Lopez v. Safeway Stores, Inc.

• Decision Date: 28 February 2006
• Docket Number: No. 2 CA-CV 2005-0057.,2 CA-CV 2005-0057.
• Citation: 212 Ariz. 198,129 P.3d 487
• Parties: Lydia LOPEZ, a single woman, Plaintiff/Appellee, v. SAFEWAY STORES, INC., a Delaware corporation, Defendant/Appellant.
• Court: Arizona Court of Appeals

129 P.3d 487

212 Ariz. 198

Lydia LOPEZ, a single woman, Plaintiff/Appellee, v. SAFEWAY STORES, INC., a Delaware corporation, Defendant/Appellant.

No. 2 CA-CV 2005-0057.

Court of Appeals of Arizona, Division 2, Department B.

February 28, 2006.

Hollingsworth Law Firm, By Louis Hollingsworth and Richard Arrotta, Thomas A. Zlaket, P.L.L.C., By Thomas A. Zlaket, Tucson, for Plaintiff/Appellee.

Douglas & Cox, L.L.P., By William H. Douglas, Scottsdale, for Defendant/Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 In this personal injury action, defendant/appellant Safeway Stores, Inc. appeals from a judgment entered on a jury verdict in favor of plaintiff/appellee Lydia Lopez in the net amount of $360,000 and from the trial court's subsequent denial of Safeway's motion for a new trial. Safeway argues the trial court erroneously denied Safeway's motion in limine and, as a result, erred in admitting a summary of Lopez's medical expenses, which included amounts not actually owed or paid by her or anyone else. Finding no reversible error, we affirm.

BACKGROUND

¶ 2 Although no trial transcripts have been furnished to this court, it appears undisputed that Lopez slipped and fell while entering a Safeway store and sustained various injuries. She then filed this negligence action against Safeway. Before trial, Safeway moved in limine to prohibit Lopez from presenting evidence "reflecting charges for medical care, healthcare or psychological care, which charges are above or beyond what was actually accepted by the healthcare provider in satisfaction of billings." Based on information provided by Lopez, Safeway pointed out that, although Lopez's medical bills totaled approximately $59,700, more than $42,000 of that total was "completely written off as adjustments" and the remaining balance of $16,837 was fully satisfied through contractually agreed-upon payments. In its motion, Safeway argued Lopez should only be able to claim and present evidence on the $16,837, the amount "actually accepted in full satisfaction of the services rendered."

¶ 3 After considering the parties' memoranda and hearing oral argument, the trial court denied Safeway's motion in limine. Thereafter, Lopez's medical expense summary, reflecting total medical bills of $59,699.57, was admitted into evidence at trial. The jury found in favor of Lopez, awarded damages of $400,000, but found her ten percent at fault and Safeway ninety percent at fault. This appeal followed the trial court's entry of judgment on the verdict and subsequent denial of Safeway's motion for a new trial.

DISCUSSION

I

¶ 4 Safeway argues "[t]he trial court's pretrial ruling on [Safeway's] Motion in Limine and the subsequent submission of full medical bills constitute reversible error requiring a retrial." Relying primarily on Anderson v. Muniz, 21 Ariz.App. 25, 515 P.2d 52 (1973), Safeway maintains a "plaintiff's recovery for medical expense claims should be limited to contractually agreed rates accepted in full satisfaction for medical care, not the face amount of billings." Therefore, Safeway asserts, the trial court erred in admitting "evidence at trial of the higher billing amounts which were never paid, and were fully satisfied through contractually agreed upon reduction in charges."

¶ 5 Before turning to Safeway's argument, we first address two preliminary issues Lopez raises. First, as she points out, the parties stipulated in their joint pretrial statement "that the medical bills incurred by the Plaintiff, as itemized on a Summary Sheet of Medical Expenses, will be deemed as reasonable and customary medical expenses to the extent of the Court's ruling on the Defendant's Motion in Limine . . ., as to the amount of medical bills that will be admissible." Lopez suggests, without response by Safeway in its reply brief, that "the foregoing stipulation seems to have mooted the issue now raised on appeal." We disagree.

¶ 6 The apparent purpose of the stipulation was merely to ease the burden, or expedite the process, of introducing Lopez's medical expenses into evidence at trial once the trial court ruled on the legal issue presented in Safeway's motion in limine.¹ The pretrial statement does not manifest any intent that the court's ruling on that motion would be binding or otherwise unchallengeable on appeal. Nor did Lopez so argue at the hearing on Safeway's motion in limine or, more importantly, in response to Safeway's subsequent motion for new trial. And the trial court did not cite or rely on the parties' pretrial statement in denying Safeway's motion for new trial. Therefore, we find Safeway's substantive issue on appeal neither moot nor waived. See Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz. 148, ¶ 28, 985 P.2d 633, 640 (App.1999) (by failing to raise waiver as a defense in the trial court, defendant "waived its waiver argument").

¶ 7 Second, Lopez argues Safeway's failure to provide the trial transcript makes it "impossible to analyze or decide any issues raised on this appeal." Again, we disagree. Although Lopez questions how we can determine "whether Safeway's objections [to her medical expense claim] were properly made and preserved," the record includes Safeway's motion in limine, the transcript of the argument on that motion, and the trial court's ruling. Based on that ruling, the court later admitted Lopez's medical expense summary into evidence at trial. Safeway's pretrial motion preserved its objection to the amount of medical expense Lopez could claim and recover. See State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985) ("where a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial"); see also State Bar Committee comment, Ariz. R. Civ. P. 7.2, 16 A.R.S., Pt. 1.

¶ 8 In addition, although we review a trial court's evidentiary rulings for abuse of discretion, Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398, 949 P.2d 56, 58 (App.1997), Safeway's pretrial motion raised a purely legal issue that is subject to our de novo review and that is not dependent on evidence adduced at trial. See Dean v. Am. Family Mut. Ins. Co., 535 N.W.2d 342, 343 (Minn. 1995) (when facts are undisputed, issue of whether collateral source rule applies is reviewed de novo); Smith v. Shaw, 159 S.W.3d 830, 832 (Mo.2005) (same); Weatherly v. Flournoy, 929 P.2d 296, 298 (Okla.Civ.App. 1996) (same). As Lopez acknowledges, the available record is sufficient to "decide the correctness of the trial court's ruling on [the] motion in limine."² Accordingly, we do not view "the full evidence presented at trial" as indispensable to review of that ruling, as Lopez claims. Finally, if Lopez deemed the trial transcripts relevant or necessary to resolving the central issue on appeal, she could have designated them for preparation and production to this court. Ariz. R. Civ.App. P. 11(b)(2), 17B A.R.S.; Orlando v. Northcutt, 103 Ariz. 298, 301, 441 P.2d 58, 61 (1968).

II

¶ 9 We now turn to Safeway's argument that the trial court erroneously permitted Lopez to claim and recover for medical expenses that were never paid. As noted earlier, Safeway relies primarily on Anderson, contending this court's 1973 decision in that case is "directly on point," "dispositive of the question presented" here, and clearly establishes "that the proper measure of damages for the value of medical services rendered is the contractually agreed upon rate." We find Anderson distinguishable but, to the extent it supports the broad proposition Safeway advocates, we overrule that portion of it.

¶ 10 In Anderson, the plaintiff was injured on his job, received workers' compensation benefits, but also filed a third-party personal injury action. In that action, "[t]he trial court ruled that the [plaintiff's] doctors could testify as to the amount they ordinarily would have charged for their services which was higher than the actual amount charged to and paid by the State Compensation Fund." 21 Ariz.App. at 28, 515 P.2d at 55. Adopting the reasoning in Pabon v. Cotton State Mutual Insurance Co., 196 F.Supp. 586 (D.P.R.1961),³ this court disagreed with the trial court's ruling and stated: "If on retrial, it appears that the doctors' charges were based on a schedule of rates contractually agreed upon between them and the Fund, then the [plaintiffs] can receive no more than those charges." Anderson, 21 Ariz.App. at 29, 515 P.2d at 56.

¶ 11 Although at first blush Anderson would seem to apply to this case, on closer analysis it is distinguishable and, therefore, not controlling. There, the State Compensation Fund paid the plaintiff's healthcare providers the "actual amount charged" by each of them. Id. at 28, 515 P.2d at 55. Thus, as Lopez points out, "the [Anderson] decision stands for the proposition that a party cannot recover for medical expenses in excess of the amounts actually charged (i.e., billed) by healthcare providers," because "the amount billed in that case was identical to the amount paid by the compensation carrier."

¶ 12 Here, in contrast, the billing charges of Lopez's healthcare providers totaled almost $59,700, even though the providers accepted only $16,837 in full satisfaction of those charges based on reduced rates to which the providers had contractually agreed with Lopez's medical insurance carriers. At oral argument in this court, Safeway contended the medical bills reflecting the higher amount had "nothing to do with anything" because they were largely illusory or "phantom." But, as noted earlier, Safeway stipulated that all of Lopez's medical bills would "be deemed as reasonable and customary medical expenses" for trial purposes.⁴ In short, we do not find Anderson dispositive; but that does not end our inquiry.

¶ 13 At the heart of this appeal is whether the collateral source rule applies to Lopez's claim for medical expenses that apparently were charged to her but which neither she nor...