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Andry v. Omega Hospital, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

November 6, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-10018, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Campbell Edington Wallace Everett R. Fineran FRILOT, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT

          Philip Anthony Franco Timothy M. Brinks ADAMS & REESE LLP COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins


         Appellants, Gilbert V. Andry, IV, and Gibby Andry, The Andry Law Firm, LLC, appeal the district court's March 22, 2019 judgment granting summary judgment in favor of Appellee, Omega Hospital, LLC, and denying their motion for partial summary judgment. The judgment dismissed Appellants' claims with prejudice. For the reasons that follow, we reverse the judgment of the district court in part, affirm in part, and remand for further proceedings.


         On October 5, 2018, Appellants filed a petition for damages against Appellee. Therein, Appellants stated that on November 3, 2010, Appellee filed its own petition against Louisiana Health Service and Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana (hereinafter "BCBS"), resulting from BCBS' "systematic underpayment for medical services of out-of-network providers like Omega." Appellee ultimately retained Appellants to represent it on a contingency fee basis.[1] On January 20, 2012, the parties entered into an agreement whereby Appellants would receive a fee of one-third of the "gross recovery" obtained by Appellee in their suit against BCBS. Specifically, the parties agreed that Appellants would represent Appellee "in all matters pertaining to any and all claims which we have or may have against [BCBS, ]" further specifying the case name and number for the already pending action. The parties agreed that in the event of settlement, Appellants' one-third fee would "be based on a percentage of the value of the case at the time of the settlement[.]" Appellants thereafter retained T. Cary Wicker, III and his firm to serve as co-counsel.

         Pursuant to the agreement, Appellants litigated Appellee's claims up to the weeks before trial, at which point BCBS communicated an interest in mediation. Ultimately, according to Appellants, the mediation resulted in an agreement for BCBS to pay "a lump sum payment to Omega for underpayment for past medical services as well as an in-network contract for future services provided by Omega." Appellee, on the other hand, notes the agreement contained language only that the parties "will undertake a good faith effort to negotiate an in-network provider agreement." While this is true, the agreement further set forth "terms and conditions" with respect to those negotiations, e.g., length of the agreement (three years) and reimbursement rates. A settlement agreement was thereafter finalized on May 9, 2016.

         Days after the mediation agreement had been signed, Appellee communicated to Appellants its understanding that Appellants would be paid a fee based only on the gross lump sum payment by BCBS, and not also on the gross recovery associated with the in-network agreement, a dispute which is alleged to have ultimately brought an end to the representation.[2] Mr. Wicker, co-counsel in the matter, was retained and proceeded to negotiate with BCBS on behalf of Appellee on the terms of the in-network agreement. In September of 2016, Appellee filed another suit against BCBS to enforce the settlement agreement, [3]which suit was ultimately dismissed in May, 2018, as a result of the parties reaching an agreement on an in-network contract. Appellants' petition argued that Appellee's gross recovery included the monies it will receive as a result of its in-network contract with BCBS; however, Appellee paid only $100, 000, and submitted a release to Appellants, which Appellants refused to sign.

         Appellants' petition submitted that Appellee's in-network contract with BCBS "was a significant part of the consideration received" by Appellee, and that they would have "demanded a substantially higher lump sum" but for that contract. It further alleged that fees to be paid by Appellee to Appellants "for the gross recovery by [Appellee] for an in-network agreement with BCBS were specifically discussed."

         On January 7, 2019, Appellee filed a motion for summary judgment and an exception, and on February 21, 2019, Appellants filed their own motion for partial summary judgment. On March 22, 2019, the district court held a hearing on the motions for summary judgment and Appellee's exception; it ultimately granted Appellee's motion and denied Appellants' motion, rendering Appellee's exception moot. The court entertained arguments similar to those on appeal set forth more fully below. However, counsel for Appellee argued that if Appellants intended to collect fees on the in-network contract, they should have explicitly included such language in the agreement, contrasting the agreement in dispute with a subsequently drafted agreement - one drafted by Appellants that was never presented to Appellee or signed by Appellee - that included explicit language regarding calculation of fees on future payments. At that point, the court ruled, stating "[a]nd that's the reason I'm granting your summary judgment and denying [Appellants' motion]." This appeal follows.

         First, Appellants argue that the language of the attorney-client contract between the parties unambiguously included language that Appellants would receive a fee based on the gross recovery associated with the Appellee's in-network agreement with BCBS. Appellants further argued that Appellee's payment of $100, 000 with respect to work performed on the in-network agreement ratified the parties' understanding that Appellants were entitled to a fee on the in-network recovery, but not as to the final amount of the fee. Appellee, on the other hand, also argues that the language of the agreement is unambiguous, though it reaches the exact opposite conclusion of Appellants - that fees based on the gross recovery of the in-network contract were not contemplated. It further argues that the $100, 000 payment made to Appellants was made to settle the dispute. In support, Appellee points to a Rule 1.5(c) statement provided by Appellants, which Appellants were required to provide pursuant to the Rules ...

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