dissenting.
Perhaps this case is an example of the axiom of Justice Oliver Wendell Holmes, Jr., that, “Great cases like hard cases make bad law.” Northern Securities Co. v. U.S., 193 U.S. 197, 400, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (emphasis added). Certainly the facts as reported by Long, which are reiterated in the majority opinion, invoke sympathy and perhaps call strongly for relief. On the other hand, there may well be enough blame here for everyone to share.
My analysis of the majority opinion, however, causes me to conclude that the Court has indeed reasoned from rather than to a conclusion. The essence of my critical analysis is captured in the statement from the Conclusion of the majority (emphasis added):
Based on the plain language of the contract, Great-West has agreed to provide appropriate medical care to its insured despite its involvement in cost-conscious medical decision-making through the utilization review process.
It may be that there is some language in the statute, the rules and regulations, or the Employee Benefit Booklet that encompasses that agreement, but the majority opinion does not include it, and I cannot find it. Perhaps the statement is necessary to make the opinion congruent with the philosophical discussion of the health care system in the United States.
The majority opinion adopts as legislative facts the ideas of other judges and academies that may or may not be supportable by empirical data. The product of that discussion is that a medical decision has been made by Great West and that a mistaken conclusion about medical necessity deprived Long of necessary medical care. The suggestion is advanced that a medical malpractice action is justified against a plan administrator because of that “medical decision.” It is clear, however, from the ■ philosophical discussion that the premise for the assumed harm is that the insured will forego appropriate care because of the advanced advice that the carrier will not pay in full. The logical fallacy presented is that the carrier could be guilty of malpractice in a situation in which a physician could not. It would be fruitless to search for authority that a medical practitioner is guilty of malpractice because his patient decided not to pursue treatment because of the potential expense.
The majority abandons its reliance on federal authority that permits “medical malpractice actions against plan administrators in a limited fashion under various theories such as agency or vicarious liability.” Instead, an amorphous theory of a fiduciary relationship is espoused to make Great West a proper defendant. This is followed by a reported perception that “Long’s other numerous causes of action [are] in the'nature of a claim for bad faith in handling and investigating his claim for appropriate medical treatment.” Reliance then is premised on McCullough v. Golden Rule Ins. Co., 789 P.2d 855, 860-61(Wyo.l990), the case in which this Court (mistakenly I remain convinced) injected tort remedies into a contractual relationship. The majority then selectivély reports a disregard of the plan administrator’s duties from Long’s pleadings.
One fact that curiously is not included in the majority opinion, probably because it is missing from Long’s Complaint, is Long’s L4-5 discectomy in February of 1994, approximately one year prior to the onslaught of Long’s symptoms in this ease. That dis-cectomy was at the identical site for which this surgery was recommended by Long’s treating physician. For me, that puts a slightly different spin on the dialogue between Great West, through HCRS, and Long. It is natural to wonder why a patient would need the identical surgery a second time within little more than one year. Presumably, since the case is being remanded for trial that question also will be resolved at that time.
I also wonder whether Long’s real problem is that he was caught in the cross-fire between non-network physicians and the plan manager. Is it possible that he was used as a tool to intimidate the plan manager? It *834also must be remembered that it was not Long who canceled the surgery because of the refusal of pre-treatment authorization. The treating physician simply advised Long that the surgery had been canceled. One wonders, “What are the liability implications of a unilateral decision by a physician to refuse treatment because of uncertainty about payment?” Specifically, the unilateral action of the treating physician well may be an efficient intervening cause between any medical decision by Great West and harm to Long.
For me, the only correct resolution of this case is to require Long to follow the provisions of the statute, the rules and regulations, and the Employee Benefit Booklet. One of two options should be applied. Either the issue is one of “insurance claims and coverage” under the rules and regulations or it is an issue that should be held for resolution when Long presented a claim for benefits that had been denied. (I note the concession in the majority opinion that full benefits were paid which seems effectively to dispose of Long’s breach of contract claim.) We never will know whether the grievance process would have been followed by Great West and the board since Long did not, with respect to the pre-treatment denial of authorization, initiate a proceeding before the board by filing a statement pursuant to the rules and regulations. In an analogous situation involving employment rights, we have said:
When an employee, like Hermreck, enjoys a remedy pursuant to a collective bargaining agreement, the societal interest can be protected by asserting retaliatory discharge in the grievance process, and we should not permit avoidance of the collective bargaining grievance process by an independent action.
Hermreck v. United Parcel Service, Inc., 938 P.2d 863, 866 (Wyo.1997). Similarly here, the societal interest can be protected by asserting wrongful denial of pre-treatment authorization in the grievance process.
Respectfully, I must dissent from the decision of the majority of the Court in this case. It may be that the majority concluded that the result was necessary to protect societal interests. For me, however, the case is far more simple, involving only a question of whether a party to a health insurance contract is bound to follow the exclusive remedy provided in the contract before turning to the judicial system for relief. The validity of the summary judgment in this instance is quite comparable to the summary judgment upheld in Bryant v. Pacific Power and Light, 701 P.2d 1165 (Wyo.1985). The majority opinion offers no refutation to the reliance by Great West upon Davis v. State, 910 P.2d 555 (Wyo.1996), and Glover v. State, 860 P.2d 1169 (Wyo.1993). It would seem that, at the very least, the district judge is entitled to some explanation as to why the latter ease is not even acknowledged in the majority opinion. This is particularly true in view of the approval by implication of the grievance process in Squillace v. Wyoming State Employees’ and Officials’ Group Ins. Bd. of Admin., 933 P.2d 488 (Wyo.1997).
I simply cannot agree with the holding of the majority that the utilization review process involves the insurer’s administrator in medical decisions; “this kind of involvement in an insured’s medical care * * * [⅛] beyond the traditional understanding of ‘insurance claims and coverage.’ ” The issue simply is whether contemplated treatment is covered by the plan. The majority quotes from the statute, Wyo. Stat. § 9-3-205:
Administration and management of group insurance program; powers and duties; adoption of rules and regulations.
(a) The board shall administer and manage the state employees’ and officials’ group insurance program and, subject to the provisions of this act:
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(vi) Shall establish a procedure by which the board shall hear complaints by insured employees concerning the allowance and payment of claims, eligibility for coverage and other matters. Unless otherwise provided in the group insurance or supplemental plan or plans, any decision of the board upon complaints is not binding upon either the employee or carrier and the provisions of the Wyoming Administrative Procedure Act shall *835not apply to the proceedings. The group insurance or supplemental plan or plans may provide that the decision of the board shall be binding upon both the employee and the carrier as to certain disputes and in such event the procedure adopted by the board shall conform to the provisions of the Wyoming Administrative Procedure Act;
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(b) The board shall adopt rules and regulations consistent with the provisions of this act as necessary to carry out its statutory duties and responsibilities.
Then the majority quotes from the Board’s promulgated rules and regulations concerning the grievance procedure:
Section 4. Exclusivity of Remedy. These rules provide the exclusive administrative remedy available to state employees and officials, the carrier, and the other aggrieved parties in ■ adjudicating disputes concerning insurance claims and coverage. These rules are intended to and shall be construed to provide adjudication in a manner that is as speedy and inexpensive as is consistent with a full and fair hearing and appropriate deliberation.
Long’s proposed surgery presented a dispute concerning “insurance * * ⅜ coverage,” and his remedy pursuant to the Board’s rules was exclusive. We should afford the same significance to this contractual provision that we would afford to an agreement for mandatory arbitration. We should not extend Golden Rule. The policy choice is whether a state structured plan to provide a benefit to its employees at a reasonable cost is to be burdened by the expenses of litigation such as this or whether disputes should be resolved under the contractual provisions. I submit the latter choice is the reasonable one, and we should require Long to follow the contractual remedy.
I also recognize our rule that if we can uphold summary judgment under the record presented under any proper legal theory, we will do so. Century Ready-Mix Co. v. Campbell County School Dist., 816 P.2d 795, 799 (Wyo.1991), followed in Peterson v. Sweetwater County School Dist. No. One, 929 P.2d 525, 529 (Wyo.1996), and Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228, 1232 (Wyo.1996); Reeves v. Boatman, 769 P.2d 917, 920 (Wyo.1989). The majority characterizes Long’s “other numerous causes of action as being in the nature of a claim for bad faith in handling and investigating his claim for appropriate medical treatment.” His Complaint does not contain the factual allegations we required in State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 833-34 (Wyo.1994), a case cited in the majority opinion, where we said:
We hold the scope of available compensatory damages for a breach of the duty of good faith and fair dealing includes damages for harm to pecuniary interests and emotional distress. Crisci [v. Security Ins. Co. of New Haven, Conn., 66 Cal.2d 425, 426 P.2d 173, 58 Cal.Rptr. 13 (1967) ], 58 Cal.Rptr. at 19, 426 P.2d at 179. There is a limitation, however, upon the recovery of damages for emotional' distress for a breach of this duty. Gruenberg [v. Aetna Ins. Co., Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032], 108 Cal.Rptr. at 489, 510 P.2d at 1041; Anderson [v. Continental Ins. Co., 85 Wis.2d 675, 271 N.W.2d 368 (1978) ], 271 N.W.2d at 378. We agree with the court in .Gruenberg, that to recover damages for emotional distress, the insured must allege that as a result of the breach of the duty of good faith and fair dealing, the insured has suffered substantial other damages, such as economic loss, in addition to the emotional distress. Gruenberg, 108 Cal.Rptr. at 489, 510 P.2d at 1041. See Restatement (Second) of Torts, supra, at § 905 cmt. c. The economic losses may include loss of earnings, inability to pay creditors, loss of business, costs of litigation brought against the insured as a result of the breach and medical expenses. Gruenberg, 108 Cal.Rptr. at 489-90, 510 P.2d at 1041-42. This limitation is imposed to prevent fictitious claims for emotional distress and preserve judicial resources. Crisci, 58 Cal.Rptr. at 19, 426 P.2d at 179.
Long has suffered no damages for breach of the contract, and his Complaint fails to allege *836the sort of economic losses that our language in Shrader requires.
I would affirm the summary judgment entered in favor of the defendants in the district court.