FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 26, 2002

THOMAS K. KAHN

CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 01-15848

Non-Argument Calendar

 

D. C. Docket No. 94-06881-CV-JAG 

VENCOR HOSPITALS, 

d.b.a. Vencor Hospital,

Plaintiff-Appellant,

versus

BLUE CROSS BLUE SHIELD OF RHODE ISLAND, 

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Florida 

 

(February 26, 2002)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

 In Vencor Hospitals v. Blue Cross Blue Shield, 169 F.3d 677 (11th Cir.
2

1999), we vacated the district court’s judgment and remanded the case (which

involves two consolidated law suits) for further proceedings. We held that an issue

of fact existed as to whether Vencor was entitled to payment based on its ordinary

charges. Because we were uncertain as to precisely what documents constituted

the two contracts of insurance Blue Cross issued (to Butler and Esposito) – that is,

whether state law required that an Outline of Coverage and a promotional brochure

are part of the contracts – we remanded the case and instructed the district to make

that determination. We also instructed the court to consider Blue Cross’

affirmative defense of accord and satisfaction – i.e., whether Vencor’s acceptance

of Blue Cross’ check for $37,535.45 constituted a settlement of Vencor’s claim

under the Esposito insurance contract – and Vencor’s alternative claim against

Blue Cross under the promissory estoppel theory of recovery. 

In a comprehensive order dated March 6, 2000, which appears in the

Appendix, the district court carried out our instructions and resolved the remanded 

issues in favor of Blue Cross. Vencor now appeals. In its brief, Vencor challenges

the district court’s determination (1) that the Outline of Coverage and the

promotional brochure are not part of the insurance contracts; (2) that, according to

the terms of the contracts, the term “Medical Eligible Expenses” refers to costs as

well as types of treatment is unambiguous so that Vencor is entitled to
1

 The court found meritless the promissory estoppel claims stated in Count

III of Vencors’ two complaints and the promissory estoppel claims Vencor

presented to the district court following our remand. Those claims were based on

promises Blue Cross allegedly made to the insureds, Butler and Esposito.

2

 We also do not resolve the question whether the law of Florida or Rhode

Island, where Butler and Esposito resided and the insurance contracts were made,

governs the construction of the insurance contracts. As the district court correctly

observed, the relevant laws of Florida and Rhode Island are essentially identical.

3

reimbursement for ninety percent of what Medicare would have paid; and (3) that

Vencor failed as a matter of law to establish (for summary judgment purposes) its

claims of promissory estoppel.1

 In its response brief, Blue Cross urges that we

affirm the district court’s determinations. In the event we hold that the insurance

contracts are ambiguous as to benefits in excess of Medicare eligible expenses, as

Vencor contends, or that Vencor’s promissory estoppel claims have merit, Blue

Cross asks that we address an issue the district court did not address: whether

“Vencor is forbidden from balance billing Medigap insureds after their Part

benefits exhaust.” 

For the reasons stated by the district court in its March 6, 2000 order, we

find no merit in Vencor’s claims, and therefore affirm the court’s judgment. In

doing so, we, like the district court, do not address the “balance billing” issue. 

Balance billing is an issue to be resolved, either amicably or in litigation, between

Vencor and the respective insureds.2
4

AFFIRMED.
5