ROIBAS v. EBPA LLC
Filing
68
ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD - granting 48 Motion for Judgment on the Record for Judicial Review (ERISA); denying 50 Motion for Judgment on the Record for Judicial Review (ERISA). By JUDGE NANCY TORRESEN. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANXO CEREIJO ROIBAS, as assignee )
of Melissa True, and MELISSA TRUE )
)
Plaintiffs,
)
)
v.
) Docket No. 1:17-cv-020-NT
)
EBPA, LLC, d/b/a/ Employee Benefit
)
Plan Administration, and
)
MAINEGENERAL HEALTH,
)
)
Defendants.
)
ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD
The parties to this action dispute the terms of the MaineGeneral Health
Employee Health Plan (the “Plan”), of which Plaintiff Melissa True is a beneficiary.
The Plan is governed by the Employee Retirement Income Security Act (“ERISA”).
This matter comes before me on cross-motions for judgment on the administrative
record filed by the Plaintiffs (ECF No. 50) and by Defendant MaineGeneral Health
(“MaineGeneral” or the “administrator”) (ECF No. 48). For the reasons set out
below, I DENY the Plaintiffs’ motion and I GRANT MaineGeneral’s motion.
THE PARTIES
Plaintiff True is an employee of MaineGeneral and a beneficiary of the Plan.
Plaintiff Roibas is an assignee of True’s rights to reimbursement of medical expenses
for services covered by the Plan. AR 327, 339.1 Defendant MaineGeneral is the Plan
1
All citations to the Administrative Record (ECF Nos. 21 and 44) are listed as AR.
administrator, responsible for selecting the terms of the Plan and interpreting them.
AR 93. Defendant EBPA is the third party administrator of the Plan and conducts
the administrative, “ministerial,” operations, such as processing claims. See AR 93,
102.2
FACTUAL BACKGROUND
In August of 2014, Melissa True entered into a “Gestational Carrier
Agreement” (the “Agreement”) with intended parents Anxo Cereijo Roibas and
Szczepan Wojciech (the “Intended Parents”). AR 329. The Agreement provided that
True would “carry and deliver the child(ren) of the Intended Parents . . . through
medical procedures using assisted reproductive technology.” AR 329-30. True was to
be compensated for serving as a gestational carrier. AR 341-42. The Intended Parents
also committed to “pay all medical expenses which are reasonably and directly related
to the pregnancy and birth which are not covered by [True’s] health insurance.” AR
339 (emphasis added). True agreed to submit claims for all pregnancy-related medical
expenses to her health insurer and to assist the Intended Parents in seeking to have
the expenses covered, including through “all available administrative and legal
remedies” if the insurer denied the claims. AR 331-32.
In a section titled, “Medical Covered Expenses,” the Plan lists,
[c]harges for maternity care including prenatal, delivery, and
postpartum care as well as charges arising from complications that may
occur during maternity and delivery. Comprehensive lactation support
2
EBPA does not have the discretion to interpret the Plan or its terms. AR 102.
and counseling, by a trained provider during pregnancy and/or in the
postpartum period are payable at 100% at the applicable benefit level.
AR 027. The next section of the Plan is titled, “General Medical Exclusions and
Limitations,” and lists, “[e]xpenses for surrogacy.” AR 032.
True became pregnant and gave birth, in accordance with the Agreement.
Medical expenses from the pregnancy and delivery were submitted to EBPA. AR 11084; 299. EBPA initially approved, and paid for, some expenses related to True’s
pregnancy. See AR 110-21, 127-29, 134-36, 146-52, 299. Upon review of True’s claims
and medical records, a utilization review nurse employed by EBPA identified that
True was a surrogate mother and that, accordingly, her claims should be denied
because they were not covered by the Plan. AR 299.
PROCEDURAL BACKGROUND
True appealed the denial of her claims in a letter to EBPA dated January 20,
2016. She stated that the “main[]” basis of her appeal was that she “was informed
there would not be any issues related to claims for prenatal care” during a call to
EBPA in January 2015, in which she inquired “to determine if EBPA had maternity
coverage for surrogacy related pregnancies.” AR 301. True claimed in the letter that
she was informed on that call that “there was no exclusion, [and] that pregnancy was
a covered diagnosis.” AR 301. After communicating with MaineGeneral, EBPA denied
True’s appeal, claiming that it had no record of the phone call that she referenced.
AR 302. EBPA further informed her that “[v]erification can only be documented in
your file when you had actual medical coverage” and that “a verification of benefits
is not a guarantee of coverage.” AR 302.
True, with the assistance of counsel, filed a second administrative appeal in
April of 2016, arguing that “[t]he Plan does not distinguish between pregnancies
based upon why the woman became pregnant.” AR 304. True also argued that she
served as a gestational carrier, rather than a surrogate, that “[t]he Plan does not
state that expenses for a ‘gestational carrier’ are excluded,” and that any ambiguity
in the Plan should be construed in favor of coverage. AR 305. EBPA denied this appeal
in a letter dated May 4, 2016. AR 318-19. The basis for the denial was that “True’s
denied claims fall under the surrogacy exclusion as outlined in the [Plan],” and that,
to the extent that True was a gestational carrier and not a surrogate, the Plan
excludes “[e]xpenses for any service, procedure or supply not listed as a covered
service in the [P]lan.” AR 318.
Roibas filed a Complaint in this court on January 19, 2017. Roibas claimed
standing to challenge the administrator’s denial of claims as True’s assignee. Compl.
(ECF No. 1). True was added as a plaintiff to the action on August 3, 2017. Second
Am. Compl. (ECF No. 35). The Plaintiffs and MaineGeneral then filed the instant
motions for judgment on the record.3
Defendant EBPA filed an “opposition to the Plaintiffs’ motion for judgment on the record for
[the] limited purpose” of “impress[ing] upon [the Court] the fundamental point that EBPA does not
belong here.” EBPA Opp’n 1 (ECF No. 52). EBPA sought to be removed “from this case because the
statute compels that result.” EBPA Opp’n 1. EBPA further explained that MaineGeneral was the Plan
administrator with the discretionary authority to interpret the Plan. EBPA Opp’n 4-7. EBPA finally
“adopt[ed] the factual recitation and legal arguments” of MaineGeneral’s motion for judgment on the
record. Accordingly, I treat EBPA as having moved for judgment.
3
LEGAL STANDARD
“By cross-moving for judgment based on the administrative record filed in this
case, the parties empower the court to adjudicate this case based on that record,
resolving any factual as well as legal disputes.” Ellis v. Unum Life Ins. Co. of Am.,
No. 2:13-CV-00080-JAW, 2014 WL 235212, at *2 (D. Me. Jan. 22, 2014) (citing Bhd.
of Locomotive Eng’rs v. Springfield Terminal Ry. Co., 210 F.3d 18, 31 (1st Cir. 2000)).
The parties have stipulated that the applicable standard of review for
MaineGeneral’s decision to deny True’s benefit claims is whether that decision was
“arbitrary, capricious, or an abuse of discretion . . . as established by the Plan and
Firestone Tire and Rubber Co. v. Bruch, [489 U.S. 101 (1989)] and its progeny.”4
Consent Mot. to Am. Scheduling Order ¶ 5 (ECF No. 42).5 The First Circuit has noted
that in this context, “the arbitrary and capricious standard is functionally equivalent
to the abuse of discretion standard.” Dutkewych v. Standard Ins. Co., 781 F.3d 623,
633 n.6 (1st Cir. 2015). Under that standard, I “need not decide the ‘best reading’ of
the Plan.” O’Shea through O’Shea v. UPS Ret. Plan, 837 F.3d 67, 73 (1st Cir. 2016).
Instead, I must evaluate whether the administrator’s decision “is reasonable and
supported by substantial evidence on the record as a whole.” Doe v. Standard Ins.
Co., 852 F.3d 118, 123 (1st Cir. 2017). I may not disturb the administrator’s
Firestone Tire & Rubber Co. v. Bruch held “that a denial of benefits challenged under [ERISA]
§ 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” 489 U.S. 101, 115 (1989).
4
Magistrate Judge Rich granted the parties’ motion to amend the scheduling order, which
included the above-referenced stipulation, on November 6, 2017. (ECF No. 43.)
5
reasonable interpretation even if I would have come to a different conclusion or if the
Plaintiffs have offered a competing reasonable interpretation. See Stamp v. Metro.
Life Ins. Co., 531 F.3d 84, 94 (1st Cir. 2008); see also Ho-Rath v. Tufts Associated
Health Maint. Org., Inc., No. CA 12-546 S, 2013 WL 5924428, at *2 (D.R.I. Oct. 31,
2013); Massey v. Stanley-Bostitch, Inc., 255 F. Supp. 2d 7, 11 (D.R.I. 2003).6
DISCUSSION
The parties have presented three issues for my consideration: First, whether
Plaintiff Roibas has standing to challenge the administrator’s interpretation; second,
whether MaineGeneral’s decision to deny True’s claims on the grounds that her
pregnancy expenses were “expenses for surrogacy” was arbitrary and capricious; and
third, whether the Plaintiffs or the Defendants are entitled to attorneys’ fees on this
motion. Because I ultimately conclude that the Defendants prevail on the merits, and
because Defendants do not contend that Plaintiff True lacks standing, I proceed
directly to the merits.7
Where, as here, the Plan administrator is also responsible for paying benefits under the Plan,
the administrator faces a conflict of interest that I must take into account when determining whether
the administrator abused its discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008).
6
The Defendants argue that Plaintiff Roibas lacks standing because he is neither a participant
in nor beneficiary of the Plan as required under Section 502(a) of ERISA, 29 U.S.C. § 1132(a). Def.’s
Mot. 16-20. The Plaintiffs contend that the Defendants have waived the standing issue because they
have raised the issue too late. While statutory standing can be waived, Merrimon v. Unum Life Ins.
Co. of America, 758 F.3d 46, 53 n.3 (1st Cir. 2014), the Plaintiffs cite no authority for the proposition
that statutory standing must be raised before a motion for judgment on the record. The Defendants
raised the standing issue in their opening memorandum. The Plaintiffs had ample opportunity to
respond to the challenge to Roibas’ standing and their waiver argument falls flat.
The issue of whether an assignee has standing to bring an ERISA claim raises difficult
questions. ERISA contemplates suits only by plan participants, beneficiaries, fiduciaries, or the
Secretary. 29 U.S.C. § 1132(a). In City of Hope National Medical Center v. Healthplus, Inc., the First
Circuit extended these categories by relying on derivative standing and allowed a health care provider,
as an assignee of a plan participant, to bring a challenge under ERISA. 156 F.3d 223, 228 (1st Cir.
1998). The Ninth Circuit has refused to extend the concept of derivative standing in ERISA cases
7
I.
Denial of Benefits
“Neither the Supreme Court nor [the First Circuit] has ‘spoken directly to how
courts should assess whether an administrator’s construction of a plan term is so
unreasonable as to constitute an abuse of discretion.’ ” Dutkewych, 781 F.3d at 636 n.
8 (quoting D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 36
(1st Cir. 2011)). In D & H Therapy, the First Circuit surveyed, without adopting,
guidelines used by other Circuits. D & H Therapy Assocs., 640 F.3d at 37-38. Boiled
down, most of the guiding factors used in other jurisdictions involve assessing
whether the administrator’s construction (1) runs contrary to the plan’s plain
language; (2) squares with the general purpose of the plan; 3) renders the plan
internally inconsistent or leaves another plan provision meaningless; and (4) has
been consistently applied. D & H Therapy Assocs., 640 F.3d at 38. While the First
Circuit seems to prefer a case by case analysis of whether a plan administrator has
abused its discretion, at least some of the factors followed in other jurisdictions have
been used by the First Circuit. See Colby v. Union Sec. Ins. Co. & Mgmt. Co. for
Merrimack Anesthesia Assocs. Long Term Disability Plan, 705 F.3d 58, 65 (1st Cir.
2013) (“[T]he discretion of a plan administrator is cabined by the text of the plan and
beyond a judicially-created exception for health care providers. Simon v. Value Behavioral Health,
Inc., 208 F.3d 1073, 1081 (9th Cir.), amended, 234 F.3d 428 (9th Cir. 2000), overruled on other grounds
by Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007). The Third Circuit has indicated in dicta that
it does not recognize assignee standing under ERISA at all. Northeast Dep’t ILGWU Health and
Welfare Fund v. Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147, 154 n. 6 (3d Cir. 1985).
Whether Roibas should be allowed derivative standing is further complicated by Plaintiff
True’s presence in the litigation. In City of Hope, the First Circuit suggested that the assignee must
stand in place of the assignor, not next to the assignor. City of Hope, 156 F.3d at 226 (“If an assignee
seeking relief in court stands in the place of an assignor, there has been a substitution rather than an
expansion of the parties.”). Without briefing by Roibas on this point, I conclude that he has failed to
establish standing, and, accordingly, I DISMISS him from the case.
the plain meaning of the words used.”); Glista v. Unum Life Ins. Co. of Am., 378 F.3d
113, 124 (1st Cir. 2004) (“Where a plan administrator has chosen consistently to
interpret plan terms in a given way, that interpretation is relevant in assessing the
reasonableness of the administrator’s decision.”).
Where a term is ambiguous in a plan that grants the administrator the
authority to construe the plan’s terms, a court must defer to an administrator’s
reasonable interpretation of that term. Vendura v. Boxer, 845 F.3d 477, 482 (1st Cir.
2017); see CNH Indus. N.V. v. Reese, 138 S. Ct. 761, 765 (2018) (A term is ambiguous
where it is “reasonably susceptible to at least two reasonable but conflicting
meanings.”) (quotation omitted). “When interpreting the provisions of an ERISA
benefit plan,” a court uses “the common-sense canons of contract interpretation.”
Vendura, 845 F.3d at 484. “The rule of contra preferentum, which ordinarily requires
that ambiguous language in an insurance policy be construed against the interest of
its author, is inapplicable in the ERISA context when [as here] the plan affords the
decision-maker discretionary authority to construe plan language.” Hannington v.
Sun Life and Health Ins. Co., No. 1:10-cv-431-GZS, 2011 WL 4913572, at *3 (D. Me.
2011), citing D & H Therapy Assocs., 640 F.3d at 35.
The First Circuit has not yet “articulated precise guidelines for determining
when a plan administrator’s construction will be sufficiently reasonable to warrant
deference even though it is only as persuasive or less persuasive than the
interpretation offered by the plaintiffs.” O’Shea, 837 F.3d at 76 n.14 (quotation marks
omitted) (citing D & H Therapy Assocs., 640 F.3d at 36). However, I interpret Vendura
as requiring deference to an administrator’s determination when each party advances
readings that are similarly persuasive.
1.
Whether the
Ambiguous.
Term
“Expenses
for
Surrogacy”
is
Both parties contend that the Plan unambiguously supports their
diametrically opposed positions. The Plaintiffs argue that “[p]regnancies, regardless
of their cause or purpose, are unambiguously covered under the Plan.” Pls.’ Mot. 4.
“The fact that certain ‘surrogacy’ ‘expenses’ are excluded does not mean that a [sic]
pregnancy expenses that are merely related to a surrogacy agreement should be
excluded.” Pls.’ Mot. 4. According to the Plaintiffs, a plan participant who retains a
surrogate cannot be reimbursed for the cost of retaining a surrogate under the
“expenses for surrogacy” exclusion, but the expenses of a pregnancy that results when
a plan participant serves as a gestational carrier are not excluded. Pls.’ Mot. 4. The
Plaintiffs point out that the Plan does not make any distinctions between pregnancies
based on the purpose of the pregnancy or on who the intended parents are to be. Pls.’
Mot. 4. Because the Plaintiffs view the costs related to the pregnancy of a plan
participant as distinct from expenses related to surrogacy, they argue that the Plan
unambiguously covers True’s pregnancy expenses and that the administrator’s
decision to deny True benefits was arbitrary and capricious.
The Defendants contend that the surrogacy exclusion unambiguously bars
expenses relating to the pregnancy and childbirth of a surrogate mother. Though they
concede that the term “surrogacy” is not defined in the Plan, the Defendants argue
that “[t]he plain meaning of ‘surrogacy,’ as gleaned from common dictionary
definitions, is broad and commonly understood to encompass the entire process of
carrying and delivering a child for another person.” Def.’s Mot. 6 (citing Black’s Law
Dictionary 1674 (10th ed. 2014)). The Defendant believes that the Plaintiffs read the
key provisions of the Plan in isolation, rather than reading the Plan as a whole. See
Vendura, 845 F.3d at 484. From this perspective, the “expenses for surrogacy”
exclusion can only be read to include the expenses of the surrogate mother’s
pregnancy and childbirth.
In Florida Health Science Center, Inc. v. Rock, the district court concluded that
an ERISA plan with similar exclusions for surrogacy-related expenses was
ambiguous. No. 8:05-cv-1601-T-EAJ, 2006 WL 3201873, at *7 (M.D. Fla. Nov. 4,
2006).8 Like the court in Florida, I find that the surrogacy exclusion in the context of
the Plan is ambiguous. Both sides’ interpretations are plausible. Because I find
ambiguity, I proceed to address whether the administrator’s construction of the Plan
is unreasonable.
2.
Whether the Plan Administrator’s Interpretation is
Unreasonable.
Although the First Circuit has not settled definitively on guiding principles for
when a Plan administrator’s interpretation is unreasonable, the text of the Plan and
the plain meaning of the Plan’s terms are a logical starting point. See Colby, 705 F.3d
at 65. Here, the Defendants’ conclusion that “expenses for surrogacy” can be read to
The Plaintiffs’ reliance on Mid-South Ins. Co. v. Doe, which did not involve an ERISA plan, is
unavailing because the holding in Mid-South did not turn on an interpretation of “surrogacy.” 274 F.
Supp. 2d 757, 764 (D.S.C. 2003).
8
mean all expenses associated with a pregnancy by means of a surrogate—from the
costs of preparing a surrogacy agreement, to in vitro fertilization, to pre-natal care,
to delivery, and to post-birth care for the mother and child—is grounded in the
common understanding of surrogacy. See Black’s Law Dictionary 1674 (defining
“surrogacy” as “[t]he process of carrying and delivering a child for another person”).
The Plaintiffs argue that True served as a gestational carrier, and not a surrogate,
because a “surrogate mother provides her own egg to be fertilized, while a gestational
carrier hosts the fertilized egg of another individual and carries it to term.” Pls.’ Mot.
8. Because “[n]owhere does the Plan reference gestational carriers or otherwise
exclude a gestational carrier’s pregnancy from the Plan’s benefits provided relative
to prenatal care,” the Plaintiffs conclude that the surrogacy exclusion cannot apply.
Pls.’ Mot. 8. But the plain meaning of “surrogacy” encompasses carrying a child for
another couple. While there may be another more narrow reading possible, the Plan
Administrator’s interpretation does not contravene the plain meaning of the term
“surrogacy.”
Some Circuits consider whether the Administrator’s interpretation is in
keeping with the purpose of the Plan. Here, the Administrator’s construction is more
closely aligned with the Plan’s purpose of “provid[ing] medical benefits for all covered
employees.” AR 002. Read in its entirety, the Plan is consistent in its broad exclusion
of artificial means of achieving a pregnancy. See AR 034-035 (excluding treatments
and procedures related to infertility and “expenses for surrogacy”). Under the
Plaintiffs’ reading of the Plan a “gestational carrier” would receive benefits for
pregnancy expenses but a “surrogate mother” would not be entitled to those benefits.
While it seems possible that the drafters of the Plan would carve out all carriers
regardless of whether they used their own or a donor egg, it is hard to believe that
they would have intended to cover the pregnancy expenses of a Plan participant who
served as a gestational carrier but deny pregnancy benefits to a Plan participant who
was a biological mother acting as a surrogate.
Courts also look to whether an interpretation is internally consistent within a
plan in order to determine whether the administrator has abused its discretion. The
Plaintiffs argue that the administrator’s interpretation “does not attempt to reconcile
the exclusion [of the expenses for surrogacy with] the covered benefit of pregnancy
care,” and so is not internally consistent. Pls.’ Mot. 7. The administrator’s
interpretation of “expenses for surrogacy” as preventing the Plan from reimbursing
for otherwise-covered pregnancy expenses does not render the Plan internally
inconsistent. A policy may cover a broad category of treatment, subject to specific
exclusions. The Florida District Court, addressing a similar argument, found that,
“[a]lthough the Plan covers an insured’s pregnancy costs and the costs associated with
pregnancy complications, that certain exceptions apply to this does not make the Plan
inconsistent.” See Fla. Health Sci. Ctr., Inc., 2006 WL 3201873 at *8. Just as it would
not be inconsistent for a plan to cover surgical expenses but exclude expenses for
cosmetic surgery, so it is not inconsistent for the Plan to cover pregnancy costs, while
excluding costs for a certain type of pregnancy.9 Nor does reading the phrase to
prohibit coverage of all expenses of a surrogate pregnancy render the provision about
covering all expenses in a non-surrogate pregnancy meaningless.
Some courts also consider whether the administrator inconsistently applied
the provision. Plaintiffs argue that the policy was inconsistently applied to True. They
contend that when she was hired at MaineGeneral, she contacted EBPA and was
informed that the Plan covered expenses for “surrogacy related pregnancies” and that
she initially received benefits for some of her pregnancy expenses only to find out
later that her claims were denied. AR 301. The Defendants respond that EBPA had
no record of her contacting them because she was not an active member on the date
that she called. The record further suggests that EBPA informed True that “a
verification of benefits is not a guarantee of coverage.” AR 302. The Plaintiffs have
not produced any other documentation supporting this claim, nor any other evidence
that the administrator, MaineGeneral, has interpreted or applied the Plan
inconsistently to different Plan participants. The Plaintiffs’ argument that they relied
on the erroneous advice of an EBPA representative is made only to show that the
Plan was inconsistently applied.10 Although this is some evidence of inconsistency,
the Plaintiffs cite no authority for the proposition that incorrect information given to
The Plaintiffs do not argue that the surrogacy exclusion is void as against policy, and I offer
no opinion in that regard.
9
10
The Plaintiffs make no claim based on any other legal theory.
a Plan participant on one occasion or a reversal of a decision on coverage rises to the
level of an abuse of discretion by the Plan Administrator.
The Administrator’s interpretation of the Plan is supported by the plain
meaning of “surrogacy.” It is also consistent with the overall language and the
purpose of the Plan. Finally, although there exists some inconsistent application of
the Plan to Plaintiff True, the inconsistency was limited. The standard of review is
worth reemphasizing: I do not review the interpretation of the provision de novo, but
rather for whether the administrator’s interpretation is reasonable. See O’Shea, 837
F.3d at 73. Accordingly, I conclude that the administrator’s interpretation of the
ambiguous phrase “expenses for surrogacy” was reasonable even under a heightened
arbitrary and capricious standard, accounting for MaineGeneral’s dual roles as
administrator and insurer. See Metro. Life Ins. Co., 554 U.S. at 108. Because I find
that the Administrator did not abuse its discretion, I GRANT the Defendant’s Motion
for Judgment on the Record, and I DENY the Plaintiffs’ Motion.
II.
Attorneys’ Fees
Both the Plaintiffs and the Defendant argue that they are entitled to attorneys’
fees should they prevail in this action. Because I have found that the Defendant is
entitled to summary judgment, I address only the fee arguments in its favor.
The ERISA statue, 29 U.S.C. § 1132(g)(1), grants me the “discretion [to] allow
a reasonable attorney’s fee and costs of action to either party.” In deciding whether
to award fees in an ERISA action, I am guided by the following five factors:
(1) the degree of culpability or bad faith attributable to the losing party;
(2) the depth of the losing party’s pocket, i.e., his or her capacity to pay
an award; (3) the extent (if at all) to which such an award would deter
other persons acting under similar circumstances; (4) the benefit (if any)
that the successful suit confers on plan participants or beneficiaries
generally; and (5) the relative merit of the parties’ positions.
Gross v. Sun Life Assur. Co. of Canada, 763 F.3d 73, 83 (1st Cir. 2014).
I will DENY the Defendant’s request for attorneys’ fees.11 Given that I have
found the phrase “expenses for surrogacy” to be ambiguous, I do not find that the
above factors counsel in favor of awarding a fee.12
CONCLUSION
For the reasons stated above, the Court DENIES the Plaintiffs’ motion for
judgment on the record and GRANTS MaineGeneral’s and EBPA’s motions for
judgment on the record. The parties will bear their own costs.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 28th day of September, 2018.
Defendant EBPA also requests attorneys’ fees because “clear case law supports its position.” I
DENY this request because, in considering the above five factors, I do not find that the Plaintiffs’
inclusion of EBPA was in bad faith. See Gross, 763 F.3d at 83.
11
I have considered the Defendant’s argument that Roibas acted in bad faith in filing this lawsuit
because he was attempting to escape his contractual obligation to pay for True’s medical expenses. See
Def.’s Mot. 24-26. I do not agree that Roibas acted in bad faith.
12
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