2020 Mass. App. Div. 87

January 31, 2020 - May 26, 2020

Appellate Division Northern District

Court Below: District Court, Concord Division

Present: Coven, P.J., Crane & Flynn, JJ.

Brittany Pierce, Francis A. Gaimari, and Elizabeth H. Manos for the plaintiff.

Christopher Lemmons for the defendant.

COVEN, P.J. In this appeal, Emerson Hospital ("Emerson") challenges the correctness of the entry of summary judgment in favor of GEICO General Insurance Company ("GEICO") and the denial of its cross motion for summary judgment. We conclude that material issues of fact exist such that summary judgment was improper.

GEICO's insured was treated at Emerson for injuries sustained in a motor vehicle accident on August 1, 2015. Emerson presented GEICO with a bill for $882.63 for services rendered to GEICO's insured. GEICO issued payment for $750.24, representing 85% of the total bill. GEICO informed Emerson that the 15% reduction was based on a PPO contract that Emerson entered into with MultiPlan, Inc. ("MultiPlan"). By stipulation, the parties agreed that the charges for the services rendered were reasonable, necessary, and related to the accident. Each side also stipulated that GEICO's insured was, under the motor vehicle policy issued to the insured by GEICO, entitled to personal injury protection benefits without any deductible. There is no dispute that the Emerson/MultiPlan contract allowed for a 15% reduction of Emerson's billed charges.

Summary judgment is appropriate only when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). In making this determination on cross motions for summary judgment, this Division reviews the record in the light most favorable to the party against whom judgment entered, without weighing evidence, assessing credibility, or finding facts. Attorney Gen. v. Bailey, 386 Mass. 367, 370-371 (1982); Welch v. Barach, 84 Mass. App. Ct. 113, 118-119 (2013). In seeking summary judgment, GEICO must show there are no triable issues of fact, and that all legal issues resolve in its favor. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). It has not met that burden.

As to the contractual framework, there are three contracts at issue. First, there is a contract between Emerson and MultiPlan. Under this plan, Emerson is a Facility/Network Provider that has agreed to provide treatment to persons covered under medical insurance policies issued by insurance companies that are clients of MultiPlan, and accept for that benefit a 15% reduction in the bills submitted for payment of the rendered services. [Note 1] A second contract exists between MultiPlan and

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Auto Injury Solutions, Inc. ("AIS"). That contract, as asserted by GEICO, forms a client relationship between MultiPlan and AIS and allows covered individuals of AIS's users to access Facility/Network Providers contracted with MultiPlan. [Note 2] And third, a contract exists between GEICO and AIS. Under this contract, it is argued that GEICO became a client of AIS, and, thereby, those individuals covered under a GEICO automobile policy are entitled to access the network providers of MultiPlan. [Note 3] All three contracts were effective on the date of the accident.

GEICO takes the position that when it entered into a contract with AIS as a client, by operation of the Emerson/MultiPlan contract, it was entitled to take advantage of that contractual relationship and reduce the bill by 15%. And this, according to GEICO, following the connection downward from Emerson to GEICO, was permissible because Emerson entered into a contractual relationship with MultiPlan to provide treatment at reduced rates with Multiplan's clients; the contract between MultiPlan and AIS made AIS a client of MultiPlan; and; when GEICO contracted with AIS to become a client, GEICO was, because of its relationship with AIS, swept into the Emerson/MultiPlan contract as a third-party beneficiary.

We agree with Emerson that it was error for the motion judge to consider the contract between MultiPlan and AIS. In the seventeen-page contract, there are eleven redactions. Equally, it was improper to consider the GEICO/AIS contract. That twenty-four page contract, itself, contains six redactions. While one could resort to speculation that those redacted portions of the contracts would not be relevant to the issue presented on summary judgment, certainly that is not a standard for evaluation of summary judgment. Guessing does not create an absence of a triable issue. Emerson should not be placed in a disadvantaged position of not being fully informed of the contents of a contract that is being relied upon by GEICO to prove an affirmative defense of its purported authorized reduction of payment.

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Moreover, the MultiPlan/AIS contract, on its unredacted terms, creates a question of fact. Exhibit 1 to this contract describes the Auto Medical Network Services as: "1. Auto Medical Network. The Auto Medical Network consists of only those Network Providers [e.g., Emerson] who have agreed to participate in that Network." The next paragraph to this section is redacted. The evidence is insufficient to establish that Emerson agreed to participate, as a subset of Network Providers, in the Auto Medical Network.

Additionally, under the AIS/GEICO contract, the term "Network" is defined as "such network(s) of participating providers to which access to negotiated rates of participating providers has been mutually agreed upon in writing by the Parties." The contract identifies AIS and GEICO "collectively as ‘Parties.'" There is nothing in the record to support that AIS and GEICO "mutually agreed upon in writing" that MultiPlan or Emerson would be such an entity.

The trial court's entry of summary judgment for GEICO is vacated, the allowance of GEICO's Rule 56 motion is reversed, and the case is returned to the trial court for action not inconsistent with this opinion.


[Note 1] Emerson in the preamble is identified as "Facility." A "Network Provider" is defined in the contract as a "licensed facility . . . that . . . has been independently contracted for participation in the Network." And that term "Network" is defined as "an arrangement of Network Providers created or maintained by [MultiPlan] . . . under which such Network Providers have agreed to accept certain Contract Rates for Covered Services provided to Participants." The term Participants means "any individual . . . eligible under a Client's Program." A "client" includes an "insurance company."

[Note 2] This contract identifies AIS as the client. A "User" of AIS is defined as "any insurance company [e.g., GEICO] . . . that has contracted with Client for access to the Services and the Contract Rates and is responsible for the payment of Covered Services." "Contract Rates" are defined as those "rates of reimbursement set forth in the Network Provider Agreements payable by [MultiPlan] clients or Users for Covered Services rendered by Network Providers." "Covered Services" are "health care treatments and supplies rendered by a Network Provider . . . for which a User is responsible for payment pursuant to the terms of a Program."

[Note 3] This AIS/GEICO contract states that "AIS provides medical claim review services exclusively for automobile insurers . . . and also provides its Clients access to networks of preferred providers who have agreed to accept negotiated rates as payment in full for Covered Services to Covered Persons." The treatment rendered in this case was a "Covered Service" to a "Covered Person."