03-0781 POLLO V. TRIPP

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-0781 POLLO V. TRIPP

Case Date: 02/23/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2005 ** POLLO OPERATIONS, INC., Appellant, vs. EDNA G. TRIPP, Appellee. ** ** ** ** ** LOWER TRIBUNAL NO. 02-19611 CASE NO. 3D03-781

Opinion filed February 23, 2005. An Appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge. Kubicki Draper and Caryn L. Bellus, for appellant. Philip D. Parrish; and Robert C. Maland, for appellee.

Before GERSTEN, FLETCHER and SHEPHERD, JJ. SHEPHERD, J. This is an appeal from a final order directing an insured tortfeasor to write a settlement check directly to the Plaintiff

without receiving a release of Medicare's lien.

We find that the

decision of the lower court misinterpreted the previously negotiated Settlement Agreement between the Plaintiff, Defendant and the

Defendant's insurer, and therefore are compelled to reverse the judgment of the court below. We are presented here with a garden variety slip and fall which settled during mediation for the sum of fifty-five thousand dollars ($55,000.00). There were thirty-seven thousand dollars ($37,000.00)

worth of medical bills associated with the incident, all of which have been paid by Medicare. Plaintiff, Edna Tripp The mediation was attended by the her counsel, counsel for the

("Tripp"),

Defendant, Pollo Operations, Inc. ("Pollo"), and a representative of Pollo's general liability insurer, Liberty Mutual Insurance Company ("Liberty Mutual"). The Settlement Agreement, signed by Pollo's attorney, the

Liberty Mutual representative, along with Tripp, her husband, and her counsel, contained the following language: [A]ll matters arising out of the above matter, including subrogation claims are hereby resolved as follows: * * * Plaintiff will execute appropriate releases and will satisfy all medical and related liens from the settlement funds. Settlement includes any claim by the claimant for medical payments coverage. Plaintiff will execute appropriate indemnity and hold harmless agreements consistent

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with protecting Defendant from any claim of medical lien. This agreement, memorialized on a pre-printed mediation form designed for use in the settlement of these kinds of cases,

contemplates that the parties intended that any medical liens would be satisfied from the settlement proceeds, and that any subrogated entities which had thus far been fronting medical costs would recoup their payments. In other words, these entitieswhether they be

hospitals, other service providers, or an apparent subrogee like Medicarewould receive some payment from the settlement proceeds to satisfy any lien against Tripp. Customarily, this is accomplished

by counsel working together in good faith to negotiate, settle, and obtain releases for all medical liens as part of the settlement closing so that the defendant and, in certain circumstances, counsel are not exposed to later claims. However, Settlement attempted that was not to be here. Instead, and after the

Agreement to avoid

was the

executed, rightful

Plaintiff of a

her

counsel payments

claims

medical

subrogeeMedicare.

In particular, based on a Fifth Circuit case,

Thompson v. Goetzmann, 315 F.3d 457 (5th Cir. 2002), aff=d en banc, 337 F.3d 489 (5th Cir. 2003),1 counsel for Plaintiff came up with

In general, Medicare has a subrogated interest or right to settlement payments received by a Medicare beneficiary, if the settlement payments were through insurance plans that provided primary medical coverage,
1

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the

idea

that check

if

the

Defendant-tortfeasor, to Plaintiff, then

Pollo, Medicare

wrote would

the be

settlement

directly

halted from seeking reimbursement. Instead of enforcing the Settlement Agreement as written and customarily implemented, the lower court disregarded the entities which had a subrogated interest in the outcome of the controversy and granted Plaintiff=s request for an end-run around the Settlement Agreement and Medicare statute by directing that Pollo deliver a check to the Plaintiff alone. In so doing, the trial court blinded

itself to the ultimate reality that Liberty Mutual would be writing a check to Pollo to cover the check Pollo writes to the Plaintiff. We conclude that insured this judicially-sanctioned directly arrangement the of an

obviously

tortfeasor

paying

allegedly

injured Plaintiff is not only contrary to the express agreement of the parties, but also impermissible under the circumstances of this case. In the 1980s, Congress passed several amendments to the

Medicare Secondary Payer Statute (MSP) for the purpose of reducing federal healthcare costs. 42 U.S.C.

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