Wagner et al v. Summit Air Ambulance et al
ORDER denying 2 Motion to Dismiss Signed by Judge Brian Morris on 10/26/2017. (ELL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
STAN and RAINY WAGNER, on
Behalf of Themselves and All Others
SUMMIT AIR AMBULANCE, LLC,
REACH AIR MEDICAL SERVICES,
LLC, and DOES I-X,
Plaintiffs Stan and Rainy Wagner, on behalf of themselves and a proposed
class of others similarly situated, filed this action in Montana’s Eighteenth Judicial
District Court, Gallatin County, on July 18, 2017. (Doc. 5.) Defendants Summit
Air Ambulance and REACH Air Medical Services, LLC removed the case to
federal court on August 18, 2017. (Doc. 1.) Defendants filed the instant Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on
August 25, 2017. (Doc. 2.)
Plaintiffs brought their six-year-old son, W.W., to his pediatrician on August
27, 2015, to evaluate headaches, vomiting, and unsteady gait. (Doc. 5 at 5.) Upon
discovery of a brain tumor, W.W.’s doctors determined that it was medically
necessary to transport W.W. by air ambulance from Bozeman, Montana to
Children’s Hospital in Denver, Colorado. (Doc. 5 at 5.) Bozeman Deaconess
Hospital, pursuant to its preferred provider agreement with Defendants, dispatched
Defendants to provide air ambulance services. (Doc. 5 at 5.)
Plaintiffs authorized Defendants to provide the air ambulance services.
Defendants did not specify a price for their services. (Doc. 5 at 5.) Montana law
provides that “[w]hen a contract does not determine the amount of the
consideration or the method by which it is to be ascertained or when it leaves the
amount thereof to the discretion of an interested party, the consideration must be so
much money as the object of the contract is reasonably worth.” Mont. Code Ann. §
28-2-813 (2017). Further, Montana’s covenant of good faith and fair dealing
requires “reasonable commercial standards of fair dealing in trade.” (Doc. 5 at 7.);
Mont. Code Ann. § 28-1-211.
Defendants billed Plaintiffs $109,590 for one-way transport of W.W. from
Bozeman, Montana to Denver, Colorado, on February 26, 2016. (Doc. 5 at 6.) This
total amount reflected a “base rate” of $15,965 and a “loaded fixed wing” charge
of $175 per mile. (Doc. 5 at 6.) Defendants multiplied the “loaded fixed wing”
charge by the 535 miles between Bozeman and Denver. (Doc. 5 at 6.)
Plaintiffs’ insurer paid Defendants $22,933 of the $109,590 bill for the
flight. (Doc. 5 at 6.) Defendants sought to collect from Plaintiffs a balance of
$40,057.38 on December 29, 2016. (Doc. 5 at 6.) This balance reflects credit for
the insurance payment as well as a reduced “loaded fixed wing” charge of $81.96
per mile. (Doc. 5 at 6.) Defendants provided no explanation for the lower rate.
(Doc. 5 at 6.)
Plaintiffs allege that Defendants breached the contract to provide the air
ambulance services because the charges billed “exceed reasonable amounts
typically charged in Montana for similar air-ambulance transport and the charges
do not represent the reasonable worth of the services, rendered, are excessive and
violate the covenant of good faith and fair dealing.” (Doc. 5 at 6.) Plaintiffs seek
“damages in the amount of the balance between a reasonable charge for services
and the actual charges sought by Defendant.” (Doc. 5 at 8.)
Defendants seek to dismiss Plaintiffs’ claim on the basis that the Airline
Deregulation Act of 1978 (“ADA”) preempts this type of state law claim. (Doc. 3
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In evaluating a
12(b)(6) motion, the Court “must take all allegations of material fact as true and
construe them in the light most favorable to the nonmoving party.” Kwan v.
Sanmedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017) (quoting Turner v. City and
County of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015)). To survive a
motion to dismiss, the complaint must allege sufficient facts to state a plausible
claim for relief. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015).
Federal courts generally view Rule 12(b)(6) dismissals “with disfavor.”
Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.3d 208, 213 (9th Cir. 1957). “A
case should be tried on the proofs rather than the pleadings.” Id. Such dismissals
are “especially disfavored” where the plaintiff bases the complaint on “a novel
legal theory that can best be assessed after factual development.” McGary v. City
of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (citations omitted). “It is
important that new legal theories be explored and assayed in the light of actual
facts rather than a pleader’s suppositions.” Id.
The ADA expressly preempts any state law or regulation “related to a price,
route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1); American Airlines Inc.
v. Wolens, 513 U.S. 219, 222 (1995). The ADA also preempts causes of action that
arise under state common law where such a claim undermines the statute’s
deregulatory aim. Northwest, Inc. v Ginsberg, 572 U.S. ____, 134 S.Ct. 1422,
1428-30 (2014). “What is important is the effect of a state law, regulation, or
provision, not its form.” Id. at 1430.
States may not impose “their own substantive standards with respect to rates,
routes, or services.” Wolens, 513 U.S. at 232. The ADA presents no bar to relief,
however, where a plaintiff “claims and proves that an airline dishonored a term the
airline itself stipulated.” Id. at 232-33. Thus, the ADA provides no shelter for
airlines from suits that allege no violation of state-imposed obligations, but seek
recovery “solely for the airline’s alleged breach of its own, self-imposed
undertakings.” Id. at 228.
The Supreme Court further has distinguished between self-imposed and
state-imposed obligations that arise under implied covenants. The ADA preempts
such state-imposed obligation where state law does not permit the parties to
“contract out of” the state’s implied covenant rules. Ginsburg, 134 S.Ct. at 1432.
Conversely, implied covenant rules escape preemption “only if the law of the
relevant State permits an airline to contract around those rules.” Id. at 1433. The
Supreme Court has recognized that such an obligation “cannot be viewed as simply
an attempt to vindicate the parties’ implicit understanding of the contract,” but
instead “seeks to enlarge” the agreement. Id. at 1433. This distinction confines
courts, in breach-of-contract actions, “to the parties' bargain, with no enlargement
or enhancement based on state laws or policies external to the agreement.” Wolens,
513 U.S. at 233.
As the Ninth Circuit recently has noted, if the Plaintiff has adequately
pleaded breach of contract, the ADA does not preempt the claim. Hickox-Huffman
v. US Airways, Inc., 855 F.3d 1057, 1062 (9th Cir. 2017). To plead their claim
adequately, Plaintiffs must allege facts demonstrating “the existence of an
enforceable contract, the defendant’s breach, and damages to the plaintiff caused
by the breach.” Id. Further, with regard to the good faith and fair dealing claim,
Plaintiffs would need to demonstrate that Montana law allows an air carrier to
“contract around” the covenant. Ginsburg, 134 S.Ct. at 1433.
Plaintiffs have pleaded facts to support the following: (1) that a contract
existed between the parties, (2) that the “reasonable worth” of the services
constituted the “self-imposed” consideration term, and (3) that the $109,590
charged by Defendants exceeded the “reasonable worth” of a 535-mile one-way
trip in breach of contract. Plaintiffs additionally have pleaded that Montana law
allows the parties to disclaim the covenant of good faith in fair dealing in the
contract. Farris v. Hutchinson, 254 Mont. 334, 838 P.2d 374 (1992).
Plaintiffs assert that Defendants knowingly made a business judgment to
omit the price term from their implied-in-fact contract by failing to specify a price
at time of contracting or disclosing their pricing in advance. (Doc. 5 at 2-3.) The
Court must take this factual allegation as true. Kwan, 854 F.3d at 1096. Defendants
do not offer the Court any legal argument that can defeat Plaintiffs’ factual
assertion at this stage. Defendants instead argue alternative facts: that they did not
assume voluntarily the obligation to charge “reasonable worth.” Defendants bolster
this factual argument with a legal theory. Defendants contend that the ADA
prevents this Court from finding that they have assumed any such obligation. The
Court cannot agree at this stage.
Under Montana law, “an implied contract is one the existence and terms of
which are manifested by conduct.” Mont. Code Ann. § 28-2-103. For a contract to
exist, “it is essential that there be: (1) identifiable parties capable of contracting;
(2) their consent; (4) a lawful object; and (4) a sufficient cause or consideration.”
Mont. Code Ann. § 28-2-102. All four elements exist here.
Plaintiffs’ complaint, taken as true, alleges that the parties formed a contract,
and that the Defendants’ conduct in choosing not to disclose or otherwise specify
consideration manifested the terms of that contract. (Doc. 5 at 5.) The Court notes
that Defendants do not argue that the parties formed no contract. Any such claim
could not overcome Plaintiffs’ factual allegations at this stage. Even an implied-infact contract, as Defendants concede exists, must contain essential terms.
Further, Defendants acknowledge that they “transported at least 395
Montana patients by fixed-wing air ambulance” during the time period relevant to
Plaintiffs’ claims. (Doc. 1 at 5.) Plaintiffs allege that Defendants likely have
entered into numerous contracts in the state of Montana as a result. (Doc. 5 at 9.)
Plaintiffs allege that this activity reasonably would have placed Defendants on
notice of the provisions of Montana law at issue.
Plaintiffs contend that Defendants opted not to specify consideration in lieu
of these provisions of Montana law. (Doc. 5 at 2-3.) To the extent that Defendants
argue that they explicitly opted not to specify consideration, these fact-based
arguments regarding the terms of the contract must wait further factual
development. This assertion fails to defeat Plaintiff’s taken-as-true factual
allegations under the 12(b)(6) standard. McGary, 386 F.3d at 1270.
Defendants support their factual conclusions with a legal argument that
ADA preemption prevents this Court from accepting Plaintiff’s facts regarding the
terms of the contract. Nothing in the ADA prohibits an air carrier from opting for a
default term of consideration. Defendants have cited to no court decision that has
interpreted the ADA in such a manner. The ADA would not preempt the suit if
Defendants have incorporated the term as Plaintiffs allege.
Defendants’ legal argument also rests on a reading of Wolens and Ginsburg
that vests all the power at time of contracting in the air carrier party. (Doc. 3 at 20.)
The decisions use terms like “stipulated” and “voluntary obligation” to bar suits
where one party seeks to enlarge the parties’ bargain. Wolens, 513 U.S. at 228,
232-33. These decisions leave room for suits, however, that seek to vindicate the
parties’ understanding of the contract, not only the air carrier’s understanding of
the contract. Ginsburg, 134 S.Ct. at 1433; Wolens, 513 U.S. at 233. Plaintiffs
contend that the parties’ understanding of the contract reasonably assumed that
Defendants would charge “reasonable worth” absent a price specified.
Defendants rely heavily on two federal district court cases that dismissed
similar claims on preemption grounds. (Doc. 3 at 21.) Both district court decisions
simply accept that a contract exists despite the absence of an essential term. The
court in Schneberger v. Air Evac EMS, Inc., CIV-16-843-R, 2017 WL 1026012, at
*5 (W.D. Okla. Mar 15, 2017), noted that “perhaps all that is certain is there was no
supplied price.” The court determined that a contract existed despite the absence of
this essential term. The court in Ferrell v. Air Evac EMS, Inc., No. 5:17-cv-124DPM (E.D. Ark. July 5, 2017), determined that a contract existed, but claimed that
“it’s not for the Court to say what the price will be.” Transcript of Motions Hearing
at 42. Both decisions fail to identify the consideration term in the contract. These
cases simply apply preemption to defeat a challenge to a billed rate, without ever
identifying a set rate.
The court in Schneberger further stated that the air carrier defendants
“believe they are entitled to the full charges.” Schneberger, 2017 WL 1026012, at
*5. The court reasoned that including the reasonable worth term supplied by
Oklahoma law in the implied-in-fact contract would “require them to accept less
because of a policy-based inquiry.” Id. Defendants’ belief that they are entitled to
their billed charges, however, should not set retroactively a contract price. A belief
of entitlement does not excuse breach of contract if an air carrier billed a higher
charge than that to which the parties agreed.
Defendants advance the same arguments as were presented to the district
courts in Schneberger and Ferrell. A circular logic permeates these arguments. The
Supreme Court has recognized the breach-of-contract exception to ADA
preemption. Wolens, 513 U.S. at 232-33; Ginsburg, 134 S.Ct. at 1433. Defendants
nevertheless urge this Court to adopt a reading of the ADA that forecloses any
conceivable breach of contract claim. Defendants reason that preemption under the
ADA allows air carriers to form contracts that lack essential terms. This scenario
apparently allows air carriers to set no rates, but instead bill customers any amount
that the air carrier chooses, as evidenced by the $109,590 bill received by Plaintiffs
for a 535-mile one-way trip. Defendants’ position leaves patients obligated to pay
the ex post facto billed charge, to which they never agreed, without any chance for
redress. Defendants seek to wield preemption as a cudgel to gain all the protections
of a valid contract yet dodge liability for breach of contract claims by omitting
Nothing in the language of the ADA presents a bar to recovery where an air
carrier contracts for one amount, and bills another amount. The Supreme Court in
Wolens allowed a claim for recovery to proceed where a party alleged that the
airline had dishonored a contract term to which the airline had agreed. Wolens, 513
U.S. at 228. Plaintiffs here seek to extend this reasoning to a contract in which
Plaintiffs allege that Defendants intentionally omitted a material term—price—
with apparent knowledge of Montana law as evidenced by the 395 patients
previously transported in Montana by Defendants. (Doc. 1 at 5.)
The Supreme Court in Ginsburg dismissed an implied covenant claim on
preemption grounds where Minnesota law imposed the obligation onto all
contracts. Ginsburg, 134 S.Ct. at 1432-34. The Court noted in dicta, however, that
the respondent may have been able to vindicate a breach-of-contract claim had he
pursued it on appeal. Id. at 1433. The district court dismissed respondent’s breach
of contract claim and respondent had failed to appeal the denial. Id. The breach-ofcontract claim alleged that the airline had violated the terms of its frequent flier
agreement when the airline terminated respondent from the program. Id.
Similarly, the defendant in Ferrell v. Air Evac EMS, Inc. conceded at oral
argument the potential redressability for breach of contract.
What if there was some contemporaneous
discussion and agreement about price before the
patient is transported . . . Preempted claim when
the bill comes in higher than that agreed amount,
Not. It’s not preempted. If we took on as a
company an affirmative obligation, we made an
express agreement, or even it’s evaluated in an
implied-in-fact contract context, if we took on the
obligation then it’s not preempted.
Transcript of Motions Hearing at 6-7, Ferrell v. Air Evac EMS, Inc., No. 5:17-cv124-DPM (E.D. Ark. July 5, 2017) (emphasis added). The court ultimately
dismissed the claims as preempted by the ADA without explanation as to how the
absence of an agreed price could give rise to an implied-in-fact contract that lacked
an essential term. Id.
The ADA’s express preemption provision does not preclude suits for breachof-contract. Wolens, 513 U.S. at 232; Hickcox-Huffman, 855 F.3d at 1062. Courts
have limited these suits to those that “attempt to vindicate the parties’ implicit
understanding of the contract.” Ginsburg, 134 S.Ct. at 1433.
Under Montana law, consideration comprises one of four essential terms of a
contract. Mont. Code Ann. § 28-2-102. Montana law requires that “the
consideration must be so much money as the object of the contract is reasonably
worth” where a contract’s terms fail to specify consideration. Mont. Code Ann. §
28-2-813. Defendants have cited no provision of the ADA that prevents an air
carrier from self-imposing a default term of consideration.
Plaintiffs have alleged in the Complaint that they entered into a contract with
Defendants. (Doc. 5 at 5.) Plaintiffs assert that Defendants chose to specify no rate
or charge. (Doc. 5 at 5.) Plaintiffs allege that Defendants “systematically and
programmatically charge and bill” patients pursuant to “factually identical”
contracts that lack a consideration term. (Docs. 5 at 3; 13 at 15.) Defendants, by
their own admission, have transported numerous Montana patients. (Docs. 5 at 9; 1
at 5.) Plaintiffs represented to the Court at oral argument that they expected that
Defendants would charge “reasonable worth” absent specified consideration.
In sum, Plaintiffs allege that Defendants knowingly incorporated a
consideration term of “reasonable worth” by their self-imposed and voluntary
undertaking to omit a specific consideration term. (Doc. 5 at 3.) Plaintiffs allege
Defendants have billed an amount, $109,590, far in excess of reasonable worth, in
breach of contract. (Doc. 5 at 6.) The Court must take as true the facts alleged by
Plaintiffs on this motion to dismiss. Kwan, 854 F.3d at 1096. Moreover, the Ninth
Circuit has not faced this question. Dismissal of the novel question presented by
Plaintiffs’ complaint would be especially disfavored. McGary, 386 F.3d at 1270.
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss (Doc. 2) is DENIED.
DATED this 26th day of October, 2017.
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