
    2015 OK 41
    Judy WHITE, Plaintiff/Appellant, v. VALIR PHYSICAL THERAPY, Defendant/Appellee.
    No. 113,634.
    Supreme Court of Oklahoma.
    June 16, 2015.
    Jack Tracy, Purcell, Oklahoma, for Plaintiff/ Appellant.
    Harvey D. Ellis, Jr., Adam C, Hall, Tim J. Gallegly, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Defendant/Appellee.
   PER CURIAM:

1 This case concerns a dispute over the way Valir Physical Therapy handled billing and payment for services Valir provided to Judy White. Ms. White contends that she expected Valir to bill and accept payment from her medical insurer, while Valizr contends it had the option to bill and seek payment from either Ms. White's medical insurance or the automobile insurer for the tortfeasor who injured Ms. White. The crux of Ms, White's position is that Valir billed the tortfeasor's insurance to evade billing adjustments that Valir had agreed to accept from Ms. White's medical insurer, In response, Valizt basically contends that this consideration is irrelevant in light of the Assignment of Benefits provision that Ms, White signed when she contracted for Valir's services,

1 2 The trial court granted summary judgment in favor of Valiv Under the current state of the summary judgment record, this Court finds that reasonable minds could differ concerning the source and amount of payment Valir agreed to under the Assignment of Benefits provision,

T8 The Assignment of Benefits provision consists of five sentences, The first sentence informs the patient that "Valir does submit a claim to many third party payers." The second sentence is in the form of a request by the patient that "payment of authorized Medicare or private benefits be made to Va-lir Physical Therapy for any covered services furnished to me by Valir{.]" These portions of the Assignment of Benefits provision tend to support Valit's position.

T4 The remainder of the Assignment of Benefits provision, however, tends to support Ms, White's position, The third sentence is an agreement by the patient that "If my insurance carrier pays me directly, I agree to forward all funds to Valir ... within 10 working days." (Emphasis added.) The fourth sentence states a further agreement by the patient to be "responsible for paying all non-covered or unpaid amounts unless otherwise provide[d ] by law, regulation or Valir Physical Therapy's contractual relationships." (Emphasis added.) The fifth and final sentence is an agreement by the patient to be responsible for the full amount of the charges from the date of delivery which my third party payer does not pay." (Emphasis added.) These portions of the Assignment of Benefits provision support Ms. White's expectation that her medical insurance would be billed and Valir would accept payment made by the medical insurer in accordance with the "contractual relationship" Vahr had with her carrier.

[5 Considering the fact that Valir drafted the Assignment of Benefits provision, and did not disclose the claimed option to bill a tort-feasor's insurer, rather than the patient's medical insurer, in cases like Ms, White's case, reasonable minds could differ over the source and amount of payment Valir agreed to accept for the services provided to Ms. White. Therefore, summary judgment was not proper on the contract aspect of Ms. White's claim and is reversed.

T 6 On remand, Ms. White must be afforded the opportunity to conduct discovery and determine: (1) whether Valir had a "contractual relationship" with her medical insurer to adjust billing rates, (2) whether payment of adjusted billing amounts. by her medical insurer under that contractual relationship would constitute payment in full and (8) what basis Valir would have to assert a lien upon or other claim to proceeds from the tortfea-sor's insurance following the medical provider's payment; If Valir does have a contractual relationship with Ms, White's medical insurer to accept adjusted billing amounts as payment in full, Ms. White would be entitled to (1) an order compelling Valir's specific performance of the Assignment of Benefits provision and (2) declaratory relief that Valir had no lien or other claim to the proceeds from the tortfeasor's insurer.

T7 In the event the trial court -did grant such relief, the trial court should further order Valir to disgorge and return the payments received from the tortfeasor's insurer. In the final analysis, what Ms. White really wants is to maximize recovery from the tort-feasor's automobile liability insurance. She contends that her medical insurer's subrogat-ed claim against the tortfeasor's insurance will be considerably less than Valir's unadjusted charges, leaving a greater portion of the tortfeasor's insurance for payment of other damages she sustained in the accident.

18 One aspect of the summary judgment was proper: This case presents nothing more than a contract dispute "and, therefore, summary judgment was proper on Ms. White's fraud and "tort" theories of recovery. The summary Judgment is affirmed in that regard

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

19 REIF, C.J.; COMBS, V.C.J., KAUGER, WATT, EDMONDSON, TAYLOR, and COLBERT, JJ., concur.

110 WINCHESTER, and GURICH, JJ., concur in result. |  