662 F.3d 376 (5th Cir. 2011), 10-20868, Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co.

Docket Nº:10-20868.
Citation:662 F.3d 376
Opinion Judge:REAVLEY, Circuit Judge:
Party Name:ACCESS MEDIQUIP L.L.C., a Texas Limited Liability Company, Plaintiff-Appellant, v. UNITEDHEALTHCARE INSURANCE COMPANY, A Connecticut Corporation, Defendant-Appellee.
Attorney:D. Brian Hufford (argued), Pomerantz, Haudek, Grossman & Gross, L.L.P., New York City, Stephen Novack, Givonna L. Long, Christopher S. Moore, Stephen J. Siegel, Novack & Macey, L.L.P., Chicago, IL, for Plaintiff-Appellant. JoAnn Dalrymple (argued), Jackson Walker, L.L.P., Austin, TX, Paula Denney...
Judge Panel:Before REAVLEY, ELROD and GRAVES, Circuit Judges.
Case Date:November 08, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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662 F.3d 376 (5th Cir. 2011)

ACCESS MEDIQUIP L.L.C., a Texas Limited Liability Company, Plaintiff-Appellant,


UNITEDHEALTHCARE INSURANCE COMPANY, A Connecticut Corporation, Defendant-Appellee.

No. 10-20868.

United States Court of Appeals, Fifth Circuit.

November 8, 2011

Page 377

D. Brian Hufford (argued), Pomerantz, Haudek, Grossman & Gross, L.L.P., New York City, Stephen Novack, Givonna L. Long, Christopher S. Moore, Stephen J. Siegel, Novack & Macey, L.L.P., Chicago, IL, for Plaintiff-Appellant.

JoAnn Dalrymple (argued), Jackson Walker, L.L.P., Austin, TX, Paula Denney, Jackson Walker, L.L.P., Houston, TX, Scott M. McElhaney, Jackson Walker, L.L.P., Dallas, TX, for 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 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

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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.

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." United States 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 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

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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 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 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...

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