COOPER HOSPITAL UNIVERSITY MEDICAL CENTER, ETC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA (L-0316-18, CAMDEN COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0603-19T1 COOPER HOSPITAL UNIVERSITY MEDICAL CENTER on assignment by DALE MECOUCH, Plaintiff-Respondent, v. SELECTIVE INSURANCE COMPANY OF AMERICA, Defendant-Appellant. _________________________ Argued October 15, 2020 – Decided November 18, 2020 Before Judges Whipple, Rose, and Firko. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0316-18. Laura A. Brady argued the cause for appellant (Coughlin Duffy, LLP, attorneys; Laura A. Brady, of counsel and on the briefs; Christa McLeod, on the briefs). Stanley G. Wojculewski argued the cause for respondent (Costello Law Firm, attorneys; Stanley G. Wojculewski, on the briefs). Susan Stryker argued the cause for amicus curiae Insurance Council of New Jersey (Bressler Amery & Ross, PC, attorneys; Susan Stryker, of counsel and on the brief). Greenbaum Rowe Smith & Davis, LLP, attorneys for amicus curiae New Jersey Hospital Association (Robert B. Hille, of counsel and on the brief; Neil Sullivan and John W. Kaveney, on the brief). PER CURIAM In this appeal, we address whether Medicare or a private insurance carrier has primary payment responsibility for hospital services rendered for ongoing medical injuries arising from a 1977 automobile accident. Defendant, Selective Insurance Company of America appeals from an August 16, 2019 order denying its motion for summary judgment; an August 26, 2019 order granting plaintiff, Cooper Hospital University Medical Center's summary judgment motion and ordering defendant to pay plaintiff $769,323.06 plus interest, fees and costs; and a September 13, 2019 order finding those reasonable attorneys' fees and costs to be $33,340. We reverse. The seeds of this controversy were planted when Dale Mecouch was injured in a 1977 automobile accident, which left him with paraplegia. Mecouch A-0603-19T1 2 filed suit against defendant, and in 1979, secured an order that required defendant pay for Mecouch's medical expenses under his father's no-fault insurance Personal Injury Protection (PIP) policy. At that time, no-fault policies offered unlimited medical coverage. Since that order, defendant has paid most of Mecouch's medical expenses arising from the accident. On December 11, 2015, defendant sent Mecouch a letter advising him that it was not the primary payer for any claim related to treatment for the 1977 accident. The letter informed Mecouch that pursuant to section 111 of the Medicare, Medicaid, and SCHIP 1 Extension Act (MMSEA) of 2007, and the Medicare Second Payer Statute (MSP), 42 U.S.C. § 1395y(b), Medicare remains the primary payer on no-fault PIP claims where the date of injury was prior to December 5, 1980. It stated: Accordingly, it is respectfully requested that you notify your medical providers to cease billing [defendant] as the primary insurance carrier for treatment related to the above referenced claim and instruct …

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