914 F.3d 952 (5th Cir. 2019), 17-20646, Rittinger v. Healthy Alliance Life Insurance Co.
|Citation:||914 F.3d 952|
|Opinion Judge:||PER CURIAM|
|Party Name:||Karen A. RITTINGER, Plaintiff-Appellee Cross-Appellant, v. HEALTHY ALLIANCE LIFE INSURANCE COMPANY, Doing Business as Anthem Blue Cross and Blue Shield; Anthem UM Services, Incorporated, Defendants-Appellants Cross-Appellees.|
|Attorney:||Daniel F. Harvath, Nicholas Hollingsworth Weil, Esq., Harvath Law Group, L.L.C., Webster Groves, MO, for Plaintiff - Appellee Cross-Appellant. Martin J. Bishop, Rebecca R. Hanson, Esq., Reed Smith, L.L.P., Chicago, IL, James Christopher Martin, Esq., Reed Smith, L.L.P., Pittsburgh, PA, for Defend...|
|Judge Panel:||Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.|
|Case Date:||January 31, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Southern District of Texas, Keith P. Ellison, U.S. District Judge.
Daniel F. Harvath, Nicholas Hollingsworth Weil, Esq., Harvath Law Group, L.L.C., Webster Groves, MO, for Plaintiff - Appellee Cross-Appellant.
Martin J. Bishop, Rebecca R. Hanson, Esq., Reed Smith, L.L.P., Chicago, IL, James Christopher Martin, Esq., Reed Smith, L.L.P., Pittsburgh, PA, for Defendant - Appellant Cross-Appellee.
Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
This case involves a bariatric surgery gone wrong and the ensuing clash over insurance coverage. Given our highly deferential standard of review, we cannot say that Anthem, the plan administrator, abused its discretion in either the first or second internal appeal. Because we agree with Anthem, Rittingers cross-appeal (to determine the exact dollar amount of damages she is owed) is moot.
Karen Rittinger was the beneficiary of an ERISA-covered plan. Healthy Alliance Life Insurance Company offered the plan and Anthem Blue Cross Blue Shield (Anthem) administered it.
In October 2014, Rittinger underwent bariatric surgery. Complications arose requiring follow-up surgery and intensive care. Anthem denied preauthorization for both the bariatric surgery and the follow-up surgery, writing, "We cannot approve coverage for weight loss surgery (bariatric surgery) or hospital care after this surgery. Bariatric or weight loss surgery is an exclusion in your health plan contract."
Pertinently, Paragraph 33 of the Health Certificate of Coverage (Certificate) deals with bariatric surgery: [The plan does not cover] bariatric surgery, regardless of the purpose it is proposed or performed. This includes but is not limited to Roux-en-Y (RNY), Laparoscopic gastric bypass surgery or other gastric bypass surgery .... Complications directly related to bariatric surgery that result in an Inpatient stay or an extended Inpatient stay for the bariatric surgery, as determined by Us, are not covered.
Crucially, there is an exception at the end of Paragraph 33: "This exclusion does not apply to conditions including but not limited to ... excessive nausea/vomiting." Since none of Rittingers preauthorization information mentioned "excessive nausea/vomiting," Anthem cited Paragraph 33s exclusion and denied coverage.
The next month, Rittingers husband emailed Anthem. He explained that he had "Medical Power of Attorney ... to speak on behalf of [his] wife[,] Karen Rittinger." He stated that he "would like to file an appeal for her hospitalizations which began on 10/15/2014." Anthem treated this as an official first-level appeal. After gathering more information from Rittinger and her surgeons and obtaining an independent peer review, Anthem again denied coverage.
In April 2015, Rittinger hired counsel and filed a second-level internal appeal. She submitted materials about her medical history and the surgery. Emphasizing Paragraph 33s exception for bariatric surgery where there is "excessive nausea/vomiting," Rittinger provided records
showing: (1) she suffered from Gastroesophageal Reflux Disease (GERD) and esophagitis, (2) GERD/esophagitis is linked to nausea and vomiting, and (3) she underwent surgery to address these problems.
Anthem convened a five-person "Grievance Advisory Panel" (GAP) to evaluate Rittingers second-level appeal. The GAP quoted Paragraph 33, concluded it excluded Rittingers bariatric surgery, and affirmed the denial of coverage.
Having exhausted her internal remedies, Rittinger sued. Both parties moved for summary judgment. Since neither side disputed that the plan properly delegated discretion to Anthem to administer the plan, the district court correctly reviewed the two internal appeals for abuse of discretion. It held that Anthem did not abuse its discretion when it treated Mr. Rittingers email as a first-level appeal. But the district court held that Anthem did abuse its discretion in the second-level appeal. It believed Anthems construction of the plans terms directly contradicted their plain meaning. It also thought Rittingers evidence linking GERD/esophagitis to nausea/vomiting deserved more weight.
The district court had jurisdiction over this case under ERISA, 29 U.S.C. § § 1001 et seq. We have jurisdiction over Anthems appeal under 28 U.S.C. § 1291. Rittinger also filed a cross-appeal, arguing we should state the exact dollar amount of damages she is owed. But because we hold that Anthem did not abuse its discretion in either internal appeal, her cross-appeal is moot.
We review a district courts grant of summary judgment in an ERISA case de novo.1 Here, Anthem had "all the powers necessary or appropriate ... to construe the Contract [and] to determine all questions arising under the Certificate." Rittinger never challenged the clauses enforceability in the district court. Because "[f]ailure to raise an argument before the district court waives that argument,"2 Rittinger has forfeited this issue. Anthems fiduciary discretion was valid.
Rittinger argues that our recent en banc decision in Ariana M.
3 requires us to review Anthems denial de novo instead of for abuse of discretion. But Ariana M. only governs cases in which a plan does not validly delegate fiduciary discretion.4 And even though Texas Insurance Code § 1701.062 bans insurers use of delegation clauses in Texas, Missouri law governs this case. As Anthem observes (and Rittinger fails to contest), this case involves a plan sold in Missouri by a Missouri insurer to a Missouri employer. Moreover, the Certificate of Coverage specifically states that the "laws of the state in which the Group Contract was issued [Missouri] will apply." Ariana M., therefore, does not...
To continue readingFREE SIGN UP