Avante at Boca Raton, Inc. v. Senior Care Pharmacy of Florida, LLC

113 So. 3d 874, 2012 WL 5076102, 2012 Fla. App. LEXIS 18273, 37 Fla. L. Weekly Fed. D 2454
CourtDistrict Court of Appeal of Florida
DecidedOctober 19, 2012
DocketNo. 2D11-220
StatusPublished

This text of 113 So. 3d 874 (Avante at Boca Raton, Inc. v. Senior Care Pharmacy of Florida, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avante at Boca Raton, Inc. v. Senior Care Pharmacy of Florida, LLC, 113 So. 3d 874, 2012 WL 5076102, 2012 Fla. App. LEXIS 18273, 37 Fla. L. Weekly Fed. D 2454 (Fla. Ct. App. 2012).

Opinion

DAVIS, Judge.

Avante at Boca Raton, Inc.; Avante at Inverness, Inc.; Avante Villa at Jacksonville Beach, Inc.; Avante at Lake Worth, Inc.; Avante at Leesburg, Inc.; Avante at Melbourne, Inc.; Avante at Mt. Dora, Inc.; Avante at Orlando, Inc.; Avante at Or-mond Beach, Inc.; and Avante at St. Cloud, Inc. (collectively, the Nursing Homes), challenge the final judgment entered after jury trial in favor of Senior Care Pharmacy of Florida, LLC. The final judgment awarded Senior Care $1,608,104.72 on a breach of contract claim. We reverse and remand.

Senior Care is a pharmaceutical company that sells medications and related services to nursing homes, assisted living facilities, and specialty care assisted living facilities. Each of the Avante Nursing Homes entered into a separate contract with Senior Care for the purchase of medications needed for their nursing home residents.1 Senior Care performed pursuant to the contracts by delivering medications to the Nursing Homes and invoicing the Nursing Homes accordingly. And initially, the Nursing Homes paid the invoiced amounts.

However, there came a time when the Nursing Homes stopped paying the invoices, complaining that they were being overcharged. The parties met and entered into a.stipulation whereby the Nursing Homes would immediately pay Senior Care $470,000 in at least partial payment of their obligation and, in return, Senior Care would provide the Nursing Homes with the necessary documents to determine what remaining amount, if any, they owed under the contract. During these [876]*876discussions, it became obvious to the parties that they had a difference of opinion as to what the contract term describing the price to be charged actually meant.

The contract specified that Senior Care would charge and the Nursing Homes would pay the “Pharmacy’s current usual and customary charge to Medicaid.” Senior Care understood this to mean that the contract price would be the normal charge that Senior Care would invoice when Medicaid was to pay for a prescription whether or not Medicaid actually paid the full amount of the invoice. The Nursing Homes’ position was that .this term, as used in the industry, meant that the contract price was to be the amount that Medicaid would actually pay (reimburse) for a prescription. This amount may be a lesser amount than what Senior Care invoiced when Medicaid was involved. Based on their understanding of the contractual provision, the Nursing Homes argued that the invoices were in excess of the amount they agreed to pay under the contract.

Once it became apparent that the parties would be unable to resolve their different understandings of the contract term, Senior Care filed its complaint, alleging one count of breach of contract and one count of open account. The Nursing Homes filed their answer, denying (1) that they had failed to pay in accordance with the agreement, (2) that Senior Care had billed in accordance with the agreement, and (3) that the amounts billed were based on an agreed-upon sales price. Additionally, the Nursing Homes raised several affirmative defenses. The underlying theory of the affirmative defenses was that Senior Care had not billed pursuant to the term of the contract as the Nursing Homes understood it. They alleged (1) that Senior Care had waived its rights under the contract by breaching the pricing term, (2) that Senior Care had failed to fulfill the conditions precedent by sending improper invoices, (3) that the Nursing Homes had fully paid for the medications based on the terms of the contract, and (4) that Senior Care was precluded from alleging a breach of the contract by the Nursing Homes because Senior Care breached the contract first by sending invoices for amounts that exceeded the agreed-to price. It is clear from the pleadings that the issue to be resolved by the trial court was the meaning of the contractual term “current usual and customary charge to Medicaid.”

Prior to trial, the trial court determined that the contractual term was ambiguous. The court concluded that the term was susceptible to two potential meanings and that parol evidence would be received to determine the intent of the parties. The case then proceeded to a jury trial on the two counts. At issue in the breach of contract claim was the meaning of the pricing provision of the contract and once that was determined, the amount of damages, if any, that Senior Care should recover for the Nursing Homes’ failure to meet their contractual obligations.

At trial, witnesses for Senior Care testified as to the meaning of the term “current usual and customary charge.” The evidence presented showed that Senior Care believed that term to mean the actual amount it charged Medicaid, which was the average wholesale price (AWP), a figure provided by a national data service, less 10% plus a $4.75 dispensing fee per prescription. Senior Care showed that this was the charge it submitted for the Medicaid-paid medications but also acknowledged that Medicaid did not always pay (reimburse) the full amount invoiced.

To that end, witnesses, including a Senior Care co-owner, testified that Medicaid determines what amount it actually pays (reimburses) for a prescription pursuant to a procedure described in its own pro[877]*877gram’s handbook.2 Under the specified procedure, Medicaid reimburses the lesser of the prices resulting from application of three different formulas, one being an AWP formula that is calculated differently than the AWP formula Senior Care uses to invoice Medicaid. According to the Nursing Homes’ evidence, the AWP formula used by Medicaid is AWP less 15.45% plus a dispensing fee of $4.23 per prescription. The other two formulas considered by Medicaid in arriving at its reimbursement price are the wholesale acquisition cost (WAC) and the maximum allowable cost (MAC). Because Medicaid pays (reimburses) the lesser of the three prices resulting from these formulas, in some instances the amount actually paid by Medicaid may be less than the amount billed by Senior Care.

While •witnesses for both parties agreed with the above described explanation of how Medicaid determines the amount it actually pays for a prescription, the parties differed as to whether the price they agreed upon in their contract was actually the AWP formula charged by Senior Care or the amount reimbursed by Medicaid. Representatives from the Nursing Homes did acknowledge that they had received medications for which they owed something, but they insisted that such did not amount to a breach of contract because the amounts invoiced exceeded the prices they agreed to pay in the contract.

At the conclusion of all the evidence, Senior Care moved for a directed verdict on both the breach of contract and that amount of any resulting damages, but the trial court initially denied the motions. However, in considering the jury instructions a lengthy discussion ensued regarding the status of the case. Counsel for the Nursing Homes suggested to the tidal court that if the jury agreed with them on the meaning of the contractual term — that it was the actual amount reimbursed by Medicaid after Medicaid applied its three formulas — a $0 verdict would have to be entered because Senior Care had failed to present any evidence from which the jury could determine damages. Counsel for Senior Care, on the other hand, argued that because it was the Nursing Homes’ position that the contract provision meant the amount Medicaid actually paid, it was the Nursing Homes’ burden to present evidence that would provide the jury the basis for determining damages based on that theory.

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Bluebook (online)
113 So. 3d 874, 2012 WL 5076102, 2012 Fla. App. LEXIS 18273, 37 Fla. L. Weekly Fed. D 2454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avante-at-boca-raton-inc-v-senior-care-pharmacy-of-florida-llc-fladistctapp-2012.