Entitlement to double damages under 42 USC § 1395y (part of the Medicare Secondary Payer Act (MSPA)); MSPA Claims 1, LLC v Kingsway Amigo Ins Co (11th Cir.); John Hancock Prop & Cas Ins Cos v Blue Cross & Blue Shield of MI; § 1396y(B)(2)(B)(iii); § 1395y(b)(3)(A); Estate of McDonald v Indemnity Ins Co of N Am. (WD KY); ¶¶ (1) & (2)(A) of § 1395y(b); Davita, Inc v Marietta Mem’l Hosp Employee Health Benefits Plan (6th Cir.); Private cause of action under the MSPA; Humana Med Plan, Inc v Western Heritage Ins Co (11th Cir.); Blue Cross Blue Shield of Michigan (BCBSM)

Concluding that the trial court did not resolve whether defendant-no-fault insurer failed to provide primary payment or appropriate reimbursement under the MSPA, and double damages could not be imposed without such a determination, the court vacated the trial court’s order requiring defendant to pay plaintiff-healthcare provider $53,223.55, and remanded. It directed the trial court on remand to determine whether a genuine issue of material fact existed as to “(1) whether the amount allegedly not reimbursed to BCBSM is compensable under defendant’s no-fault policy, and (2) whether defendant failed to provide primary payment or appropriate reimbursement under the MSPA.” This dispute arose from plaintiff’s claim that it was entitled to double damages from defendant under §1395y of the MSPA. Plaintiff claimed that defendant failed to timely pay plaintiff for medical expenses incurred by defendant’s insured, and also failed to reimburse BCBSM for certain amounts BCBSM paid plaintiff on the insured’s behalf. On appeal, defendant argued that the trial court erred by granting plaintiff’s summary disposition motion because defendant did not fail to make primary payment to plaintiff or to reimburse BCBSM within the meaning of the MPSA. The trial court determined that defendant was a primary plan and that the amount of damages at issue was $53,223.55, but it “did not find that defendant had failed to provide primary payment to plaintiff or appropriate reimbursement to BCBSM.” It also failed to “determine whether the amount that defendant allegedly failed to reimburse to BCBSM was a compensable amount owed by defendant under the no-fault policy. Simply being a primary plan did not conclusively establish that defendant was responsible for reimbursement of all payments made by Medicare; rather defendant is only responsible to reimburse BCBSM for amounts arising from its obligations under its no-fault policy.” As to plaintiff’s claim that it was entitled to double damages because defendant’s payment was not timely, § 1395y(b)(3)(A) “provides for recovery of double damages when a primary payer fails to pay or reimburse, but does not provide for double damages for tardy payment.”