Brian Fox v. Blue Cross and Blue Shield of

Filing

Opinion issued by court as to Appellant Brian Fox. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-14569

Date Filed: 04/22/2013

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14569
Non-Argument Calendar
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D.C. Docket No. 9:11-cv-81351-DMM

BRIAN FOX,
Plaintiff - Appellant,
versus
BLUE CROSS AND BLUE SHIELD OF FLORIDA INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 22, 2013)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Brian Fox appeals the district court’s dismissal of his claim that Blue Cross
and Blue Shield of Florida, Inc., (Blue Cross) failed to disclose information

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required by the Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. § 1024(b)(4). Fox also appeals the district court’s grant of summary
judgment in favor of Blue Cross on whether Blue Cross paid the proper benefit
amount under Fox’s employee welfare benefit plan (Plan). After careful review,
we affirm.
I.
In 2008, Fox underwent brain surgery performed by an out-of-network
physician. Under the terms of Fox’s Plan, Blue Cross agreed to pay 100% of the
“Allowed Amount” for the surgery. The Plan defines “Allowed Amount” for an
out-of-network physician as “the lesser of the Provider’s actual charge or an
amount established by [Blue Cross] based on several factors,” including the charge
reimbursable by Medicare for the services performed. 1
The actual charge for Fox’s surgery was $29,000, but Blue Cross calculated
the Allowed Amount as $2,729.48, leaving Fox responsible for the difference. Fox
appealed this decision to Blue Cross’s appeals department. Blue Cross reviewed
Fox’s case, verified that it had properly calculated and paid the Allowed Amount,
and concluded that Fox was not entitled to any additional payment. On July 23,
2008, Blue Cross sent Fox a letter explaining the reasons for its denial of his
1

Fox argues vigorously that “Allowed Amount” means only the provider’s actual charge. But
the partial quotation of the Plan’s definition, which he takes out of context to support this
reading, plainly contradicts the Plan’s actual language. We therefore do not further address this
frivolous argument.
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appeal. Fox then requested copies of all relevant documents Blue Cross used to
make the decision. Blue Cross responded with documentation verifying that it had
paid 100% of the Allowed Amount but did not furnish documents explaining how
it calculated the Allowed Amount or how it had verified that the Allowed Amount
had been correctly calculated.
Fox sued, alleging that Blue Cross: (1) violated the Plan by failing to pay
the full amount of the actual charge; and (2) violated the disclosure requirements of
29 U.S.C. § 1024(b)(4) by failing to provide documentation about how it
calculated the Allowed Amount, subjecting Blue Cross to a daily statutory penalty
as the plan administrator under 29 U.S.C. § 1132(c)(1).
Upon Blue Cross’s motion, the district court dismissed Fox’s disclosure
claim, finding that Blue Cross was not subject to the penalty because it was not the
plan administrator. Fox’s payment claim proceeded to discovery. Blue Cross
moved for summary judgment on this claim and submitted the affidavit of Dr.
Barry Schwartz, which explained, for the first time, that Blue Cross determined the
Allowed Amount based on Medicare billing rates for the services Fox received.
The district court rendered summary judgment in Blue Cross’s favor, relying on
this explanation to conclude that Blue Cross properly calculated and paid the
Allowed Amount under the Plan. This is Fox’s appeal.

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II.
We review the dismissal of a claim under Federal Rule of Civil Procedure
12(b)(6) de novo, “accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Lobo v. Celebrity Cruises, Inc.,
704 F.3d 882, 887 (11th Cir. 2013). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
Under ERISA, plan administrators must, “upon written request of any
participant or beneficiary, furnish a copy of the latest updated summary, plan
description, and the latest annual report, any terminal report, the bargaining
agreement, trust agreement, contract, or other instruments under which the plan is
established or operated.” 29 U.S.C. § 1024(b)(4). Failure to comply with this
disclosure requirement within 30 days subjects the plan administrator to a daily
statutory penalty. See id. § 1132(c)(1).
The district court concluded that Blue Cross was not the plan administrator
and therefore not subject to § 1132(c)(1). Fox argues this conclusion was in error.
Blue Cross responds that, even assuming it was a plan administrator, the
documents Fox requested in his complaint – those that Blue Cross relied on to

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calculate and verify the Allowed Amount – are not subject to disclosure under
§ 1024(b)(4). We agree. Fox argues only that these documents qualify as “other
instruments under which the plan is established or operated” and must therefore be
disclosed. But that provision “encompasses formal or legal documents under
which a plan is set up or managed.” Faircloth v. Lundy Packing Co., 91 F.3d 648,
653 (4th Cir. 1996), quoted with approval in Cotton v. Mass. Mut. Life Ins. Co.,
402 F.3d 1267, 1274 n.8 (11th Cir. 2005). Because the documents Blue Cross used
to calculate and verify the Allowed Amount are not such documents, Blue Cross’s
failure to disclose them did not violate § 1024(b)(4), and the district court correctly
dismissed Fox’s claim. See id.; cf. Brown v. J.B. Hunt Transp. Servs., Inc., 586
F.3d 1079, 1088 (8th Cir. 2009) (“Nothing in [ERISA] requires plan administrators
to disclose claims manuals to plan participants.”).
III.
“We review a trial court’s grant of a motion for summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most
favorable to the non-moving party.” Sims v. MVM, Inc., 704 F.3d 1327, 1330 n.2
(11th Cir. 2013). Summary judgment is proper where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “We may affirm the district court’s grant of summary
judgment on any legal ground supported by the record, regardless of whether the

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district court relied on that ground.” Walden v. Ctrs. for Disease Control &
Prevention, 669 F.3d 1277, 1283 (11th Cir. 2012).
Fox contends that Blue Cross’s decision to pay less than the actual charge
for his surgery was improper. We follow a six-step process to review a benefits
decision. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010).
The first step is to “[a]pply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is ‘wrong’ (i.e., the court disagrees with
the administrator’s decision); if it is not, then end the inquiry and affirm the
decision.” Id. (internal quotation marks omitted).
We need not proceed beyond the first step here. The Plan provides that, for
out-of-network services, Blue Cross will pay 100% of the Allowed Amount, which
is defined as the lesser of the provider’s actual charge or an amount established by
Blue Cross based on factors enumerated in the Plan, including the amount
Medicare pays for certain services. Evidence in the administrative record –
namely, the letter Blue Cross sent to Fox on July 23 and the documentation Blue
Cross sent Fox in response to his request – indicates that Blue Cross paid 100% of
the Allowed Amount. Fox provides no evidence to counter this assertion. He
therefore cannot show, as he must to survive summary judgment, a genuine dispute
that Blue Cross’s benefits-denial decision was wrong under the Plan. See Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010) (“Once the movant

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adequately supports its motion [for summary judgment], the burden shifts to the
nonmoving party to show that specific facts exist that raise a genuine issue for
trial.”). The district court therefore properly rendered summary judgment in favor
of Blue Cross.2
IV.
In sum, the district court properly dismissed Fox’s disclosure claim and
correctly concluded that Blue Cross was entitled to summary judgment.
AFFIRMED.

2

Fox contends that it was improper for the district court to rely on Dr. Schwartz’s affidavit about
how the Allowed Amount was calculated because it was outside the administrative record. Even
without this affidavit, however, Blue Cross offered other evidence, the validity of which Fox did
not contest in the district court, that it paid 100% of the Allowed Amount. Fox has therefore
forfeited this argument. See Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011)
(explaining that a party who does not raise an argument in the district court forfeits his right to
raise it on appeal except in limited circumstances not present here).
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