Blue Cross & Blue Shield of Georgia, Inc. v. Shirley

MlKELL, Judge.

A Gwinnett County jury awarded Melanie Suzanne Shirley $52,136.30 in damages in an action she brought against Blue Cross and Blue Shield of Georgia, Inc. (“Blue Cross”), her insurer, for failure to pay a hospital bill. Blue Cross appeals from the judgment entered on the jury verdict, and the denial of its motion for judgment notwithstanding the verdict (“j.n.o.v.”), or in the alternative, for a new trial.

1. Blue Cross argues that the trial court erred in denying its motion for j.n.o.v., or in the alternative, for a new trial on Shirley’s *435breach of contract claim. We find no error in the trial court’s denial of Blue Cross’s motion for j.n.o.v. on this issue, but we conclude that a new trial is required for reasons stated below.

The record here shows that at some time prior to June 2006, Shirley purchased an Individual Hospital/Surgical Contract (the “Contract”) from Blue Cross. The first paragraph of the Contract provides as follows:

This Contract is a LIMITED POLICY designed to offer you catastrophic coverage. The intent of this Contract is to provide benefits for basic inpatient services and outpatient surgical care when medically necessary. Strict limitations apply to other outpatient services. For example, this Contract does NOT cover outpatient medical care including physician office visits, prescription or over-the-counter drugs, nervous and mental care, maternity conditions, physical therapy, durable medical equipment and many other services. Exclusions are explained more fully in the Contract.

Section 3.3 (1) in Article 3 of the Contract, which is entitled “Hospital Inpatient Services,” essentially reiterates the introductory paragraph of the Contract, providing as follows:

This individual direct pay policy is designed to offer you catastrophic coverage. It pays for covered Hospital inpatient care and surgery and selected outpatient services related to inpatient admissions. Strict limitations apply to covered services. For example, this Contract does not cover outpatient medical care including Physician office visits, prescription drugs, nervous and mental care, maternity care, physical therapy, durable medical equipment and many other services. Exclusions are explained more fully in Article 9.

Section 9.1 (1) of Article 9 of the Contract lists “outpatient medical care including Physician office visits” as an item for which the insured will not receive benefits. Article 11, entitled “Conditions Under Which Benefits Shall Be Rendered,” defines “hospital inpatient benefits” in Section 11.1 as follows:

These benefits are available only if you are admitted as a bed patient to a Hospital on the order of a licensed Physician. You must be under the care of this Physician. The Physician must be a member of the staff of, or acceptable to, the Hospital where you are a patient. The service which you *436get at a Hospital is subject to all the rules and regulations of the Hospital which you or your Physician selects. Such rules also control Admission policies.

At 5:48 p.m. on June 5, 2006, Shirley sought treatment at North Fulton Regional Hospital’s emergency room for chest pain. According to the hospital’s “Standard Chest Pain Admission Orders,” which includes a section entitled “Status,” offering the physician the option to check either “inpatient” or “observation,” Shirley was admitted for observation. Almost 23 hours later, Shirley was released. Patricia A. Barton, the hospital’s director of business services, testified that the “Standard Chest Pain Admission Orders” is a standard set order used by the hospital and that it is standard for the hospital to determine what information to submit in its billing form from the physician’s order; that the universal billing form sent electronically to Blue Cross for Shirley’s treatment specified Code 131, which means outpatient discharge, and is determined from the physician’s order; that the hospital’s billing system electronically codes the billing forms based on the data entered by the registration personnel, who can select inpatient admission, outpatient admission, or observation admission; and that the hospital considers “observation” as outpatient services. Blue Cross denied the claim for services submitted on Shirley’s behalf.

After receiving a request for payment from Shirley’s counsel, Sharon Moss, a senior legal specialist at Blue Cross, sent a letter to Shirley explaining that the bill was not paid because the claim was billed as outpatient care as Shirley was admitted to an observation room rather than an acute care room or unit for inpatient care and that the Contract did not pay for outpatient care. Moss testified that there was no room and board charge on Shirley’s bill; that Blue Cross requires precertification for emergency and hospital admissions but no precertification was required because Shirley was admitted for observation; that Blue Cross received a fax from the hospital on June 6, which indicated that Shirley was admitted for observation; that the hospital called Blue Cross to begin a precertification but that it was voided due to the fact that Shirley was placed in observation; and that the Contract does not include a definition for inpatient or outpatient but that observation means outpatient in the insurance industry.

In the instant case, Shirley presented no evidence other than her testimony to substantiate her claim that she was admitted as an inpatient at the hospital. Instead, she points us to the use of the word “admit” in the medical records, arguing that evidence of her admission and inpatient status was “overwhelming and uncontra-dicted” as shown in Blue Cross’s records, the hospital records, and *437the standard dictionary definition of inpatient. As further support for her position, Shirley relies on her testimony that her room contained a hospital bed, medical equipment, and a bathroom, and that she was provided meals, nursing care, and various procedures and tests.

This appeal is governed by our holding in Michna v. Blue Cross and Blue Shield of Ga.,1 in which we interpreted provisions of the same catastrophic coverage policy at issue here under a similar factual scenario and concluded that the policy did not cover the patient’s medical bills where the patient was not charged for a room and his stay was less than 24 hours.2 As we held in Michna,3

[¡Insurance in Georgia is a matter of contract and the parties to the contract of insurance are bound by its plain and unambiguous terms. Whether a contract is ambiguous, however, is a question of law for the court. Thus, construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. It is the function of the court to construe the contract as written and not to make a new contract for the parties. . . . Under our law, when a provision in a policy is susceptible to more than one meaning, even if each meaning is logical and reasonable, that provision is ambiguous. Such contracts must be construed against the insurer and in favor of the insured. Nevertheless, language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances, and even though ambiguous exclusions may be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the exclusion is clear and unequivocal.4

*438As stated in Michna,5 although not clearly defined in the Contract, the terms “ ‘inpatient’ and ‘outpatient’ [are] of common usage among laypeople. Thus, to a layperson, an inpatient ‘would imply, at the least, that one would be charged by the hospital for a hospital room.’ ”6 And in the construction of contracts, “words . . . generally bear their usual and common meaning.”7 “Unambiguous terms are taken in their plain, ordinary and popular sense as supplied by dictionaries.”8

We concluded in Michna that “[t]he key question is whether [Shirley] was admitted to the hospital as a patient.”9 Like the patient in Michna,10 Shirley sought treatment at a hospital emergency room, was admitted for observation, and released almost 23 hours later. Shirley was not charged for a room. Additionally, there was undisputed evidence from Blue Cross’s representative that Shirley was not charged for the room because she was classified as an outpatient for the hospital’s billing purposes.

Although Blue Cross asserts as error the denial of its j.n.o.v., it did not move for directed verdict on this issue during the trial of the case.11 Consequently, Blue Cross could not raise the issue in its motion for j.n.o.v., and it cannot assert the denial of the motion on the breach of contract claim as error on appeal.12 However, the failure to raise the issue on directed verdict does not preclude Blue Cross from arguing that it is entitled to a new trial on this ground.13 As in Michna14 the evidence in this case did not support the verdict because the policy at issue excluded coverage for outpatient services such as those rendered in the instant case. Therefore, we reverse the judgment of the trial court and remand this case for a new trial.

2. In light of Division 1, we need not address Blue Cross’s remaining enumerations of error.

3. The dissent is correct that the health insurance policy in the *439case at bar may not be identical to the health insurance policy in the Michna15 decision. But the provisions of the two policies, which attempt to restrict coverage to “catastrophic” medical expenses, seem similar if not identical. Michna stands for the proposition that the extent of coverage under so-called “catastrophic” health insurance policies can sometimes be decided as a matter of law. Although this is a close case, we continue to believe that the health insurance policy in this case was not ambiguous and that it excluded coverage for the outpatient treatment received by Shirley when she was kept in the emergency department for 23 hours for observation.

Judgment reversed and case remanded for a new trial.

Andrews, P. J., Smith, P J., and Ellington, J., concur. Johnson, Adams and Doyle, JJ., dissent.

288 Ga. App. 112 (653 SE2d 377) (2007).

Id. at 114-115.

Supra.

(Citations and punctuation omitted.) Id. at 113-114.

Supra.

Id. at 113.

Claussen v. Aetna Casualty &c. Co., 259 Ga. 333, 334 (1) (380 SE2d 686) (1989); see also OCGA § 13-2-2 (2).

Michna, supra at 114.

Id. at 115.

Id. at 112.

Blue Cross moved for a directed verdict on the issue that Shirley assigned her right and benefits under the contract to the hospital and hospital-based physicians, and consequently did not have the right to bring the instant action, which the trial court denied.

Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689 (10) (689 SE2d 62) (2009). See also Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164, 166 (2) (397 SE2d 720) (1990) (“the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion”) (citation omitted).

Aldworth Co. v. England, 281 Ga. 197, 199-200 (2) (637 SE2d 198) (2006).

Supra.

Supra.