Jarrell v. Coastal Ear, Nose, & Throat, Head &Neck Surgery Ass'n

374 So.3d 633

Judy JARRELL, Appellant

v.COASTAL EAR, NOSE, & THROAT, HEAD AND NECK SURGERY ASSOCIATION, PLLC, Appellee

NO. 2022-CA-00910-COA

Court of Appeals of Mississippi.

11/28/2023

HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. CHRISTOPHER LOUIS SCHMIDT, JUDGE

ATTORNEY FOR APPELLANT: DANIEL MYERS WAIDE, Starkville

ATTORNEYS FOR APPELLEE: PAUL J. DELCAMBRE JR., Gulfport, ASHLEY ELEY CANNADY, Jackson

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Judy Jarrell appeals the Harrison County Circuit Court’s grant of summary judgment in favor of Coastal Ear Nose & Throat, Head and Neck Surgery. Association PLLC ("Coastal ENT"). On appeal, Jarrell argues that the circuit court erred by striking portions of her affidavit and by finding that Jarrell failed to prove that she is excepted from the employment-at-will doctrine. See McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603, 607 (Miss. 1993).

FACTS

¶2. During 2019 and part of 2020, Judy Jarrell was employed as an officer manager for Coastal ENT. In January 2020, Coastal ENT terminated Jarrell’s employment.

¶3. In December 2020, Jarrell filed a complaint for damages against Coastal ENT. In her complaint, Jarrell alleged that she was wrongfully discharged because she reported allegedly criminal conduct by an employee and that she refused to participate in Coastal ENT’s allegedly fraudulent billing practices. Jarrell also alleged that Coastal ENT breached her employment contract and its duty of good faith and fair dealing.¹

¶4. Coastal ENT denied Jarrell’s allegations and maintained that Jarrell’s employment was terminated as the result of a dispute involving an insurance claim and patient billing. In its answers to Jarrell’s interrogatories, Coastal ENT asserted that Jarrell’s supervisor, David Burkart, had several conversations with Jarrell during her employment to discuss what Coastal ENT perceived as insubordination, unsatisfactory management of clinic staff, and other concerning issues. Coastal ENT stated that these issues—specifically, a dispute involving an insurance claim and patient billing—ultimately led to Jarrell’s employment being terminated.

¶5. Coastal ENT filed a motion for summary judgment arguing that no genuine issues of material fact existed because Jarrell was an at-will employee. Coastal ENT also argued that Jarrell’s claim did not fall within the limited "whistleblower" exception to the employment-at-will doctrine because she failed to allege or put forth evidence of any specific criminal conduct by Coastal ENT or its employees. In support of its motion, Coastal ENT attached the following: Jarrell’s complaint, Coastal ENT’s answers and defenses, answers to interrogatories by Coastal ENT and Jarrell, the affidavits of two Coastal ENT employees, and the affidavit of a representative from an insurance company.

¶6. Jarrell filed a response opposing summary judgment. In her response, Jarrell alleged for the first time that Coastal ENT was guilty of mail fraud in violation of Mississippi Code Annotated section 97-19-83 and false pretenses in violation of Mississippi Code Annotated section 97-19-39(2). In support of her response, Jarrell attached her own affidavit.

¶7. Coastal ENT moved to strike parts of Jarrell’s affidavit. The circuit court entered an order striking portions of Jarrell’s affidavit after finding that the statements "contain hearsay, lack foundation, and/or are not factual but are merely speculative statements" and were therefore inadmissible. The circuit court explained that "only admissible evidence can support or oppose summary judgment." (citing MRE 401; McArn, 626 So. 2d at 607).

¶8. The circuit court ultimately granted Coastal ENT’s motion for summary judgment. In its order, the circuit court found that Jarrell was an at-will employee. The circuit court explained that Jarrell did not have a written employment contract with Coastal ENT, and pursuant to Coastal ENT’s Employee Manual, an employee without a contract is an at-will employee.

¶9. Regarding Jarrell’s claim that the whistleblower exception applied, the circuit court acknowledged that an exception to the at-will employment doctrine arises when an employee is fired for reporting "criminal" conduct or for refusing to participate in criminal conduct, but the circuit court found that Jarrell failed to meet her burden of showing that this exception applied to her case. The circuit court explained that nothing in the record supported Jarrell’s assertion of protected whistleblower status other than Jarrell’s "subjective belief and speculation to support her claim that Coastal ENT committed criminal billing fraud and/or insurance fraud."

¶10. Jarrell now appeals.

DISCUSSION

I. Jarrell’s Affidavit

¶11. Jarrell argues that the circuit court erred by striking part of her affidavit after finding that Jarrell was not competent to testify about Coastal ENT’s billing and insurance-related matters. Jarrell maintains that as the office manager, she had firsthand knowledge as to what bills were paid and unpaid as well as knowledge of any payments charged to and made by patients.

[1, 2] ¶12. Mississippi Rule of Civil Procedure 56(e) provides:

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is, a genuine issue for trial.

Affidavits opposing a motion for summary judgment, like the one at issue before us, "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein." Id. "[P]ortions of affidavits that contain inadmiss[i]ble testimony or allegations that are not based on personal knowledge must be struck and cannot be considered …. " Trustmark Nat’l Bank v. Meador, 81 So. 3d 1112, 1117 (¶11) (Miss. 2012). We review a circuit court’s grant of a motion to strike an affidavit for an abuse of discretion. Id. at 1116 (¶9).

¶13. In response to Coastal ENT’s motion for summary judgment, Jarrell filed an opposing motion and relied solely on her own affidavit to support her claims that Coastal ENT committed fraud. In her affidavit, Jarrell stated:

It is my belief that my employer was engaged in fraud/false pretenses by sending bills to insurance companies even though the patient had already paid for their services/devices in full. (Miss. Code Ann. § 97-19-83) (Miss. Code Ann. § 97-19-35 et seq). In fact, my employer was overbilling the patients, and then billing the insurance company on top of what the patient was billed and paid.

(Emphasis added). Jarrell specifically alleged that Coastal ENT’s audiologist overcharged a patient for hearing aids, stating:

I know from my experience that [the audiologist] purchased hearing aids from the distributor at a cost of $1900.00. [The audiologist] demanded and [r]eceived $2,800 from the patient. [The audiologist] then billed the insurance company who allowed a total payment under the first choice network of $1,416.25. The insurance company paid $1000.00 and noted that the patient’s total responsibility would be $416.25 and not the $2800.00 as demanded and collected from the patient with a total payment received for $3800.00 of which $2383.75 was an overpayment. It was after my investigation that I determined the claim was processed and paid correctly.

Jarrell stated that the audiologist then called the insurance company for advice regarding this specific insurance claim, and "[t]he response provided by the insurance company was that [the audiologist] had an option to appeal the claim." Jarrell asserted that "[i]t’s common knowledge known by experienced claim handlers that all claim disputes allow an option to appeal." Jarrell further opined that it was "likely" that this audiologist "may" have overcharged other patients as well. Jarrell did not attach any supporting documentation to her affidavit.

¶14. Coastal ENT filed a motion to strike portions of Jarrell’s affidavit, which the circuit court granted. In the order striking Jarrell’s affidavit, the circuit judge listed each of the statements in Jarrell’s affidavit that he was striking and explained his reasons for striking each statement. The circuit judge found that the objectionable statements in Jarrell’s affidavit "contain hearsay, lack foundation, and/or are not factual but are merely speculative statements" and were therefore inadmissible under the Mississippi Rules of Evidence. Regarding Jarrell’s statements and the opinions expressed in her affidavit, the circuit judge found that Jarrell failed to lay a sufficient foundation to establish her personal knowledge on these issues. See MRE 602 (need for personal knowledge). The circuit court also found that Jarrell failed to show she had the requisite education, training, and experience to render opinions on insurance claims, contracts, and appeals. See MRE 701 (opinion testimony by lay witnesses) & 702 (testimony by expert witnesses).

[3] ¶15. The Mississippi Supreme Court has stated that "mere allegations or unsupported speculation [is] not enough to defeat a summary judgment motion." Johnson v. Brock, 337 So. 3d 1053, 1057 (¶12) (Miss. 2022); Buckel v. Chaney, 47 So. 3d 148,. 157 (¶28) (Miss. 2010). Here, we find that Jarrell’s affidavit contained unsupported and speculative statements as well as hearsay. Jarrell failed to provide or even quote from Coastal ENT’s contract with the insurance company. Jarrell provided no documentation showing that the patient at issue actually received or paid an overcharged amount to Coastal ENT. The record does not contain the patient’s bill, an affidavit from the patient, or any other evidence to show that the patient was defrauded or that. Coastal ENT possessed the intent to commit fraud. Jarrell...