“Learned Professional” Exception to Consumer Fraud Act Exempts Providers of Ambulance Services

Atlantic Ambulance Corp. v. Cullum, ___ N.J. Super. ___ (App. Div. 2017).  In her first published opinion for the Appellate Division since her elevation, Judge Mayer today addressed consolidated putative class action cases asserting Consumer Fraud Act (“CFA”) and other claims (actually, counterclaims, as discussed below) against an ambulance service provider, Atlantic.  One putative class (the Cullum class) complained of systematic, unreasonable charges for ambulance services of various types.  The other putative class (the Hitti class) asserted that the ambulance company had wrongfully charged a $14 mileage fee for patients who were not in fact transported to a hospital.  Atlantic ultimately admitted that that mileage charge was improper and had not been refunded.

Since these cases arose out of actions by the ambulance company to collect from consumers, the class action claims actually arose out of counterclaims by the consumers.  The consumers sought class certification, but the Law Division denied that relief.  That court found that because the consumers had not paid Atlantic’s bills, there was no ascertainable loss to support a CFA claim.  Class certification on breach of contract claims was denied because the consumers’ claims were, according to the Law Division, not common or typical.

Judge Mayer’s opinion affirmed much, but not all, of the result below.  But, on all issues, she cited reasons different from those given by the Law Division.

The panel affirmed the denial of class certification on the CFA claim.  But Judge Mayer rejected the Law Division’s reasoning that the fact that the consumers had not paid Atlantic’s bills meant that they had no ascertainable loss.  She rightly noted that both Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (2005), and “the seminal CFA case,” Cox v. Sears Roebuck, 138 N.J. 2 (1994), had held that a CFA claimant need not have experienced an out of pocket loss in order to have an ascertainable loss for CFA purposes.

Instead, the Appellate Division based its affirmance of the class certification denial on the ruling that ambulance service providers are exempt from the CFA under the “learned professional” doctrine laid out in Macedo v. Dello Russo, 178 N.J. 340 (2004).  After evaluating in detail the statutes and regulations applicable to ambulance services, Judge Mayer concluded that the “rigorous” regulation of such services by the Department of Health called for exempting ambulance services from the CFA, in order to avoid potentially conflicting regulation of that industry.

That left the two breach of contract claims.  The first one related to the allegation of excessive charges.  Judge Mayer found persuasive a Third Circuit case, DiCarlo v. St. Mary’s Hosp., 530 F.3d 255 (3d Cir. 2008), which had ruled that “courts are ill-equipped to what reasonable hospital costs are, or to make a policy determination on behalf of the legislative branch.”  Ensuring affordable health care “is a policy issue to be addressed by the Legislature and the Executive Branch agencies to which it has delegated the authority to carry out its policies,” rather than being addressed by courts.  On that basis, Judge Mayer affirmed the denial of class certification on that claim.

The contract claim of the contract claim of the Hitti class, however, fared better.  Atlantic admitted that it had imposed a mileage charge for consumers who had not in fact been transported.  Since consumers do not actually contract with ambulance companies such as Atlantic, Judge Mayer found that that claim was more accurately characterized as one in quasi-contract.  She remanded to the Law Division the question of whether a class could be certified on that quasi-contract claim.

 

One Response to ““Learned Professional” Exception to Consumer Fraud Act Exempts Providers of Ambulance Services”

  1. Henry Wolfe says:

    Thanks for posting this nice summary of the most noteworthy CFA appellate case of the past couple of years. One other aspect of the decision worth noting was Judge Mayer’s effort to distinguish the New Jersey Supreme Court’s dicta in Manahawkin Convalescent (expressing “doubt” that the professional exception extended to “billing and collection functions”). Judge Mayer’s discussion on this point was limited to the one sentence observation in footnote 7 that “the Manahawkin Convalescent case addressed who was responsible for payment of the nursing home’s bill, not the reasonableness of the billing rates.” While I disagree with the implied premise that “reasonableness” of billing amounts necessarily implicates professional judgment, whatever the outcome, the issue is important enough to merit more than a one sentence in a footnote..

    On the other hand, Judge Mayer’s treatment of the ascertainable loss issue was thoughtful and compelling, especially since she did not need to reach the issue to decide the appeal. It is also arguably at least as important as the learned professional ruling.

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