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December 30, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Motions Judge)

Before Terry, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Joyce A. McMillan, appeals from an order of the trial court denying her motion to vacate, pursuant to Super. Ct. Civ. R. 60 (b), a prior order granting summary judgment in favor of appellee, Choice Healthcare Plan, Inc. (CHOICE). *fn1 Persuaded that the trial court did not abuse its discretion under the circumstances presented, we affirm.


Appellant filed a complaint for damages for breach of contract against appellee for its refusal to pay medical expenses she claimed under a health care plan provided by her employer, Howard University Hospital. Appellee, the administrator of the plan, was responsible for the payment of benefits. Appellant alleged that she required emergency treatment, including hospitalization, and that appellee denied coverage. Appellee contended that appellant's medical expenses were not covered under the terms of the plan because appellant's hospitalization was not: (1) an emergency admission; (2) pre-authorized by appellee as required by the contract; and (3) for services rendered at a contracted or plan hospital. Non-emergency hospitalization and medical services were not covered by the plan unless authorized in advance by the Plan Medical Director. *fn2 Emergency hospitalization and medical care as defined in the plan is covered. The plan defines a medical emergency as follows:

a traumatic injury or medical condition which occurs suddenly and unexpectedly and requires immediate diagnosis and treatment. Heart attacks, severe chest pains, cerebral vascular accidents ("strokes"), loss of consciousness, convulsions, heavy or uncontrollable bleeding, and poisonings are examples of medical emergencies. Other similarly acute conditions may be determined to be a medical emergency by a Plan Physician *fn3 or the Plan Medical Director.

When emergency care is not pre-authorized, the Plan provides that the determination of whether an emergency existed will be based on "an objective determination by CHOICE that an emergency existed and will not be based solely on the advice of an attending physician." It is undisputed that appellant's hospitalization was not preauthorized by the Plan Medical Director.

Appellant first saw her physician, Dr. John Niles, on October 13, 1986, for the condition for which she had surgery in December of that year. Dr. Miles was her gynecologist and personal care physician, but he was not a "referred care specialist" authorized to approve in-patient medical care at non-designated hospitals. The physician ordered certain tests for appellant, and he received the results on November 6th. The test results revealed that appellant required surgery which Dr. Miles scheduled initially for late November. Appellant rescheduled the operation for December 13th because of financial reasons and to arrange for child care. Appellant's physician admitted that although the surgery was an emergency in his opinion, it was not an emergency as defined in the CHOICE plan. The surgery was scheduled and performed at a nonplan medical facility. Appellant sought payment of her hospital expenses and doctors' bills, *fn4 which CHOICE denied. CHOICE reconsidered appellant's claims two times after she initially submitted them, but CHOICE ultimately denied the claims. Appellee's decision was based on a review of the medical records by its Medical Director and the Conclusion of a board certified specialist in obstetrics and gynecology. Appellant filed a complaint in Superior Court seeking payment of these expenses.

Appellee filed a motion for summary judgment on December 7, 1989 which it served personally on appellant's counsel the same day. Appellant did not respond within the time required by Super. Ct. Civ. R. 12-I (e), *fn5 and on January 11, 1990, the trial court granted the motion. The court's order was docketed on January 23, 1990. On January 29, 1990, appellant filed a motion to vacate the order pursuant to Super Ct. Civ. R. 60 (b) *fn6 and about the same time filed an opposition to the motion for summary judgment. *fn7 Counsel gave as his reason for failure to file the opposition timely that he had "inadvertently and mistakenly thought" that the opposition had been timely filed. Appellant did not attach to her opposition to the motion for summary judgment any affidavits or exhibits, although she referenced in support of it some of appellee's exhibits to its motion for summary judgment. *fn8 Appellant did not note an appeal from the order granting summary judgment.

Appellee's motion for summary judgment was based on the grounds that (1) appellant's common law claim was pre-empted by the Employee Retirement Income security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 - 1461 (1985), which according to appellee, is the exclusive remedy for an assertion of improper processing of claims for the benefits in issue; *fn9 (2) there is no proof that CHOICE's decision to deny benefits was arbitrary, capricious or in bad faith as required to establish a claim under ERISA; and (3) appellant is precluded from recovery of two medical bills because the underlying claims involved are barred by the statute of limitations. In her tendered opposition, appellant simply denied that ERISA covered her claim and contended that appellee's refusal to pay was arbitrary, capricious, and in bad faith. *fn10 Appellant also asserted that she followed the advice of her private physician who is a "Choice Referral Specialist" and that he diagnosed her illness as an emergency, and that she followed his instructions to enter the out-of-plan hospital.


Appellant did not appeal from the trial court's order granting summary judgment. Thus, the sole issue on appeal is whether the trial court abused its discretion in denying appellant's motion for relief from judgment under Super. Ct. Civ. R. 60 (b). See Joyce v. Walker, 593 A.2d 199, 200 (D.C. 1991), cert. denied, 116 L. Ed. 2d 662, 112 S.Ct. 645 (1991); see also Launay v. Launay, Inc., 497 A.2d 443, 454 (D.C. 1985). In determining whether the trial court abused its discretion, we evaluate each case in light of its peculiar facts and consider particularly whether the moving party

(1) had actual notice of the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented an adequate defense.

Starling, supra note 9, 495 A.2d at 1159. Since trials on the merits are favored, "even a slight abuse of discretion in refusing to set aside ...

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