KERSEY V. ANTHEM INSURANCE COMPANIES, INC.

Filing 39

ORDER denying Defendant's 29 Motion to Dismiss for Failure to State a Claim. For the reasons set forth above, AICI's motion to dismiss is DENIED. That said, the question of whether AICI is a party to the relevant insurance contract is a question of fact that, frankly, should not be difficult to answer. It seems to the Court that it is a question that should be answered sooner, rather than later. It simply needs to be answered in the summary judgment context, rather than by a mo tion to dismiss. Accordingly, the parties are ORDERED to contact Magistrate Judge Lynch to request a case management conference, at which a schedule for limited discovery on the question of whether AICI is a proper defendant to this action should be established, along with a schedule for briefing an expedited initial motion for summary judgment on that limited issue if the parties are unable to agree on the answer to that question. Signed by Judge William T. Lawrence on 11/17/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TERESA KERSEY,
Plaintiff,
v.
ANTHEM INSURANCE COMPANIES, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

Cause No. 1:16-cv-3335-WTL-DML

ENTRY ON MOTION TO DISMISS
This cause is before the Court on the motion to dismiss filed by Defendant Anthem
Insurance Companies, Inc. (“AICI”) (Dkt. No. 29). The motion is fully briefed and the Court,
being duly advised, DENIES the motion for the reasons set forth below.
I. BACKGROUND
The following allegations are set forth in Plaintiff Teresa Kersey’s Amended Complaint.
Kersey obtained a health insurance plan with AICI through her employer, the Archdiocese of
Cincinnati. The plan was “through a ‘Blue Access Health Benefit Plan’ health insurance policy,
Group Name ‘Archdiocese of Cincinnati’, [sic] Group Number 00070374, Plan Number 0032,
Subscriber ID Number YRP133M5672.” Dkt. No. 27 at 6. While the plan was in effect, Kersey
suffered a severe stroke in Tanzania, which rendered her paralyzed on the right side of her body
and without the ability to speak. Kersey was taken to a nearby medical facility in a remote area
for medical attention, but the facility lacked the necessary medical resources to treat her
condition. As a result, Kersey required an immediate emergency air ambulance transport from
the medical facility to a hospital in the United States capable of treating her condition.

Kersey’s family found an emergency air ambulance medical transport company,
Aerocare Medical Transport System, Inc. (“Aerocare”), which could provide her with medical
transportation to the United States. Kersey’s family contacted AICI’s representatives to confirm
that this transport would be covered by Kersey’s insurance. AICI, however, “knowing the urgent
nature of this request, instead delayed and insisted that the request undergo a tedious, time
consuming preauthorization process prior to confirming her coverage for this transport,” id. at 2,
and unreasonably delayed its approval for the preauthorization of the emergency flight, which
resulted in Kersey’s transportation to the United States being delayed for four days after she
made the initial request with AICI.
After Kersey was transported to the Cincinnati Stroke Center in Ohio, Aerocare
submitted the air ambulance claim to AICI for payment on behalf of Kersey. In response, AICI
paid only eight percent of the $2,139,000.00 air ambulance claim. As a result, Kersey is
responsible to Aerocare for the remaining $1,959,000.00.
II. STANDARD OF REVIEW
AICI moves to dismiss Kersey’s Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim for which relief can be granted. In reviewing a Rule 12(b)(6)
motion, the Court “must accept all well pled facts as true and draw all permissible inferences in
favor of the plaintiff.” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir.
2012). For a claim to survive a motion to dismiss for failure to state a claim, it must provide the
defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Brooks
v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))
(omission in original). A complaint must “contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Agnew, 683 F.3d at 334 (citations omitted).

2

A complaint’s factual allegations are plausible if they “raise the right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Detailed factual
allegations are not required, but a plaintiff’s complaint may not simply state “an unadorned, the
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION
Viewing only the allegations in the Amended Complaint, there is no question that Kersey
adequately states a claim against AICI. She alleges that AICI is contractually obligated under
her insurance policy to pay her claim for air ambulance services and that it breached that
obligation and did so in bad faith. AICI argues that the Court may, and should, look beyond the
allegations of the Amended Complaint and examine the contract at issue which, it argues,
establishes that it is not a party to the contract and therefore has no obligation to Kersey. “It is
well settled that in deciding a Rule 12(b)(6) motion, a court may consider documents attached to
a motion to dismiss . . . if they are referred to in the plaintiff’s complaint and are central to his
claim.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (internal
quotations and citation omitted). The document that AICI has provided, however, appears to be
only part of the relevant contract.
The document submitted by AICI is entitled “Your Health Benefit Booklet.” Dkt. No.
30-1 at 3 (hereinafter referred to as “the Booklet”). The Booklet contains the following
definitions:
 Administrative Services Agreement—The agreement between the Administrator
and the Employer regarding the administration of certain elements of the health
care benefits of the Employer’s group health plan.

3

 Administrator—An organization or entity that the Employer contracts with to
provide administrative and claims payment services under the Plan. The
Administrator is Community Insurance Company. The Administrator provides
administrative claims payment services only and does not assume any financial
risk or obligation with respect to claims.
 Plan—The group health benefit plan provided by the Employer and explained in
this Benefit Booklet.
Id. at 93; 98. The Booklet states that:
The coverage described in this Benefit Booklet is based upon the conditions of the
Administrative Services Agreement issued to your Employer, and is based upon the
benefit plan that your Employer chose for you. The Administrative Services
Agreement, this Benefit Booklet and any endorsements, amendments or riders
attached, form the Administrative Services Agreement under which Covered
Services are available under your health care benefits.
Id. at 5. It further states that the health care benefits are “Administered by Community Insurance
Company,” id. at 2 (“Community”), and that Community “provides administrative claims
payment services and does not assume any financial risk or obligation with respect to claims.”
Id. at 4.
The Booklet acknowledges the existence of a contract, but is ambiguous with regard to
the identities of the parties to that contract. It states in one provision that “[t]he Employer, on
behalf of itself and its participants, hereby expressly acknowledges its understanding that this
Benefit Booklet and the Administrative Services Agreement constitutes a contract solely
between the Employer and [Community] dba Anthem Blue Cross and Blue Shield[.]” Id. at 91.
It further states that Community “is not contracting as the agent of the Blue Cross and Blue
Shield Association or any other Blue Cross and/or Blue Shield plan or licensee.” Id. It is on

4

these provisions, and the fact that the Booklet does not mention AICI, on which AICI bases its
argument that it is not a party to the contract. However, another provision in the Booklet states:
This Benefit Booklet, the Administrative Service Agreement, the Employer’s
application, any Riders, Endorsements or Attachments, and the individual
applications of the Subscriber and Dependents, if any, constitute the entire Contract
between the Plan and the Employer and as of the Effective Date, supersede all other
agreements between the parties.
Id. at 82 (emphasis added). In addition, numerous other provisions in the Booklet establish the
existence of a relationship between the insured and “the Plan” and suggest that “the Plan” is an
entity separate from Community, the Administrator. For example, with respect to the payment
of benefits, the Contract states, “You authorize the Plan to make payments directly to Providers
for Covered Services.” Id. at 69. It also stipulates that “[t]he Plan is not liable, unless the
Administrator receives written notice that Covered Services have been given to you. The notice
must be given to the Administrator . . . within 90 days of receiving the Covered Services.” Id.
Regarding appellate procedures, the Contract explains that members have a right to appeal a
decision to deny or limit benefits and defines an appeal as “a request from you for the Plan to
change a previous determination or to address a concern you have regarding confidentiality or
privacy.” Id. at 78. “An initial determination by the Plan can be appealed for internal review at
two subsequent levels known as ‘Level 1’ and ‘Level 2’ appeals.” Id. at 78.
As this discussion makes clear, AICI simply has not demonstrated, as a matter of law,
that it is not a proper defendant in this case. The Court does not have before it the relevant
contract in its entirety; it has only the Booklet. The Booklet suggests that there is an entity—“the
Plan”—that is a party to the contract, but it does not make clear what entity the Plan is. What is
clear, however, is that AICI has not demonstrated that dismissal for failure to state a claim is
appropriate.

5

IV. CONCLUSION
For the reasons set forth above, AICI’s motion to dismiss is DENIED. That said, the
question of whether AICI is a party to the relevant insurance contract is a question of fact that,
frankly, should not be difficult to answer. It seems to the Court that it is a question that should
be answered sooner, rather than later. It simply needs to be answered in the summary judgment
context, rather than by a motion to dismiss. Accordingly, the parties are ORDERED to contact
Magistrate Judge Lynch to request a case management conference, at which a schedule for
limited discovery on the question of whether AICI is a proper defendant to this action should be
established, along with a schedule for briefing an expedited initial motion for summary judgment
on that limited issue if the parties are unable to agree on the answer to that question.1
SO ORDERED: 11/17/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

1

AICI also seeks dismissal of Kersey’s claim for piercing the corporate veil. Given the
confusion regarding the relationships between the parties and their respective rights and
obligations, any argument relating to piercing the corporate structure of AICI is premature. The
Court anticipates that, following limited discovery, the parties’ relationships will be made clear
and render the need to consider whether it is appropriate to pierce the corporate veil obsolete.
Should there be any confusion following discovery, however, the parties may address the issue
on summary judgment.
6