Walter George And Janie George v. Progressive Waste

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #053
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 9th day of December, 2022 are as follows:
BY Crichton, J.:
2022-CC-01068 WALTER GEORGE AND JANIE GEORGE VS. PROGRESSIVE WASTE
SOLUTIONS OF LA, INC. AND ABC INSURANCE COMPANY (Parish of
Terrebonne)
REVERSED AND REMANDED. SEE OPINION.
Crain, J., concurs and assigns reasons.

1
S
UPREME COURT OF LOUISIANA
No
. 2022-CC-01068
WA
LTER GEORGE AND JANIE GEORGE
VS.
PROGRESSIVE WASTE SOLUTIONS OF LA, INC. AND ABC
INSURANCE COMPANY
O
n Supervisory Writ to the 32nd Judicial District Court, Parish of Terrebonne
CRI
CHTON, J.
We granted the writ application in this matter to determine whether the trial
court erred in granting the defendant’s Motion in Limine to exclude from evidence
the full amount of medical bills charged for plaintiff’s injuries in this personal injury
lawsuit. For the reasons that follow, we find the trial court erred in granting the
Motion in Limine, vacate that ruling, and remand this matter for trial.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of December 29, 2015, plaintiff Walter George
was standing at the roadside of his home in Houma, Louisiana, at the same time
defendant Progressive Waste Solutions of La., Inc. (“Progressive”) was picking up
garbage on plaintiff’s street. While plaintiff was picking remnants of garbage left
behind, he was struck by the hydraulic arm of a garbage truck and sustained injuries.
Plaintiff and his wife, Janie George, filed a petition for damages on October 4, 2016,
against Progressive and ABC Insurance Company, seeking damages for his injuries
and Mrs. George’s loss of consortium. Plaintiff underwent back surgery (endoscopic
rhizotomy, laminotomies and an L4-5 discectomy) on December 20, 2016, and the
total amount charged by Champion Medical Center for that procedure was
$192,020.14.

2

On December 1 , 2016, Champion Medical Center entered into a
“Professional Service Agreement” (“agreement”)1 with Ascendant Healthcare
(“company”), which identified itself in this agreement as being in “the business of
arranging for the provision of professional medical services to persons whose health
care costs are paid by liability insurance companies and/or attorneys that enter into
arrangements with [Ascendant] for the provision of such services….”
The agreement also identified the patient ( Mr. George), his physician, the
provider (Champion Medical Center and others) and the procedure performed (“3
level rhizotomy & laminectomy”). It further stated:
FEES AND COMPENSATION – Company will act as a billing agent
to collect payment for medical services rendered to Patient. Provider
agrees to invoice Company for Services provided pursuant to this
Agreement at 100% of Provider’s usual and customary billed charges.
Provider agrees to provide professional medical services to Patient and
to accept fifty percent of billed charges (50%) as full and final
reimbursement for services rendered under this agreement. Company
shall reimburse provider on the fifteen (15
th) day of the following
monthly business cycle, or the first business day thereafter.

The agreement also stated that “[p]rovider agrees and hereby appoints Company as
its agent for purposes of filing a medical lien for the services rendered by Provider.
Provider hereby assigns any and all rights to a medical lien w ith regard to any
proceeds recovered by the injured patient under La. R.S. 9:4752, et seq. Provider
agrees to cooperate and assist Company as necessary in billing and collection of any
amounts due for the services rendered by Provider.”
2

1 In a health care context, a medical factoring agreement is typically one in which a factoring
company (here, Ascendant) acquires patient accounts receivables from a medical provider (here,
Champion Medical Center) , often for a negotiated amount. As part of this transaction, the
healthcare provider transfers and assigns its rights to collect the receivables from the patient
(and/or any other guarantors) to the factoring company. See Ochoa v. Aldrete, 21-632 (La. App.
5 Cir. 12/8/21), 335 So.3d 957, 964-66 (holding that the medical factoring agreement in that matter
resulted in the assignment of the medical providers’ rights to the purchasing entity/factoring
company, and plaintiff was liable to the factoring company for the full amount of billed medical
charges).

2 The copy of this Agreement in the record before this Court has spaces for signatures by the
Controller of the Medical Provider (Paul Courtney) and for a signatory of Ascendant Healthcare,
LLC, although no signatures are present on this document.

3

On January 17, 2017, plaintiff’s former counsel at the law firm of Spagnoletti
& Company executed a “Letter of Guaranty and Protection.” The document, signed
by Mr. Marcus Spagnoletti only, identified “the undersigned attorney and law firm”
as the “GUARANTOR,” “ASCENDANT HEALTHCARE, LLC” as the
“Company,” and the patient as Walter George (who received medical treatment
resulting from an “ACCIDENT” on December 29, 2015) . The guaranty also
provided, in pertinent part:
Guarantor accepts absolute and full responsibility of and agrees to
protect the interests, assignments, and privileges of recourse to
Company for full payment and performance of any and all of its
obligations due and owing to Company.

***
Guarantor, jointly and severally with and on behalf of Patient with full
legal authority, grants to Company and/or its assigns irrevocable
assignments of right, title, and interest in the net proceeds or any
subsequent proceeds that may be recovered on Patient’s behalf,
regardless of the source, as the result of any compromise, settlement
arbitration, mediation, litigation, award, judgment or verdict, or any
other collection activities related to Accident.

***
Consistent with La. R.S. 9:4752, et seq., Guarantor acknowledges and
accepts that Company retains a privilege on any net proceeds payable
to the Patient, his or her heirs, or legal representatives, out of the total
amount of any recovery or sum had, collected, or to be collected,
whether by judgment or by settlement, or compromised from another
person, on account of such injuries, and on the net amount payable by
any insurance company under any contract providing for indemnity or
compensation to the Injured Person.

On May 23, 2017, the medical receivables assigned to Ascendant Healthcare were
sold and assigned to Southern Magnolia Medical, LLC.
3
After the parties engaged in initial discovery, defendant Progressive filed a
Motion in Limine on March 10, 2020, seeking to exclude or strike the medical bills
related to plaintiff’s surgery and charged to Ascendant Healt hcare. Specifically,

3 Although Ascendant’s receivables were sold to Southern Magnolia, because Ascendant was the
original medical factoring company involved at the time litigation began, the opinion will refer to
“Ascendant” or “Ascendant/Southern Magnolia.”

4

Progressive argued plaintiff incurred $192,020.14 in charges, but the total amount
of tho se charges is irrelevant and inadmissible because there is no evidence that
plaintiff himself is personally responsible for any payments to Ascendant/Southern
Magnolia Medical. In other words, defendant asserts, the collateral source rule does
not apply for these charges because they are simply amounts charged, and plaintiff
has not diminished his patrimony in order to receive his medical care. Furthermore,
Progressive asserted, plaintiff’s former counsel is the sole guarantor of the financing
arrangement. In support of their argument, Progressive relied upon Williams v. IQS
Insurance Risk Retention, 18-2472, 2019 WL 937848 (E.D. La. 2/26/19), urging that
under similar facts, the federal court found that because there was no evidence
plaintiffs themselves agreed to be responsible to anyone for any medical bills or for
the difference should their recovery at trial fall short, the collateral source rule does
not apply to the difference between the full billed medical charges and the amount
actually paid in satisfaction of the bill. Thus, the Williams court concluded, there
was no legitimate reason for admitting evidence of the funding mechanism because
the plaintiffs could not recover beyond what their medical providers were actually
paid.
Plaintiffs opposed the Motion in Limine, asserting they have not received any
benefit and Mr. George remains liable to the financing company for the full amount
of the medical bills as a result of the assignment of rights agreement between the
financing company and his m edical providers.
4 Therefore, Mr. George should be
entitled to present to the jury the full- billed medical charges. Plaintiff s urge they
were not a party to the medical financing contract between Ascendant and Mr.
George’s medical providers, and there is no evidence that his former counsel was a

4 Article 2642 of the Civil Code provides in pertinent part that “[a]ll rights may be assigned, with
the exception of those pertaining to obligations that are strictly personal.” A strictly personal
obligation is one “when its performance can be enforced only by the obligee, or only against the
obligor.” La. C.C. art. 1766. Moreover, a litigious right is transferable by assignment pursuant to
La. C.C. art. 2652. King v. Illinois Nat. Ins. Co., 08-1491, p. 7 (La. 4/3/09), 9 So.3d 780, 785.

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party to the agreement or that counsel negotiated a discount on his medical bills.
The only involvement of his former counsel was to sign a letter of Guaranty in favor
of Ascendant and its future assignees, thereby promising repayment of the full sum
of the medical bills out of any recover in the personal injury suit.
The trial court deferred ruling on the initial Motion in Limine in order to allow
Progressive to conduct limited discovery in connection with plaintiff’s medical bills.
On August 16, 2021, Progressive filed a renewed Motion in Limine. Following a
hearing, the trial court granted the Motion in Limine, ruling that plaintiffs may only
present the discounted medical charges at trial and that any evidence of a third-party
funding arrangement or the funding mechanism that was used to pay for Mr.
George’s medical treatment is irrelevant and excluded from evidence. The court of
appeal denied plaintiffs’ writ application on June 23, 2022, with one dissent. George
v. Progressive Waste Solutions of LA, Inc., and ABC Insurance Company , 22-0371
(La. App. 1 Cir. 6/23/ 22), 2022 WL 2303764 (unpub’d). The dissent noted that in
the absence of any evidence that Mr. George is not liable for the full amount billed,
defendant cannot subtract the discounted price from a theoretical damage award to
plaintiff. Id . (Guidry, J., dissenting, citing Ochoa v. Aldrete , 21-632 (La. App. 5
Cir. 12/8/21), 335 So.3d 957). This Court thereafter granted plaintiff’s writ
application. George v. Progressive Waste Solutions of La Inc. and ABC Insurance
Company, 22-1068 (La. 7/15/22), 342 So.3d 304.
DISCUSSION
A trial court is afforded broad discretion in its consideration of evidentiary
matters, including motions in limine, which are not to be disturbed on appeal absent
a clear abuse of that discretion. Certain Underwriters at Lloyd’s London, et al. v.
United States S teel Corp. and United States Tubular Products, Inc., 19- 1730 (La.
1/28/20), 288 So.3d 120, citing Heller v. Nobel Ins. Co. , 00-261 (La. 2/2/00), 753
So.2d 841. On review, the appellate court must consider whether the error

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prejudiced the plaintiff’s case, otherwise a reversal is not warranted. La. C.E. art.
103(A); Moonan v. La. Med. Mut. Ins. Co., 16 -113 (La. App. 5 Cir. 9/22/16), 202
So.3d 529, writ denied , 16 -2048 (La. 1/9/17), 214 So.3d 869 (internal citations
omitted). In reviewing the trial court’s ruling in this matter to exclude the full-billed
amount of medical charges for plaintiff’s medical services, we must first determine
whether the plaintiff has been released from his original and separate obligation to
pay the medical bills he incurred through his treatment by his health care providers.
The fundamental tort principle underlying all tort action in Louisiana applies
here: if the defendants are found at fault, the plaintiff is entitled to be made whole
through his recovery. La. C.C. art. 2315. 5 See Bellard v. American Cen. Ins. Co.,
07-1335, p. 19 (La. 4/18/08), 980 So.2d 654, 668 (“The purpose of tort damages is
to make the victim whole.”); Simmons v. Cornerstone Investments, LLC, et al., 18-
0735, p. 8 (La. 5/8/19), 282 So.3d 199, 205 (citing La. C.C. art. 2315 and noting that
making a plaintiff whole “is an important consideration of both tort recovery and the
application of the collateral source rule.”) . Plaintiff is not entitled to receive more
than his loss, nor should he be limited to less than his actual loss.
We are also guided by the principles found in our Civil Code regarding
obligations. La. C.C. art. 1821 provides that “[a]n obligor and a third person may
agree to an assumption by the latter of an obligation of the former,” and that
agreement must be in writing. Importantly, art. 1821 also states that “[t]he obligee’s
consent to the agreement does not effect a release of the obligor.” In this instance,
the plaintiff as obligor and a third person (Ascendant/Southern Magnolia) have
agreed to the assumption of plaintiff’s obligation, but that agreement does not release
plaintiff from his obligation. Comment (d) to La. C.C. art. 1821 confirms that the
law alone does not release plaintiff by the assumption of his debt by Ascendant:

5 La. C.C. art. 2315 (A) provides: “Every act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.”

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“[u]nder this Article, an assumption of obligation does not effect a novation by
substitution of a new obligor because the original obligation is not extinguished by
the assumption.”6
The limited record in this matter contains no indicia that plaintiff has been
released of his original obligation. 7 Specifically, the medical factoring agreement
provides for the financial arrangement between Ascendant Healthcare and plaintiff’s
medical providers, setting forth the purchase of the providers’ “usual and customary”
charges at a discounted rate.8 Plaintiff is not a party to that agreement, nor is there
specific language indicating that plaintiff is released from any obligation to pay the
medical bills as charged. Similarly, as set forth above, the “Letter of Guaranty and
Protection” executed by plaintiff’s former counsel evidences no intent to release
plaintiff from any obligation related to the charges for his medical services.9
The parties dispute the application of the collateral source rule under these
circumstances; however, we find it in applicable. The collateral source rule, a rule
of evidence and damages originating from common law but jurisprudentially
recognized in this state,10 provides that “a tortfeasor may not benefit, and an injured

6 La. C.C. art 1879 defines novation as “the extinguishment of an existing obligation by the
substitution of a new one.”

7 “A civilian obligation may be extinguished by payment, La. Civ. Code Ann. Art. 1854 (West
1987), novation, art. 1879, or remission, art. 1888. The extinction of an obligation may also result
from acts of the creditor which, under the factual circumstances in question, evidence intent to
release the debtor.” Scott v. Bank of Coushatta, 512 So.2d 356, 360 (La. 9/9/87), citing Succession
of Foerster, 9 So. 17 (La. 1891).

8 Because there has been no allegation of “inflated charges” by Mr. George’s medical providers,
and although plaintiff’s final recovery, if any, is unknown at this point, we also note that
disallowing evidence of the full -billed charges could result in a jury award that would make
plaintiff less than whole.

9 See Whitley v. Pinnacle Entertainment, Inc., of Delaware, 15-cv-595 (U.S. MDLA 3/20/17) 2017
WL 1051188 (denying a motion in limine seeking to exclude the total amount plaintiff was billed,
holding case did not fall under an exception to collateral source rule and plaintiff was entitled to
present evidence of the total costs she must pay under a medical factoring agreement between
plaintiff and factoring company).

10 The Hoffman court explained that the collateral source rule can be traced back to its common
law roots, as found in The Propeller Monticello v. Mollison , 58 U.S. (17 How.) 152, 15 L.Ed. 68
(1854). In Monticello, two ships (the Propeller Monticello and Northwestern) were involved in a
wreck, causing the Northwestern to sink. The Northwestern, however, was insured and the

8

plaintiff’s tort recovery may not be reduced, because of monies received by the
plaintiff from sources in dependent of the tortfeasor’s procuration or contribution.”
Bozeman v. State of La., DOTD , 03-1016, p. 9 (La. 7/2/04) , 879 S o.2d 692, 698
(internal citation omitted). Moreover, “the payments received from the independent
source are not deducted from the award the aggrieved party would otherwise receive
from the wrongdoer, and, a tortfeasor’s liability to an injured plaintiff should be the
same, regardless of whether or not the plaintiff had the foresight to obtain insurance.”
Id. at 698. The purpose of the collateral source rule is tort deterrence, as the “rule is
grounded in the belief that the tortfeasor should not profit from the victim’s prudence
in obtaining insurance, and that reducing the recovery by the monies paid by a third
party would hamper the deterrent effect of the law.” Bellard v. American Cent. Ins.
Co., 07-1335, p. 19 (La. 4/18/08), 980 So.2d 654, 668.
In determining whether the collateral source rule applies, we must consider
whether the “victim has procured the collateral benefits for himself or has in some
manner sustained a diminution in his or her patrimony in order to secure the
collateral benefits such that he or she is not merely reaping a windfall or double
recovery.” Bellard, 07-1335 at p. 20, 980 So.2d at 669. 11 With these principles in
mind, we must also determine (1) whether the application of the rule will further the
policy goal of tort deterrence; and (2) whether the victim, by having a collateral
source as a means of recovery, either paid for such benefit or suffered some
diminution in his patrimony because of the availability of the benefit such that no

insurance paid for the loss of the ship and its cargo. When presented with the issue of whether the
owner of the other ship was released from liability because of the insurance payment, the Supreme
Court ultimately held that the insurer’s payment “cannot avail” the tortfeasor. Hoffman v. 21 st
Century North America Insurance Company, 14-2279, pp. 2-4 (La. 10/2/15), 209 So.3d 702, 704
(2015), citing The Propeller Monticello, supra.

11 This Court also noted in Bellard that the purpose of tort damages is to make the victim whole,
and that purpose is thwarted when the victim is allowed to recover the same element of damages
twice. Thus, this Court in Bozeman determined that no “windfall” occurs when “the injured party’s
patrimony was diminished to the extent that he was forced to recover against outside sources and
the diminution of patrimony was additional damage suffered by him.” Bellard, p. 19, 980 So.2d
at 668 (quoting Bozeman, p. 10, 879 So.2d at 699) (emphasis in original).

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actual double recovery would result from application of the collateral source rule.
Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945, 953, citing Bellard, 07-
1335 at pp. 20-21, 980 So.2d at 669.
Applying these precepts, we find the collateral source rule does not apply here.
Specifically, application of the rule under the particular circumstances of this case
will not necessarily support the policy consideration of tort deterrence. Furthermore,
plaintiff has not diminished his patrimony to receive medical treatment from his
healthcare providers, as he has not procured any separate benefit or negotiated rate
at his own expense. Finally, there is no indication that plaintiff would receive a
“double r ecovery” should he receive the full -billed c harges as an award of
damages.12
Thus, from the limited record before this Court,13 we conclude that defendant
has not proven Mr. George has been released from his obligation to pay the full
amount billed. I n the absence of such evidence, defendant cannot subtract the
discounted purchase price from a theoretical damage award to plaintiff s. We

12 This Court similarly found the collateral source rule inapplicable in the context of attorney -
negotiated “write-offs” or discounts in Hoffman v. 21st Century North America Ins. Co., 14-2279
(La. 10/2/15), 209 So.3d 702, although for different reasons. Specifically, this Court reasoned that
“such attorney-negotiated discounts do not fall within the ambit of the collateral source rule
because to do othe rwise would invite a variety of evidentiary and ethical dilemmas for
counsel.” Id. at 707. The Hoffman court also found that an evidentiary hearing exploring the
details of the attorney-client relationship to discover the “diminution in patrimony” resulting from
the discount could infringe upon the privilege surrounding the employment contract and
communications regarding fee arrangements, and further, counsel may also run afoul of the Rules
of Professional Conduct in trying to recover a full “cost” from defendant where counsel actually
negotiated a discount. Thus, the court concluded, an attorney -negotiated medical discount or
write-off is not a payment or benefit that falls under the collateral source rule.

13 In his appellee brief filed in this Court, plaintiff indicated the parties were recently “made aware
of an acknowledgment signed by Plaintiff in 2019 that is not in the record because counsel did not
know it existed when this matter was pending before the trial court.” Defendant characterizes this
document differently, noting it instead merely addresses the assignment of Ascendant’s medical
receivables to Southern Medical and sets forth Southern Magnolia’s ability to collect on the
medical receivables owed. According to defendants, it does not provide that plaintiff is responsible
to pay the full-billed charges. Whether or not this document serves as confirmation of plaintiff’s
obligation to pay the full-billed charges is of no moment for purposes of this Court’s decision, as
the present record is devoid of its existence and speculation has no place in our rulings.

10

therefore reverse the trial court’s ruling granting defendant’s Motion in Limine and
remand this matter for further proceedings.14
CONCLUSION
In the absence of any evidence that plaintiff is not liable for the full billed
medical charges in this matter, defendant cannot benefit from any reduction as a
result of the subject medical factoring agreement. For the reasons set for th herein,
the trial court’s ruling granting the defendant’s Motion in Limine is hereby reversed
and the matter is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.

14 As evidenced by this Court’s analysis herein, because this matter is pre-trial, we are constrained
by the limited record before us. To that end, remanding the matter for trial will allow for a more
fully developed record and any adverse judgment can be adequately addressed on appeal.

SUPREME COURT OF LOUISIANA
No. 2022-CC-01068
WALTER GEORGE AND JANIE GEORGE
VS.
PROGRESSIVE WASTE SOLUTIONS OF LA, INC. AND ABC
INSURANCE COMPANY
On Supervisory Writ to the 32nd Judicial District Court, Parish of Terrebonne
CRAIN, J., concurs and assigns reasons.
I write separately only to emphasize that this case does not implicate the
collateral source rule. The subject agreement is between the healthcare provider and
a third party medical expense financier. On the evidence presented, and critical to
my opinion, the victim remains responsible for the entire medical bill. 1 The
collateral source rule is triggered when a tort victim’s obligation is reduced for
reasons unrelated to the tortfeasor. The rule prevents the tortfeasor from taking
advantage of that benefit to the victim. The rule, which wa s created by the court,
has been similarly n arrowed by the court requiring the victim to have procured,
contributed to, or otherwise given consideration for the benefit to avoid a windfall.
Bozeman v. State, DOTD , 03 -1016 (La. 7/2/04), 879 So.2d 692. But before the
collateral source rule can be invoked, the victim must have received a benefit, either
in money received or a discount obtained.
The majority correctly finds “ [t]he limited record in this matter contains no
indicia that plaintiff has been release d of his original obligation.” The plaintiff’s
medical providers assigned Ascendant Healthcare the right to recover the full
amount billed to the plaintiff. On the evidence presented, the plaintiff remains liable
1 The bill is still subject to a determination that the charges are “reasonable and customary.” Such
determination has not yet been made.

2

for the full medical bill. No discount has been negotiated for the plaintiff; thus, the
collateral source is not implicated. Any discussion of whether the plaintiff has
diminished his patrimony, procured the benefit himself, or advanced the policy goal
of tort deterrence is irrelevant. I respectfully concur.