TrueView Surgery Center One L.P. v. OneSubsea LLC

Filing 16

ORDER denying 5 Motion to Dismiss.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRUEVIEW SURGERY CENTER ONE L.P., §
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Plaintiff,
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VS.
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ONESUBSEA LLC COMPREHENSIVE
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SELF-INSURED WELFARE BENEFITS
PLAN, et al,
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Defendants.
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CIVIL ACTION NO. 4:14-CV-2577

OPINION AND ORDER
Pending before the Court is Defendant OneSubsea LLC Comprehensive Self-Insured
Welfare Benefits Plan, et al.’s (“the Plan”) Motion to Dismiss. Doc. 5. Having considered the
motion, the response, the reply, the facts in the record, and the applicable law, the Court denies
the motion.
I.

Background
This is a suit for unpaid health insurance claims under the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Doc. 1. Plaintiff TrueView Surgery Center
One L.P. (“TrueView”) operates a surgery center in Houston, Texas. The Plan is an ERISAgoverned self-funded welfare benefits plan sponsored by OneSubsea LLC for its employees. On
December 20, 2013, a OneSubsea employee covered by the Plan (“the Patient”) registered for a
septoplasty at TrueView and executed an Assignment of Benefits and Designation of Authorized
Representative (“Assignment”) to TrueView. Doc. 8 at 3. The Assignment gave TrueView the
right to pursue the Plan directly for any “insurance benefits otherwise payable to [the Patient].”
Doc. 8, Ex. B at 1. On December 28, 2013, the patient underwent a septoplasty. On January 16,

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2014 and again on May 5, 2014, TrueView submitted claims to recover benefits from the Plan’s
claim administrator, Cigna, pursuant to the Assignment, but the claims were denied. Doc. 5 at 3.
II.

Legal Standard
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “should be

granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his
claim that would entitle plaintiff to relief.” Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001); see Physician Hospitals of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012) (“[T]he
plaintiffs’ burden is to allege a plausible set of facts establishing jurisdiction.”). A court may
dismiss “on any one of three separate bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Voluntary Purchasing Grps ., Inc.
v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989); see also Montez v. Dep’t of Nav, 392 F.3d 147,
149 (5th Cir. 2004) (“[T]he trial court is free to weigh the evidence and resolve factual disputes
in order to satisfy itself that it has the power to hear the case.”); Battaglia v. United States, 495
Fed. Appx. 440, 441 (5th Cir. 2012) (“When a party challenges the facts on which jurisdiction
depends, matters outside the pleadings, such as affidavits and testimony, are considered.”).
III.

Discussion
TrueView asserts five claims under ERISA: (1) breach of fiduciary duty, (2) failure to

provide full and fair review, (3) failure to provide requested and required documentation, (4)
unpaid plan benefits, and (5) violations of claims procedure. Doc. 3 at 33, 35–36, 41, 42. The
Plan seeks dismissal on two grounds: (1) TrueView has not alleged an injury-in-fact, and (2) the
assignment of benefits by the Plan participant was void because of an anti-assignment clause in
the Plan. Doc. 5 at 1–2.
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A.

Injury-in-fact

The Plan argues TrueView has not suffered an injury-in-fact, because TrueView never
attempted to bill the Patient for his share of the medical charges for the septoplasty. The Plan
argues TrueView only has standing to the extent that the Patient has standing. Doc. 5 at 5 (citing
Owen v. Regence Bluecross Blueshield of Utah, 388 F. Supp. 2d 1318, 1326 (D. Utah 2005)).
Since the pending motion to dismiss was filed, however, the Fifth Circuit has held that a medical
service provider “has statutory standing under ERISA for the benefit claims at issue because of
assignments from plan beneficiaries,” even if the patient was “not billed for the amount allegedly
due from the insurance plans.” N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781
F.3d 182, 192–5 (5th Cir. 2015).
B.

Anti-Assignment Clause

The Plan argues TrueView’s standing to bring this suit as an assignee of the Patient is
precluded by an anti-assignment clause in the Patient’s policy issued by the Plan (“the Policy”):
[N]o interest in or benefit payable under the Plan shall be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any action by a Participant to anticipate, alienate, sell, transfer, assign,
pledge, encumber, or charge the same shall be void and of no effect; nor shall any
interest in or benefit payable under the Plan be in any way subject to any legal or
equitable process, including, but not limited to, garnishment, attachment, levy,
seizure, or the lien of any person.
Doc. 5, Ex. A at 30. TrueView challenges this anti-assignment clause on the ground that it was
not intended to preclude assignments to medical service providers such as TrueView. In
Hermann Hospital v. MEBA, the Fifth Circuit held the following anti-assignment clause did not
apply to medical service providers but applied only to “unrelated, third-party assignees . . . such
as creditors”:
No employee, dependent or beneficiary shall have the right to assign, alienate,
transfer, sell, hypothecate, mortgage, encumber, pledge, commute, or anticipate
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any benefit payment hereunder, and any such payment shall not be subject to any
legal process to levy execution upon or attachment or garnishment proceedings
against for the payment of any claims.
959 F.2d 569, 574–5 (5th Cir. 1992), overruled on other grounds by Access Mediquip, L.L.C. v.
United Health Care Ins. Co., 698 F.3d 229, 230 (5th Cir. 2012). Subsequently, in LeTourneau v.
Wal-Mart, the Fifth Circuit held the following anti-assignment clause did prohibit assignments to
medical service providers:
Medical coverage benefits of this Plan may not be assigned, transferred or in any
way made over to another party by a participant. Nothing contained in the written
description of Wal-Mart medical coverage shall be construed to make the Plan or
Wal-Mart Stores, Inc., liable to any third-party to whom a participant may be
liable for medical care, treatment, or services.
298 F.3d 348, 349 (5th Cir. 2002) (emphasis added). The court reasoned: “This language is
unquestionably directed at providers of health care services such as LeTourneau in precisely the
way that the anti-assignment language [in] Hermann II was not.” Id. at 351.
Here, the anti-assignment clause in the Policy is almost identical to the language in
Hermann II and therefore does not prohibit assignments to medical service providers such as
TrueView. The Plan seeks to distinguish its anti-assignment clause from the one in Hermann II
by arguing its clause was more “direct,” because it provides that all assignments are “void and of
no effect” and separates the garnishment and attachment section by a semicolon. Doc. 9 at 8. The
Fifth Circuit, however, rejected a clause with these exact elements in Abilene Reg’l Med. Ctr. v.
United Indus. Workers Health & Benefits Plan, No. 06-10151, 2007 WL 715247, at *4 (5th Cir.
Mar. 6, 2007). The Abilene court reaffirmed Hermann II, distinguishing LeTourneau on the
grounds that the relevant clause “did not resemble a spendthrift provision and unambiguously
stated that the plan would not be ‘liable to any third-party to whom a participant may be liable
for medical care, treatment, or services.’” Id.; see also Harris Methodist Fort Worth v. Sales
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Support Services Inc. Employee Health Care Plan, 426 F.3d 330, n. 4 (5th Cir. 2005) (“[I]n
LeTourneau, neither party contested the fact that the plan beneficiary’s hospital entrance form
constituted a valid assignment of her rights under ERISA to the plan provider despite an antiassignment clause in the plan documents; the dispute was over that plan’s coverage of the
services rendered. Because the services rendered in that case were not covered by the plan in the
first place, the provider lacked standing.”). The Court is compelled by Hermann II to hold the
anti-assignment clause in the Policy does not prohibit the Patient’s assignment to TrueView of
his rights to pursue benefits.
TrueView also argues the Plan has waived, or is estopped from asserting, the antiassignment clause. See Hermann II, 959 F.2d at 574 (estoppel found where plan failed to assert
anti-assignment clause until after plaintiff filed suit; plaintiff had requested payment for over
three years through “continuous communication,” whereas the plan “kept postponing payment,
asserting that it was ‘investigating’ the claim.”); Shelby County Health Care Corp. v. Genesis
Furniture Indus., Inc., No. 3:13-CV-00245-SA-SAA, 2015 WL 1457973, at *2 (N.D. Miss. Mar.
30, 2015) (estoppel found where “[n]othing in the record indicates that [plan] objected to
[provider’s] claim for benefits on the basis of the non-assignment clause until [defendant] filed
its response in opposition to the current motion”).
Here, the Plan did not assert the anti-assignment clause until January 5, 2015 in its
motion to dismiss. Doc. 5 at 1–2. The Plan argues that it asserted the anti-assignment clause on
May 19 and August 12, 2014 in pre-suit communications with TrueView, in which the Plan
requested written proof of TrueView’s “authority to request any plan documents as an authorized
representative of the [Patient]”. Doc. 10, Ex. 1 at 2. As the Plan admits in its Reply, however,
the phrase “authorized representative” as used by the Plan does not necessarily implicate an
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assignee-assignor relationship. Doc. 9 at 7. Additionally, before the Plan asserted the antiassignment clause, TrueView had sent the Plan an “ERISA & PPACA Level I Appeal” letter on
March 31, 2014 stating:
Should this ERISA plan contains unambiguous anti-assignment clause prohibiting
assignment of rights, benefits and causes of action in SPD [Summary Plan
Description], the plan administrator is required to timely notify or disclose to the
assignee of such prohibition by disclosing such SPD, especially on this appeal
process, to avoid judicial unenforceability of your anti-assignment clause on
judicial process. [sic]
Doc. 8, Ex. F at 46. Since the Court has determined that the anti-assignment clause does not
apply to TrueView, it is not necessary to decide whether a genuine issue of fact as to waiver or
estoppel exists.
IV.

Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion to Dismiss (Doc. 5) is DENIED.
SIGNED at Houston, Texas, this 17th day of July, 2015.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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