GILBERT V. ANDRY, IV AND * NO. 2019-CA-0459 GIBBY ANDRY, THE ANDRY LAW FIRM, LLC * COURT OF APPEAL
VERSUS * FOURTH CIRCUIT
OMEGA HOSPITAL, L.L.C. * STATE OF LOUISIANA
*******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-10018, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)
Campbell Edington Wallace Everett R. Fineran FRILOT, L.L.C. 1100 Poydras Street Suite 3700 New Orleans, LA 70163--3700 COUNSEL FOR PLAINTIFF/APPELLANT
Philip Anthony Franco Timothy M. Brinks ADAMS & REESE LLP 701 Poydras Street, Suite 4500 New Orleans, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
NOVEMBER 6, 2019 Appellants, Gilbert V. Andry, IV, and Gibby Andry, The Andry Law Firm,
LLC, appeal the district court’s March 22, 2019 judgment granting summary
judgment in favor of Appellee, Omega Hospital, LLC, and denying their motion
for partial summary judgment. The judgment dismissed Appellants’ claims with
prejudice. For the reasons that follow, we reverse the judgment of the district court
in part, affirm in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2018, Appellants filed a petition for damages against
Appellee. Therein, Appellants stated that on November 3, 2010, Appellee filed its
own petition against Louisiana Health Service and Indemnity Company d/b/a Blue
Cross/Blue Shield of Louisiana (hereinafter “BCBS”), resulting from BCBS’
“systematic underpayment for medical services of out-of-network providers like
Omega.” Appellee ultimately retained Appellants to represent it on a contingency
fee basis.1 On January 20, 2012, the parties entered into an agreement whereby
1 Appellee was originally represented by a different firm that was apparently charging an hourly rate for its services.
1 Appellants would receive a fee of one-third of the “gross recovery” obtained by
Appellee in their suit against BCBS. Specifically, the parties agreed that
Appellants would represent Appellee “in all matters pertaining to any and all
claims which we have or may have against [BCBS,]” further specifying the case
name and number for the already pending action. The parties agreed that in the
event of settlement, Appellants’ one-third fee would “be based on a percentage of
the value of the case at the time of the settlement[.]” Appellants thereafter retained
T. Cary Wicker, III and his firm to serve as co-counsel.
Pursuant to the agreement, Appellants litigated Appellee’s claims up to the
weeks before trial, at which point BCBS communicated an interest in mediation.
Ultimately, according to Appellants, the mediation resulted in an agreement for
BCBS to pay “a lump sum payment to Omega for underpayment for past medical
services as well as an in-network contract for future services provided by Omega.”
Appellee, on the other hand, notes the agreement contained language only that the
parties “will undertake a good faith effort to negotiate an in-network provider
agreement.” While this is true, the agreement further set forth “terms and
conditions” with respect to those negotiations, e.g., length of the agreement (three
years) and reimbursement rates. A settlement agreement was thereafter finalized on
May 9, 2016.
Days after the mediation agreement had been signed, Appellee
communicated to Appellants its understanding that Appellants would be paid a fee
based only on the gross lump sum payment by BCBS, and not also on the gross
2 recovery associated with the in-network agreement, a dispute which is alleged to
have ultimately brought an end to the representation.2 Mr. Wicker, co-counsel in
the matter, was retained and proceeded to negotiate with BCBS on behalf of
Appellee on the terms of the in-network agreement. In September of 2016,
Appellee filed another suit against BCBS to enforce the settlement agreement,3
which suit was ultimately dismissed in May, 2018, as a result of the parties
reaching an agreement on an in-network contract. Appellants’ petition argued that
Appellee’s gross recovery included the monies it will receive as a result of its in-
network contract with BCBS; however, Appellee paid only $100,000, and
submitted a release to Appellants, which Appellants refused to sign.
Appellants’ petition submitted that Appellee’s in-network contract with
BCBS “was a significant part of the consideration received” by Appellee, and that
they would have “demanded a substantially higher lump sum” but for that contract.
It further alleged that fees to be paid by Appellee to Appellants “for the gross
recovery by [Appellee] for an in-network agreement with BCBS were specifically
discussed.”
On January 7, 2019, Appellee filed a motion for summary judgment and an
exception, and on February 21, 2019, Appellants filed their own motion for partial
summary judgment. On March 22, 2019, the district court held a hearing on the
2 Appellants’ petition submitted this amount would be “one-third of the gross past and future payments [Appellee] will received pursuant to its in-network agreement with BCBS in excess of its out-of-network reimbursement rate.” 3 The lawsuit was filed as a result of Appellee’s contention that BCBS was not negotiating in good faith.
3 motions for summary judgment and Appellee’s exception; it ultimately granted
Appellee’s motion and denied Appellants’ motion, rendering Appellee’s exception
moot. The court entertained arguments similar to those on appeal set forth more
fully below. However, counsel for Appellee argued that if Appellants intended to
collect fees on the in-network contract, they should have explicitly included such
language in the agreement, contrasting the agreement in dispute with a
subsequently drafted agreement – one drafted by Appellants that was never
presented to Appellee or signed by Appellee – that included explicit language
regarding calculation of fees on future payments. At that point, the court ruled,
stating “[a]nd that’s the reason I’m granting your summary judgment and denying
[Appellants’ motion].” This appeal follows.
First, Appellants argue that the language of the attorney-client contract
between the parties unambiguously included language that Appellants would
receive a fee based on the gross recovery associated with the Appellee’s in-
network agreement with BCBS. Appellants further argued that Appellee’s payment
of $100,000 with respect to work performed on the in-network agreement ratified
the parties’ understanding that Appellants were entitled to a fee on the in-network
recovery, but not as to the final amount of the fee. Appellee, on the other hand,
also argues that the language of the agreement is unambiguous, though it reaches
the exact opposite conclusion of Appellants – that fees based on the gross recovery
of the in-network contract were not contemplated. It further argues that the
$100,000 payment made to Appellants was made to settle the dispute. In support,
4 Appellee points to a Rule 1.5(c) statement provided by Appellants, which
Appellants were required to provide pursuant to the Rules of Professional Conduct
(hereinafter “RPC”).4 Appellants therein noted the $100,000 payment made by
Appellee.
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GILBERT V. ANDRY, IV AND * NO. 2019-CA-0459 GIBBY ANDRY, THE ANDRY LAW FIRM, LLC * COURT OF APPEAL
VERSUS * FOURTH CIRCUIT
OMEGA HOSPITAL, L.L.C. * STATE OF LOUISIANA
*******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-10018, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)
Campbell Edington Wallace Everett R. Fineran FRILOT, L.L.C. 1100 Poydras Street Suite 3700 New Orleans, LA 70163--3700 COUNSEL FOR PLAINTIFF/APPELLANT
Philip Anthony Franco Timothy M. Brinks ADAMS & REESE LLP 701 Poydras Street, Suite 4500 New Orleans, LA 70139 COUNSEL FOR DEFENDANT/APPELLEE
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
NOVEMBER 6, 2019 Appellants, Gilbert V. Andry, IV, and Gibby Andry, The Andry Law Firm,
LLC, appeal the district court’s March 22, 2019 judgment granting summary
judgment in favor of Appellee, Omega Hospital, LLC, and denying their motion
for partial summary judgment. The judgment dismissed Appellants’ claims with
prejudice. For the reasons that follow, we reverse the judgment of the district court
in part, affirm in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2018, Appellants filed a petition for damages against
Appellee. Therein, Appellants stated that on November 3, 2010, Appellee filed its
own petition against Louisiana Health Service and Indemnity Company d/b/a Blue
Cross/Blue Shield of Louisiana (hereinafter “BCBS”), resulting from BCBS’
“systematic underpayment for medical services of out-of-network providers like
Omega.” Appellee ultimately retained Appellants to represent it on a contingency
fee basis.1 On January 20, 2012, the parties entered into an agreement whereby
1 Appellee was originally represented by a different firm that was apparently charging an hourly rate for its services.
1 Appellants would receive a fee of one-third of the “gross recovery” obtained by
Appellee in their suit against BCBS. Specifically, the parties agreed that
Appellants would represent Appellee “in all matters pertaining to any and all
claims which we have or may have against [BCBS,]” further specifying the case
name and number for the already pending action. The parties agreed that in the
event of settlement, Appellants’ one-third fee would “be based on a percentage of
the value of the case at the time of the settlement[.]” Appellants thereafter retained
T. Cary Wicker, III and his firm to serve as co-counsel.
Pursuant to the agreement, Appellants litigated Appellee’s claims up to the
weeks before trial, at which point BCBS communicated an interest in mediation.
Ultimately, according to Appellants, the mediation resulted in an agreement for
BCBS to pay “a lump sum payment to Omega for underpayment for past medical
services as well as an in-network contract for future services provided by Omega.”
Appellee, on the other hand, notes the agreement contained language only that the
parties “will undertake a good faith effort to negotiate an in-network provider
agreement.” While this is true, the agreement further set forth “terms and
conditions” with respect to those negotiations, e.g., length of the agreement (three
years) and reimbursement rates. A settlement agreement was thereafter finalized on
May 9, 2016.
Days after the mediation agreement had been signed, Appellee
communicated to Appellants its understanding that Appellants would be paid a fee
based only on the gross lump sum payment by BCBS, and not also on the gross
2 recovery associated with the in-network agreement, a dispute which is alleged to
have ultimately brought an end to the representation.2 Mr. Wicker, co-counsel in
the matter, was retained and proceeded to negotiate with BCBS on behalf of
Appellee on the terms of the in-network agreement. In September of 2016,
Appellee filed another suit against BCBS to enforce the settlement agreement,3
which suit was ultimately dismissed in May, 2018, as a result of the parties
reaching an agreement on an in-network contract. Appellants’ petition argued that
Appellee’s gross recovery included the monies it will receive as a result of its in-
network contract with BCBS; however, Appellee paid only $100,000, and
submitted a release to Appellants, which Appellants refused to sign.
Appellants’ petition submitted that Appellee’s in-network contract with
BCBS “was a significant part of the consideration received” by Appellee, and that
they would have “demanded a substantially higher lump sum” but for that contract.
It further alleged that fees to be paid by Appellee to Appellants “for the gross
recovery by [Appellee] for an in-network agreement with BCBS were specifically
discussed.”
On January 7, 2019, Appellee filed a motion for summary judgment and an
exception, and on February 21, 2019, Appellants filed their own motion for partial
summary judgment. On March 22, 2019, the district court held a hearing on the
2 Appellants’ petition submitted this amount would be “one-third of the gross past and future payments [Appellee] will received pursuant to its in-network agreement with BCBS in excess of its out-of-network reimbursement rate.” 3 The lawsuit was filed as a result of Appellee’s contention that BCBS was not negotiating in good faith.
3 motions for summary judgment and Appellee’s exception; it ultimately granted
Appellee’s motion and denied Appellants’ motion, rendering Appellee’s exception
moot. The court entertained arguments similar to those on appeal set forth more
fully below. However, counsel for Appellee argued that if Appellants intended to
collect fees on the in-network contract, they should have explicitly included such
language in the agreement, contrasting the agreement in dispute with a
subsequently drafted agreement – one drafted by Appellants that was never
presented to Appellee or signed by Appellee – that included explicit language
regarding calculation of fees on future payments. At that point, the court ruled,
stating “[a]nd that’s the reason I’m granting your summary judgment and denying
[Appellants’ motion].” This appeal follows.
First, Appellants argue that the language of the attorney-client contract
between the parties unambiguously included language that Appellants would
receive a fee based on the gross recovery associated with the Appellee’s in-
network agreement with BCBS. Appellants further argued that Appellee’s payment
of $100,000 with respect to work performed on the in-network agreement ratified
the parties’ understanding that Appellants were entitled to a fee on the in-network
recovery, but not as to the final amount of the fee. Appellee, on the other hand,
also argues that the language of the agreement is unambiguous, though it reaches
the exact opposite conclusion of Appellants – that fees based on the gross recovery
of the in-network contract were not contemplated. It further argues that the
$100,000 payment made to Appellants was made to settle the dispute. In support,
4 Appellee points to a Rule 1.5(c) statement provided by Appellants, which
Appellants were required to provide pursuant to the Rules of Professional Conduct
(hereinafter “RPC”).4 Appellants therein noted the $100,000 payment made by
Appellee. Though the statement contains handwritten notations regarding disputes
as to certain fees, there are none with respect to the supposed settlement.
ANALYSIS
Standard of Review
We review the district court’s judgment granting summary judgment de
novo. Richard v. Turner, 2009-0161, p. 4 (La. App. 4 Cir. 7/1/09), 16 So.3d 523,
525 (citation omitted).
Contract Interpretation
The law of contract interpretation is well-settled. “Interpretation of a
contract is the determination of the common intent of the parties.” La. C.C. art.
2045. “When the words of a contract are clear and explicit and lead to no absurd
4 Rule 1.5(c) provides as follows:
A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(emphasis added).
5 consequences, no further interpretation may be made in search of the parties’
intent.” La. C.C. art. 2046. “Generally, when a written contract is clear
and unambiguous, parol evidence may not be admitted to negate or vary its terms.”
Pope v. Khalaileh, 2005-0027, p. 4 (La. App. 4 Cir. 6/1/05), 905 So.2d 1149, 1151
(citation omitted). In Campbell v. Melton, 2001-2578, p. 6 (La. 5/14/02), 817 So.2d
69, 75, the Supreme Court stated:
A contract is considered ambiguous on the issue of intent when either it lacks a provision bearing on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed.
“[T]he interpretation of unambiguous contractual provisions is a matter of law[.]”
Landis Const. Co. v. St. Bernard Par., 2014-0096, p. 5 (La. App. 4 Cir. 10/22/14),
151 So.3d 959, 963.
As noted, the agreement contained language that Appellants would represent
Appellee “in all matters pertaining to any and all claims which we have or may
have against [BCBS,]” and that they would receive a fee of one-third of the gross
recovery. In the event of settlement, Appellants’ one-third fee would “be based on
a percentage of the value of the case at the time of the settlement[.]” In granting
summary judgment in favor of Appellee, the trial court apparently relied on parol
evidence – i.e., the unsigned agreement that included more specific language on
fees from future payments on the in-network contract – thus implicitly finding the
language of the agreement ambiguous.
6 We also find that the language of the agreement is ambiguous. Appellants
rightly point out that they were engaged to represent Appellee in all matters
pertaining to the claims against BCBS, and further allege that Appellee agreed to
settle with BCBS for a lower lump sum payment based on BCBS’ agreement to
negotiate an in-network contract in good faith. Appellants allege that they were
relieved of their representation after the settlement when it became clear there
would be a fee dispute, yet negotiations between Appellee and BCBS continued.
Appellee’s new counsel ultimately filed suit against BCBS based on its assertion
that BCBS failed to negotiate in good faith—a suit that arguably “pertains to” the
underlying claim and which Appellants would have pursued had Appellee
continued to retain them. On the other hand, Appellee rightly points out that
Appellants could not provide representation that pertained to a “claim” it had no
right to make – to wit, a lawsuit against BCBS for an in-network contract; instead,
obtaining an in-network contract served to facilitate the resolution of its rightful
claim to compensation for BCBS’ history of systematically underpaying Appellee
for its medical services. As the agreement is susceptible to more than one
interpretation regarding whether Appellants were entitled to fees on the in-network
contract, we cannot say it is unambiguous.
Both Appellants and Appellee reference parol evidence; Appellants rely on
Appellee’s subsequent lawsuit against BCBS, while Appellee relies on Appellants’
unsigned engagement agreement that more precisely sets forth recovery of fees on
future payments. “[I]f a court determines as a matter of law that a contract is
7 ambiguous, then extrinsic (parol) evidence may be used to determine the true intent
of the parties, and determining the intent of the parties becomes, in part, a question
of fact. Carter v. BRMAP, 591 So.2d 1184, 1188 (La. App. 1 Cir. 1991); See also
LFI Fort Pierce, Inc. v. Acme Steel Buildings, Inc., 2016-71, p. 7 (La. App. 3 Cir.
8/17/16), 200 So.3d 939, 946. Summary judgment is appropriate only when there
is “no genuine issue as to material fact.” La. C.C.P. art. 966. Based on the
foregoing, genuine issues of material fact exist.
Settlement of Fee Dispute
While the district court resolved summary judgment in favor of Appellee
based on the language of the contract and with reference to parol evidence, the
parties further disputed whether a settlement had been reached. There is no dispute
that Appellee paid Appellants $100,000. This payment is reflected on a statement
provided to Appellee by Appellants pursuant to Rule 1.5(c) of the RPC, and
references “Attorney’s Fees for In Network Contract.” However, as a result of
Appellee’s termination of Appellants’ representation, per Rule 1.5(c), Appellants
were required to provide the statement – “the lawyer shall provide the client with a
written statement stating the outcome of the matter and, if there is a recovery,
showing the remittance to the client and the method of its determination.”
Appellee suggests the Rule 1.5(c) statement constitutes a compromise. “A
compromise is a contract whereby the parties, through concessions made by one or
more of them, settle a dispute or an uncertainty concerning an obligation or other
legal relationship.” La. C.C. art. 3071. “A compromise is also made when the
8 claimant of a disputed or unliquidated claim, regardless of the extent of his claim,
accepts a payment that the other party tenders with the clearly expressed written
condition that acceptance of the payment will extinguish the obligation.” La. C.C.
art. 3079. “A compromise is valid if there is a meeting of the minds of the parties
as to exactly what they intended when the compromise was reached.” Elder v.
Elder & Elder Enterprises, Ltd., 2006-0703, p. 3 (La. App. 4 Cir. 1/11/07), 948
So.2d 348, 350 (citation omitted). As a contract, a compromise requires offer and
acceptance, and must be in writing, though there is no prescribed form. Id., 2006-
0703, p. 4, 948 So.2d at 351.
As an initial matter, we are wary of reading a compromise into a document
that Appellants were duty-bound to provide per the RPC. Appellants, by
successfully obtaining a recovery, were obligated to provide the Rule 1.5(c)
statement setting forth sums to be remitted, and necessarily, Appellants included
the $100,000 payment already made. Standing alone, this Court cannot find that
the Rule 1.5(c) statement evidences a meeting of the minds as to exactly what was
intended. Appellee, however, further references a receipt agreement provided by
Appellants, indicating remittance “in full and final payment of the above
referenced matter.” We observe that “it is not necessary that everything intended to
be compromised be in one document.” Charbonnet v. Ochsner, 236 So.2d 86, 88
(La.App. 4 Cir. 1970). However, as noted by Appellants, the “matter” referenced
in the receipt is Appellee’s action against BCBS. It is not a receipt “in full and final
settlement” of the dispute between Appellants and Appellee.
9 As a contract, we analyze the purported compromise in the same fashion as
the agreement between the parties, and we once again conclude that ambiguity
exists as to whether there was a “meeting of the minds” that the Rule 1.5(c)
statement and receipt agreement constituted a compromise. Once again, parol
evidence is referenced, which the fact-finder is best suited to consider.
CONCLSUION
For the foregoing reasons, we reverse the judgment of the district court
granting Appellee’s motion for summary judgment. We further affirm that portion
of the judgment denying Appellants’ motion for partial summary judgment and
remand for further proceedings. REVERSED IN PART, AFFIRMED IN PART, AND REMANDED