Touro Infirmary v. Marine Medical Unit, Inc.

699 So. 2d 90, 96 La.App. 4 Cir. 2506, 1997 La. App. LEXIS 1469, 1997 WL 269519
CourtLouisiana Court of Appeal
DecidedMay 21, 1997
Docket96-CA-2506
StatusPublished
Cited by11 cases

This text of 699 So. 2d 90 (Touro Infirmary v. Marine Medical Unit, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Touro Infirmary v. Marine Medical Unit, Inc., 699 So. 2d 90, 96 La.App. 4 Cir. 2506, 1997 La. App. LEXIS 1469, 1997 WL 269519 (La. Ct. App. 1997).

Opinion

699 So.2d 90 (1997)

TOURO INFIRMARY
v.
MARINE MEDICAL UNIT, INC.

No. 96-CA-2506.

Court of Appeal of Louisiana, Fourth Circuit.

May 21, 1997.
Writ Denied October 3, 1997.

*91 A. Bowdre Banks, Jr., New Orleans, for Appellee.

Lynn Lachin Lightfoot, Wendy K. Lappenga, Smith Martin, New Orleans, for Appellant.

Before BYRNES, CIACCIO and JONES, JJ.

BYRNES, Judge.

Touro Infirmary (Touro) brought this action against Marine Medical Unit, Inc. (MMU) to recover unpaid medical bills on an open account for the treatment of foreign seamen for which Touro claims MMU is primarily liable. After a bench trial, Touro was awarded a judgment of $20,000.00.[1] We affirm as amended.

The trial court did not render reasons for judgment. Touro alleges that it is the open account creditor of MMU whereby Touro provided medical treatment for MMU's patients for whom MMU could not provide adequate treatment. Dorothy Spencer, collections supervisor at Touro, testified on behalf of Touro that Touro had been billing MMU directly for such services on a monthly basis for many years. Spencer testified that at no time did MMU contact any personnel at Touro, by writing or otherwise, to indicate that billing statements should not be sent to MMU or that MMU should not appear as the responsible party. MMU did not request that the patient or the patient's employer be billed directly. With regard to accounts involving treatment to patients other than those in this litigation, MMU made payment directly to Touro. Spencer's testimony is supported by copies of such billings which show that they were addressed to MMU and not to the patient for whom Touro provided the services care of MMU. Nor were they addressed to the individual patient care of MMU. The trial court rendered judgment in favor of Touro for its jurisdictional limit of $20,000.00.

MMU does not dispute any of these facts. MMU contends that it has never entered into a written agreement to guarantee the payment of the patients' bills, and that when it paid such bills it did so only as the agent for the patient. MMU denies the existence of any agreement to be primarily liable to Touro. MMU argues that as there is no written agreement, it is incumbent upon Touro to prove the existence of an oral contract. MMU contends that Spencer's testimony about the correctness of account and the fact that it had been paid pursuant to monthly billings direct to MMU for many years was insufficient to fulfill the requirements of LSA-C.C. art. 1846 where Ms. Spencer did not have first hand knowledge of the confection of the original arrangement between Touro and MMU. LSA-C.C. art. 1846 requires in pertinent part that:

If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.

MMU interprets this to mean that Touro must produce a witness to testify with first hand knowledge to the confection of the agreement upon which the open account is based, which Touro did not do.

But LSA-C.C.P. art. 1702 provides in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case ...
* * * * * *
B.(3) When the sum is due on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof....

As this Court recently noted in Barham v. Richard, 97-C-0186 (La.App. 4 Cir. 4/9/97); 692 So.2d 1357, and Olinde v. Couvillion, 94-1275 (La.App. 4 Cir. 2/23/95), 650 So.2d 1241, the law treats open accounts differently from contracts generally. See also Operational Technologies Corp. v. Environmental *92 Contractors, Inc., 95-0413 (La. App. 1 Cir. 11/9/95); 665 So.2d 14. LSA-C.C.P. art. 1702 declares that an affidavit of correctness is sufficient proof to establish a prima facie case on default. A prima facie case is established when the plaintiff proves the essential elements of its petition with competent evidence as fully as if each allegation of plaintiff's petition has been denied. Clary v. D'Agostino, 95-0447 (La.App. 1 Cir. 12/15/95); 665 So.2d 792; Carroll v. Coleman, 27,861 (La.App. 2 Cir. 1/24/96); 666 So.2d 1264; Orleans Sheet Metal Works and Roofing, Inc. v. Landis Co., Inc., 96-0029 (La.App. 4 Cir. 7/24/96), 678 So.2d 73. Therefore, we conclude that it was sufficient for Touro to produce Spencer's credible testimony[2] in support of the account records as to the correctness of the account. The nature of the agreement underlying the account can be determined from other corroborating circumstances and reasonable inferences to be drawn from the evidence. In other words, witness testimony is not the only way in which the existence of the underlying agreement upon which the open account is based may be proved.

In this case the trial court could reasonably infer the existence of such an agreement from the fact that the account had been billed monthly directly to MMU for an extended period of time and paid accordingly. This inference is reinforced by the fact it is unlikely that Touro would have accepted such foreign patient referrals in the absence of such an understanding, as the prospects of collecting from the foreign seamen are problematic at best.

MMU's only witness testified that MMU could not remain in business long without the ability to make such patient referrals. This provided the trial court a basis consistent with the record as a whole for the reasonable inference implicit in its judgment that MMU consented to be primarily liable to Touro in order to maintain the referral relationship. We find no manifest error.

Plaintiff's First Amended Petition On Open Account prays for $15,263.72. However, the face of the record shows the $15,263.72 figure to be a calculation error. The $15,263.72 is the total of a list of charges contained in the petition that actually totals $17,117.14. Based on credit for payments made in connection with certain of the enumerated charges, the parties were able to agree that the correctness of the amounts of billings encompassed by Touro's petitions was $15,905.14. Of the amounts set forth in the petition the parties were unable to agree on the correctness of the $770.00 amount claimed in connection with Norbert Schneider which MMU contends was paid. The trial court judgment is silent on this issue. Touro contends that it proved its claim for the $770.00 at trial.

The trial court judgment was for the $20,000.00 jurisdictional limit of the First City Court, an amount obviously in excess of what could be supported by the $15,905.14 total of the amounts itemized in the First Amended Petition. MMU explains this by saying in brief that the trial court must have included in the judgment a $5,758.01 bill for medical services for Pedro Rigueline which was not among those billings enumerated in the petition. Touro agrees with this explanation.

MMU contends that it was error for the trial court to include the $5,758.01 Rigueline billing in its judgment when it was not listed in the petition. MMU entered a contemporaneous objection to the admission of this $5,758.01 billing into evidence stating that MMU:

"... was not prepared this morning to go forward on the issue of whether this additional sum of $5,758.01 was or is owed, as it was not included in the petition....

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Cite This Page — Counsel Stack

Bluebook (online)
699 So. 2d 90, 96 La.App. 4 Cir. 2506, 1997 La. App. LEXIS 1469, 1997 WL 269519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touro-infirmary-v-marine-medical-unit-inc-lactapp-1997.