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Bruno's Supermarkets2/25/2005
spital expenses.
"....
"(c) Upon proof by the plaintiff to the court that the plaintiff is obligated to repay the medical or hospital expenses which have been or will be paid or reimbursed, evidence relating to such reimbursement or payment shall be admissible."
Massey contended in her motion for a new trial that while the trial court permitted Bruno's to present evidence that all or part of her medical expenses had been paid by Medicare and Blue Cross/Blue Shield, as subsection (a) of ยง 12-21-45 permits Bruno's to do, the trial court improperly forbade Massey from presenting evidence that she is obligated to reimburse Medicare and Blue Cross/Blue Shield through her damages recovery even though subsection (c) permits such evidence.
However, subsection (c) does not state that evidence relating to subrogation "shall be admissible" regardless of whether or not it is competent evidence. The remainder of the Rules of Evidence still apply both to evidence presented concerning payment of expenses by an insurer and evidence presented concerning an obligation to repay an insurer. In other words, Massey had to present competent evidence that she was obligated to repay Medicare and Blue Cross/Blue Shield for her medical expenses.
In this case, the trial court prohibited Massey from testifying as to the truth of the content of a letter allegedly received from Medicare and Blue Cross/Blue Shield stating that Medicare and Blue Cross/Blue Shield intended to enforce a subrogation interest in any recovery she obtained in court. Any such testimony would have constituted statements "offered in evidence to prove the truth of the matter asserted," Rule 801(c), Ala. R. Evid., i.e., that Massey was required to repay Medicare and Blue Cross/Blue Shield, even though Massey's only knowledge of such an obligation was based on the letter. Thus, as the trial court itself observed in its January 27, 2003, order, the testimony was hearsay and was properly prohibited by the trial court.
The trial court's postjudgment order states that Massey contended that she was prohibited from presenting "other evidence that was required to repay an amount of such medical payments." However, the record indicates that there was no evidence of Massey's personal knowledge that an amount was due in subrogation other than the hearsay statements in the letter about which she attempted to testify. Indeed, in her motion for a new trial, Massey states that "her knowledge that she had to repay Medicare and Blue Cross/Blue Shield came from [the letter]. That is, the letter which informed Mrs. Massey of payments made to her medical providers and the amount of any such payments also informed Mrs. Massey of her obligation to repay medical expenses." Thus, Massey's "personal knowledge" of her obligation to repay medical expenses came from the unauthenticated letter about which the trial court forbade Massey from testifying.
The record indicates that what the trial court forbade Massey from presenting was incompetent evidence concerning subrogation, such as the aforementioned hearsay evidence, not all evidence on that subject. On rehearing, Massey argues various theories as to why she was competent to testify at trial as to her repayment obligation to Medicare and Blue Cross/Blue Shield, despite the hearsay objection that was raised by Bruno's. Those theories, with the exception of the issues discussed elsewhere in this opinion, were not presented at trial. In essence, the trial court's postjudgment ruling would permit Massey to benefit from her own failure to present competent evidence on the issue of subrogation.
Massey also contends that the trial court was required un
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