Fill and Sign the Mississippi Partial 497315358 Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI       AND       PLAINTIFFS VS. NO.             DEFENDANT MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Miss. Rules of Civ. P. 56,       files this Motion for Partial Summary Judgment as there is no genuine issue as to any material fact pertaining to the claim for punitive and extra contractual damages. In support,       shows: I. INTRODUCTION This action is an alleged wrongful denial of benefits claim. The Plaintiffs allege that Mr./Mrs.       's hospital visit from       , was pre - certified as a covered medical expense. Thus, they contend that the hospital charges in the total amount of $       should have been paid pursuant to the terms of the policy, which amount would have been less than the total charges.       denies that each day of the hospital visit had been pre - certified. As a matter of fact, the records are clear that only one day was preliminarily pre - certified and that the medical provider was informed at that time that the charges would be reviewed upon discharge. Upon receipt and review of the hospital records, an in - house consulting physician confirmed that the hospitalization was not medically necessary, as defined under the policy, because the treatment could have been rendered to the subscriber as an out - patient. The Plaintiffs requested a review of the decision. Thereafter, the hospital records were reviewed by an independent physician in private practice. The physician determined that the treatment rendered during the hospital admission could have been performed on an out - patient basis. Thus, the hospital charges were not considered medically necessary and coverage was denied. Accordingly, even if the trier of fact second-guesses the two physicians and finds that the hospital visit was medically necessary,       conducted an investigation of the matter and had a legitimate and arguable basis for its denial of the claims. Accordingly,       is entitled to summary judgment as a matter of law on the issue of punitive damages. II. UNDISPUTED FACTS 1.       purchased a       Contract, Type       . His/Her husband/wife ,       , was covered under this policy. 2. According to the Plaintiffs, Mr./Mrs.       received an injury on or about             ,       , for which he/she sought medical treatment. On or about             ,       ,       was seen by Dr.       and admitted to       and discharged on             ,       . 3. On or about             ,       ,       was seen by Dr.       and was admitted to       in       . He/She was discharged on             ,       . 4. Pursuant to the terms of the policy,       covers only those costs that are considered to be medically necessary. A copy of the pertinent policy provision is attached as Exhibit 1. In addition, the subscriber or medical provider is to pre - certify his or her hospital admission. 5. On             ,       , one day after       was admitted to       ,       was contacted by       in connection with the pre - certification requirement. Based on the oral representations made by the Hospital, the in-patient treatment administered to       did not meet the acute care criteria for hospitalization. The Hospital was informed that pre - certification was denied for             ,       . On             ,       ,       again received a call from the Hospital concerning treatment being rendered to Mr./Mrs.       . Pursuant to the oral representations made by the Hospital,       agreed to pre - certify the admission for Mr./Mrs.       only for the day of             ,       .       was informed that on the following day the Hospital would provide an update on the nature of care. On             ,       , the Hospital again called       in connection with pre - certification. Based on the oral representations made by the Hospital on the nature of care administered,       denied further pre - certification. The Hospital was informed that the matter would be reviewed upon receipt of the hospitalization records. Affidavit of       , R.N. is attached as Ex.       . 6. Upon receipt of the medical records for the hospital admission, the matter was referred to an in - house consulting physician. The determination that in - patient treatment was not medically necessary was affirmed. Affidavit of       , R.N. 7. Thereafter, the medical records were forwarded to an independent outside consulting physician,       , M.D. for review. Dr.       determined that Mr./Mrs.       's treatment could have been handled on an out - patient basis. Thus, in - patient treatment was not medically necessary. A copy of Dr.       's correspondence that has been redacted to exclude references to an unrelated case, is attached as Ex.       . 8. All claims associated with the injury to his/her       area (tail bone region) including all physician bills and previous hospitalization to       have been paid. The only claims not paid related to the Hospital bills, which hospitalization was determined not to be medically necessary. Affidavit of       is attached as Exhibit       . 9. The Hospital bill in question was for $       . If the hospital admission had been determined to have been medically necessary,       would have paid the sum of $       , pursuant to the terms of the policy. Affidavit of       . 10.       conducted a reasonable investigation into the legitimacy of the claims filed by       . Based on its reasonable and legitimate investigation, including reliance on an outside consulting physician,       is not liable to the Plaintiff for punitive damages. III. PARTIAL SUMMARY JUDGMENT IS TO BE GRANTED, AS A MATTER OF LAW. The issue presented for this Motion for Partial Summary Judgment does not pertain to whether       should have pre-certified hospital admission or should have paid the hospital charges. The Court is requested to find, as a matter of law, that punitive damages cannot be recovered in this instance. Without respect to the validity of non - payment of the hospitalization claims,       is entitled to a Partial Summary Judgment on the issue of punitive damages. The Policy provides for payment of expenses that were medically necessary. Based on       's criteria for medically necessary hospitalization, the hospitalization charges, except for one day, were initially denied. Thereafter, upon receipt of the full review of the medical records, it was determined by both in - house and outside independent consulting physicians that the in - patient hospitalization care received by Mr./Mrs.       was not medically necessary. Accordingly,       is not liable for punitive damages, even should the Court find that the hospitalization claims should ultimately be paid. A. PUNITIVE DAMAGES NOT AVAILABLE WHERE A LEGITIMATE OR ARGUABLE BASIS FOR DENIAL EXISTS Mississippi law is well settled that punitive damages cannot be awarded when the insurer has a legitimate or arguable basis for denying the claim. Life & Casualty Ins. Co. v. Bristow, 529 So. 2d 620, 622 (Miss. 1988). A legitimate or arguable basis for denying a claim includes the reliance by the insurer on a consulting physician. Id. at 623; Peel v. American Fidelity Assurance Co., 680 F.2d 374, 376. In Peel, the 5th Circuit held that "on the question of punitive damages, it appears to be part of the substantive law of Mississippi, by which we are bound in this diversity case, that where an 'arguable defense' to coverage exists punitive damages cannot be imposed on an insurance carrier. Id. Accordingly, the reliance by the insurer in Peel upon its consulting physician provided the arguable basis for denial, which precluded an award of punitive damages. Id. See also Hans Construction Co. v. Phoenix Assurance Co of New York, 995, F.2d 53, 55 - 56 (5th Cir. 1993), reh'cr denied, 1993 U.S. App. LEXIS 20681 (August 3, 1993). (reliance on outside experts for denial of claim provided insurer with a legitimate or arguable reason for denying coverages and thus precluding punitive damages).       relied on the policy language and the oral representations of the nature of the treatment received by Mr./Mrs.       for originally denying pre - certification for the entire stay.       Affidavit Ex. 2. Thereafter,       conducted an additional in - house review, which investigation found that the hospitalization was not medically necessary.       Affidavit, Ex. 2. Upon request by the Plaintiffs,       forwarded the hospital records to an independent private practice physician for review. The physician determined that the care received at the hospital could have been rendered on an out - patient basis. Thus, the hospitalization was not medically necessary.       Letter, Ex. 3. Only the hospital charges were denied as not medically necessary because it was determined that the same treatment could have been rendered on an out - patient basis.       Letter, Ex. 3. The physician's charges were covered.       Affidavit, Ex. 4. B. Standard: Summary Judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In this case, the material facts, about which no genuine dispute exists, are presented in Paragraphs 1 through 8. Accordingly, the Plaintiffs must set forth affirmative evidence and specific facts showing why punitive damages should be granted in this case. See O'Neal V. Airlines Pilot Association, Int'l., 886 F.2d 1438, 1443 (5th Cir. 1989). An alleged factual dispute nor a scintilla of evidence will defeat       's Motion: "[t]here must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 91 L. Ed. 2nd 202, 214 (1986) (addressing the Federal counterpart to Miss. R. Civ. P. 56). WHEREFORE,       requests that this Court grant its Motion for Partial Summary Judgment declaring that the Plaintiffs are not entitled to punitive or extra - contractual damages against       in connection with the denial of hospitalization charges in issue.       requests any additional relief the Court may deem proper. DATED, this the       day of       ,       . Respectfully submitted,       BY:___________________________________________       CERTIFICATE OF SERVICE I,       , do hereby certify that I have this day caused to be mailed by United States mail, postage prepaid, a true and correct copy of the above and foregoing MOTION FOR PARTIAL SUMMARY JUDGMENT to the following counsel of record:       THIS, the       day of       ,       . __________________________________________