ROBERT W. MILAS, M.D., Plaintiff-Appellant,
SOCIETY INSURANCE and ANGELA BONLANDER, Defendants-Appellees.
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.
appeals following judgment entry on 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
Cook of Grefe & Sidney, P.L.C., Des Moines, for
Considered by Danilson, C.J., McDonald, J., and Blane, S.J.
Tabor, J., takes no part.
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 on summary judgment, erred in denying his request for
an instruction on the 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. On November 17, 2017, we filed an opinion in this
matter. We subsequently granted the physician's petition
for rehearing and vacated our prior decision pursuant to Rule
6.1204. After considering the petition for rehearing, we now
file this opinion.
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
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.
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.
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.
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 district court
denied Dr. Milas's request for an instruction on the
fraudulent misrepresentation claim and declined to submit the
issue of punitive damages to the jury. The jury returned a
verdict finding Dr. Milas and Society Insurance entered into
a contract and finding Dr. Milas and ...