On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-037133-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Ashrafi.
Defendant Sherelyn Johnson appeals from a judgment after a bench trial in the Special Civil Part in favor of plaintiff Premier Health Center, P.C., in the amount of $7,999.21. Because the trial court relied on an exhibit that plaintiff had not provided in discovery and did not authenticate at trial, we reverse and remand for a new trial.
Plaintiff sued defendant for unpaid chiropractic and physical therapy fees. Before trial, defendant propounded interrogatories to plaintiff, which included a request for all documents relevant to plaintiff's claims. In response, plaintiff referred to documents attached to its unsuccessful motion for summary judgment but did not provide any additional documents.
At trial, plaintiff's case was presented through very brief testimony of its billing manager. She testified that plaintiff's patient ledger for defendant showed visits for treatment from May 9 through June 22, 2007. Plaintiff billed a total of $9,316.69 for its services.*fn1 According to the patient ledger, which defendant did not challenge and the court later stated was in evidence, plaintiff received $1,317.48 on its bills, leaving a balance due from defendant of $7,999.21.
Defendant testified that she sought the services of plaintiff but was concerned that plaintiff was not in her medical insurer's network of providers. She spoke to Dr. Kim, who was apparently a principal of plaintiff, about her concerns regarding payment of bills. Dr. Kim told her plaintiff would submit claims to her medical insurance carrier, Regence Blue Cross Blue Shield (BCBS), and accept whatever amounts the carrier paid on the bills. Defendant understood that she would personally be required to pay only the co-payment amounts applicable to in-network service. According to defendant, she spoke to Dr. Kim on three separate occasions about the subject of payment, and he assured her each time that plaintiff would make insurance claims on her behalf and accept the amounts approved by BCBS.
Defendant testified that she endorsed over to plaintiff every insurance check she received from BCBS and either mailed or personally delivered the checks. After plaintiff sent her a collection letter for the balance due on her bills, defendant checked with BCBS and determined that she had transferred each payment from BCBS to plaintiff as she was obligated to do. She gave that information to plaintiff but was later sued for the balance on her bills. Defendant surmised that if payments were not received by plaintiff, perhaps plaintiff had not submitted claims to BCBS as it said it would.
To resolve the dispute about who was responsible for the balance due, the court relied, over defendant's objection, on plaintiff's exhibits marked as P-1 and P-3. Plaintiff had not disclosed these exhibits in response to the interrogatories from defendant, and they had not been attached to plaintiff's motion for summary judgment. Upon defendant objecting to admission of these documents because of the discovery violation, plaintiff's attorney responded he had first received the exhibits from his client on the day before trial. The court remarked that counsel's response did not excuse the discovery violation. Nevertheless, the court admitted exhibits P-1 and P-3 in evidence and relied almost exclusively on P-1, a document entitled "Office Policy Regarding: Insurance Checks," in reaching its decision contrary to defendant's testimony about the terms of the parties' agreement.
In ruling on defendant's objection to exhibit P-1, the court said:
That was signed, allegedly - well, apparently, by the defendant, who has not yet testified. But I don't see if the defendant didn't . . . sign this, she can tell me that and whether or not I consider it is another question. If she did in fact sign it, she can't be prejudiced by my consideration of it, since she was aware of it.
Exhibit P-2 was a set of claim forms, which the court ruled would not be admitted in evidence. Exhibit P-3 consisted of insurance checks made payable to defendant and endorsed to plaintiff. The court said that the checks also bear "a signature that purports to be [defendant's]." Similarly to exhibit P-1, the court ruled that defendant could not be prejudiced by admission of the checks unless she testified that they did not contain her signature.
In reaching its decision on the merits after completion of testimony, the court read the contents of P-1 into the record. The document stated that plaintiff would submit insurance claims as a courtesy to the patient. The relevant provision of that document pertaining to defendant's liability stated: "Please note: If payment due to our office by you through Horizon Blue Cross Blue Shield is not received, you will be held responsible for the total balance due." Although no testimony had been offered by ...