Case: 10-20868 Document: 00511659050 Page: 1 Date Filed: 11/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2011
No. 10-20868 Lyle W. Cayce
Clerk
ACCESS MEDIQUIP L.L.C., a Texas Limited Liability Company,
Plaintiff - Appellant
v.
UNITEDHEALTHCARE INSURANCE COMPANY, A Connecticut
Corporation,
Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Texas
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
Access Mediquip L.L.C. (“Access”) appeals a summary judgment for
defendant UnitedHealthcare Insurance Company (“United”). The issue on
appeal is whether Access’s state-law claims of promissory estoppel, quantum
meruit, unjust enrichment, negligent misrepresentation, and violations of the
Texas Insurance Code, §§ 541.051(A) & (B) and 541.061(1) & (2), are preempted
by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.
(“ERISA”).
Access’s lawsuit arises from United’s refusal to pay some or all of Access’s
claims for reimbursement for medical-device procurement and financing services
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provided in connection with over 2,000 patients insured under ERISA plans
administered by United. The district court limited discovery to the claims
concerning the 300 patients with respect to whom Access seeks the largest
amount of reimbursement. After written discovery was completed for those
claims, United filed a motion for summary judgment on preemption grounds
against the state-law claims relating to 269 of the 300. The district court
ordered United to limit its motion to Access’s claims arising from services for
three patients, whom the district court anticipates will serve as exemplars for
treatment of the preemption issue for the remaining patients. United filed a
supplemental memorandum of law identifying patients L.G., L.C., and D.T. The
district court held that all of Access’s state law claims relating to treatment for
these three patients are preempted under ERISA’s general preemption clause,
29 U.S.C. § 1144(a). The judgment was made appealable by its entry in accord
with Fed. R. Civ. P. 54(b).
With certain exceptions not applicable here, § 1144(a) states that ERISA
“shall supersede any and all State laws insofar as they may now or hereafter
relate to any employee benefit plan . . . .” We REVERSE with respect to Access’s
promissory estoppel, negligent misrepresentation, and Texas Insurance Code
claims, because these claims are premised on allegations and evidence that
Access provided the services in reliance on United’s representations that it
would pay reasonable charges for Access’s services. We AFFIRM with respect
to Access’s quantum meruit and unjust enrichment claims, because these claims
depend on Access’s assertion that without its services the patients’ ERISA plans
would have obliged United to reimburse a different provider for the same
services.
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I. Summary Judgment Standard
We review a summary judgment de novo, applying the same standards as
the district court. Trinity Universal Ins. Co. v. Employers Mut. Cas. Co.1
Summary judgment should be affirmed “if, viewing the evidence in the light
most favorable to the non-moving party, there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” U.S.
ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 327 (5th Cir. 2011); Hubbard
v. Blue Cross & Blue Shield Ass’n, 42 F.3d 942, 945 (5th Cir. 1995). ERISA
preemption is an affirmative defense which must be proven by the defendant at
trial.2 “To obtain summary judgment, ‘if the movant bears the burden of proof
on an issue . . . because . . . as a defendant he is asserting an affirmative defense,
he must establish beyond peradventure all of the essential elements of the . . .
defense to warrant judgment in his favor.’” Chaplin v. NationsCredit Corp., 307
F.3d 368, 372 (5th Cir. 2002) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190,
1194 (5th Cir. 1986)). A non-movant generally cannot resist summary judgment
by resting on its allegations, but when a movant seeks summary judgment by
showing that the allegations in the complaint render the claims preempted,
those allegations are construed in the light most favorable to the non-movant.
E.g., Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008) (“As
part of our determining whether AT&T stated a claim sufficient to avoid
dismissal [on grounds including federal preemption], the facts alleged in its
complaint are taken as true, with those allegations being construed in the light
1
592 F.3d 687, 690 (5th Cir. 2010).
2
Bank of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 242 (5th Cir. 2006); Dueringer
v. General Am. Life Ins. Co., 842 F.2d 127, 130 (5th Cir. 1988).
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most favorable to AT&T, the non-movant.”). We set forth the facts of the case
and our understanding of Access’s claims with those principles in mind.
II. Background
Access procures and finances the purchase of medical devices for health
care providers. Usually, a provider requests Access to finance and procure a
medical device before the procedure using the device is performed. Access then
contacts the patient’s insurer to confirm that the insurer will reimburse Access
for the device and pay for Access’s services. If the insurer will pay, Access
procures a suitable device and supplies it to the provider, usually without
charge. Rather than sell the devices to the providers, Access looks almost
exclusively to insurers for payment. From time to time, Access finances the cost
of a device it did not procure, for example if a provider has already used the
device in a medical procedure. As with its procurement services, Access will
provide financing only after contacting the patient’s insurer for confirmation
that the insurer will reimburse Access for the device and its services. Access will
generally refuse to procure or finance a device if the insurer tells Access that the
patient is not covered, that the device or procedure is not covered, that pre-
certification of the device is required and has been denied, or that Access may
not directly bill the insurer for the device.
A. Patient L.G.
On September 18, 2007, Century City Doctors Hospital (“Century City”)
asked Access to procure a prosthesis for use in patient L.G.’s back surgery, to be
performed on September 20, 2007. On September 18, an Access representative,
Violet Harrell, contacted United to confirm coverage for the prosthesis. In an
August 17, 2010 declaration, submitted to the district court with Access’s
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response to United’s motion for summary judgment, Harrell avers that she spoke
with United representative Steve Kirtonia, who “stated that (1) [United] insured
L.G.; (2) [Access]’s billing code for the Prosthesis [sic], L8699, was valid; and (3)
Access could bill [United] for the Prosthesis [sic].” Harrell’s call was transferred
to a United representative in United’s care coordination department, who “stated
that the procedure had been authorized.” United’s coordination department also
gave Harrell “an authorization number for [Access] to use in submitting its
claim.” Access alleges that United’s statements to Harrell amount to
representations that United would pay Access reasonable and customary charges
for procuring and financing the prosthesis.
L.G. had surgery on September 20, 2007. On September 25, Access
submitted a claim to United for the prosthesis under authorization number
L8699. On October 31, Century City submitted a claim for its surgical services
under authorization number L8699. Century City’s claim did not include the
cost of the prosthesis. United paid Century City for the surgery, but requested
additional information from Access. United subsequently refused to pay for
L.G.’s prosthesis.
B. Patient L.C.
On November 19, 2007, Century City asked Access to procure spine fusion
instrumentation for use in patient L.C.’s upcoming surgery. That same day,
Harrell contacted United to confirm that United would pay for the
instrumentation and that Access could bill United directly. Harrell spoke with
United representative Kate P., who “advised [Harrell] . . . that L.C. was one of
[United]’s insureds, L.C. had out-of-network coverage available, and Access could
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bill United separately for the Implant [sic].” Kate P. also “informed [Harrell]
that ‘care notification is not required’ for the implant.”
L.C. had the surgery on December 6, 2007, and Access submitted a
$66,197.00 claim for the instrumentation on May 7, 2008. United initially paid
Access $2,500.00 on July 9, 2008, but United subsequently recouped that
payment and notified Access by letter that its provision of the instrumentation
was “not covered under the patient’s health benefit plan.” United also
generated a “Provider Explanation of Benefits” document, on which appears
United’s “XU” remark code. The XU code stands for “This service is not
reimbursable for this provider at this place of service.” United’s “Medical Claim
Review” unit had reviewed Access’s claim for L.C.’s spine instrumentation and
determined that it should have been denied under an internal policy concerning
surgically implanted devices billed by providers who are not surgical facilities.
As early as July 25, 2007, before Access contacted United regarding any of the
three patients’ care, United had distributed a notice to its staff explaining that
claims for such devices submitted “by a Non-facility such as a Surgeon, Supply
or [Durable Medical Equipment] Vendor” were to be denied using the XU code.
C. Patient D.T.
On August 25, 2008, a physician at University General Hospital performed
back surgery on patient D.T. The surgery included implantation of a four-part
spinal cord stimulator. On August 27, University General Hospital asked Access
to finance payment for the stimulator. Before Access agreed to do so, Access
representative Annette Gordon contacted United to confirm coverage for the
stimulator. Access’s response to United’s motion for summary judgment
includes an August 18, 2010 declaration by Gordon. Gordon avers that she
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contacted United on August 29, 2008, and spoke to “Nathan,” a United
representative. He “confirmed that D.T. was one of [United]’s insureds and had
coverage for the procedure.” He indicated that D.T. had “out of network
benefits,” and he directed Gordon to contact United’s care coordination center,
which Gordon did on the same day. United representatives at the care
coordination center provided Gordon “with a reference number to use in
submitting [Access]’s claim for the Stimulator [sic], and an address at which to
submit the claim.” In reliance on these representations, Access agreed to finance
payment for the stimulator.
Access submitted a claim for the stimulator on September 8, 2008, the
same day that University General submitted its claim for the surgery. United
paid University General’s claim on September 19, 2008, but did not pay Access.
A week later, United denied payment to Access, stating that United needed
various medical records. Later, United paid $19,436.80, the total charges for
three of the stimulator’s parts, but United has refused to pay for the stimulator’s
$61,932.00 generator. In February, 2009, United generated a “Provider
Explanation of Benefits” document indicating that payment for the generator
was denied under the XU remark code.
The district court granted summary judgment for United on the state law
claims relating to services for L.G., L.C., and D.T. Preemption under 29 U.S.C.
§ 1144(a) was the only ground on which the district court granted summary
judgment on the state law claims.
III. Access’s Allegations
Access’s state law promissory estoppel, negligent misrepresentation, and
Texas Insurance Code claims are premised on its allegations that it provided its
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services for L.G., L.C., and D.T. in reliance on United’s representations
regarding how much, and under what conditions, United would pay Access for
those services. Regarding its promissory estoppel claim, Access alleges that
United representatives’ statements regarding L.G., L.C., and D.T. constituted
“promises to [Access] to accept bills from [Access] and/or to pay for medical
devices and related services that [Access] provided to [United]’s Insureds.”
Regarding its negligent misrepresentation claim, Access alleges that United’s
statements constituted representations that the patients “had health benefits
coverage that was provided or administered by [United] for the medical devices
and related services at issue; and [United] would pay customary and reasonable
charges to [Access] for medically necessary devices and services provided for the
benefit of [United]’s Insureds.” Regarding its Texas Insurance Code claims,
Access alleges that United’s statements constitute representations that if Access
would finance the patient’s device, “[United] would permit [Access] to bill
[United] directly, and [United] would pay [Access] customary and reasonable
charges for its services.”
Access’s complaint thus makes clear that the grievance underlying its
state law misrepresentation claims is the inconsistency between United’s
representations and its conduct after Access submitted claims for
reimbursement for its services: “In direct breach of their obligations and
representations to [Access], [United] ha[s] failed and refused to pay and/or
reimburse [Access] on the Claims.”
The scenario depicted in Access’s complaint is a familiar one in the health
care context, as we explained in Memorial Hospital System v. Northbrook Life
Ins. Co.:
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The scenario depicted in Memorial’s appeal is one that is reenacted each
day across the country. A patient in need of medical care requests
admission to a hospital (or seeks treatment from a doctor). The costs of
medical care are high and many providers have only limited budget
allocations for indigent care and for losses from patient nonpayment.
Naturally, the provider wants to know if payment reasonably can be
expected. . . . [I]t is a customary practice to communicate with the plan
agents to verify eligibility and coverage. If the provider confirms that a
patient has health care insurance that covers a substantial part of the
expected costs of the health care, it will normally agree to admit the
patient without further ado. Memorial contends that when an insurance
company or its agent, including one acting as an ERISA plan fiduciary,
verifies coverage to a third-party provider, the insurer should recognize
the commercial implications to the provider of its assurances.
904 F.2d 236, 246.
It bears emphasis that, fairly construed, Access’s claims allege that
United’s agents’ statements, though superficially about coverage under the plan,
were in their practical context assurances that Access could expect to be paid
reasonable charges if it would procure or finance the devices used in L.G.’s,
L.C.’s, and D.T.’s surgeries. Texas law permits a party alleging an actionable
misrepresentation to attempt to prove that it was reasonably misled by a true
but crucially incomplete statement that conveyed a false impression of the
speaker’s intentions. McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 585
(Tex.App.–Houston [1 dist.] 2007, no pet.) (“a general duty to disclose
information may arise in an arm’s-length business transaction when a party
makes a partial disclosure that, although true, conveys a false impression.”)
Access alleges that, given the coverage statements’ commercial context, it was
misleading for United’s agents to omit mentioning that, though Access’s services
were covered under the plan, Access would never actually be reimbursed when
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the time came, because United’s policy underlying the “XU” code required
denying all claims for surgically implanted devices billed by providers who are
not surgical facilities.
IV. ERISA Preemption
As noted above, § 1144(a) states that ERISA “shall supersede any and all
State laws insofar as they may now or hereafter relate to any employee benefit
plan . . . .” The Supreme Court has “observed repeatedly that this broadly
worded provision is ‘clearly expansive.’” Egelhoff v. Egelhoff ex rel. Breiner3
(quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co.4). Simultaneously, however, the Supreme Court recognizes that, given
its broadest reading, the phrase “relate to” would encompass virtually all state
law. Id. at 146, 121 S. Ct. at 1327; Travelers, 514 U.S. at 656, 115 S. Ct. at 1677.
The Supreme Court has also acknowledged that its “connection with” and
“reference to” glosses are “scarcely more restrictive” than the text of § 1144(a),
and of little help drawing the line in close cases. Egelhoff, 532 U.S. at 147, 121
S. Ct. at 1327; Travelers, 514 U.S. at 656, 115 S. Ct. 1677. The Court has,
therefore, declined to apply an “uncritical literalism” to the phrase, and observed
that “[w]e simply must go beyond the unhelpful text and the frustrating
difficulty of defining its key term, and look instead to the objectives of the ERISA
statute as a guide to the scope of the state law that Congress understood would
survive.” Travelers, 514 U.S. at 656, 115 S. Ct. 1677.
We extensively addressed the interaction between ERISA’s objectives and
state law claims premised on misrepresentations made to providers considering
3
532 U.S. 141, 146, 121 S. Ct. 1322, 1327 (2001).
4
514 U.S. 645, 655, 115 S. Ct. 1671, 1677 (1995).
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whether to provide services to a patient in Memorial. In that case, Noffs, Inc.,
provided health insurance to its employees through an insurance policy
purchased from and administered by Northbrook Life Insurance Company.
Gloria Echols’s husband had recently started working at Noffs when she sought
treatment from Memorial Hospital System. Before providing care, Memorial
contacted Noffs, who verified that coverage was in effect. In fact, coverage for
Echols would not take effect until thirty-five days after Memorial began treating
Echols, and the policy did not cover any treatment for illnesses that arose before
the coverage took effect. Memorial, 904 F.2d at 238.
Asserting that Noffs acted as Northbrook’s agent when verifying coverage,
Memorial brought various claims against Northbrook, including state law causes
of action under the Texas Insurance Code, for equitable estoppel, and for
negligent misrepresentation. Id. at 239. Memorial appealed the district court’s
ruling that ERISA preempted the Texas Insurance Code claim, and we reversed.
Id. at 250. In our opinion we articulated the test we have subsequently used to
determine whether § 1144(a) preempts a state law claim. E.g., Mayeaux v. La.
Health Serv. and Indem. Co.5 A defendant pleading preemption under 29 U.S.C.
§ 1144(a) must prove that: “(1) the state law claims address an area of exclusive
federal concern, such as the right to receive benefits under the terms of an
ERISA plan; and (2) the claims directly affect the relationships among
traditional ERISA entities–the employer, the plan and its fiduciaries, and the
participants and beneficiaries.” Memorial, 904 F.2d at 245.
The district court summarized our case law as requiring that “to the extent
. . . that [the] state law cause of action is based on misrepresentations regarding
5
376 F.3d. 420, 432 (5th Cir. 2004).
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the extent of coverage under an ERISA plan or the manner of processing and
disposing of the claim for payment by the ERISA plan, the cause of action is
preempted.” This is inconsistent with Transitional Hospitals Corp. v. Blue
Cross, 164 F.3d 952, 955 (5th Cir. 1999), in which we explicitly rejected the
proposition that ERISA preempts state law causes of action based on
misrepresentations regarding the extent of an insured’s coverage. The
allegations at issue in Transitional were quite similar to those in this case.
Transitional Hospital Corporation (THC) had provided hospital care for patient
Isaac Davis. Transitional provided the care in reliance on defendant insurers’
representations that Davis’s employer’s “ERISA plan would reimburse THC for
100% of Davis’s hospital bills after exhaustion of his Medicare benefits.” Id. at
953. When THC submitted claims for Davis’s care, the defendant insurers
determined that the plan would cover less than one percent of the care THC had
provided to Davis because it was a nonparticipating hospital. THC’s claims in
the resulting lawsuit included causes of action for negligent misrepresentation
and claims under the Texas Insurance Code. We held that these claims were not
preempted, because they were not premised on Davis’s right to recover benefits
under the plan’s terms, but rather on the defendants’ misleading representations
regarding the extent that the plan would reimburse THC for it services:
THC’s state-law claims alleging common law misrepresentation and
statutory misrepresentation under the Texas Insurance Code Art. 21.21
are not dependent on or derived from Davis's right to recover benefits
under the [patient's employer’s] plan. Rather, THC alleged that, ‘to the
extent that Davis is not covered by the Policy as represented by Blue Cross
to THC,’ Defendants made misrepresentations actionable under common
law and the Texas Insurance Code.
Id. at 955 (footnote omitted).
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United asserts that we have “consistently used” the “‘existence’ of patient
coverage versus ‘extent’ of patient coverage analysis” under which claims based
on “extent” misrepresentations are preempted. But neither United nor the
district court cite, and we are not aware of, any case in which we held that
ERISA preempts a third-party provider’s state law misrepresentation claims
premised on allegations that it was misled by an ERISA plan’s statements
regarding the extent of coverage for the provider’s services. On the contrary, the
claim we held was not preempted in Transitional was premised on an alleged
misrepresentation regarding the extent of Davis’s coverage, and our opinion
made plain that our case law requires that result when there is some coverage,
unless the claim in question is dependent on, and derived from the rights of the
plan beneficiaries to recover benefits under the terms of the plan.
V. Analysis
The dispositive issue in this appeal is therefore whether Access’s state law
claims are dependent on, and derived from the rights of L.G., L.C., and D.T. to
recover benefits under the terms of their ERISA plans.
A. Access’s State Law Misrepresentation Claims
Transitional requires that we reverse the district court’s judgment with
respect to Access’s state law misrepresentation claims. Addressing Transitional
in its summary judgment order, the district court stated that “[i]n Transitional,
the plaintiff alleged that the insurer misrepresented that it would pay 100% of
all bills after Medicare benefits were deducted.” The district court then reasoned
that “[i]n this case, unlike the situation in Transitional, there is no allegation
that United representatives told Access that it would pay 100% of all bills
submitted for payment regardless of the terms of the applicable ERISA plan.”
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This characterization of Access’s allegations elides the essential substance of
Access’s grievance: that the practical implication of United’s statements about
coverage was that Access would be paid reasonable charges for the services it
would provide in connection with the patients’ surgeries. In Memorial we
observed that if preemption denies them recourse to state law for expenses
incurred due to plan fiduciaries’ misleading statements about coverage,
“providers will be understandably reluctant to accept the risk of non-payment,
and may require up-front payment by beneficiaries–or impose other
inconveniences–before treatment will be offered.” 904 F.2d at 247. That
scenario, we observed, “does not serve, but rather directly defeats, the purpose
of Congress in enacting ERISA.” Id. at 247-48. It is difficult to see why
preemption should depend on whether a provider alleges that it was misled by
explicit promises of future payment or by statements about coverage that
conveyed a false impression of future payment. In any event, the facts of this
case and Transitional do not actually differ in that regard. The
misrepresentations alleged in Transitional also took the form of statements
about the extent of coverage available under the ERISA plan. Our opinion
relates that “THC alleges that the defendants misrepresented that [Davis’s
employer]’s ERISA plan would reimburse THC for 100% of Davis’s hospital bills
after exhaustion of his Medicare benefits.” Transitional, 164 F.3d at 953
(emphasis added); see also id. at 954 (characterizing the “dispositive issue” as
“whether ERISA preempts THC’s state-law claims relating to the defendants’
alleged negligent misrepresentations regarding Davis’s coverage under [his
employer]’s ERISA plan.”) (emphasis added). The district court order in
Transitional explained that “THC maintains that the defendants misrepresented
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the extent of coverage before Davis was admitted as a transfer patient to the
hospital and again several months later when his Medicare benefits were
exhausted.”6
The “existence-of-coverage” versus “extent-of-coverage” distinction applied
by the district court is thus at odds with both the reasoning and the result of
Transitional. Other circuits that have adopted the approach we set forth in
Memorial and Transitional have also rejected an existence-versus-extent
approach.7
The merits of Access’s misrepresentation claims do not depend on whether
its services were or were not fully covered under the patients’ plans. If the plans
provide less coverage than United’s agents indicated, Access must still prove
that it was reasonable to rely on their statements as representations of how
much and under what terms Access could expect to be paid. If the plans do
provide the same level of coverage United indicated, Access may nevertheless
seek to prove its misrepresentation claims by showing that United’s statements
6
Order of January 12, 1998, A-97-CA-045-SS, Doc. No. 44 at 2 (S.D. Tex., Jan. 12,
1998), Appellate Record at 592, Transitional Hospitals Corp. v. Blue Cross & Blue Shield of
Tex., 164 F.3d 952 (5th Cir. 1999) (No. 98-50158) (emphasis added).
7
E.g., Lordmann Ent., Inc. v. Equicor, Inc., 32 F.3d 1529, 1530-34 (11th Cir. 1994)
(state law claims premised on inconsistency between representation that plan covered 80% of
insured’s home nursing care and insurer’s subsequent willingness to pay only 14% of the care’s
cost) (cited in Transitional, 164 F.3d at 955); In Home Health, Inc. v. Prudential Ins. Co. of
Am., 101 F.3d 600, 604-07 (8th Cir. 1996); Hospice of Metro Denver, Inc. v. Group Health Ins.
of Ok., Inc., 944 F.2d 752, 753, 755-56 (10th Cir. 1991) (representation that “coverage was
available” for hospice care of ERISA plan beneficiary belied by later plan’s subsequent denial
coverage on the basis of policy’s preexisting condition clause); see also The Meadows v. Emp’rs
Health Ins., 47 F.3d 1006, 1008-11 (9th Cir. 1995) (adopting Memorial approach); Catholic
Healthcare, 321 F. App’x 563, 564-65 (9th Cir. 2008) (applying Meadows and holding that
provider’s claims based on representations of the extent of insured’s coverage are not
preempted).
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regarding coverage, while accurate, were nevertheless misleading because
United’s agents omitted to mention that, covered or not, Access’s services would
not be reimbursed. See Santanna Natural Gas Corp. v. Hamon Operating Co.
(a speaker who makes a partial disclosure assumes duty to tell whole truth, even
when the speaker was under no duty to make the partial disclosure)8; Int’l Sec.
Life Ins. Co. v. Finck (same)9. Consultation of the plans’ terms is thus not
necessary to evaluate whether United’s agents’ statements were misleading.
The finder of fact need only determine (1) the amount and terms of
reimbursement that Access could reasonably have expected given what could
fairly be inferred from the statements, and (2) whether United’s subsequent
disposition of the reimbursement claims was consistent with that expectation.
The state law underlying Access’s misrepresentation claims does not
purport to regulate what benefits United provides to the beneficiaries of its
ERISA plans, but rather what representations it makes to third parties about
the extent to which it will pay for their services. To prevail on these claims,
Access need not show that United breached the duties and standard of conduct
for an ERISA plan administrator, because Access’s alleged right to
reimbursement does not depend on the terms of the ERISA plans. It is
immaterial whether the alleged statements regarding the extent that the
patients’ plans covered Access’s services were correct or incorrect as descriptions
of the plans’ terms. As assurances of how much Access would be paid, the
statements are belied by United’s subsequent refusal to reimburse some or all
8
954 S.W. 2d 885, 891 (Tex. App.–Austin, 1997, pet. den.).
9
475 S.W.2d 363, 370 (Tex.Civ.App.—Amarillo 1972), rev’d in part on other grounds,
496 S.W.2d 544 (Tex. 1973).
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of Access’s claims. United points out that it is a plan fiduciary and its decisions
regarding what claims to pay constitute administration of an ERISA plan that
is governed by that statute. The critical distinction, however, is not whether the
parties to a claim are traditional ERISA entities, but whether the claims affect
an aspect of a relationship that is comprehensively regulated by ERISA. Bank
of La. v. Aetna U.S. Healthcare Inc.10 We thus rejected essentially the same
argument in Memorial, because the “obligations of ERISA fiduciaries run only
toward the plan, for the benefit of participants and beneficiaries.” 904 F.2d at
247. Moreover, a one-time recovery for Access on its state-law misrepresentation
claims will not affect the on-going administration or obligations of the ERISA
plans that United administers, because the recovery “in no way expands the
rights of the patient to receive benefits under the terms of the health care plan.”
Id. at 246. State law claims of the kind asserted in Memorial, Transitional, and
this case concern the relationship between the plan and third-party, non-ERISA
entities who contact the plan administrator to inquire whether they can expect
payment for services they are considering providing to an insured. The
administrator’s handling of those inquiries is not a domain of behavior that
Congress intended to regulate with the passage of ERISA, which “imposes no
fiduciary responsibilities in favor of third-party health care providers regarding
the accurate disclosure of information, or, indeed, regarding any other matter.”
Memorial, 904 F.2d at 247.
It is difficult to see how consultation of the plan’s terms would be
necessary to determine the amount of Access’s recovery, given that the
compensatory recovery Access seeks can be measured by the cost of the services
10
468 F.3d 237, 243 (5th Cir. 2006).
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it alleges United induced it to provide. If consultation of the plans is necessary,
United concedes that this, without more, does not require preemption. Id.
(explaining that the need to consult an ERISA plan in order to determine
damages shows only an “incidental relation . . . insufficient on these facts to
require a finding of preemption.”)
In E.I. Dupont De Nemours & Co. v. Sawyer,11 employees sued their former
employer, also the administrator of their former ERISA plan, for misleading
them into agreeing to transfer to a subsidiary. Id. at 790-91. The employer
subsequently sold the subsidiary to another entity who imposed terms of
employment, including a reduction in ERISA protected benefits. Id. at 791.
Holding that the employees’ claims were not preempted, we acknowledged that
litigating the claims could require inquiry into the terms of the ERISA plans in
order to calculate the extent of damages. Id. at 800. We observed, however, that
the employees’ allegation that the sale caused losses with regard to their ERISA
protected benefits did not require finding preemption. On the contrary, “[w]e
have rejected the argument that ‘any lawsuit in which reference to a benefit plan
is necessary to compute plaintiff’s damages is preempted by ERISA . . . .’” Id. at
800 n.11 (quoting Rozzell v. Security Servs., Inc., 38 F.3d 819, 822 (5th Cir.
1994)).
B. Access’s Unjust Enrichment and Quantum Meruit Claims
Matters stand differently with Access’s unjust enrichment and quantum
meruit claims. Access alleges that, without its services, another provider would
have had to procure or finance the devices. Access’s unjust enrichment and
quantum meruit claims depend on its allegations that the ERISA plan would
11
517 F.3d 785 (5th Cir. 2008).
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have obliged United to reimburse that other provider. Access can therefore
recover under these claims only to the extent that the patients’ ERISA plans
confer on their participants and beneficiaries a right to coverage for the services
provided. Such claims are preempted under the test articulated in Transitional.
The considerations underlying the Memorial test also favor preemption of
Access’s unjust enrichment and quantum meruit claims. ERISA preemption
protects plans from unexpected financial consequences that could result from
routine exposure to state-law claims. State-law claims premised on
misrepresentations to a third party provider do not greatly implicate this
concern, because an ERISA plan can avoid liability under such claims by taking
care that it does not mislead providers regarding what they can expect to be paid
if they render services for the plan’s insureds. But there is no equivalent way
for plan administrators to limit their exposure to state-law unjust enrichment
or quantum meruit claims. Those claims, if not preempted, would allow any
provider who has provided care for which the ERISA plan denied coverage to
challenge the ERISA plan’s interpretation of its policies in state court. That
outcome would run afoul of Congress’s intent that the causes of action created
by ERISA be the exclusive means of enforcing an ERISA plan’s terms, and
permit state law to interfere with the relations among ERISA entities. See
Mayeaux, 376 F.3d at 433 (“If a medical practitioner could collaterally challenge
a plan’s decision not to provide benefits, he would directly affect the relationship
between the plan and its beneficiary, two traditional ERISA entities.”)
VI. Conclusion
For the foregoing reasons, we affirm the district court’s judgment with
respect to Access’s quantum meruit and unjust enrichment claims; we reverse
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the judgment with respect to Access’s claims for negligent misrepresentation,
promissory estoppel, and violations of the Texas Insurance Code, and we remand
the case for proceedings not inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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