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Milas v. Society Insurance

Court of Appeals of Iowa

November 8, 2017

ROBERT W. MILAS, M.D., Plaintiff-Appellant,

         Appeal from the Iowa District Court for Scott County, Henry W. Latham II (trial and motion to recuse) and Nancy S. Tabor (motion for summary judgment), Judges.

         Plaintiff appeals following judgment entry in his claims for fraudulent misrepresentation and breach of contract.

          Anthony J. Bribriesco, Andrew W. Bribriesco, and William J. Bribriesco of Bribriesco Law Firm, P.L.L.C., Bettendorf, for appellant.

          Guy R. Cook and Aaron W. Lindebak of Grefe & Sidney, P.L.C., Des Moines, for appellees.

          Considered by Danilson, C.J., McDonald, J., and Blane, S.J. Tabor, J., takes no part.

          MCDONALD, JUDGE.

         A treating physician brought an action for breach of contract, negligent misrepresentation, and fraudulent misrepresentation against a workers' compensation insurance carrier and its claims adjuster after the claims adjuster approved an elective surgery for the physician's patient but the carrier declined to pay the physician's entire fee for the elective surgery. The district court dismissed the misrepresentation claims on summary judgment. The claim for breach of contract was tried to a jury. The jury found in favor of the physician and awarded contract damages. The physician timely filed this appeal. He contends the district court erred in dismissing his fraudulent misrepresentation claim and erred in declining to submit the issue of punitive damages to the jury. He also contends the district court should have granted his motion for recusal.


         In January 2012, Rickey Fitzgerald seriously injured himself while performing work for Barker Apartments and filed a workers' compensation claim. Fitzgerald became dissatisfied with the medical care received, and he petitioned for alternate care with Dr. Robert Milas. The workers' compensation commissioner granted the petition, and Dr. Milas became Fitzgerald's treating physician. Dr. Milas recommended Fitzgerald undergo a cervical fusion to treat Fitzgerald's neck and back injuries. Dr. Milas sent a fee estimate to the workers' compensation insurance carrier, Society Insurance, in the amount of $14, 325.87. A claims adjuster, Angela Bonlander, signed the estimate. The signed estimate provided, "SIGNATURE FROM REPRESENTATIVE AT SOCIETY INSURANCE WILL BE THE AUTHORIZATION FOR SURGERY."

         After receiving the signed estimate, Dr. Milas performed the cervical fusion. He submitted a bill to Society Insurance for $14, 325.87. Society Insurance provided the bill to a third-party auditing service, Health Systems International (HSI). Upon the recommendation of HSI, Society Insurance issued a check to Dr. Milas for $1620.52. Dr. Milas rejected the check and demanded he be paid in full. Two years later, Society Insurance sent Dr. Milas another check for $4958.03. Dr. Milas rejected that payment.

         Dr. Milas brought this action against Society Insurance and Bonlander. Dr. Milas asserted claims for negligent misrepresentation, fraudulent misrepresentation, and breach of contract. Society Insurance moved for summary judgment on all counts. The district court granted Society Insurance's motion for summary judgment on the fraudulent misrepresentation claim, concluding there was no evidence showing the defendant had the intent to deceive Dr. Milas in authorizing the elective surgery.

         The matter proceeded to trial on the negligent misrepresentation claim and the breach-of-contract claim. The first trial ended during the plaintiff's opening statement after the district court granted a motion for mistrial. Society Insurance subsequently filed a second motion for summary judgment, seeking dismissal of the negligent misrepresentation claim. The district court granted the motion, concluding the defendants were not in the business of providing information and were entitled to judgment as a matter of law.

         The matter proceeded to trial on the claim for breach of contract. Prior to the second trial, Dr. Milas moved to recuse the presiding judge. The district court denied the motion. Dr. Milas sought interlocutory review of the order denying the motion. That, too, was denied. The jury returned a verdict finding Dr. Milas and Society Insurance entered into a contract and finding Dr. Milas and Bonlander had not entered into a ...

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