Ctr. for Restorative Breast Surgery, L.L.C. v. Blue Cross Blue Shield Louisiana, CIVIL ACTION NO. 11-806 SECTION: "E" (5)

• Decision Date: 06 May 2016
• Docket Number: CIVIL ACTION NO. 11-806 SECTION: "E" (5)
• Parties: CENTER FOR RESTORATIVE BREAST SURGERY, L.L.C., ET AL., Plaintiffs v. BLUE CROSS BLUE SHIELD OF LOUISIANA, ET AL., Defendants
• Court: U.S. District Court — Eastern District of Louisiana

CENTER FOR RESTORATIVE BREAST SURGERY, L.L.C., ET AL., Plaintiffs v. BLUE CROSS BLUE SHIELD OF LOUISIANA, ET AL., Defendants

CIVIL ACTION NO. 11-806 SECTION: "E" (5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

May 6, 2016

ORDER AND REASONS

Before the Court is Defendants' Motion for Summary Judgment filed November 2, 2015.¹ For the reasons below, the motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The members of Plaintiff Center for Restorative Breast Surgery, L.L.C. ("CRBS") are surgeons who perform post-mastectomy breast reconstruction medical services.² Plaintiff St. Charles Surgical Hospital ("St. Charles") is a specialty surgical center where the physicians affiliated with CRBS perform the surgeries.³ Plaintiffs are out-of-network health care providers, with respect to all Defendants, who provided services to patients covered under ERISA plans and other insurance policies issued or administered by Defendants, numerous Blue Cross Blue Shield health insurance carriers.⁴

Plaintiffs allege that, prior to performing any surgery, Plaintiffs' staff contacted each patient's insurer, notified the insurer of the procedure expected to be performed,requested preauthorization to have the procedure done, and requested disclosure of the amount of benefits for the procedure and any qualification to such benefits.⁵ Plaintiffs allege they received preauthorization from Defendants, through either Defendants' employees or agents.⁶

Plaintiffs filed this suit on April 6, 2010, in the Civil District Court for the Parish of Orleans, State of Louisiana.⁷ Defendant Blue Cross Blue Shield of Louisiana removed the case to this Court on April 12, 2011.⁸ Plaintiffs aver that each patient executed an assignment of benefits assigning to Plaintiffs benefits owed to the patient by his or her healthcare insurer, along with the authority and right to institute legal action to recover any amounts due.⁹ Plaintiffs allege they performed the surgery on each patient, relying on the information provided by Defendants' employees or agents.¹⁰ Plaintiffs maintain they did not receive the expected payment for each claim identified in Exhibit I to the Fifth Amended Complaint¹¹ in accordance with the representations made by Defendants.¹²

Plaintiffs bring this action in two capacities: (1) on behalf of their patients as assignees of their patients' ERISA rights, and (2) in their individual capacities to seek recovery under Louisiana state laws for claims resulting from their direct interactions with Defendants.¹³ Plaintiffs filed a Fifth Amended Complaint on January 6, 2015, asserting the following counts¹⁴:

Count I: Failure to determine benefits in accordance with the terms of ERISA plans;

Count II: Failure to supply requested information ERISA requires to be produced;

Count III: Failure to provide full and fair review under ERISA;

Count IV: Breach of fiduciary duties of loyalty, disclosure, and prudence under ERISA;

Count V: Detrimental reliance/breach of oral contract(s) under Louisiana law;

Count VI: Breach of contract(s) under Louisiana law;

Count VII: Negligent Misrepresentation(s) under Louisiana law; and

Count VIII: Fraud under Louisiana law.

On June 24, 2015, the Court dismissed Counts II, III, and IV with prejudice.¹⁵ The Court also dismissed Count VIII after Plaintiffs moved for dismissal with prejudice.¹⁶

On November 2, 2015, Defendants filed a motion for partial summary judgment raising the following arguments:

1. Count I: Certain of Plaintiffs' claims for ERISA benefits against certain Defendants fail as a matter of law because the Defendants are not the plan administrators and did not control benefits determinations under the plans;

2. Count I: Certain of Plaintiffs' ERISA benefits claims fail as a matter of law because they are based on insurance policies or plans that are not ERISA plans;

3. Count I: Certain of Plaintiffs' ERISA benefits claims are untimely as a matter of law pursuant to contractual limitations periods or the one-year limitations period that applies as a matter of federal common law; and4. Counts V, VII: Certain of Plaintiffs' negligent misrepresentation and detrimental reliance claims are barred by the one-year prescriptive period applicable to delictual claims.¹⁷

Plaintiffs filed a response in opposition on January 6, 2016.¹⁸ Defendants filed a reply in support of their motion on January 19, 2016,¹⁹ and Plaintiffs filed a surreply on January 27, 2016.²⁰

STANDARD OF LAW

Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."²¹ "An issue is material if its resolution could affect the outcome of the action."²² When assessing whether a material factual dispute exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence."²³ All reasonable inferences are drawn in favor of the non-moving party.²⁴ There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law.²⁵

If the dispositive issue is one on which the moving party will bear the burden of persuasion at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'"²⁶ If themoving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.²⁷

If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant's claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant's claim.²⁸ "[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. 'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'"²⁹

ANALYSIS

I. COUNT I: WHETHER CERTAIN OF PLAINTIFFS' CLAIMS FOR ERISA BENEFITS AGAINST CERTAIN DEFENDANTS FAIL AS A MATTER OF LAW BECAUSE THE DEFENDANTS ARE NOT THE PLAN ADMINISTRATORS AND DID NOT CONTROL BENEFITS DETERMINATIONS UNDER THE PLANS

Defendants argue that some Defendants are not proper defendants for Plaintiffs' claims for benefits under 29 U.S.C. § 1132(a)(1)(B) in Count I of the Fifth AmendedComplaint because, under their respective plans, they were not the plan administrators and lacked discretion and control over administration and operation of the plans.³⁰

The Fifth Circuit held in LifeCare Management Services LLC v. Insurance Management Administrators Inc. that an entity exercising "actual control" over a plan's benefits claims process can be liable under 29 U.S.C. § 1132(a)(1)(B), even if that entity is not the plan administrator: "[T]he proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan[,] and . . . [i]f an entity or person other than the named plan administrator takes on the responsibilities of the administrator, that entity may also be liable for benefits."³¹ The Fifth Circuit explained, though, that "'the mere exercise of physical control or the performance of mechanical administrative tasks generally is insufficient' for liability under § 1132(a)(1)(B)."³²

In LifeCare, the Fifth Circuit affirmed the district court's decision, which found that the third-party administrator could be held liable under § 1132(a)(1)(B) because the third-party administrator exercised actual control over the claims process.³³ The plan language in LifeCare provided that the "the services to be performed by the [third-party administrator] shall be ministerial in nature and shall be performed within the framework of policies, interpretations, rules, practices and procedures made or established by the Plan Administrator."³⁴ The court noted, however, that the third-party administrator "had authority to process all claims presented for benefit under the Plan" and had the discretion to determine which claims were "routine" and thus would not be referred tothe plan administrator.³⁵ Based on the third-party administrator's performance of discretionary functions, the court found it exercised actual control over the claims process.³⁶ The Fifth Circuit explained, however, that the third-party administrator could not have been liable under § 1132(a)(1)(B) had it instead "referred all disputed claims to [the plan administrator] for resolution . . . ."³⁷

Defendants argue that, under LifeCare, some Defendants are not the proper defendants under Count I because they were not the plan administrators of the respective plans and Plaintiffs cannot establish, and there is no evidence showing, they exercised actual control over the plans.³⁸ Therefore, Defendants argue, summary judgment should be granted on Count I with respect to those defendants.³⁹

A. Claims C18-C19, C879, C1320-C1322, H804-H805, H972, and H1247 against the HCSC Defendants

Defendants argue that ten of Plaintiffs' claims for ERISA benefits against the Health Care Service Corporation ("HCSC") defendants⁴⁰ fail as a matter of law: C18, C19, C879, C1320, C1321, C1322, H804, H805, H972, and H1247.⁴¹ Defendants argue these claims are...