Michelle Roche v. Aetna Inc, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, HARDIMAN and KRAUSE, Circuit Judges. Total Pages: 18. Judge: SMITH Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1712
_____________
MICHELLE ROCHE,
INDIVIDUALLY AND AS CLASS REPRESENTATIVE,
Appellant
v.
AETNA, INC.; AETNA HEALTH, INC., A NJ CORP;
AETNA HEALTH INSURANCE CO;
AETNA LIFE INSURANCE, CO; RAWLINGS, CO
_____________

On Appeal from the United States District Court
for the District of New Jersey
District Court No. 1-13-cv-03933
District Judge: The Honorable Noel L. Hillman
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 6, 2017
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
(Filed: March 9, 2017)
_____________________
OPINION
_____________________
SMITH, Chief Judge.



This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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Aetna Life Insurance Company (“Aetna”), a health care plan administrator,
took the position that Michelle Roche, a plan member, had to reimburse it for
medical expenses it paid on behalf of Roche under the relevant benefits plan.
Roche reimbursed Aetna but then filed this action, contending that she should not
have had to reimburse Aetna. The District Court concluded that, before filing this
action, Roche needed to exhaust her administrative remedies. On appeal, Roche
argues that she was not required to exhaust those remedies. Because the plan
unambiguously requires Roche to exhaust her remedies, we will affirm the
judgment of the District Court.
I
Roche is a member of two health care benefit plans: an employee-group
health plan sponsored by Bank of America (“the Bank of America Plan”) and a
governmental health plan funded by the State of New Jersey (“the State Plan”),
collectively (the “Plans”). The administrator of both Plans is Aetna.1 The
Rawlings Company (“Rawlings”) is Aetna’s reimbursement claims vendor.
On January 19, 2007, Roche was injured in a car accident in Pennsylvania.
Between 2008 and 2010, the Plans provided Roche with $88,075.29 to cover
medical expenses for her accident-related injuries. She received $1,473.57 from

1

Roche also sued Aetna Inc., Aetna Health Inc., and Aetna Health Insurance Co.
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the Bank of America Plan and $86,601.72 from the State Plan. From 2010 to
2012, Rawlings sent Roche, through her personal injury attorney, notices
informing Roche of her purported obligations under the Plans’ terms regarding
Aetna’s right to recover the medical expenses it paid on Roche’s behalf in the
event she received a settlement. Roche eventually recovered money via settlement
from the tortfeasor involved in the car accident. On January 4, 2013, Roche’s
personal injury attorney sent Rawlings a check for $88,075.29 as reimbursement
for the amounts paid by the Plans for Roche’s accident-related injuries.
II
On May 28, 2013, Roche commenced the present case in New Jersey state
court. Then, on June 25, 2013, Defendants removed the case from New Jersey
state court under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.
§ 1332(d). On August 1, 2013, Defendants filed a motion for summary judgment
under Rule 56 or, in the alternative, to dismiss the complaint under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. In 2014, the District Court ordered
limited jurisdictional discovery and dismissed Defendants’ motion without
prejudice to refiling post-discovery. Following jurisdictional discovery,
Defendants renewed their motion.

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On February 29, 2016, the District Court granted the Defendants’ motion for
summary judgment and dismissed the action without prejudice. Roche v. Aetna,
Inc., 165 F. Supp. 3d 180, 190 (D.N.J. 2016). The District Court reasoned that
Roche had failed to exhaust her administrative remedies and that exhaustion was
not futile. Id. at 185–90. Roche then timely appealed.
III2
We review grants of summary judgment de novo. See Cat Internet Servs.,
Inc. v. Providence Wash. Ins. Co., 333 F.3d 138, 141 (3d Cir. 2003) (citing
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 566 n.3 (3d Cir. 2002)). “Summary
judgment was proper if, viewing the record in the light most favorable to [Roche],
there is no genuine issue of material fact and [Defendants] are entitled to judgment
as a matter of law.” Id. We exercise de novo review when examining the
applicability of exhaustion principles to a plaintiff’s claim but review a decision as
to the futility of exhaustion for an abuse of discretion. See Harrow v. Prudential
Ins. Co. of Am., 279 F.3d 244, 248 (3d Cir. 2002).

2

The District Court had jurisdiction under CAFA, 28 U.S.C. § 1332(d), and
supplemental jurisdiction over Roche’s individual claims under 28 U.S.C. § 1367.
This Court has jurisdiction under 28 U.S.C. § 1291 because, although the District
Court dismissed the action without prejudice, Roche stood on her complaint by not
attempting to avail herself of the administrative process. See Ghana v. Holland,
226 F.3d 175, 180 (3d Cir. 2000).
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IV
This case focuses solely on the State Plan because Roche only brought
claims under “non-ERISA governmental health insurance policies” and the Bank
of America Plan is an ERISA-governed plan.3 A152–58. Roche conceded as
much in the District Court. See Roche v. Aetna, Inc., 13-cv-03933, Doc. 35 at *5
n.2 (D.N.J. September 20, 2013) (“Plaintiff is only seeking damages arising from
Defendants’ subrogation lien and/or reimbursement demand for benefits paid
under the State Plan.”). We conclude that the State Plan required Roche to exhaust
her remedies before filing in court.
A
ERISA exempts the State Plan from its coverage. Specifically, 29 U.S.C.
§ 1003(b)(1) exempts from coverage those employee benefit plans that are
“governmental plan[s].” ERISA defines “governmental plan” as “a plan
established or maintained for its employees by the Government of the United
States, by the government of any State or political subdivision thereof, or by any
agency or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). The
State Plan is a plan established by the State of New Jersey, specifically through the
State Health Benefits Commission (“the Commission”), and it is therefore exempt
“ERISA” is an acronym for the Employee Retirement Income Security Act of
1974.
3

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from ERISA’s requirements. A240–52; see also N.J. Stat. Ann. § 52:14-17.25 et
seq.
The State Plan “is, in effect, the State of New Jersey acting as a selfinsurer.” Burley v. Prudential Ins. Co. of Am., 598 A.2d 936, 937 (N.J. Super. Ct.
App. Div. 1991). Aetna administers the State Plan and “makes payments on
claims on behalf of the State.” Id.; see also Neuner v. Horizon Blue Cross Blue
Shield of New Jersey (In re Lymecare, Inc.), 301 B.R. 662, 674 (Bankr. D.N.J.
Nov. 5, 2003) (observing that the State Plan “is administer[ed by] the
[Commission] through contracts with several insurers . . . , under which the insurer
provides the administrative services necessary to effectuate actual delivery of
health care benefits and the payment of claims for benefits”). “The claims must,
however, be authorized by” the Commission. Burley, 598 A.2d at 937. The
Commission also has the power to develop rules and regulations regarding the
State Plan. N.J. Stat. Ann. § 52:14-17.27. Those regulations are found in New
Jersey Administrative Code § 17:9-1.1 et seq.
The regulations governing the State Plan specifically address claim
exhaustion. In relevant part, the regulations state, “Any member of the [State
Plan] who disagrees with the decision of the carrier and has exhausted all appeals
within the plan . . . may request that the matter be considered by the Commission.”
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N.J. Admin. Code § 17:9-1.3(a). The regulations go on to describe how the
Commission will handle appeals. Id. The regulations thus contemplate
administrative appeals within the State Plan followed by appeals to the
Commission prior to filing in court.
B
The State Plan also describes its process for appealing decisions made by
Aetna as the plan administrator. First, the State Plan describes appealable
decisions by Aetna as “adverse benefit determinations.” A247. “Adverse benefit
determinations are decisions Aetna makes that result in denial, reduction, or
termination of a benefit or the amount paid for it.” Id. The State Plan also lists
typical reasons for an adverse benefit determination. Id. Those reasons include,
but are not limited to, ineligibility or lack of coverage under the State Plan. Id.
The State Plan further outlines the procedures following an adverse benefit
determination:
Aetna will send [the plan member] written notice of an adverse
benefit determination. The notice will give the reason for the
decision and will explain what steps [the plan member] must take if
[he or she] wish[es] to appeal. The notice will also tell [the plan
member] about [his or her] rights to receive additional information
that may be relevant to the appeal. Requests for appeal must be made
in writing within 180 days from the receipt of the notice.

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Id. Following Aetna’s notice, the State Plan “provides for two levels of appeal,
plus an option to seek external review of the adverse benefit determination” by the
Commission. Id. The Plan member “must complete the two levels of appeal
before bringing a lawsuit against the plan.” Id.
In addition to outlining its appeals procedures, the State Plan provides Aetna
with the discretion to exercise a “right of recovery.” A250. This right gives
Aetna, as plan administrator, the authority “to recover from, and be reimbursed by,
[a plan member] for all amounts th[e] Plan has paid” should a plan member, like
Roche, “receive[] any payment from any [responsible tortfeasor] . . . as a result of
an injury.” A251. To protect that right of recovery, the State Plan also provides
for a right to “automatically” place a lien on any settlement related to an injury for
which the State Plan paid benefits. Id.
C
Given the above regulations and plan terms, the State Plan required Roche
to exhaust her administrative remedies when Aetna made its adverse benefit
determination. Under the State Plan, adverse benefit determinations are certain
decisions by Aetna requiring exhaustion of an appeals process prior to filing a
lawsuit. As described earlier, an adverse benefit determination is one “that
result[s] in denial, reduction, or termination of a benefit or the amount paid for it.”
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A247; see also N.J. Admin. Code § 17:9-1.3(a) (“Any member of the [State Plan]
who disagrees with the decision of the carrier and has exhausted all appeals within
the plan . . . may request that the matter be considered by the Commission.”).
Here, Aetna provided Roche with approximately $88,000 to cover her
medical expenses following an accident. Roche then reached a settlement entitling
her to compensation for her accident-related injuries. Exercising its right of
recovery under the State Plan, Aetna decided to request reimbursement for the
amount paid to cover Roche’s medical expenses after her receipt of settlement
proceeds. That decision by Aetna is unquestionably one that results in the
“reduction . . . of a benefit [to Roche] or the amount paid for it [by the State
Plan].” A247; see also M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 794 A.2d 141,
152 (N.J. 2002) (“Generally, the terms of an agreement are to be given their plain
and ordinary meaning.”); Burley, 598 A.2d at 940 (applying New Jersey contract
law to state benefits plan). Therefore, because Roche has yet to exhaust her
administrative remedies as was required by the State Plan’s terms, she must do so
before returning to court.
Bolstering this conclusion are several of our cases interpreting when a claim
is for “benefits due” under ERISA plans. 29 U.S.C. § 1132(a)(1)(B). A civil
action under ERISA may be brought when a claim seeks “to recover benefits” due
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to the plan member under the terms of the relevant plan. Id. In Levine v. United
Healthcare Corp., 402 F.3d 156 (3d Cir. 2005), we held that claims by ERISA
plan members to regain certain benefits after reimbursing their plan for those
benefits were claims for “benefits due” under ERISA. Id. at 161–63. Following
the Fourth and Fifth Circuits, we reasoned that such claims were contesting a
decision denying benefits under the ERISA plan and therefore akin to challenges
to decisions administering benefits. Id. at 163; see also Arana v. Ochsner Health
Plan, 338 F.3d 433, 438 (5th Cir. 2003) (en banc) (“As it stands, [the plan
member’s] benefits are under something of a cloud, for [the plan] is asserting a
right to be reimbursed for the benefits it has paid for his account.”); Singh v.
Prudential Health Care Plan, Inc., 335 F.3d 278, 291 (4th Cir. 2003) (“[The plan
member’s] claim to recover the portion of her benefit that was diminished by her
payment to Prudential under the unlawful subrogation term of the plan is no less a
claim for recovery of a plan benefit under § 502(a) than if she were seeking
recovery of a plan benefit that was denied in the first instance.”). As a result, in
Levine, we concluded, “[The plan members’] claim [was] for benefits due. [They]
have already paid back a portion of their benefits. Thus, they claim essentially that
they are entitled to have certain health insurance claims paid under their ERISA
plans.” Levine, 402 F.3d at 163.
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We reaffirmed Levine’s reasoning in Wirth v. Aetna U.S. Healthcare, 469
F.3d 305 (3d Cir. 2006). The plan member in Wirth argued that his claim to
recover money paid to reimburse a plan administrator was not a claim for benefits
under the plan. Id. at 308. Citing Levine, we held that the plan member was
actually seeking “benefits due” to him. Id. at 309 (citing Levine, 402 F.3d at 163).
In sum, we stated:
Here, as in Levine, the actions undertaken by the insurer resulted in
diminished benefits provided to the [plan members]. That the bills
and coins used to extinguish Aetna’s lien are not literally the same as
those used to satisfy its obligation to cover [the plan member’s]
injuries is of no import—“the benefits are under something of a
cloud.”
Id. (quoting Arana, 338 F.3d at 438).
While these cases address language from ERISA and not from New Jersey
law, they are persuasive because of similarities between ERISA and the State
Plan’s terms. ERISA, like the State Plan at issue here, requires administrative
exhaustion of claims following an “adverse benefits determination.” 29 C.F.R.
§ 2560.503-1; see also Harrow, 279 F.3d at 252 (“We apply the exhaustion
requirement to ERISA benefit claims . . . .”); Weldon v. Kraft, Inc., 896 F.2d 793,
800 (3d Cir. 1990) (“Except in limited circumstances . . . , a federal court will not
entertain an ERISA claim unless the plaintiff has exhausted the remedies available
under the plan.”). Also like the State Plan, ERISA regulations define an adverse
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benefit determination as “[a] denial, reduction, or termination of, or a failure to
provide or make payment (in whole or in part) for, a benefit.” 29 C.F.R.
§ 2560.503-1(m)(4)(i). Therefore, as an ERISA plan member’s attempt to regain
money that the member reimbursed to a plan must be administratively exhausted
under ERISA, a functionally identical claim under the State Plan must also be
administratively exhausted before the State Plan member files in court.
Given the plain terms of the State Plan requiring exhaustion, New Jersey
regulations requiring exhaustion, and analogous ERISA case law supporting our
reading of the State Plan, we conclude that Roche needed to have exhausted her
administrative remedies before filing in court.
D
Roche presents several arguments attempting to explain why she did not
need to exhaust her administrative remedies. Each argument is unpersuasive.4
Roche first argues that Levine and Wirth are “inapplicable” here because
those cases are ERISA cases. Blue Br. 13–14. In doing so, she fails to identify
any meaningful distinction between the claims and plans in those cases and her
own. Focusing on the text of the State Plan, Roche also contends that (1)
reimbursement occurs “after the ‘coverage’ issue has already been resolved and, as
4

Because we conclude that Roche needed to exhaust her administrative remedies,
we do not address Aetna’s alternative arguments for dismissal.
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such, [reimbursement] cannot effect [sic] the extent, nature or provision of
insurance”; (2) the State Plan’s “separate” right of recovery section “does not
provide for administrative review” and so no exhaustion was required; and (3) the
placement of an automatic lien on settlements demonstrates that the State Plan
“did not intend for appeals” of Aetna’s decisions to seek reimbursement. Blue Br.
16–17. Simply put, those arguments are not supported by the text of the State Plan
and do nothing to undercut the State Plan’s plain language that a decision by Aetna
requires exhaustion when it “result[s] in denial, reduction, or termination of a
benefit or the amount paid for it.” A247.
Roche further observes that Aetna failed to comprehensively follow the
State Plan’s terms by not providing notice of appeal procedures. Blue Br. 18. She
argues that a particular ERISA regulation extinguishing exhaustion requirements
in the absence of notice should apply to the State Plan. Gray Br. 2–3 (citing 45
C.F.R. § 147.136). While Roche may be correct that Aetna gave no notice of the
State Plan’s appeal procedures, she fails to explain why we should apply an
ERISA regulation to the State Plan and why that ERISA regulation would apply
given that the State Plan payments here occurred between 2008 and 2010 but the
regulation covered, at the earliest, plan years “on or after September 23, 2010.”
Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating
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to Internal Claims and Appeals and External Review Processes under the Patient
Protection and Affordable Care Act, 75 Fed. Reg. 43,330, 43,364 (July 23, 2010).
Although we earlier analogized to our case law interpreting ERISA, a similar
analogy is unpersuasive here for a simple reason: neither the State Plan nor New
Jersey law contains the language found in the ERISA regulation Roche cites or
includes other language extinguishing the exhaustion requirement in the absence
of notice. See A247; N.J. Admin. Code § 17:9-1.3. Finally, Roche was in
possession of the appeal procedures and offers no reason for why she could not
have appealed other than her mistaken belief that no adverse benefit determination
had been made. Thus, given the lack of any State Plan term or New Jersey
regulation waiving exhaustion and Roche’s possession of the appeal procedures,
the initial lack of notice of those procedures did not extinguish the State Plan’s
exhaustion requirement.
Roche also offers a series of five arguments that broadly challenge the
application of an exhaustion requirement to her claims. First, she contends that
exhaustion “was intended to provide an appeal mechanism whereby medical
professionals could evaluate” benefits determinations. Blue Br. 19. Roche offers
nothing to support her assertion that review by medical professionals is the only
purpose of exhaustion. She also provides no explanation for why that general
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purpose for exhaustion requires us to ignore the plain terms of the State Plan and
New Jersey regulations requiring exhaustion. See M.J. Paquet, 794 A.2d at 152.
Second, she argues that claims of “across-the-board” errors were not meant to be
exhausted. Blue Br. 20. This argument is unpersuasive because Roche points to
no “across-the-board” policy by Aetna in deciding to exercise its right to recovery.
Third, she states that, even if ERISA applies, we should not require exhaustion “as
[a] matter[] of the Court’s inherent adjudicatory power and of the policy
underlying exhaustion.” Blue Br. 23. Roche again provides no support for that
conclusion. Fourth, according to Roche, exhaustion does not apply to questions of
law and the issues presented here involve “only a question of law.” Blue Br. 23–
24 (citing cases). This argument fails to account for the State Plan’s terms. This
case squarely involves Aetna’s decision to seek reimbursement, which is one that
resulted in the “reduction . . . of a benefit [to Roche] or the amount paid for it [by
the State Plan]” and one that required exhaustion under the State Plan. A247.
Neither Roche’s brief nor the cases she cites provides support for the proposition
that we should ignore the State Plan’s plain terms and New Jersey regulations
because this case may also involve questions of law. Cf. Harrow, 279 F.3d at
253–54. Doing so would likely undermine the exhaustion requirement under the
State Plan as many adverse benefit determinations are likely related to questions of
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law. Finally, Roche observes, without support, that claims for breach of fiduciary
duty under ERISA need not be exhausted, and so, presumably, her claims for
breach of fiduciary duty under New Jersey law need not be either. Blue Br. 24–25.
Even assuming that Roche’s analogy between ERISA and New Jersey law is
accurate, Roche may not restyle her challenge to Aetna’s benefits determination as
a fiduciary claim to avoid exhaustion under the State Plan. See Harrow, 279 F.3d
at 253 (“Plaintiffs cannot circumvent the exhaustion requirement by artfully
pleading benefit claims as breach of fiduciary duty claims.”); see also Beaver v.
Magellan Health Servs., Inc., 80 A.3d 1160, 1167–68 (N.J. Super. Ct. App. Div.
2013) (rejecting inclusion of breach of fiduciary duty claims in complaint to avoid
jurisdiction in New Jersey Superior Court and noting “Plaintiff cannot avoid
[jurisdiction] by cloaking his claims under the mantle of contract and tort”).
Roche last insists that the District Court abused its discretion in concluding
that exhaustion would not be futile here. We have held that “[a] plaintiff is
excused from exhausting administrative procedures under ERISA if it would be
futile to do so.” Harrow, 279 F.3d at 249. Although New Jersey courts appear to
recognize this exception to administrative exhaustion as well, see L.W. v. Egg
Harbor Twp. Bd. of Educ., No. A-0928-12T1, 2015 WL 1013164, at *4 (N.J.
Super. Ct. App. Div. Mar. 10, 2015) (citing Harrow, 279 F.3d at 250), it is unclear
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whether the futility exception would apply in light of clear language mandating
exhaustion in both the State Plan and the New Jersey regulation. Even assuming
the futility exception applies here, the District Court did not abuse its discretion in
concluding that Roche failed to demonstrate the futility of exhaustion.
To determine whether exhaustion would be futile, we consider a nonexclusive list of factors:
(1) whether plaintiff diligently pursued administrative relief; (2)
whether plaintiff acted reasonably in seeking immediate judicial
review under the circumstances; (3) existence of a fixed policy
denying benefits; (4) failure of the insurance company to comply with
its own internal administrative procedures; and (5) testimony of plan
administrators that any administrative appeal was futile.
Harrow, 279 F.3d at 250. Roche has the burden of establishing futility. See
D’Amico v. CBS Corp., 297 F.3d 287, 293 (3d Cir. 2002) (“A party invoking this
exception must provide a clear and positive showing of futility before the District
Court.” (citing Harrow, 279 F.3d at 249–50)); L.W., 2015 WL 1013164, at *4.
The only factor weighing in Roche’s favor is Aetna’s lack of compliance with its
procedures when it failed to provide Roche with notice of the State Plan’s appeal
procedures. The District Court reasonably determined that Aetna’s failure to do so
does not overcome the other relevant factors, which all weigh in Aetna’s favor.
Roche has not attempted to pursue administrative relief. Instead, she sought
judicial relief having made no meaningful attempt to respond to Rawlings’ letters
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asserting Aetna’s right to recovery under the State Plan. As noted earlier, she
provides no evidence of a fixed Aetna policy denying reimbursement claims. She
similarly offers no testimony from an Aetna official regarding the futility of an
appeal. In sum, no abuse of discretion occurred here because Roche has not
demonstrated that exhaustion would be futile.5
V
For the reasons stated above, we will affirm the District Court’s grant of
summary judgment and dismissal of Roche’s complaint without prejudice.

5

In passing, Roche argues the District Court erred in denying her request for
discovery. Blue Br. 29–30 (citing Roche v. Aetna Inc., 13-cv-3933, Doc. 35-3
(D.N.J. September 20, 2013)). We review the District Court’s decision for abuse
of discretion, Shelton v. Bledsoe, 775 F.3d 554, 559 (3d Cir. 2015), and conclude
that no abuse of discretion occurred. In the District Court, Roche failed to identify
with specificity what “particular information” she sought and, more importantly,
“how, if disclosed, it would [have] preclude[d] summary judgment.” Id. at 568.
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