Appeals court overturns trial judge; allows Progressive to "duck" $28,000.00 surgery bill

Carol Sue Clark underwent shoulder surgery after the second of two car wrecks she was involved in.  Progressive owed related Personal Injury Protection benefits, including related medical, but refused to pay for about $100,000.00 in bills.  Clark sued.  The parties went to mediation and ultimately resolved the PIP claim by agreement that Progressive pay $78,000.00 to cover all medical expenses incurred.

Three days later, however, Clark was billed $28,000.00 for the shoulder surgery by the facility where it was performed months earlier.  She had previously been aware of only the billing from the surgeon's office.  Her attorneys presented the matter to the Court, which held that the settlement did not waive her right to hold Progressive accountable for the surgical facility bill because there had been what amounted to a mutual mistake.

Progressive appealed and experienced the good fortune of drawing two of the most insurance-oriented judges on the Court of Appeals, Henry Saad and Kirsten F. Kelly.  They reversed the lower court and held that Progressive is not responsible for the $28,000.00 bill.  The Appeals judges ruled that there was no "mutual mistake" because Progressive knew all about the billing and achieved a favorable settlement.  They authored a 10-page opinion deriding the efforts of Clark and her counsel to fully understand Clark's outstanding medical expenses prior to entering a settlement that covered all expenses "incurred."  They concluded that in an adversary litigation, Clark and her counsel simply failed to "protect her interests."  It did not matter that the surgical facility bill was never discussed, never appeared on Clark's list of billings, and was never divulged by Progressive.