5 Fla. L. Weekly Supp. 735b
Attorney’s fees — Insurance — Health maintenance organizations — Insured not entitled to recover attorney’s fees under statute entitling prevailing party to fees and costs in action to enforce terms and conditions of health maintenance contract where pathologist whose bill was not immediately paid did not submit a proper claim until after suit was filed, and HMO promptly paid claim when it learned that preparer of original claim form had misdesignated pathologist’s bill as “private pay” rather than “HMO”
CENTURY MEDICAL HEALTH PLAN, INC., Appellant, vs. JESUS BALBIN, Appellee. 11th Judicial Circuit, Appellate Division. Case No. 97-060AP (consolidated) 97-167AP. County Court Case No. 93-17472. Opinion filed July 6, 1998. An Appeal from the County Court of Dade County. Shelly J. Kravitz, Judge. Counsel: Patino & Associates and Hicks & Anderson, P.A. and James E. Tribble, for Appellant. Lidsky & Vaccaro, P.A. and Carlos Lidsky, for Appellee.
(Before KAHN, RAMP and LANDO, JJ.)
(KAHN, Judge.) Century Medical Heal Plan, Inc. (Century), the Appellant, an HMO was sued by one of its members, Jesus Balbin (Balbin), the Appellee, for failure to pay a pathologist’s bill in the amount of $348. Balbin had surgery on his leg in 1992, and apparently the other bills in connection with that procedure were paid without dispute. Unfortunately, the preparer of the form submitted to Century for payment of the pathologist’s bill, indicated that Balbin was “private pay” rather than “HMO”. Because HMO members can seek medical care at their own expense outside of the HMO, Century ignored the “private pay” claim as being appropriately outside of its obligations. When payment was not forthcoming, Balbin brought this action. Shortly after suit was filed, when Century learned that Balbin was not “private pay”, it paid $198.40 (the amount claimed, less a discount allowed to Century) and the pathologist’s claim was satisfied.
In the lawsuit Balbin claimed attorney’s fees pursuant to Fla. Stat. Sec. 641.28, which entitles the prevailing party to fees and costs in a civil action to enforce the terms and conditions of a health maintenance contract. Balbin cites Augustin v. Health Options of South Florida, Inc., 580 So.2d 314 (Fla. 3d DCA 1991), for the proposition that an HMO’s payment of a claim after suit has been filed is the functional equivalent of a confession of judgment, thereby entitling, the plaintiff to attorney’s fees.
Augustin, of course, presupposes that the HMO was legally obligated to make the disputed payment at the time the suit was filed. Here Century claims that its payment obligation did not ripen until after the suit was filed, and that when the payment prerequisites were met (after the lawsuit was feed) the claim was paid timely. We agree. Century cannot be faulted for failure to pay a provider who did not properly submit a claim until after suit was filed. Therefore, Balbin is not entitled to attorney’s fees under Fla. Stat. Sec. 641.28.
Ordinarily, our opinion would end with the previous paragraph, but further comment is necessary. The amount of attorney’s fees claimed (and awarded to Balbin) was $32,450.00 (plus a $400.00 expert witness fee). In this appeal, Century did not complain about the amount of the fees, just the entitlement thereto. At oral argument, the court observed that if the Appellee had incurred that amount of fees, the Appellant’s fees had to approximate the same sum, to which comment the Appellant’s counsel did not take issue. So here we have a lawsuit about a bill of less that $200.00, with combined attorneys’ fees of around $65,000.00. Further, the suit was filed October 15, 1993, and the claim was paid on December 5, 1993. What occurred between then and now was protracted litigation about (what else?) attorney’s fees. Appellee’s counsel, apparently comfortable with the prospect of a nice reward at the end of the Section 641.28 rainbow, from the outset attempted to comply with all of the legal niceties required as a prerequisite to the award of attorney’s fees. Appellant’s attorneys, evidently operating under the axiom of “bless the person who sues my deep-pocketed client”, likewise skipped down the litigation path. Like trench warfare, the parties lobbed discovery requests and responses back and forth, and to further the analogy, both rolled out the heavy artillery and litigated unhampered by economic considerations. As far as the record reflects, there was never any serious attempt to settle this lawsuit.
Of course, the attorneys will probably rise up in righteous (and maybe even in straight-faced) indignation at our comments, claiming that this litigation was totally justified to discourage frivolous lawsuits against HMOs (Appellant’s view), or to discourage stone-walling of non-payment of legitimate costs incurred by HMO members (Appellee’s view). Our view is that this case evinces a singular lack of professionalism. Had the attorneys really tried to communicate, this lawsuit would have been resolved thousands of dollars ago.
We decline to permit further (what we deem to be) misuse of the court, and reverse and remand with direction that this lawsuit be dismissed with prejudice. There is to be no award of attorney’s fees or costs, either at the trial or appellate level. (RAMIREZ and LANDO, JJ., concur.)
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