Fid. Ins. Co. v. Express Scripts, Inc.

• Decision Date: 07 July 2011
• Docket Number: Case No. 4:03CV1521 HEA
• Parties: FIDELITY INSURANCE COMPANY, et al., Plaintiffs, v. EXPRESS SCRIPTS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

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'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 setforth 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. HealthSys. 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. Cotton Custom Homes, L.L.C., 195 S.W.3d 532, 535 (Mo.Ct.App.2006). See Lafarge North America, Inc. v. Discovery Group L.L.C. 574 F.3d 973, 979 (8th Cir. 2009).

Accordingly, pursuant to Missouri law, the Court must enforce a contract "as written and according to the plain meaning of the words in the contract when the contract is clear and unambiguous." Contract Freighters, Inc. v. J.B. Hunt Transp., Inc., 245 F.3d 660, 663 (8th Cir.2001) (quoting Farmland Indus., Inc. v. Frazier-Parrott Commodities, 111 F.3d 588, 590 (8th Cir.1997)).

When faced with conflicting or ambiguous specific and general provisions in a contract, a court should enforce the more specific of the terms. Five Star Quality Care-MO, L.L.C. v. Lawson, 283 S.W.3d 811, 815 (Mo.Ct.App.2009). The terms of a contract should be read as a whole to determine the intent of the parties, TAP Pharm. Prods., Inc. v. St. Bd. of Pharmacy, 238 S.W.3d 140, 143 (Mo.2007), and "[t]he test for ambiguity is whether the disputed language is reasonably susceptible of more than one meaning when the words are given their plain meaning as understood by an average person." Rabius v. Brandon, 257 S.W.3d 641, 645 (Mo.Ct.App.2008) (quoting Lacey v. St. Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 839 (Mo.Ct.App.2004)).

Dubinsky v. Mermart, LLC, 595 F.3d 812, 816 (8th Cir. 2010).

Included within the 2000 Fidelity-ESI Contract at issue are the followingsalient provisions which detail certain of ESI's obligations to Fidelity.

(b) Participating Pharmacies. Upon presentation of an ID Card, Members may obtain prescriptions for Covered Drugs through the network of participating Pharmacies identified on Exhibit A. ESI will provide Sponsor [Fidelity] with a list of Participating Pharmacies in such network(s) prior to the effective date of the Plan and will make available an electronic updated list from time to time. Any additions or deletions to the network shall be in ESI's sole discretion; provided that ESI shall provide written notice to Sponsor of such deletions or additions that materially affect the access of Members to Participating Pharmacies. Each Participating Pharmacy is required to verify the Member's eligibility through ESI's on-line claims processing system. Participating pharmacies [sic] will dispense prescriptions to Members in a quantity not to exceed a 30-day supply unless otherwise specified in the BPD. ESI shall direct Participating Pharmacies to charge and collect the applicable Member Contribution from Members for each Covered Drug dispensed. A Member's copayment charged for a Covered Drug shall be the lesser of the applicable copayment set forth on the BPD, or the U&C.

(c) Requirements for Participation. ESI shall require each Participating Pharmacy to meet ESI's participation requirements, including but not limited to, licensure, insurance and provider agreement requirements. ESI does not direct or exercise any control over the professional judgment exercised by any pharmacist in dispensing prescriptions or otherwise providing pharmaceutical related services at a Participating Pharmacy. Participating Pharmacies are independent contractors of ESI, and ESI shall have no liability to Sponsor, any Member or any other person or entity for any act or omission of any Participating Pharmacy or its agents or employees.

(d) Audits of Participation

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