Fid. Ins. Co. v. Express Scripts, Inc., Case No. 4:03CV1521 HEA

• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Writing for the Court: HENRY EDWARD AUTREY
• Parties: FIDELITY INSURANCE COMPANY, et al., Plaintiffs, v. EXPRESS SCRIPTS, INC., et al., Defendants.
• Docket Number: Case No. 4:03CV1521 HEA
• Decision Date: 07 July 2011

FIDELITY INSURANCE COMPANY, et al., Plaintiffs,
v.
EXPRESS SCRIPTS, INC., et al., Defendants.

Case No. 4:03CV1521 HEA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated:July 7, 2011

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Defendants' Motion for Partial Summary Judgment on Plaintiffs' DEA Claim, (Doc. No. 316). Plaintiffs oppose the Motion, and the Court has heard arguments on the issues involved. For the reasons set forth below, the Motion is granted.

Issue Presented

At issue herein is whether Defendants, (collectively, ESI) are entitled to judgement as a matter of law with respect to Plaintiffs' (collectively, Fidelity) allegations in Paragraph 125(c) of their Third Amended Complaint that ESI committed accounting and administrative errors by "failing to verify that prescribing physicians held a valid DEA license number." Fidelity contends that pursuant to the parties' contract, ESI was required to verify prescribing physicians'

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DEA license number prior to authorizing payment for filled prescriptions from participating pharmacies.

ESI argues that nothing in the contract between Fidelity and ESI requires ESI to verify DEA numbers vis a vis Fidelity. Rather, the requirement, if any, of verifying the DEA number is an issue between ESI and its participating pharmacies, and has no bearing on its obligations to Fidelity.

Discussion

The standard for summary judgment is well settled. In determining whether summary judgment should issue, the Court must view the facts and inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005); Littrell v. City of Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the burden to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in his pleadings but by affidavit or other evidence must set

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forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson 477 U.S. at 256; Littrell, 459 F.3d at 921. To survive a motion for summary judgment, the "nonmoving party must 'substantiate his allegations with sufficient probative evidence [that] would permit a finding in [his] favor based on more than mere speculation, conjecture, or fantasy.' Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted)." Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003).

"The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties and give effect to that intention." J.E. Hathman v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo.1973). If the contract is unambiguous, then the intent of the parties is to be gathered from the contract alone, and "any extrinsic or parole evidence as to the intent and meaning of the contract must be excluded from the court's review." Vidacak v. Okla. Farmers Union Mut. Ins. Co., 274 S.W.3d 487, 490 (Mo.Ct.App.2008). Where a contract is ambiguous and unclear, however, "a court may resort to extrinsic evidence to resolve an ambiguity." Burrus v. HBE Corp., 211 S.W.3d 613, 616 (Mo.Ct.App.2006). "A contract is ambiguous when it is reasonably susceptible to different constructions." Id. (internal quotation marks omitted). Whether a contract is ambiguous is a question of law. Edgewater Health Care, Inc. v. Health

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Sys. Mgmt., Inc., 752 S.W.2d 860, 865 (Mo.Ct.App.1988). If a contract is ambiguous, "then a question of fact arises as to the intent of the parties, and thus it is error to grant summary judgment." Essex Dev., Inc. v....