State Farm Mutual Automobile Insurance v. Bowers

Present:   All the Justices

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

v. Record No. 971257   OPINION BY JUSTICE CYNTHIA D. KINSER
                                April 17, 1998
KEITH BOWERS

           FROM THE CIRCUIT COURT OF HENRICO COUNTY
                    George F. Tidey, Judge


     This appeal involves the amount of reasonable medical

expenses incurred by an insured under a medical payments

provision of an automobile insurance policy.   Because we

find that the term “incurred” includes only those amounts

that the insured would be legally obligated to pay, we will

reverse the judgment of the circuit court.

                               I.

     On April 17, 1995, Carroll Keith Bowers was involved

in a motor vehicle accident in which he sustained injuries

requiring medical treatment.   At the time of the accident,

Bowers was insured under an automobile insurance policy

issued by State Farm Mutual Automobile Insurance Company

(State Farm).   Under the medical payments provision of the

policy, State Farm agreed to pay “on behalf of each injured

person, medical expense benefits as a result of bodily

injury caused by accident.”    The policy defines medical

expense as “all reasonable and necessary expenses for
medical . . . services . . . incurred within three years

after the date of the accident.”

     Bowers was also insured under a health insurance plan

through Blue Cross/Blue Shield of Virginia (Blue Cross).

All the health-care providers that rendered services to

Bowers as a result of the accident had signed contracts

with Blue Cross agreeing to accept fees based upon a fee

schedule setting forth the reasonable value of the services

provided.   According to a representative of Blue Cross, the

fee schedule was based on a governmental study performed by

the Health Care Financing Administration to determine the

reasonableness of fees for various medical services.    Under

the agreement with Blue Cross, a participating health-care

provider could collect only the amount established by the

fee schedule plus any co-payment that the insured was

required to pay.   In other words, the agreements with Blue

Cross prohibited providers from collecting as full payment

for their services any more than the scheduled fee and

required co-payment.

     Following his accident, Bowers sought medical

treatment from various health-care providers and then

submitted claims to State Farm under the policy’s medical

payments provision.    One such claim was for $1,586 for

treatment received from a rehabilitation and therapy


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services company.    However, due to an administrative error,

the check that State Farm issued to Bowers was for $31,586

instead of $1,586.      Upon realizing its mistake, State Farm

contacted Bowers and requested that he return the $30,000

overpayment.   Bowers informed State Farm that he had spent

the entire overpayment and refused to repay the balance.

     As a basis for his refusal to repay State Farm, Bowers

asserted that, subsequent to the overpayment, he had

incurred additional medical expenses that should be offset

against the amount allegedly owed to State Farm. 1    A dispute

arose between Bowers and State Farm in regard to the amount

that he was entitled to offset.      Specifically, Bowers

sought to offset the amounts that the health-care

providers, absent agreements with Blue Cross, would have

charged Bowers rather than the amounts that the providers

accepted as full payment for their services under the Blue

Cross fee schedule. 2


     1
       Following the $30,000 overpayment, Bowers submitted
additional claims for medical expenses totaling $2,428 to
State Farm for payment. State Farm gave Bowers credit
against the $30,000 overpayment, reducing his obligation to
$27,572.
     2
       For example, an orthopedic clinic billed $3,770.50
for the services provided to Bowers. However, since the
orthopedic clinic was a participating provider under the
Blue Cross plan, it agreed to accept $1,157.25 as full
payment for its services in accord with the Blue Cross fee
schedule. Of that amount, Blue Cross paid the orthopedic

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       Because of the dispute and Bowers’ refusal to repay,

State Farm filed an action for unjust enrichment against

Bowers, seeking to recover the money it mistakenly paid to

him.   On October 25, 1996, the circuit court granted State

Farm’s motion for partial summary judgment.   Because

Bowers’ claimed offset would reduce only a portion of the

overpayment, the court awarded State Farm the sum of

$17,703.51, plus interest.   Following a bench trial on

January 29, 1997, the circuit court, in an order dated

March 18, 1997, entered judgment against Bowers in “the

total amount of $19,894.90 plus interest . . . , this

amount representing the amount of the Partial Summary

Judgment ($17,703.50) plus the sum of $2,191.40.”   In a

letter opinion, the court reasoned that State Farm cannot

benefit from the agreement between Blue Cross and the

health-care providers and, thus, allowed Bowers to offset


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clinic $861.70, and Bowers was to pay $295.55. (At the
time of trial, Bowers had paid only $35 of the $295.55.)
In other words, the orthopedic clinic wrote off $2,613.25
of its original bill. Bowers, nevertheless, claims that he
should be able to offset the amount the orthopedic clinic
billed rather than the amount that it accepted as full
payment. Thus, Bowers wants to offset the full $3,770.50
rather than the reduced fee of $1,157.25.

     Six health-care providers issued total bills of
$10,677.10 but accepted lesser payments totaling $3,007.50,
thereby collectively writing off $7,669.60 of the amounts
originally billed.



                               4
the full amount of the medical bills rather than the

amounts accepted by the health-care providers as full

payment.   In other words, the court allowed Bowers to

include in the offset the amounts that his health-care

providers wrote off.   The court also stated that “[t]he

fact that the medical provider and [Blue Cross] have

negotiated a figure acceptable to both of them for services

performed does not set the standard of what is reasonable.”

State Farm appeals.

                                  II.

     In its assignments of error, State Farm raises three

issues, all of which concern the circuit court’s

interpretation of the medical payments provision of the

State Farm policy and the amount that the court allowed

Bowers to offset against the overpayment.   Specifically,

State Farm asserts that the circuit court erred (1) in

determining the amount of “incurred” medical expenses, (2)

in deciding the “reasonable” value of the medical services

provided, and (3) in failing to reduce the amount of the

offset because Bowers did not mitigate his damages.

     The first issue requires us to construe the term

“incurred” as used in the definition of medical expense.

As already noted, the State Farm policy defines medical

expense as “all reasonable and necessary expenses for


                              5
medical . . . services . . . incurred . . . .”    State Farm

argues that the “incurred” expenses are those amounts which

the health-care providers accepted as full payment for

their services.   Bowers, however, posits that he “incurred”

the full amount of the bills.

     “If the language of an insurance policy is

unambiguous, we will give the words their ordinary meaning

and enforce the policy as written.”   United Services Auto.

Ass’n v. Webb, 235 Va. 655, 657, 369 S.E.2d 196, 198

(1988).   We have previously construed the term “incurred”

in a nearly identical medical payments provision of an

automobile insurance policy as unambiguous and concluded

that “[a]n expense can only be ‘incurred’ . . . when one

has paid it or become legally obligated to pay it.”

Virginia Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692,

696, 385 S.E.2d 612, 614 (1989). 3

     The evidence in the instant case was that Bowers would

never be liable for any amount greater than that which the

various health-care providers accepted as full payment for

their services based on the Blue Cross fee schedule.

Stated differently, the health-care providers’ agreements


     3
       The language at issue in Hodges was “all reasonable
expenses incurred within one year from the date of accident
for necessary medical . . . services.” Id. at 693, 385
S.E.2d at 612.

                                6
with Blue Cross prevented them from collecting more than

the scheduled fee and any required co-payment.    Therefore,

we conclude that the medical expenses Bowers “incurred”

were the amounts that the health-care providers accepted as

full payment for their services rendered to him.    Bowers

has not paid nor is he “legally obligated to pay” the

amounts written off by the providers.    Id.; accord Irby v.

Gov’t Employees Ins. Co., 175 So. 2d 9, 10 (La. Ct. App.

1965); United Services Auto Ass’n v. Schlang, 894 P.2d 967,

969 (Nev. 1995); Lefebvre v. Gov’t    Employees Ins. Co., 259

A.2d 133, 135 (N.H. 1969); Sanner v. Gov’t Employees Ins.

Co., 376 A.2d 180, 182 (N.J. Super. Ct. App. Div. 1977);

Atkins v. Great Am. Ins. Co., 189 S.E.2d 501, 504 (N.C. Ct.

App. 1972). 4   To decide otherwise would be to grant Bowers a


     4
       In 1997, the General Assembly defined “incurred” in
Code § 38.2-2201(A)(3), which addresses medical payments in
liability insurance policies:

          An expense . . . shall be deemed to have been
     incurred:

          a. If the insured is directly responsible for
     payment of the expense;

          b. If the expense is paid by (i) a health care
     insurer pursuant to a negotiated contract with the
     health care provider or (ii) Medicaid or Medicare,
     where the actual payment with reference to the medical
     bill rendered by the provider is less than or equal to
     the provider’s usual and customary fee, in the amount
     of the actual payment; however, if the insured is
     required to make a payment in addition to the actual

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windfall because he would be receiving an amount greater

than that which he would ever be legally obligated to pay.

     Turning to the second issue, we agree with the circuit

court that the fact that medical providers and Blue Cross

negotiate a fee schedule that is acceptable to them does

not necessarily set the standard for what is a “reasonable”

medical expense.   However, the only evidence in this case

regarding reasonableness was from the Blue Cross

representative.    She testified that the Blue Cross fee

schedule was based on a government study that determined

the reasonableness of fees for various medical services.

Thus, absent any evidence to the contrary, we must conclude

in this case that the “reasonable” expenses were those

contained in the Blue Cross fee schedule and accepted as

full payment by the health-care providers.

     Finally, State Farm claims that Bowers failed to

mitigate his damages by reducing the amount of medical

_____________
     payment by the health care insurer or Medicaid or
     Medicare, the amount shall be increased by the payment
     made by the insured;

          c. If no medical bill is rendered or specific
     charge made by a health care provider to the insured,
     an insurer, or any other person, in the amount of the
     usual and customary fee charged in that community for
     the service rendered.




                               8
expenses he “incurred.”   State Farm argues that, because

Bowers directed a rehabilitation and therapy clinic not to

submit one of its bills to Blue Cross, the bill was never

reduced in accord with the Blue Cross fee schedule even

though the clinic was a participating provider with Blue

Cross.   However, we do not decide this issue because State

Farm presented no evidence regarding the amount that the

rehabilitation and therapy clinic would have accepted as

full payment under the Blue Cross fee schedule.

     For these reasons, we conclude that the circuit court

erred by granting an offset for any amount in excess of

that which Bowers’ health-care providers accepted as full

payment for their services.   The amount erroneously allowed

by the circuit court is the amount that the health-care

providers wrote off, $7,669.60.   Accordingly, we will

reverse the judgment of the circuit court and enter

judgment here for State Farm in the additional amount of

$7,669.60, for a total judgment in the amount of

$27,564.50.

                                  Reversed and final judgment.




_____________
     While this statute does not apply to this case, our
decision is consistent with the statutory definition of
“incurred.”

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