2004 Ct. Sup. 14220, 37 CLR 893
No. CV03-0082916SConnecticut Superior Court, Judicial District of Ansonia-Milford at Derby
September 23, 2004
MEMORANDUM OF DECISION
RIPLEY, JUDGE TRIAL REFEREE.
The defendant in this matter, Robin Wagmeister, sustained certain injuries in an auto accident which occurred on December 17, 1997. At the suggestion of her attorney, she sought chiropractic treatment from Ronald Clusky, DCM who was affiliated with Multicare Physicians and Rehabilitation Group. Her treatment continued over the period from December 17, 1998 to March 29, 1999. Over this period the defendant was billed approximately $7600 and with payments made by her which were understood by the parties to be “copayments” the balance presently due and unpaid according to the plaintiffs is $5891.45 according to the testimony of Ronald Clukey and various exhibits admitted in evidence. Several months after the treatment of the defendant commenced, it was learned that the defendant’s health insurance carrier, to which a claim had been submitted by the plaintiffs, declined payment as the provider was not within the defendant member’s assigned network. (See Def. Ex. 11.) This indicated that the defendant was responsible for the payment. At various times during the course of her treatment Physicians Health Care, which later became Landmark Health Care, advised both the plaintiff and the defendants that no coverage was available for the plaintiff’s services. The plaintiffs actively sought to obtain coverage for the defendant but to no avail (see Def. Ex. 10) and hence this lawsuit to obtain payment for the balance due for plaintiffs’ services which all parties initially believed would be covered by the insurance carrier.
On January 12, 1999 the defendant executed an agreement with the plaintiff instructing the defendant’s attorney to withhold from any settlement obtained through prosecution of the defendant’s accident claim any amount outstanding for treatment rendered to the defendant. (Pl. Ex. 5.) The tort case was settled according to the defendant Robin Wagmeister for $32,000 and monies have been put in escrow, presumably awaiting the resolution of this dispute.
The defendants on January 28, 2003 made a payment of $457.50 through CT Page 14221 her attorney. The check, Defendant’s Exhibit 2, was marked “Full and Final Payment” on its face and was cashed by the plaintiffs with an endorsement preceded by the language “cash without prejudice.” This amount of $457.50 was shown on a billing to the defendant on June 17, 1999 showing the total amount due with the “patients cash portion due” as indicated. (D. Ex. 9.)
It is the defendants’ claim that nothing is due and owing to the plaintiffs because they cashed the attorney check for $457.50 which was marked “Full and Final Payment” and this accordingly represents an accord and satisfaction. The plaintiffs’ counsel in his answer filed in response thereto admitted this claim. See “Answer to Special Defenses and Counterclaim” dated July 1, 2004.
The court does not consider the claim of “Accord and Satisfaction” to be a bar to the plaintiffs’ claim for payment of the balance due of $5891.45. It is clear that the defendant recognized an obligation to compensate the plaintiffs for services rendered to her as demonstrated by the execution of an authorization to her attorney to pay the plaintiff out of any sums received from her accident claim. This authorization was presumably executed to induce the plaintiffs to continue their treatment of her with payment deferred. (Pl. Ex. 5.)
The defendant also claims in her counterclaim that this lawsuit by the plaintiffs is in violation of C.G.S. § 42-110 “Unfair Trade Practices” intended to harass the defendants and is also an unfair billing practice as defined by C.G.S. § 20-7f.
The court cannot conclude that the actions of the plaintiff in seeking payment for services rendered constitute an unfair trade practice. It is clear from the evidence that the plaintiffs attempted to assist the defendant to obtain coverage for their services through her insurance carrier as the treatment was being rendered and her execution of the agreement suggests that if a fund was available to satisfy the plaintiff’s claim they should be paid. The escrowed amount represents such a fund. This is also not a situation where the attending physician is seeking to be paid an amount over the insurance benefits received from the insured contrary to § 20-7f. As the evidence indicated, there was no coverage available to the defendant.
Judgment may enter for the plaintiffs in the amount of $5891.45 on the complaint and for the plaintiffs on the defendants’ counterclaim.
George W. Ripley CT Page 14222
Judge Trial Referee CT Page 14223