. The trial court granted summary judgment on this. The Court of Appeals decides that the formula isn’t a “rule” – which “implements, interprets or prescribes law or policy,” according to the APA – but is instead more of an “internal guideline,” which the APA doesn’t cover. Qmedtrix merely ”recommended” paying less than the billed charges, which SCF proved by inveigling Canyon’s lawyer into signing a Joint Pretrial Statement which used that word. It is even more surely proved, though, by the fact that once, when Canyon complained, Qmedtrix actually changed its mind; the fact that it didn’t “the vast majority” of the time “does not change” the court’s opinion. So, a one-in-a-million occurrence proves, as a matter of law (this is a summary judgment analysis, remember), that it’s a guideline, not a rule.

The court also pointed out that under the statutes, substantive rules for workers compensation are issued by the Industrial Commission; SCF merely has authority to adopt rules for the conduct of its business, a type of rule that isn’t covered by the APA. Therefore, since SCF adopted the “rule” that means that it isn’t a substantive, APA-type “rule.”  Get it? The guy who stole your car must have had authority to take it, otherwise he wouldn’t have taken it. SCF couldn’t have exceeded is authority and adopted a substantive rule because, well, it didn’t have the authority.

Canyon’s restitution claim went to trial; the advisory jury ruled for it but the trial court, after SCF filed a “post-trial renewed motion for JMOL,” rejected the advice and ruled against it. Nobody asked the trial court to make findings of fact (people, an advisory jury could be a bench trial; always ask for findings and conclusions in equity unless you have good reason not to). The Court of Appeals therefore assumed that it had found all facts necessary to support its judgment. The question was whether SCF paid reasonable value for Canyon’s services. The jury voted to award Canyon 70% of its billed charges. The trial court observed that this meant that the billed charges weren’t reasonable. Canyon accepts 30% or less of its bills from 80+% of its patient’s insurers. Whether 70% or some other, similar percentage is reasonable, that’s more than 30%.

SCF had made an offer of judgment. The trial court therefore awarded it Rule 68 sanctions. Canyon objected. The opinion does not state its position with crystal clarity but it seems to have argued that sanctions weren’t proper because other, unlitigated claims may exist between the parties. The court rejects this.

In a footnote, the court seems to say that SCF shouldn’t have called its renewed motion for JMOL a renewed motion for JMOL because the jury was advisory. But Rule 50 makes no distinction for equity. What it  means to say is that the motion’s timing was wrong because it was brought before the court entered judgment. The problem was that SCF needed to file something before then in order to convince the judge not to accept the jury’s verdict but apparently hadn’t talked to the judge about filing post-trial memoranda; it, too, wasn’t thinking in terms of a bench trial. It probably should have called it a “post-trial memorandum” anyway, which could have averted a minor argument – that the judge was not really acting as a trier of fact – that Canyon made at oral argument and that the court dismissed because Canyon hadn’t make an issue of this before then.

(link to opinion)

Hamill v. Mid-Century Insurance (CA2 9/3/10)

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The case presents a question of how UIM coverage applies when the underlying carrier waives its limits.

Hamill was hit by a car. He sued its driver; the jury awarded $165,000. State Farm, the defendant’s carrier, had a $100,000 policy limit but had waived it. It appealed the jury award but then settled with Hamill for $152,000.

Hamill made a UIM claim against his Mid-Century policy. The parties agreed to arbitrate and to offset any award by $134,259.59 (the opinion doesn’t mention the reason for that number). The arbitrator found that Hamill’s damages were $140,000 but that he was 10% at fault, so he awarded $126,000. Mid-Century therefore refused to pay anything and Hamill sued. The trial court granted summary judgment for Mid-Century. Hamill appealed; this opinion affirms.

UIM coverage applies, under the statute, when “the sum of the limits of liability under all bodily injury . . . liability insurance policies applicable at the time of the accident is less than the total damages,” § 20-259.01(G). Hamill argued that because $100,000 is less than $165,000 he was underinsured (and should receive $30,740.41, the difference between the jury award and the agreed offset; Mid-Century had stipulated that he could argue based on the jury award rather than the arbitration award). The court decides that “at the time of the accident” refers to the policy rather than to its limits; that’s a logical construction but for some reason the court says that the language “dictates” that result rather than that it has to construe it to get there. Because State Farm had waived the limits, Hamill was not underinsured. (But the court adds that State Farm did so before “both the jury verdict and Hamill‟s UIM demand to Mid-Century,” raising interesting questions about whether that makes a difference.)

Hamill made a similar argument based on the language of his policy, under which an underinsured vehicle is “insured . . . for bodily injury liability at the time of the accident [but] its limit for  . . .  is less than the amount of the insured person’s damages.” But the policy also limits UIM coverage by “[t]he amount of damages established but not recovered by any agreement, settlement, or judgment with or for the person or organization legally liable for the bodily injury” and says that the company “will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” Viewed as a whole, this language also focuses on a policy, not specific limits, in force “at the time of the accident.” This time the court is a bit clearer that it is doing some (entirely sensible) construction, though it again says things that raise timing questions.

That is the important part of the opinion. Hamill raised a few other issues –  ranging from fact-specific to minor to ridiculous – that can safely be ignored. 

(link to opinion)

Cardinal & Satchel, P.C. v. Curtiss (CA2 9/3/10)

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The holding here is that legal fees to get a divorce can be a community debt.

The plaintiff law firm represented Mrs. Curtiss in a divorce but she died before the decree was issued. So the firm sued her husband for its fees, on the theory that since the divorce wasn’t final yet her fees were a community debt. (It also sued her estate but this opinion does not deal substantively with that part of the case.) The trial court granted Mr. Curtiss’ motion to dismiss for failure to state a claim; it ruled that divorce fees can’t be a community debt because they’re incurred to destroy the community.

The Court of Appeals rules that divorce fees can be a community debt and that the trial court therefore shouldn’t have ruled on the issue as a matter of law. Community debts are intended to benefit the community, though that need not be the primary intention. The court decides that divorce fees can benefit the community by ensuring “the orderly and lawful division of assets, including temporary orders which protect community assets.” That’s a bit like saying that execution is for the benefit of the accused – orderly and lawful, and in the mean time he’s protected in a warm, comfy jail cell. Division and protection are of course not for the benefit of the late community but for that of the resulting individuals. And so the court offers another reason: divorce fees benefit the community because “the advice of counsel and the entry of temporary orders providing for a spouse‟s necessary living expenses may, when coupled with mediation or counseling, actually preserve the marriage.” How temporary spousal maintenance preserves a marriage is obscure. But mediation and counseling saving a marriage – maybe the court’s on to something. Except that when we last knew (we don’t pretend to be divorce experts) mediation was a necessary part of the process – and normally resented by all involved – not the result of counsel’s sage wisdom and valuable advice.

When all else fails there’s the “think of the children” argument, and so here. “Attorneys for the spouses also play a role in benefiting the children of the community in dissolution.” That’s an interesting notion, that your kids aren’t yours but instead your community’s. Its orderly and lawful death is therefore a benefit for them, too. The court actually cites a case for this: a New Mexico case holding squarely that divorce fees are not community debts but also holding that debts to benefit children can be – because the New Mexico statute specifically includes “dependants,” not just “community.”

Speaking of when all else fails, we spoke too soon. A Louisiana statute says that divorce costs are community. People used to think that nobody outside Louisiana used Louisiana authority except in moments of panic. Even its community property law is unique, based on the Code Napoleon rather than Spanish tradition.   Perhaps the court simply wanted the frisson of using precedent from a legal system that does not, at least in theory, use precedent.

So the court remands “for further proceedings consistent with this opinion.” That means  a motion for summary judgment, the law firm arguing that the wife “objectively” intended to benefit the community. How’s the trial court going to determine that? By considering “the surrounding circumstances at the time of the transaction.” Yep, analyzing surrounding circumstances is just the stuff of summary judgment, all right. But if not then the court can presumably hold a trial to find out if the wife, in hiring lawyers to get her a divorce, “objectively” really wanted mediation to save the marriage, or to improve the lot of the “community’s” children, or some such.