SHAH v. HORIZON BLUE CROSS BLUE SHIELD et al
Filing
62
OPINION. Signed by Judge Noel L. Hillman on 3/27/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAHUL SHAH, on assignment of
JOANNE G.,
1:16-cv-2528 (NLH/KMW)
OPINION
Plaintiff,
v.
HORIZON BLUE CROSS BLUE
SHIELD and BLUE ADVANTAGE
ADMINISTRATORS OF ARKANSAS,
Defendants. 1
APPEARANCES:
MICHAEL GOTTLIEB
SAMUEL S. SALTMAN
CALLAGY LAW PC
MACK-CALI CENTRE II
650 FROM ROAD
SUITE 558
PARAMUS, NJ 07652
On behalf of Plaintiff
J. GORDON HOWARD, PRO HAC VICE
RUSSELL & OLIVER, PLC
5178 WHEELIS DRIVE
MEMPHIS, TN 38117
On behalf of Defendant Blue Advantage Administrators of
Arkansas
JEFFREY MATTHEW BRENNER
MARNI SABRINA BERGER
STEVEN SCHILDT
POST & SCHELL PC
FOUR PENN CENTER PLAZA
1600 JFK BOULEVARD
13TH FLOOR
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Defendant Horizon Blue Cross Blue Shield was dismissed
without prejudice, by stipulation of the parties, on March 8,
2017.
PHILADELPHIA, PA 19103
On behalf of Defendant Blue Advantage Administrators of
Arkansas
HILLMAN, District Judge
This is one of many ERISA suits filed by Plaintiff Dr.
Rahul Shah, as purported assignee of his individual patients,
against his patients’ various insurance companies.
In each
suit, Plaintiff asserts that the insurance companies wrongfully
denied requests for payment of benefits under the patients’
health insurance policies, and consequently, Plaintiff’s bills
for service were not paid, or not fully paid.
Presently before the Court is Defendant’s Motion for
Summary Judgment.
For the reasons that follow, the Court will
grant the motion and enter summary judgment in favor of
Defendant.
I.
The Court takes its facts from Defendant’s Statement of
Undisputed Material Facts, Plaintiff’s Response and Statement of
Material Facts, and Defendant’s Response to Plaintiff’s
Statement.
Plaintiff is a spinal surgeon who, on July 31, 2013,
performed spinal surgery on Joanne G.
Her treatment included a
full bilateral laminectomy and fusion, among other surgical
procedures of the lumbar spine.
The total charge for the
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surgical treatment was $174,922.
Of the $174,922 charge for the
surgical treatment, $3,930.93 was the amount allowed under the
terms of the plan.
$170,991.07.
The total non-covered amount was
Plaintiff proffers that, because the $3,930.93 was
applied to Joanne G.’s deductible, Plaintiff was ultimately
responsible for the entire $174,922.
Joanne G. was a participant in the Wal-Mart Stores, Inc.
Associates’ Health and Welfare Plan (“the Plan”), a self-funded
employee welfare benefit plan governed by ERISA.
USAble Mutual
Insurance Company, doing business as BlueAdvantage
Administrators of Arkansas (“BlueAdvantange”) is the third-party
administrator who processed Joanne G.’s benefit claims.
Plaintiff is an out-of-network provider.
Joanne G. signed a May 14, 2013 assignment which does not
reference Plaintiff, referring solely to “Premier Orthopaedic
Associates of Southern NJ, LLC.”
It states, in part, that
Joanne G. “irrevocably assign[s] to you, my medical provider,
all of my rights and benefits under my insurance contract for
payment for services rendered to me.”
A second assignment was
executed on December 19, 2015, which lists Premier Orthopaedic
Associates of Southern New Jersey, Thomas A. Dwyer, Plaintiff,
and Christian Brenner.
Plaintiff brings this action as an alleged assignee of
Joanne G.
Plaintiff filed its initial complaint on March 23,
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2016 in New Jersey Superior Court, followed by a June 6, 2016
Amended Complaint.
The Amended Complaint asserted four counts:
(1) breach of contract, (2) failure to make payments under 29
U.S.C. § 1132(a)(1)(B), (3) breach of fiduciary duty under 29
U.S.C. § 1132(a)(3), 1104(a)(1), 1105(a), and (4) failure to
establish/maintain reasonable claims procedures under 29 C.F.R.
2560.503-1.
2016. 2
The case was removed to federal court on May 4,
On February 21, 2017, this Court dismissed Count One and
Count Four of the First Amended Complaint.
II.
Summary judgment is appropriate where the Court is
satisfied that “’the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
2
The Court has federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction
pursuant to 28 U.S.C. § 1367.
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substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
“In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.”); see Singletary v. Pa.
Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” – that is, pointing
out to the district court – that there is an absence of evidence
to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
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at 325)).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.
Celotex, 477
A “party opposing summary judgment ‘may not rest
upon the mere allegations or denials of the . . . pleading[s].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
For
“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”
Cooper v. Sniezek, 418
F. App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at
322).
Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 257.
III.
The Court finds the December 19, 2015 assignment from
Joanne G. to Plaintiff is void.
The first assignment provides,
in pertinent part:
I irrevocably assign to you, my medical provider,
all of my rights and benefits under my insurance contract
for payment for services rendered to me. I authorize
you to file insurance claims on my behalf for services
rendered to me and this specifically includes filing
arbitration/litigation in your name on my behalf against
the PIP carrier/health care carrier.
I irrevocably
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authorize you to retain an attorney of your choice on my
behalf for collection of your bills. I direct that all
reimbursable medical payments go directly to you, my
medical provider. I authorize and consent to your acting
on my behalf in this regard and in regard to my general
health insurance coverage pursuant to the “benefit
denial appeals process” as set forth in the NJ
Administrative Code.
The only individual/entity listed on this assignment is Premier
Orthopaedic Associates of Southern NJ, LLC.
The second assignment provides, in pertinent part:
I irrevocably assign to you, my medical provider,
all of my rights and benefits under my insurance contract
for payment for services rendered to me, including but
not limited to, all of my rights under “ERISA” applicable
to the medical services at issue. I specifically assign
to you all of my rights and claims with regard to the
employee health benefits at issue (including claims for
the assessment of penalties and for attorneys’ fees)
arising under ERISA or other federal or state law.
I acknowledge that you have not agreed to waive any
applicable co-pay and deductibles. If I cannot afford
to pay co-pay and deductible amounts, treatment will not
be denied and specific arrangement will be made between
us.
I authorize you to file insurance claims on my
behalf for services rendered to me and this specifically
including filing arbitration/litigation in your name on
my behalf against the PIP carrier/health care carrier.
I irrevocably authorize you to retain an attorney of
your choice on my behalf for collection of your bills.
I direct that all reimbursable medical payments go
directly to you, my medical provider. I authorize and
consent to your acting on my behalf in this regard and
in regard to my general health insurance coverage. I
specifically authorize you to pursue any administrative
appeals conduct pursuant to “ERISA” or other plan
guidelines.
This assignment listed Premier Orthopaedic Associates of
Southern New Jersey, as well as Thomas A. Dwyer, Plaintiff, and
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Christian Brenner.
Defendant argues: “[T]he Second Assignment is legally null
and void under the plain terms of the Initial Assignment, i.e.,
because Joanne G. irrevocably assigned her benefits in 2013, she
had no benefits left to assign when the Second Assignment was
attempted in 2015.”
Plaintiff, in response, argues that the
2013 assignment is “completely irrelevant as there is certainly
no ‘once per lifetime’ limit on assigning insurance benefits.”
The Court agrees with Defendant.
“[A]s a result of a valid
assignment, the assignor loses all control over the subject
matter of the assignment and all interest in the right
assigned.”
MHA, LLC v. UnitedHealth Grp., Inc., No. 13-6130,
2014 WL 223176, at *4 (D.N.J. Jan. 21, 2014) (quoting MHA, LLC
v. Aetna Health, Inc., No. 12-2984, 2013 WL 705612 (D.N.J. Feb.
25, 2013), abrogated on other grounds by N. Jersey Brain & Spine
Center v. Aetna, Inc., 801 F.3d 369 (3d Cir. 2015)); accord
Middlesex Surgery Ctr. v. Horizon, No. 13-112, 2013 U.S. Dist.
LEXIS 27278, at *9 (D.N.J. Feb. 27, 2013).
It is axiomatic that
once there has been a valid assignment, the assignor has no
rights in the benefits she has given up, and thus no longer has
the authority to transfer those rights.
Both assignments
purported to assign the “rights and benefits . . . for payment
for services rendered to” Joanne G.
Once assigned in 2013,
Joanne G. had no rights left to attempt to assign to Plaintiff.
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As Plaintiff’s claims rest on the second assignment being
valid, and as the Court finds it is not, the Court will grant
summary judgment in favor of Defendant.
An appropriate Order will be entered.
Date: March 27, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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