Smith v. Farmers Insurance Exchange

983 P.2d 71, 1998 Colo. J. C.A.R. 5585, 1998 Colo. App. LEXIS 273, 1998 WL 772998
CourtColorado Court of Appeals
DecidedOctober 29, 1998
DocketNo. 97CA0439
StatusPublished

This text of 983 P.2d 71 (Smith v. Farmers Insurance Exchange) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Farmers Insurance Exchange, 983 P.2d 71, 1998 Colo. J. C.A.R. 5585, 1998 Colo. App. LEXIS 273, 1998 WL 772998 (Colo. Ct. App. 1998).

Opinion

Opinion by

Judge TAUBMAN.

In this action for breach of an insurance contract, defendants, Farmers Insurance Exchange and Mid-Century Insurance Company (insurers), appeal from a jury verdict in favor of plaintiff, Thomas Smith, awarding him $33,300.89. Smith cross-appeals from the trial court’s denial of his request for treble damages, statutory interest, and attorney fees. We affirm in part, reverse in part, and remand for further proceedings.

Farmers Insurance Exchange and Mid-Century Insurance Company are wholly-owned subsidiaries of Farmers Insurance Group. As pertinent here, Farmers Insurance Exchange, on behalf of Mid-Century, adjusted all claims presented by Smith, the insured, after he sustained injuries in an automobile accident in Colorado Springs.

Smith sought pre-approval from insurers for medical and rehabilitation expenses in connection with a second surgery. Insurers refused to pay the bills, claiming that Smith had exhausted his available policy limits.

After determining that Medicare would pay for his second surgery, Smith submitted his medical and rehabilitation bills to Medicare for payment. Although the amount of benefits claimed under the policy was $33,-300.89, Medicare paid Smith’s providers $14,-772. Medicare now has a lien for that amount.

Smith instituted this action asserting that insurers’ refusal to pay for all his medical and rehabilitation expenses constituted (1) a breach of the Colorado Automobile Accident Reparations Act, §10-4-701, et seq., C.R.S. 1998 (No-Fault Act); (2) a breach of contract based on the policy; and (3) bad faith breach of an insurance contract.

In his first claim, Smith alleged that his health care expenses were covered under §10-4-706, C.R.S.1998. Smith alleged in his second claim that the language of the policy was broader than the statutory language and provided additional coverage for his health care expenses. Finally, in his bad faith breach of insurance contract claim, he asserted that insurers had acted in bad faith in denying payment for his health care expenses.

The jury returned a verdict for Smith for $33,300.89 on the breach of contract claim and for $1,700 on the bad faith breach of contract claim. However, the jury found in favor of insurers on the No-Fault Act claim. Insurers’ motion for new trial was deemed denied pursuant to C.R.C.P. 59(j), and this appeal followed.

[73]*73On appeal, insurers do not challenge the jury verdicts in favor of Smith, but, rather, dispute only the measure of damages on the breach of contract claim. In his cross-appeal Smith appeals only from the trial court’s denial of his request for treble damages, statutory interest, and attorney fees.

I. Damages for Breach of Contract

Insurers initially contended that because damages were awarded in excess of Smith’s actual loss, the trial court erred in denying their request for a new trial on that issue. Following oral argument and the submission of supplemental briefs requested by the court, insurers now state that a new trial on the issue of damages is not necessary and that “the errors asserted on appeal could be corrected by amendment of the jury’s verdict to reflect the amount paid by Medicare on behalf of the plaintiff.”

Insurers assert that when a provider of medical services agrees to accept payment from Medicare, it is precluded from pursuing the remaining balance from the Medicare beneficiary. Thus, insurers argue, Smith, as a Medicare recipient, is entitled to recover only an amount necessary to repay Medicare and compensate him for co-payments and deductible amounts he paid. We agree.

An insurance policy is a contract and should be construed in accordance with general principles of contractual interpretation. Wota v. Blue Cross & Blue Shield, 831 P.2d 1307 (Colo.1992). Thus, if there is a breach of a policy’s terms, a plaintiff may recover the amount of damages that is required to place him or her in the same position he or she would have occupied had the breach not occurred. In other words, a plaintiff may recover only the amount of actual loss suffered. Colorado National Bank v. Friedman, 846 P.2d 159 (Colo.l993)(damages that are speculative, remote, imaginary, or impossible of ascertainment cannot be recovered).

Moreover, damages are not recoverable for losses beyond an amount that a plaintiff can establish with reasonable certainty by a preponderance of evidence. See Pomeranz v. McDonald’s Corp., 843 P.2d 1378 (Colo.1993).

What the plaintiffs actual loss is here depends on whether, under the Medicare statutory scheme, he has any obligation to pay providers the difference between the amount of their bills and the amount Medicare actually paid.

Although Medicare was originally established as a primary payer of medical bills of Medicare beneficiaries, the governing statute was amended in 1980 to establish Medicare as a secondary payer, where “payment has been made or can reasonably be expected to be made promptly (as determined in accord with regulations) ... under an automobile or liability insurance policy ... or under no-fault insurance.” 42 U.S.C. §1395y(b)(2)(A) (1994).

If an insurer is liable to its insured but does not make prompt payment, federal law provides that Medicare may make a “conditional” payment on behalf of the insured. The payment is conditioned on reimbursement from the third party insurer once payment has been made or can reasonably be expected to be made. 42 U.S.C. §1395y(b)(2)(B)(i) (1994).

As pertinent here, 42 U.S.C. §1395cc(a)(l)(A) (1994) requires that “participating providers” of Medicare services must agree “not to charge ... any individual (or any other person) for items or services for which such individual is entitled to have payment made [by Medicare].”

42 C.F.R. §411.31(b) (1997) provides in pertinent part:

With respect to ... no-fault insurers ... a provider or supplier may bill its full charges and expect those charges to be paid unless there are limits imposed by laws other than [the Medicare statute] or by agreements with the third party payer.

Also, 42 C.F.R. §411.51(a) provides that “the beneficiary is responsible for taking whatever action is necessary to obtain any payment that can reasonably be expected under no-fault insurance.”

Insurers contend that, because 42 U.S.C. §1395cc (1994) prohibits a provider from seeking additional payment from a Medicare [74]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Colby Ex Rel. Colby v. Progressive Casualty Insurance Co.
928 P.2d 1298 (Supreme Court of Colorado, 1996)
Marquez v. Prudential Property & Casualty Insurance Co.
620 P.2d 29 (Supreme Court of Colorado, 1980)
City of Grand Junction v. Sisneros
957 P.2d 1026 (Supreme Court of Colorado, 1998)
Conte v. Meyer
882 P.2d 962 (Supreme Court of Colorado, 1994)
Colorado National Bank of Denver v. Friedman
846 P.2d 159 (Supreme Court of Colorado, 1993)
Wota v. Blue Cross and Blue Shield
831 P.2d 1307 (Supreme Court of Colorado, 1992)
Mass v. Martin Marietta Corp.
805 F. Supp. 1530 (D. Colorado, 1992)
Pomeranz v. McDonald's Corp.
843 P.2d 1378 (Supreme Court of Colorado, 1993)
Barnett v. American Family Mutual Insurance Co.
843 P.2d 1302 (Supreme Court of Colorado, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
983 P.2d 71, 1998 Colo. J. C.A.R. 5585, 1998 Colo. App. LEXIS 273, 1998 WL 772998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-farmers-insurance-exchange-coloctapp-1998.