Vencor Hospitals v. Blue Cross , 169 F.3d 677 ( 1999 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 96-5105 03/08/99
THOMAS K. KAHN
CLERK
D. C. Docket No. 94-6881-CV-JAG
VENCOR HOSPITALS d.b.a.
Vencor Hospital,
Plantiff-Appellant-Cross-Appellee,
versus
BLUE CROSS BLUE SHIELD OF RHODE ISLAND,
Defendant-Appellee-Cross-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
(March 8, 1999)
Before TJOFLAT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
This case hinges on the interpretation of certain terms in an insurance contract. Because
we are uncertain exactly which documents comprise the contract, we remand the case for further
proceedings in the district court.
I.
Medicare Part A, part of the federally-provided health care insurance program for older
adults, pays for up to ninety days per benefit period1 of medically necessary inpatient hospital
care. If a patient requires more than ninety days of hospitalization during a benefit period, he
may use some of his sixty “lifetime reserve days” (which, as the name suggests, are not renewed
each benefit period). Once a patient has been hospitalized for over ninety days and has
exhausted his supply of reserve days, he is not eligible for Medicare hospitalization benefits until
the beginning of a new benefit period.
In response to this and other limits on Medicare coverage, insurance companies began
issuing Medicare supplement insurance, commonly known as “Medigap” policies. These
policies provide coverage for, inter alia, the portion of an extended hospital stay not covered by
Medicare.
Blue Cross/Blue Shield of Rhode Island (“BCBS”) issued Medigap policies to Martha
Butler and Aniello Esposito. Butler and Esposito were both admitted to Vencor Hospital in Ft.
1
A Medicare “benefit period” begins on the first day a beneficiary is hospitalized and
ends when the beneficiary has not been an inpatient in a hospital or nursing home for 60
consecutive days. See 42 U.S.C. § 1395x (1994) (using “spell of illness” instead of “benefit
period”).
2
Lauderdale, Florida, and required care for a period exceeding their Medicare coverage. During
the period of Medicare coverage, Vencor charged Butler and Esposito only the copayment or
deductible required under Medicare (which, in turn, was paid for by BCBS under the Medigap
policy). Vencor’s costs during this period were reimbursed by Medicare. After Medicare
coverage expired, Vencor began charging Butler and Esposito its ordinary rates. These rates
included a substantial amount of profit, and were therefore greatly in excess of the amount
Vencor had previously been receiving as cost reimbursement from Medicare.
After Butler and Esposito finished their hospital stays, Vencor sought payment from
BCBS. Butler’s and Esposito’s Medigap policy provided for coverage as follows: “Upon
exhaustion of all Medicare hospital inpatient coverage . . . we will cover up to ninety percent
(90%) of all Medicare Part A Eligible Expenses for hospitalization not covered by Medicare . . .
.” BCBS claimed that the policy covered ninety percent of what Medicare would have paid (i.e.,
cost reimbursement) for any necessary treatment; thus, Vencor was entitled only to that amount
and not to ninety percent of its ordinary charges. BCBS consequently paid Vencor $240,582.13
as full payment under the policies.2 Vencor interpreted the policy somewhat differently – it
claimed that the policy covered ninety percent of the ordinary amount charged for any Medicare-
approved treatment. Vencor therefore brought suit in the United States District Court for the
Southern District of Florida to recover the remaining $710,725.71 it believed was due.3
2
BCBS paid Vencor $40,921.19 for Esposito’s claim and $199,660.94 for Butler’s claim.
Esposito’s claim was paid directly to Vencor; Butler’s claim was paid to Butler in a series of
checks that were given unendorsed to Vencor.
3
Vencor sought $157,419.36 on the Esposito claim and $553,306.35 on the Butler claim.
3
The district court granted summary judgment for BCBS on the ground that the policy
unambiguously limits payment to ninety percent of what Medicare would have paid. Vencor
appeals.
II.
BCBS, as an initial matter, challenges Vencor’s standing to raise a claim. BCBS’
contracts were with Butler and Esposito – not Vencor – and therefore, according to BCBS, only
Butler and Esposito have standing to sue for any breach.
We hold that Vencor is a third-party beneficiary of the contracts between BCBS and
Butler and Esposito, and therefore has the right to sue for breach of the insurance contract. A
party has a cause of action as a third-party beneficiary to a contract if the contracting parties
express an intent primarily and directly to benefit that third party (or a class of persons to which
that third party belongs). See Daniel v. Florida Residential Property & Cas. Joint Underwriting
Ass’n, 718 So.2d 936, 937 (Fla. 3d DCA 1998).4 It would be hard to imagine a more direct
benefit under a contract than the receipt of large sums of money. That is exactly the benefit
intended for Vencor – as the hospital providing services to the insured – under the contracts
between BCBS and Butler and Esposito. The Medigap policy held by Butler and Esposito states,
“Benefit payments may be paid to the doctor, hospital or to you directly at our discretion.” By
4
BCBS argues that the law of Rhode Island should apply to this suit. The district court,
however, held that the law of Florida applies. The district court also held that there are no
material differences between the relevant Rhode Island and Florida precedent – a holding with
which BCBS does not disagree. We therefore apply Florida law, confident that the basic
principles of contract law on which this opinion rests are equally applicable in Rhode Island or
any other common law jurisdiction.
4
providing for payment directly to the hospital, the contracting parties showed a clear intent to
provide a direct benefit to Vencor (or any other service-providing hospital), and thus Vencor has
standing to bring this suit.5 See United States v. Automobile Club Ins. Co., 522 F.2d 1, 3 (5th
Cir. 1975) (interpreting similar contract language);6 Orion Ins. Co. v. Magnetic Imaging Sys. I,
696 So.2d 475, 478 (Fla. 3d DCA 1997) (“Medical service providers . . . have been recognized
as third party beneficiaries of insurance contracts.”).
III.
Having determined that Vencor has standing to bring a claim, we must now determine
whether there is a genuine issue of material fact regarding whether Vencor is entitled to payment
based on its ordinary charges. We hold that there is, and therefore remand the case to the district
court for further proceedings.
Under the policy, Vencor is entitled to ninety percent of “all Medicare Part A Eligible
Expenses for hospitalization not covered by Medicare.” Eligible expenses are defined as “the
health care expenses covered under Medicare which Medicare has determined are reasonable and
medically necessary.” The debate between Vencor and BCBS centers on whether the phrase
5
The fact that Vencor was not identified specifically at the time of contract formation is
irrelevant to whether Vencor is a third-party beneficiary. See 4 Arthur Linton Corbin, Corbin on
Contracts § 781 (1951) (“[I]t is not necessary that [the third-party beneficiary] be identified or
identifiable at the time the contract is made. It is enough that he be identified at the time
performance is due.” (footnote omitted)). Also, the fact that BCBS has discretion to pay either
Vencor or the insured does not deprive Vencor of standing. If an absolute right to payment were
required for standing, no one (including the insured) would have standing to enforce the policy.
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
5
“health care expenses” in this definition refers exclusively to types of expenses – in other words,
forms of treatment – or also includes amounts of expenses.
It is unclear, however, whether the insurance policy is the only document comprising the
contract between BCBS and each of the insureds. The record also contains an “Outline of
Coverage” that is highly ambiguous regarding the scope of the policy’s coverage.7 If this outline
is considered part of the contract, then the contract is ambiguous regarding the contested issue,
and that ambiguity must be resolved in favor of Vencor. See Epstein v. Hartford Cas. Ins. Co.,
566 So.2d 331, 333 (Fla. 1st DCA 1990).
One reason for considering the outline to be part of the contract is that BCBS was
required to provide such an outline to Butler and Esposito under state law. See Fla. Admin.
Code Ann. r. 4-51.006(3) (1990); R.I. Ins. Admin. Code r. XLVI, § 13 (1990).8 The policy
behind the state law regulatory scheme presumably is to provide the insured with a document
7
The Outline of Coverage states that upon exhaustion of Medicare benefits, the policy
pays “90% of Part A expenses for an additional 365 days.” The outline then states that the
insured pays “$0.00.” Read in context, these statements suggest that the insured will at most be
required to pay 10% of the hospital’s charges after Medicare benefits have expired, and can
easily be read to mean that the insured pays nothing. Under BCBS’ interpretation of the policy,
the insured may ultimately be held responsible for well over half of the hospital bill. For
instance, if the hospital bill were $100, of which $50 represents costs that would be reimbursed
by Medicare, BCBS would pay $45 (90% of $50), leaving $55 to be paid by the insured.
The record also contains a promotional brochure for the policy that makes certain
representations regarding the policy’s scope of coverage. On remand, the district court should
consider the significance (if any) to be accorded this brochure in interpreting the policy.
8
In addition to state law regulations, there are also presently federal regulations
governing Medigap policies. See HHS’ Recognition of NAIC Model Standards for Regulation
of Medigap Policies, 57 Fed. Reg. 37980 (1992); see also Vencor, Inc., v. Physicians Mut. Ins.
Co., No. Civ.A. 98-00443 (D.D.C. Jan. 21, 1999) (relying on federal regulations to interpret a
Medigap policy). These regulations, however, were promulgated after the policies in this case
were issued. See id. at 37980 (noting effective date of July 30, 1992).
6
setting forth the insured’s contractual rights with more clarity than is present in the ordinary
insurance policy, thereby making it more difficult for the insurance company to defraud
purchasers regarding the scope of coverage. It is possible that the legislature’s intent in this
regard would be frustrated if the outline were not considered part of the contract.9 If the outline
is merely another promotional document, and not part of the contract, then the regulatory scheme
would do nothing more than create additional evidence of the fraud that the legislature intended
to prevent. This determination, however, requires an analysis of legislative intent that is best
undertaken in the first instance by the district court.10
We also note that even if BCBS’ interpretation of the policy is correct, it is nevertheless
unclear what amount Vencor is due. BCBS claims that it owes Vencor the amount Medicare
would have paid for Butler’s and Esposito’s treatment. The amount Medicare would have paid,
however, varies according to the stage of the reimbursement process. Throughout the year,
Medicare (through an intermediary) advances payment to Vencor based on an approximation of
Vencor’s costs. At the end of the year, Vencor submits a cost report to Medicare; Vencor then
either receives more payment or returns some of the previous payments depending on how the
actual year-end costs compare with the estimated amounts previously advanced. In addition,
Medicare sets a target amount for annual costs; Vencor is forced to absorb costs that exceed this
9
The policy contains a merger clause stating, “The entire contract consists of the
application, this agreement and any attached amendments.” Such a clause would, on its face,
prevent the court from considering the Outline of Coverage as part of the contract. If the state
regulatory scheme requires the Outline of Coverage to be read into the contract, however, the
merger clause is irrelevant.
10
We reserve the question whether, if the Outline of Coverage is not part of the contract,
the policy standing alone would support Vencor’s position.
7
amount but receives a bonus if its costs are below the target amount. Thus, when BCBS claims
that it owes Vencor only the amount that Medicare would have paid, it is unclear whether that
amount is based on the preliminary advance, the final accounting, or the final accounting plus or
minus some amount related to Vencor’s deviance from its annual target.11
IV.
BCBS argues that, even if Vencor would otherwise be entitled to payment of its ordinary
charges, each of Vencor’s claims is barred by the affirmative defense of accord and
satisfaction.12 “An accord and satisfaction occurs where (1) the parties intended to effect a
settlement or resolve an existing dispute by entering into an agreement; and (2) the parties have
engaged in actual performance in relation to the new agreement in order to resolve or settle the
dispute.” Pogge v. Department of Revenue, 703 So.2d 523, 526 (Fla. 1st DCA 1997).
In regard to the Butler claim, BCBS sent a check directly to Butler in the amount BCBS
considered itself obliged to pay under the policy. The check was accompanied by a cover letter
stating that it represented full payment of Butler’s claim. Butler then gave the check to Vencor
(without the cover letter), which endorsed and deposited it. This evidence shows, at most, that
11
The amount actually paid by BCBS appears to have been based on the first of these
options (the preliminary advance).
12
The district court, without explanation, rejected this defense in its order granting
summary judgment for BCBS. BCBS, by raising the defense on appeal presents us with an
alternative ground on which to affirm the district court’s grant of summary judgment – even if
the district court erred in interpreting the policy in BCBS’ favor, BCBS has established the
accord and satisfaction defense as a matter of law. Because we have the authority to affirm a
district court’s summary judgment on a ground not relied upon by the district court, see Johnson
Enters. of Jacksonville v. FPL Group, 162 F.3d 1290, – n.50 (11th Cir. 1998), we consider the
merits of BCBS’ argument.
8
BCBS reached an accord and satisfaction with Butler. Such an agreement would have no effect
on Vencor’s rights under the policy;13 BCBS’ accord and satisfaction defense therefore fails in
regard to the Butler claim.
In regard to the Esposito claim, payment was made directly to Vencor. According to
BCBS’ Director of Provider Reimbursement, Henry Lourenco, BCBS negotiated an agreement
with Carolyn Giskin of Vencor under which BCBS would pay $37,535.45 as full payment of
Esposito’s claim. A check in this amount was issued by BCBS and deposited by Vencor.
Genuine issues of material fact exist regarding whether there was an accord and satisfaction on
this claim. If Lourenco and Giskin in fact reached a settlement agreement, and if Giskin had the
actual or apparent authority to act on behalf of Vencor, then such an agreement (combined with
Vencor’s acceptance of the check issued by BCBS) would constitute an accord and satisfaction.
V.
For the foregoing reasons, the judgment of the district court is VACATED and the case is
REMANDED for further proceedings consistent with this opinion.14
SO ORDERED.
13
A third-party beneficiary contract creates a contractual relationship between the
beneficiary and the promisor. See 4 Corbin, supra, § 779J. Thus, for any accord and satisfaction
to affect Vencor’s rights, Vencor would have to be a party to the accord.
14
Vencor, in its complaint, sought relief under a promissory estoppel theory as an
alternative to breach of contract. BCBS moved for summary judgment on this claim; the motion
was denied. BCBS cross-appeals. Because Vencor’s promissory estoppel claim was merely an
alternative avenue of relief, this issue is not ripe for review until such time as the breach of
contract claim is decided.
9
10