Jabour v. Cigna Healthcare of California

• Decision Date: 22 August 2001
• Docket Number: No. CV01-01578ABC(AJWX).,CV01-01578ABC(AJWX).
• Citation: 162 F.Supp.2d 1119
• Parties: Jasmine JABOUR, Plaintiff, v. CIGNA HEALTHCARE OF CALIFORNIA, INC., Defendant.
• Court: U.S. District Court — Central District of California

162 F.Supp.2d 1119

Jasmine JABOUR, Plaintiff, v. CIGNA HEALTHCARE OF CALIFORNIA, INC., Defendant.

No. CV01-01578ABC(AJWX).

United States District Court, C.D. California.

August 22, 2001.

Timothy D. Reuben, Esq., Daniel A. Windler, Esq., Reuben & Novicoff, Beverly Hills, CA, for Plaintiff.

Vincent D'Angelo, Esq., Shaighn Kim, Esq., Wilson, Elser, Moskowitz, etc., Los Angeles, CA, for Defendant.

ORDER RE: MOTION TO DISMISS; FED. R. CIV. PRO. 12(B)(6)

COLLINS, District Judge.

In a case involving a claim for benefits, as well as six claims for alleged failures to supply requested information, pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., Plaintiff (without opposition from Defendant and therefore with leave of Court) filed a First Amended Complaint ("FAC") which added a claim for tortious breach of the implied covenant of good faith and fair dealing ("implied covenant claim") under California common law. On July 27, 2001, Defendant filed a Motion to Dismiss (the "Motion") the implied covenant claim. Plaintiff has opposed. The Court decides the Motion without need for oral argument. See Fed. R. Civ. Pro. 78; Local Rule 7.11. Accordingly, the noticed hearing on August 27, 2001 is hereby VACATED. For reasons detailed below, the Motion is hereby GRANTED. Plaintiff's Eighth Claim for Relief is hereby DISMISSED.

I. PROCEDURAL HISTORY

Plaintiff JASMINE JABOUR ("Plaintiff," or "Jabour") commenced the instant civil suit with a Complaint filed on February 16, 2001 naming sole Defendant CIGNA HEALTHCARE OF CALIFORNIA, INC. ("Defendant," or "CIGNA"). The initial Complaint stated one cause of action (the First Claim for Relief) for improper denial of benefits under 29 U.S.C. § 1132(a)(1)(B), and five causes of action (the Second to Sixth Claims for Relief) for failure to respond to Plaintiff's various requests for information under 29 U.S.C. §§ 1132(c) and 1133. See Complaint ¶¶ 30-48. Plaintiff initially sought recovery of all benefits due, along with pre-judgment interest, penalties for alleged failures to respond to information requests, and attorneys' fees and costs. See Prayer.

Following three stipulations extending the time for Defendant to respond to the Complaint, on April 11, 2001 Defendant CIGNA filed an Answer. Counsel participated in an early meeting of counsel at which time they exchanged preliminary discovery and witness lists. As was its stated intention in the joint report of early meeting of counsel filed on May 24, 2001, on June 7, 2001 Plaintiff filed a motion for leave to file a first amended complaint. Defendant did not oppose. Accordingly, on July 9, 2001 the Court granted leave to amend, and deemed the FAC filed as of that date. The FAC includes a sixth cause of action (the Seventh Claim for Relief) for failure to respond to a request for information, and a wholly new cause of action (the Eighth Claim for Relief) for a tortious breach of the implied covenant.

It is this implied covenant claim to which Defendant's Motion to Dismiss, filed July 27, 2001, is addressed. Defendant seeks dismissal of the Eighth Claim for Relief. Plaintiff's Opposition was submitted on August 13, 2001, and Defendant filed a Reply on August 17, 2001.

II. LEGAL STANDARD ON A MOTION TO DISMISS UNDER RULE 12(B)(6)

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. See Fed. R. Civ. Pro. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). "The Rule 8 standard contains `a powerful presumption against rejecting pleadings for failure to state a claim.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); accord Gilligan, 108 F.3d at 248 ("A complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'").

The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). Moreover, the complaint must be read in the light most favorable to the plaintiff. See id. However, the Court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. See, e.g., Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).

Moreover, in ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994). A court may, however, consider exhibits submitted with the complaint. See id. at 453-54. Also, a court may consider documents which are not physically attached to the complaint but "whose contents are alleged in [the] complaint and whose authenticity no party questions." Id. at 454. Further, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir.1988).

Lastly, a Rule 12(b)(6) motion "will not be granted merely because [a] plaintiff requests a remedy to which he or she is not entitled." Schwarzer, Tashima, and Wagstaffe, Civil Procedure Before Trial § 9:230 (2000). "It need not appear that plaintiff can obtain the specific relief demanded as long as the court can ascertain from the face of the complaint that some relief can be granted." Doe v. United States Dept. of Justice, 753 F.2d 1092, 1104 (D.C.Cir.1985); see also Doss v. South Central Bell Telephone Co., 834 F.2d 421, 425 (5th Cir.1987) (demand for improper remedy not fatal if claim shows that the plaintiff is entitled to a different form of relief).

III. FACTUAL ALLEGATIONS¹

Plaintiff's FAC asserts that she is a vested participant and a beneficiary in an employee benefit healthcare plan underwritten and administered by Defendant CIGNA, in which she enrolled while she was employed by Dic Entertainment L.P., a subsidiary of Disney Worldwide Services, Inc. See FAC ¶¶ 4-6. Plaintiff claims to have become a member of the Cigna Plus Plan (Group No. 2404145/BHYL-39), an employee benefit healthcare plan which is subject to ERISA. See id. ¶¶ 6-7.

The FAC alleges that at the age of six Plaintiff was involved in an unspecified accident which fractured her nose and left her with a deviated septum. This deviation allegedly caused her to have great difficulty breathing, and severe headaches. After years of treating her symptoms and her condition with various medications, as well as acupressure treatments, Plaintiff consulted a physician specializing in nose and throat medicine as well as reconstructive surgery about a possible surgical solution to her condition. This physician (George T. Boris, M.D.) ran various tests on Plaintiff on or about March 16, 1999, and concluded in her return visit, on or about March 25, 1999, that Plaintiff needed surgery (a septoplasty). See FAC ¶¶ 8-11.

Plaintiff asserts that Dr. Boris qualifies under the terms of the Cigna Plus Plan ("the Plan") as an "out-of-network" provider, and that she should therefore have been eligible for 70% reimbursement of the costs of the office visits on March 16 and March 25, 1999. The FAC also asserts that under the Plan surgery performed by an out-of-network provider is reimbursed at a 70% rate if Plan administrators authorize the out-of-network care prior to the surgery. When approval is not received prior to surgery, Plaintiff claims that the Plan still allows for reimbursement of 35% of surgical expenses (both percentages are of the expenses after a deductible is subtracted). See FAC ¶ 13.

Plaintiff claims that soon after her consultation with Dr. Boris, she telephoned Defendant's member services department to notify the Plan that she was planning to go forward with a septoplasty performed by Dr. Boris. She asserts that she was informed by CIGNA that before she could receive the maximum available benefit (presumably 70% of the costs after deductible, though not specified) she would have to seek a second opinion from an "in-network" specialist. See FAC ¶ 14.

Plaintiff alleges that on April 16, 1999, she consulted Gary S. Bellack, M.D., an "in-network" ear, nose, and throat specialist, and that Dr. Bellack confirmed the diagnosis given by Dr. Boris and that septoplasty was an appropriate course of treatment. See FAC ¶ 15. In the days following this consultation, Plaintiff alleges that staff in Dr. Boris' office contacted Defendant's member services department to advise them of the upcoming septoplasty, and were told that it would be reimbursed at the 70% "maximum benefit" level. Plaintiff claims she would never have undergone surgery if it had not been represented to Dr. Boris that 70% of the costs would be covered. See id. ¶ 16.

The FAC alleges that Dr. Boris performed the septoplasty surgery on Plaintiff on or about April 26, 1999. Plaintiff claims that none of the costs incurred in that surgery have been reimbursed, either to Plaintiff or to Dr. Boris, to either of the other physicians involved in the surgery (Vijay Gyan, M.D., anesthesiologist, Ezra E. Kleiner, M.D., pathologist), or to the facility in which surgery was performed (Culver City Ambulatory Center). Further, Plaintiff asserts that Dr. Boris has never received payment for either the March 15, 1999 or the March 26, 1999 consultations. In addition, Plaintiff claims that she has received little or no written...