STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. C M L ACTION DOCKET NO. CV-04-508
MARTHA BARDAY and TIMOTHY BARDAY , - L. .>.; ;: .; .i* ,
q. -. . < !,
3 " -- '
.),-.id ;. : i 1 , ~, 2886 Plaintiffs
v. REGL qVED ON DEFENDANT'S MOTIONS FOR PARTIAL SUMMARY ROBERT DONNELLY JLJDGNIENT
Defendant
MEGAN BERRY
Thrd-P arty Defendant
Before the court are two motions for partial summary judgment made by defendant Robert Donnelly ("Defendant"). Defendant's first motion requests a limitation on plaintiff Martha Barday's ("Ms. Barday") medical expense damages. Plaintiffs have cross-moved for partial summary judgment on t h s issue. Defendant's second motion requests that his liability for Ms. Barday's damages be separated from any liability for those damages accorded to third- party defendant Megan Berry ("Ms. Berry").' BACKGROUND On August 13, 2004, Ms. Barday and her husband, Timothy Barday,
(together "Plaintiffs") filed a two-count complaint against Defendant for
compensatory damages and loss of consortium arising out of a March 31, 2004
Plaintiffs also make a cross-motion for summary judgment on this motion, requesting that the court grant summary judgment on Defendant's third-party complaint. However, as Plaintiffs fail to brief the merits of this cross-motion, the court will not consider it. automobile accident involving Ms. Barday, Defendant and Ms. Berry. Plaintiffs
settled their claims with Ms. Berry on June 15, 2004, for $100,000. After
commencement of the suit against h m , Defendant filed a thrd-party complaint
against Ms. Berry seelung contribution and/or indemnity from her in the event
he is found liable to either or both of the plaintiffs.
Ms. Barday is insured by MaineCare and by MeQcare. Although the final
numbers have not yet been determined2, both parties agree that, in principle, Ms.
Barday's medical service providers have billed a certain amount to her insurer(s),
and that those insurers have paid some amount substantially less than the
amount billed. The parties further agree that the medical service providers will
neither receive payment in the full amounts billed, nor will they pursue her
personally for the deficiency. Rather, the difference between what is billed and
what is paid out becomes a write-off for the medical service providers.
DISCUSSION
I. Defendant's Motion to Limit Medical Expense Damages to the Amount Actually Paid by MaineCare
Defendant has asked that evidence as to the amount of damages Ms. Barday is entitled to receive for medical services should be limited to the amount
actually paid by her insurers for those services. Essentially, Defendant would like to exclude evidence of the charges billed by Ms. Barday's medical providers. In deciding whether evidence of the charges billed by Ms. Barday's
medical providers should be excluded from the evidence presented to the
Defendant's figure for payments made by MaineCare is $68,592.64. Ms. Barday's opposing statement of material facts states that MaineCare was billed $105,305.73, and as of the date of Plaintiff's opposition to Defendant's first motion for partial summary judgment, has paid $72,915.19. It does not appear that Medicare has paid out any sums to cover her treatment. factfinder, it is useful to start with the definition of "medical expenses" offered
by the Maine Jury Instruction Manual and the commentary thereon:
5 7-108 Medical Expenses. Instruction. Medical expenses includes the reasonable value of medical services including; examination and care by doctors and other medical personnel, hospital care and treatment, medicine and other medical supplies shown by the evidence to have been reasonably required and actually G e d in treatment of the plaintiff, plus a sum to compensate the plaintiff for any medical care, medicines and medical supplies which you find are reasonably certain to be required for future treatment of the plaintiff caused by the defendant's negligence.
COMMENT Medical expense damages may be recovered for charges paid by a collateral source or charges actually incurred but later written off or otherwise not collected. Mention to the jury of collateral source payments or writeoffs should be avoided. See Werner v. Lane, 393 A.2d 1329, 1333-1337 (Me. 1978). In Werner the Law Court extensively discussed the collateral source rule and stated: '[Tlhe fact [that] necessary medical and nursing services are rendered gratuitously to one who is injured as a result of the negligence of another should not preclude the injured party from recovering the reasonable value of those services as part of ... compensatory damages in an action against the tortfeasor.' 393 A.2d at 1335.
Alexander, Maine Jury Instruction Manual § 7-108 (4thed. 2004). As an initial
matter, Defendant is aware of the possible difficulty in presenting MaineCarefs
reimbursement figure, as MaineCare is a collateral source for payment of Ms.
Barday's medical expenses, and under the collateral source rule, mention of
MaineCare should be avoided so as not to prejudice the factfinder against
awarding Ms. Barday medical expense damages. See Werner, 393 A.2d at 1336.
Defendant argues, however, that mere limitation of the evidence to the amount
actually paid out by MaineCare, while avoiding mention of the fact that
payments were made by this collateral source, does not implicate the collateral source rule. Defendant's suggestion for presentation of the evidence would
avoid prejudicing the jury in violation of the collateral source rule.
The more fundamental question, after avoiding difficulty with the
collateral source rule, is whether Defendant's suggested valuation for medical
expenses, i.e. the amount paid by MaineCare, is in fact the "reasonable value" of
those expenses. Defendant argues that they are for three reasons. First, the
medical service providers accepted the amount paid out by MaineCare as
payment in full for their services, and this is an indication that the value paid
was the reasonable value of the services. Second, the Restatement (Second) of
Torts defines the value of services rendered as "no more than the amount paid.. .
if the injured person paid less than the exchange rate, except when the low rate
was intended as a gift to him." § 911(Comment h). Third, other jurisdictions
have adopted the amount paid by insurers as the reasonable value of medical
expenses. The reasoning in one opinion, advanced by Defendant as a leading
opinion on this issue, is that damages are awarded for the purpose of
compensating the plaintiff for injury suffered, and that a plaintiff should not be
placed in a better position than he would have been had the wrong not been
done. See Hanif v. Hotlsing Atlthority, 246 Cal. Rptr. 192, 196-7 (3d Dist. 1988).
Further, medical expenses, as economic damages, represent actual pecuniary loss
caused by the defendant's wrong, and thus, an award of damages for past
medical expenses in excess of what the medical care and services actually cost
constitutes over-compensation. Id. The court then concluded that medical care
and services actually cost what was accepted by the health care providers from
the plaintiffs insurer. Id. The Law Court has not further defined the "reasonable value" of medical
expenses, nor has the legislature elaborated on its meaning.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. C M L ACTION DOCKET NO. CV-04-508
MARTHA BARDAY and TIMOTHY BARDAY , - L. .>.; ;: .; .i* ,
q. -. . < !,
3 " -- '
.),-.id ;. : i 1 , ~, 2886 Plaintiffs
v. REGL qVED ON DEFENDANT'S MOTIONS FOR PARTIAL SUMMARY ROBERT DONNELLY JLJDGNIENT
Defendant
MEGAN BERRY
Thrd-P arty Defendant
Before the court are two motions for partial summary judgment made by defendant Robert Donnelly ("Defendant"). Defendant's first motion requests a limitation on plaintiff Martha Barday's ("Ms. Barday") medical expense damages. Plaintiffs have cross-moved for partial summary judgment on t h s issue. Defendant's second motion requests that his liability for Ms. Barday's damages be separated from any liability for those damages accorded to third- party defendant Megan Berry ("Ms. Berry").' BACKGROUND On August 13, 2004, Ms. Barday and her husband, Timothy Barday,
(together "Plaintiffs") filed a two-count complaint against Defendant for
compensatory damages and loss of consortium arising out of a March 31, 2004
Plaintiffs also make a cross-motion for summary judgment on this motion, requesting that the court grant summary judgment on Defendant's third-party complaint. However, as Plaintiffs fail to brief the merits of this cross-motion, the court will not consider it. automobile accident involving Ms. Barday, Defendant and Ms. Berry. Plaintiffs
settled their claims with Ms. Berry on June 15, 2004, for $100,000. After
commencement of the suit against h m , Defendant filed a thrd-party complaint
against Ms. Berry seelung contribution and/or indemnity from her in the event
he is found liable to either or both of the plaintiffs.
Ms. Barday is insured by MaineCare and by MeQcare. Although the final
numbers have not yet been determined2, both parties agree that, in principle, Ms.
Barday's medical service providers have billed a certain amount to her insurer(s),
and that those insurers have paid some amount substantially less than the
amount billed. The parties further agree that the medical service providers will
neither receive payment in the full amounts billed, nor will they pursue her
personally for the deficiency. Rather, the difference between what is billed and
what is paid out becomes a write-off for the medical service providers.
DISCUSSION
I. Defendant's Motion to Limit Medical Expense Damages to the Amount Actually Paid by MaineCare
Defendant has asked that evidence as to the amount of damages Ms. Barday is entitled to receive for medical services should be limited to the amount
actually paid by her insurers for those services. Essentially, Defendant would like to exclude evidence of the charges billed by Ms. Barday's medical providers. In deciding whether evidence of the charges billed by Ms. Barday's
medical providers should be excluded from the evidence presented to the
Defendant's figure for payments made by MaineCare is $68,592.64. Ms. Barday's opposing statement of material facts states that MaineCare was billed $105,305.73, and as of the date of Plaintiff's opposition to Defendant's first motion for partial summary judgment, has paid $72,915.19. It does not appear that Medicare has paid out any sums to cover her treatment. factfinder, it is useful to start with the definition of "medical expenses" offered
by the Maine Jury Instruction Manual and the commentary thereon:
5 7-108 Medical Expenses. Instruction. Medical expenses includes the reasonable value of medical services including; examination and care by doctors and other medical personnel, hospital care and treatment, medicine and other medical supplies shown by the evidence to have been reasonably required and actually G e d in treatment of the plaintiff, plus a sum to compensate the plaintiff for any medical care, medicines and medical supplies which you find are reasonably certain to be required for future treatment of the plaintiff caused by the defendant's negligence.
COMMENT Medical expense damages may be recovered for charges paid by a collateral source or charges actually incurred but later written off or otherwise not collected. Mention to the jury of collateral source payments or writeoffs should be avoided. See Werner v. Lane, 393 A.2d 1329, 1333-1337 (Me. 1978). In Werner the Law Court extensively discussed the collateral source rule and stated: '[Tlhe fact [that] necessary medical and nursing services are rendered gratuitously to one who is injured as a result of the negligence of another should not preclude the injured party from recovering the reasonable value of those services as part of ... compensatory damages in an action against the tortfeasor.' 393 A.2d at 1335.
Alexander, Maine Jury Instruction Manual § 7-108 (4thed. 2004). As an initial
matter, Defendant is aware of the possible difficulty in presenting MaineCarefs
reimbursement figure, as MaineCare is a collateral source for payment of Ms.
Barday's medical expenses, and under the collateral source rule, mention of
MaineCare should be avoided so as not to prejudice the factfinder against
awarding Ms. Barday medical expense damages. See Werner, 393 A.2d at 1336.
Defendant argues, however, that mere limitation of the evidence to the amount
actually paid out by MaineCare, while avoiding mention of the fact that
payments were made by this collateral source, does not implicate the collateral source rule. Defendant's suggestion for presentation of the evidence would
avoid prejudicing the jury in violation of the collateral source rule.
The more fundamental question, after avoiding difficulty with the
collateral source rule, is whether Defendant's suggested valuation for medical
expenses, i.e. the amount paid by MaineCare, is in fact the "reasonable value" of
those expenses. Defendant argues that they are for three reasons. First, the
medical service providers accepted the amount paid out by MaineCare as
payment in full for their services, and this is an indication that the value paid
was the reasonable value of the services. Second, the Restatement (Second) of
Torts defines the value of services rendered as "no more than the amount paid.. .
if the injured person paid less than the exchange rate, except when the low rate
was intended as a gift to him." § 911(Comment h). Third, other jurisdictions
have adopted the amount paid by insurers as the reasonable value of medical
expenses. The reasoning in one opinion, advanced by Defendant as a leading
opinion on this issue, is that damages are awarded for the purpose of
compensating the plaintiff for injury suffered, and that a plaintiff should not be
placed in a better position than he would have been had the wrong not been
done. See Hanif v. Hotlsing Atlthority, 246 Cal. Rptr. 192, 196-7 (3d Dist. 1988).
Further, medical expenses, as economic damages, represent actual pecuniary loss
caused by the defendant's wrong, and thus, an award of damages for past
medical expenses in excess of what the medical care and services actually cost
constitutes over-compensation. Id. The court then concluded that medical care
and services actually cost what was accepted by the health care providers from
the plaintiffs insurer. Id. The Law Court has not further defined the "reasonable value" of medical
expenses, nor has the legislature elaborated on its meaning. In its plain state, this
phrase signals to the court, as it did to Justice Studstrup in Williams v. UPS
Worldwide Forwarding, lnc., that "reasonable value" is ultimately a question of fact
for the jury to decide. KENSC-CV-2004-238 (Me. Super. Ct., Ken. Cty., Oct. 11,
2004). The decisions of other jurisdictions cannot here be adopted on the force of
logic alone, especially where "reasonable value" remains, in this jurisdiction,
unadorned by further definition. Further, it is not clear that these opinions are
correct. Hanifequates the "cost" of medical services with the amount paid by the
insurers. However, it is possible that the amounts paid by MaineCare do not
cover the reasonable value of the services provided to Ms. Barday, and that the
health care providers recouped the loss out of tax write-offs and other
government support, or through thrd-party donations. Nor does the Restatement
compel the conclusion that the rate paid by MaineCare is the correct measure of
value. The Restatement does say that, if the injured person paid less than the
exchange rate, he can recover no more than the amount paid, except when the
low rate was intended as a gift to h m . Restatement (2d) Torts, 5 911 (Comment
h). However, the payment at issue in this case is not a simple two-party transaction wherein the injured person obtained a bargain for services rendered,
but is, rather, a complicated multi-party transaction in w h c h the payment made
by MaineCare does not necessarily encompass the value of the services rendered.
It is for the factfinder to decide, based on evidence not only of the amount of the
payments made, but also based on evidence of the amounts billed by the medical
service providers and any other relevant evidence not implicating the collateral
source rule, what the "reasonable value" of those medical services is. 11. Defendant's Motion to Limit His Liability to His Proportionate Share
Defendant requests partial summary judgment from this court declaring
that Defendant's liability for Plaintiffs' injuries is limited to his proportionate
share of fault.
Should Plaintiff prevail in demonstrating liability, Defendant will have the
right to request of the jury through interrogatory the percentage of fault
attributable to him. See 14 M.R.S.A. § 156. It is also possible that any
apportionment of liability will not be decided at trial, but in a separate hearing
afterward. It is premature to request a ruling from this court limiting
defendant's liability to h s proportionate share before Defendant has been found
liable or requested an app~rtionment.~
The entry is:
Defendant's and Plaintiffs' cross-motions for partial summary judgment concerning limitation of evidence of damages related to medical expenses are DENIED. Evidence of both the medical service billing, as well as payments made (except for the identity of the payor) will be admissible for determining the "reasonable value" of those services.
In addition to being premature, the request also may not present an actual controversy to the court, as it appears the release executed by Plaintiffs in their settlement with Ms. Berry precludes them from collecting against Defendant that portion of any damages attributable to Ms. Berry's share of responsibility. The release states in relevant part: We, Martha V. Barday and Timothy R. Barday, being of lawful age acknowledge receipt of one hundred thousand and no/100, ($100,000.00), in return for which we hereby release Megan Berry and Dairyland Insurance Company from any and all claims for inlury and damages as the result of an accident on or about the 31" of March, 2004. If Plaintiffs collect from Defendant any damages attributable to Ms. Berry, it would generate a claim on Defendant's part for contribution against Ms. Berry. Any contribution claim against Ms. Berry is essentially a "claim for damages as a result of [the] accident." Thus, by implication Plaintiffs' release precludes them from collecting against Defendant sums attributable to Ms. Berry's share of responsibility. Defendant's motion for partial summary judgment requesting a limitation of his liability is DENIED, as the issue is presented prematurely.
Dated at Portland, Maine this 27& day of
~ustice:Superior Court CHRISTOPKER LEDWICK ESQ PO BOX 7 1 0 8 PORTLAND ME 0 4 1 1 2
RICHARD REGAN ESQ 37 COURT S T m E T BATH ME 0 4 5 3 0
FREDERICK MOORE ESQ 511 CONGRESS STREET PORTLAND ME 0 4 1 0 1
LEE BALS ESQ j / 1 0 0 MIDDLE STREET EAST TOWER PORTLAND ME 0 4 1 0 1 4' -