United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants' Motion to Dismiss Amended
Complaint. (Doc 28). I have read the parties' motion
papers and held a January 24, 2018 hearing where counsel
argued their positions. Now, after due consideration, I
respectfully recommend that the motion be granted, and that
Plaintiff's complaint be dismissed with prejudice.
Surgery Center of Viera, LLC provided medical services to KR
in return for an assignment (“Assignment”) of his
benefits under the Southeastern Surveying and Mapping Welfare
Plan (“Plan”) (Doc. 20, ¶¶ 28-31). The
Assignment includes all of KR's “medical and other
health care benefits, insurance payments and any other
payment or reimbursement for health care services rendered
to” KR by Plaintiff “regardless of its managed
care network participation or contract status.” (Doc.
20 at 12). KR also assigned to Plaintiff “[t]o the full
extent permitted by law, including without limitation 29
U.S.C. sections 1132(a)(1) and 1132(a)(3) … any legal,
administrative or contractual claim pursuant to any group
health plan, benefit plan, health care insurance or third
party liability insurance concerning medical expenses
incurred as a result of the health care services” KR
received from Plaintiff (Id.). The Assignment
includes “any ERISA breach of fiduciary duty claim and
any other statutory, regulatory, administrative or other
legal claim.” (Id.).
Plan is self-insured by Defendant Southeastern Surveying and
Mapping Corporation (Id., ¶ 6). Defendant James
Petersen is the Plan Administrator, and Defendant Blue Cross
and Blue Shield of Florida, Inc. provides administrative
services to the Plan (Id., ¶¶ 7, 9).
Plaintiff is an “out-of-network” provider of
services to members of the Plan (Id., ¶ 26).
This means Plaintiff is not contractually bound to accept a
negotiated rate or fee for the services it furnishes to Plan
beneficiaries (Id., ¶¶ 21, 26).
billed Blue Cross $286, 112 for services rendered to KR
(Id., ¶ 32). Blue Cross paid Plaintiff $37,
799.91 for those services (Id., ¶ 34).
Plaintiff appealed to Blue Cross, on three occasions, the
denial of the balance of its billing (Id.,
¶¶ 35-37). Those appeals were not successful,
Plaintiff filed this lawsuit under the Employee Retirement
Income Security Act of 1974 (“ERISA”)
(Id.). Count I of Plaintiff's amended complaint
alleges that Defendants breached the terms of the Plan by
paying Plaintiff less than the full amount of its bill
without providing valid evidence or information to support
the payment decision in violation of § 502(a) of ERISA
(Id., ¶¶ 50-59). Count II alleges that 29
U.S.C. § 1132(a)(3) imposes on Defendants fiduciary
duties of loyalty and care toward Plaintiff (Id.,
¶¶ 60-66). Defendants allegedly breached these
duties by arbitrarily and capriciously failing to pay
Plaintiff the amount it is owed for the treatment provided to
KR (Id.). Count III asserts that Defendants
Southeastern, Petersen and the Plan failed to furnish copies
of the Plan documents to Plaintiff in violation of 29 U.S.C.
§ 1132(c)(1)(B) (Id., ¶¶ 67-69).
Plan contains the following anti-assignment clause:
Assignment of Benefits to Providers .
Except as set forth in the last paragraph of this section, we
will not honor any of the following assignments, or attempted
assignments, by you to any Provider:
• An assignment of the benefits due to you for Covered
Services under this Benefit Booklet;
• An assignment of your right to receive payments for
Covered Services under this Benefit Booklet; or.
• an assignment of a claim for damage resulting from a
breach, or an alleged breach, of the Group Master Policy.
We specifically reserve the right to honor an assignment of
benefits or payment by you to a Provider who: 1) is
In-Network under your plan of coverage; 2) is a NetworkBlue
Provider even if that Provider is not in the panel for your
plan of coverage; 3) is a Traditional Program Provider; 4) is
a ® BlueCard (Out-of-State) PPO Program Provider; or 5)
is a ® BlueCard (Out-of-State) Traditional Program
(Doc. 28-2 at 36). Defendants seek dismissal of the amended
complaint on the grounds that: (1) by virtue of the
anti-assignment clause, Plaintiff lacks standing to assert
its claims; (2) Plaintiff has failed to allege that it has
exhausted its administrative remedies; (3) Plaintiff has not
alleged that Defendants breached a specific provision of the
Plan; (4) Count I seeks legal damages on a claim for which
Congress has only authorized equitable remedies; (5) Count I
against Southeastern, Petersen and the Plan should be
dismissed because the Plan delegates all authority to Blue
Cross; (6) Plaintiff is barred from asserting Count II
because it seeks the same relief in Count I; (7) Count II
fails to plead with sufficient particularity, a claim for
equitable relief; (8) Count II seeks legal relief on a claim
for which Congress has only authorized equitable remedies;
(9) the exhibits to the amended complaint contradict ...