Josh Lerner and Nicole Smith Secure Final Summary Judgment for Infinity Auto Insurance
Rumberger, Kirk & Caldwell attorneys Josh Lerner and Nicole Smith secured a final summary judgment in MSP Claims 1, LLC v. Infinity Auto Insurance Company
in the U.S. District Court for the Southern District of Florida. Plaintiff, an alleged three times removed assignee of a Medicare Advantage Organization, sued for double damages under the Medicare Secondary Payer Act. Plaintiff claimed Infinity was a primary payer under Medicare but had failed to make primary payments for Medicare covered services provided to the original assignor’s enrollee.
After the completion of discovery, both parties moved for summary judgment. The original assignment required the approval of the original assignor to any subsequent assignments. Plaintiff testified in deposition that such approval had been secured orally in conversations between its lead counsel and representatives of the original assignor but there was no other evidence of that. And, plaintiff successfully obtained a protective order when Infinity sought to depose its counsel. In opposition to summary judgment, although it submitted an affidavit of its lawyer, plaintiff was unable to produce admissible evidence showing it received the required approval. This was one of a plethora of cases this and related plaintiffs have filed in Florida and elsewhere seeking recovery under the Medicare Secondary Payer Act for payments that, allegedly, others, not Medicare, should have paid.
On November 28, 2018, "The Voice," a publication of DRI-The Voice of the Defense Bar published the summary of the case