Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al, No. 2:2011cv00806 - Document 525 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting in part and denying in part Defendants' 458 Motion for Partial Summary Judgment, as stated herein. FURTHER ORDER that the parties provide the Court with an amended Exhibit I to the Fifth Amended Complaint by June 6, 2016, as further stated herein. If the parties cannot agree on the disposition of any claim as a result of this Order, Defendants have until May 20, 2016, to file a supplemental memorandum and Plaintiffs have until May 27, 2016, to file an opposition to Defendant's supplemental memorandum, as further explained herein. Signed by Judge Susie Morgan on 5/6/2016. (tsf)

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Center For Restorative Breast Surgery, L.L.C. et al v. Blue Cross Blue Shield of Louisiana et al Doc. 525 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CEN TER FOR RESTORATIVE BREAST SU RGERY, L.L.C., ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 11-8 0 6 BLU E CROSS BLU E SH IELD OF LOU ISIAN A, ET AL., D e fe n d an ts SECTION : “E” ( 5 ) ORD ER AN D REAS ON S Before the Court is Defendants’ Motion for Sum m ary J udgm ent filed Novem ber 2, 20 15. 1 For the reason s below, the m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D The m em bers of Plaintiff Center for Restorative Breast Surgery, L.L.C. (“CRBS”) are surgeons who perform post-m astectom y breast reconstruction m edical services. 2 Plaintiff St. Charles Surgical Hospital (“St. Charles”) is a specialty surgical center where the physicians affiliated with CRBS perform the surgeries. 3 Plaintiffs are out-of-network health care providers, with respect to all Defendants, who provided services to patients covered under ERISA plans and other insurance policies issued or adm in istered by Defendants, num erous Blue Cross Blue Shield health insurance carriers. 4 Plaintiffs allege that, prior to perform ing any surgery, Plaintiffs’ staff contacted each patient’s insurer, notified the insurer of the procedure expected to be perform ed, 1 R. Doc. 458. R. Doc. 30 8 at ¶ 83. 3 Id. at ¶ 91. 4 Id. at ¶ 92; R. Doc. 458-1 at 9. Each patient and his or her respective claim is iden tified in Exhibit I to the Fifth Am ended Com plaint. R. Doc. 30 8. 2 1 Dockets.Justia.com requested preauthorization to have the procedure done, and requested disclosure of the am ount of benefits for the procedure and any qualification to such benefits. 5 Plaintiffs allege they received preauthorization from Defendants, through either Defendants’ em ployees or agents. 6 Plaintiffs filed this suit on April 6, 20 10 , in the Civil District Court for the Parish of Orleans, State of Louisiana. 7 Defendant Blue Cross Blue Shield of Louisiana rem oved the case to this Court on April 12, 20 11. 8 Plain tiffs aver that each patient executed an assignm ent of benefits assigning to Plaintiffs benefits owed to the patient by his or her healthcare insurer, along with the authority and right to institute legal action to recover any am ounts due. 9 Plaintiffs allege they perform ed the surgery on each patient, relying on the inform ation provided by Defendants’ em ployees or agents. 10 Plaintiffs m aintain they did not receive the expected paym ent for each claim identified in Exhibit I to the Fifth Am ended Com plaint 11 in accordance with the representations m ade by Defendants. 12 Plaintiffs bring this action in two capacities: (1) on behalf of their patients as assignees of their patients’ ERISA rights, and (2) in their individual capacities to seek recovery under Louisiana state laws for claim s resulting from their direct interactions with Defendants. 13 Plaintiffs filed a Fifth Am ended Com plaint on J anuary 6, 20 15, asserting the following counts 14 : 5 R. Doc. 30 8 at ¶¶ 94– 95. Id. at ¶¶ 94– 10 7. 7 R. Doc. 1-1. 8 R. Doc. 1. 9 R. Doc. 30 8 at ¶¶ 10 4– 0 7. 10 Id. at ¶ 10 7. 11 The parties have provided the Court with a CD containing Exhibit I to the Fifth Am ended Com plaint. 12 R. Doc. 30 8 at ¶¶ 10 7– 0 8 . 13 Id. at ¶ 1. 14 R. Doc. 30 8. 6 2 Count I: Failure to determ ine benefits in accordance with the term s of ERISA plans; Count II: Failure to supply requested inform ation ERISA requires to be produced; Count III: Failure to provide full and fair review under ERISA; Count IV: Breach of fiduciary duties of loyalty, disclosure, and pruden ce under ERISA; Count V: Detrim ental reliance/ breach Louisiana law; Count VI: Breach of contract(s) under Louisiana law; Count VII: Negligent Misrepresentation(s) under Louisiana law; an d of oral contract(s) under Count VIII: Fraud under Louisiana law. On J une 24, 20 15, the Court dism issed Counts II, III, and IV with prejudice. 15 The Court also dism issed Count VIII after Plaintiffs m oved for dism issal with prejudice. 16 On Novem ber 2, 20 15, Defendants filed a m otion for partial sum m ary judgm ent raising the following argum ents: 1. Count I: Certain of Plaintiffs’ claim s for ERISA benefits against certain Defendants fail as a m atter of law because the Defendants are not the plan adm inistrators an d did not control benefits determ inations un der the plans; 2. Count I: Certain of Plaintiffs’ ERISA benefits claim s fail as a m atter of law because they are based on insurance policies or plans that are not ERISA plans; 3. Count I: Certain of Plaintiffs’ ERISA benefits claim s are untim ely as a m atter of law pursuant to contractual lim itations periods or the one-year lim itations period that applies as a m atter of federal com m on law; and 15 R. Doc. 371. On Novem ber 30 , 20 15, Plaintiffs sought reconsideration of the order dism issing Counts II, III, and IV. R. Doc. 469. The Court denied Plaintiffs’ m otion for reconsideration on April 11, 20 16. R. Doc. 50 8. 16 R. Doc. 450 . 3 4. Counts V, VII: Certain of Plaintiffs’ negligent m isrepresentation and detrim ental reliance claim s are barred by the one-year prescriptive period applicable to delictual claim s. 17 Plaintiffs filed a response in opposition on J anuary 6, 20 16. 18 Defendants filed a reply in support of their m otion on J anuary 19, 20 16, 19 and Plaintiffs filed a surreply on J anuary 27, 20 16. 20 STAN D ARD OF LAW Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”21 “An issue is m aterial if its resolution could affect the outcom e of the action.”22 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”23 All reasonable inferen ces are drawn in favor of the non-m oving party. 24 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 25 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”26 If the 17 R. Doc. 458. R. Doc. 478. 19 R. Doc. 485. 20 R. Doc. 489. 21 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 22 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 23 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 24 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 25 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 26 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 18 4 m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 27 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record to establish an essential elem ent of the non-m ovant’s claim . 28 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports his or her claim . ‘Rule 56 does n ot im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”29 AN ALYSIS I. COUNT I: W HETHER CERTAIN OF P LAINTIFFS’ CLAIMS FOR ERISA BENEFITS AGAINST CERTAIN DEFENDANTS F AIL AS A M ATTER OF LAW BECAUSE THE DEFENDANTS ARE N OT THE P LAN ADMINISTRATORS AND DID N OT CONTROL BENEFITS DETERMINATIONS UNDER THE P LANS Defendants argue that som e Defendants are not proper defendants for Plaintiffs’ claim s for benefits under 29 U.S.C. § 1132(a)(1)(B) in Count I of the Fifth Am en ded 27 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 29 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 28 5 Com plaint because, under their respective plans, they were not the plan adm inistrators and lacked discretion and control over adm inistration and operation of the plans. 30 The Fifth Circuit held in LifeCare Managem ent Services LLC v. Insurance Managem ent Adm inistrators Inc. that an entity exercising “actual control” over a plan’s benefits claim s process can be liable under 29 U.S.C. § 1132(a)(1)(B), even if that entity is not the plan adm inistrator: “[T]he proper party defendant in an action concerning ERISA benefits is the party that controls adm inistration of the plan[,] and . . . [i]f an entity or person other than the nam ed plan adm in istrator takes on the responsibilities of the adm in istrator, that entity m ay also be liable for benefits.”31 The Fifth Circuit explained, though, that “‘the m ere exercise of physical control or the perform ance of m echanical adm in istrative tasks generally is insufficient’ for liability under § 1132(a)(1)(B).”32 In LifeCare, the Fifth Circuit affirm ed the district court’s decision, which found that the third-party adm inistrator could be held liable under § 1132(a)(1)(B) because the third-party adm inistrator exercised actual control over the claim s process. 33 The plan language in LifeCare provided that the “the services to be perform ed by the [third-party adm in istrator] shall be m inisterial in n ature and shall be perform ed within the fram ework of policies, interpretations, rules, practices and procedures m ade or established by the Plan Adm inistrator.”34 The court noted, however, that the third-party adm inistrator “had authority to process all claim s presented for benefit under the Plan” and had the discretion to determ in e which claim s were “routine” and thus would not be referred to 30 R. Doc. 458-1 at 13– 17. Mgm t. Servs. LLC v. Ins. Mgm t. Adm ’rs Inc., 70 3 F.3d 835, 844– 45 (5th Cir. 20 13). 32 Id. (quotin g Gom ez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 665 (1st Cir. 20 10 )). 33 Id. at 846. 34 Id. at 845. 31 LifeCare 6 the plan adm inistrator. 35 Based on the third-party adm inistrator’s perform ance of discretionary functions, the court found it exercised actual control over the claim s process. 36 The Fifth Circuit explained, however, that the third-party adm inistrator could not have been liable under § 1132(a)(1)(B) had it instead “referred all disputed claim s to [the plan adm inistrator] for resolution . . . .”37 Defendants argue that, under LifeCare, som e Defen dants are n ot the proper defendants under Count I because they were not the plan adm inistrators of the respective plans and Plaintiffs cannot establish, and there is no eviden ce showing, they exercised actual control over the plans. 38 Therefore, Defendants argue, sum m ary judgm ent should be granted on Count I with respect to those defendants. 39 A. Claim s C18– C19, C879, C1320 – C1322, H8 0 4– H80 5, H972, and H1247 again st the HCSC Defendants Defendants argue that ten of Plaintiffs’ claim s for ERISA benefits again st the Health Care Service Corporation (“HCSC”) defendants 40 fail as a m atter of law: C18 , C19, C8 79, C1320 , C1321, C1322, H80 4, H80 5, H972, and H1247. 41 Defendants argue these claim s are based on certain ERISA plans for which HCSC is not the plan adm inistrator and did not control benefits determ inations under the plan. 42 In its opposition, Plaintiffs stipulate that HCSC is not the proper party defendant for Count I of the Fifth Am ended 35 Id. Id. at 845– 46. 37 Id. at 846. 38 R. Doc. 458-1 at 13– 17. 39 Id.; R. Doc. 485 at 2– 4. 40 The Fifth Am ended Com plaint nam es five division s of HCSC, a m utual legal reserve com pany, as defendants in this m atter: Blue Cross and Blue Shield of Illinois, Blue Cross and Blue Shield of Montana, Blue Cross and Blue Shield of New Mexico, Blue Cross and Blue Shield of Oklahom a, and Blue Cross and Blue Shield of Texas. R. Doc. 458-1 at 14; R. Doc. 30 8. 41 R. Doc. 458-1 at 14. All references to “C” followed by a num ber refer to the Center tab of Exhibit I of the Fifth Am ended Com plaint. All references to “H” followed by a num ber refer to the Hospital tab of Exhibit I of the Fifth Am ended Com plaint. 42 Id. 36 7 Com plaint with respect to the ten claim s Defendants identified. 43 The Court therefore grants sum m ary judgm ent on Count I with regard to these claim s. B. Claim s C424– C426, H38 2 against Wellm ark Defendants argue that Wellm ark, Inc. is not the proper defendant under Count I with respect to the claim s regarding Patient E.D., appearing on lines C424, C425, C426, and H38 2 of Exhibit I to the Fifth Am ended Com plaint. 44 Patient E.D. is a m em ber of a plan, sponsored by Catholic Health Initiatives, for which Wellm ark is the claim adm in istrator. 45 Defendants rely on the language of the plan to support their argum ent that Wellm ark lacks the discretionary authority to determ ine claim s absent review by the plan adm inistrator, lacks actual control, and thus cannot be held liable under Count I. 46 Defendants contend that Plaintiffs cannot establish that Wellm ark had actual control, which they m ust prove to prevail on Count I. 47 Defendants argue that, in their m otion, they “highlighted the absen ce of evidentiary support for . . . Wellm ark . . . having ‘actual control’ over plan adm inistration for certain claim s. In fact, Defendants offered eviden ce that d is p r o v e d ‘actual control.’”48 The Court disagrees. Defendants have neither affirm atively dem onstrated a lack of eviden ce in the record to establish actual 43 R. Doc. 478 at 3– 4. R. Doc. 458-1 at 16. 45 Id. See also R. Doc. 458 -24. 46 R. Doc. 458-1 at 16. 47 See id.; LifeCare, 70 3 F.3d at 844– 45 (“We find the rationale and cases holding that a [third-party adm inistrator] m ay be held liable only if it exercises ‘actual control’ over the benefits claim s process convincing. We agree that [t]he proper party defendant in an action concerning ERISA benefits is the party that controls adm inistration of the plan’ and that [i]f an entity or persaon other than the nam ed plan adm inistrator takes on the responsibilities of the adm inistrator, that entity m ay also be liable for benefits.” (internal quotation m arks om itted)). 48 R. Doc. 485 at 2 (em phasis in original). 44 8 control nor subm itted affirm ative eviden ce that negates the possibility that Wellm ark had actual control. 49 In Defendants’ m em orandum in support of their m otion, Defen dants argue, “Under the term s of E.D.’s plan, Catholic Health Initiatives has ‘the exclusive right and power to interpret the Plan and to decide all m atters arising under the Plan, in cluding eligibility for Benefits.’”50 Defendants, however, cite no support for this statem ent. 51 In their statem ent of uncontested facts, Defendants state, “Lines C424, C425, C426, and H38 2 present claim s relating to services allegedly provided to E.D. The Plan for that patient designates an entity other than a Defendant which exercises actual control over Plan adm inistration.”52 Defendants cite “Wellm ark Attachm ents; Plan p. 10 2.”53 Defendants, however, fail to attach Page 10 2 of the plan to their m otion. 54 Defendants attached to their m otion only two pages of the Wellm ark plan, which constitute the entirety of the aforem entioned “Wellm ark Attachm ents.” Those pages provide the following inform ation regarding the process to appeal the denial of a claim : STEP ON E – Ap p e al to th e Claim s Ad m in is trato r If your Claim has been denied in whole or in part, you m ay have your Claim reviewed. The Claim Adm inistrator [Wellm ark] will review its decision . . . . The Claim Adm inistrator [Wellm ark] will give you a written decision within 60 days after it receives your request for review. The receipt of Wellmark’s written decision m arks the end of your official appeal. If the determ ination is unfavorable to you, you m ay subm it a voluntary request for review to the Catholic Health Initiatives Medical Plan Adm in istrator, as discussed later in this section. 49 See Celotex, 477 U.S. at 331– 32 (Bren nan, J ., dissenting). R. Doc. 458-1 at 16. 51 See id. 52 R. Doc. 458-2 at ¶ 13. 53 Id. 54 Curiously, in Plaintiffs’ statem ent of contested facts, Plaintiffs sim ply copy and paste the Defendants’ statem ent and citation, indicating Plaintiffs agree that the plan “designates an entity other than a Defendant which exercises actual control over Plan adm inistration.” R. Doc. 478 -4 at ¶ 13. 50 9 STEP TW O – Vo lu n tary Re qu e s t fo r Re vie w If the appealed claim is again denied, you m ay file a second appeal with the Claim s Adm inistrator [Wellmark]. . . . 55 The role in the appeals process of Catholic Health Initiatives, as plan adm in istrator, rem ains unclear. Although the plan states that a m em ber “m ay subm it a voluntary request for review” to Catholic Health Initiatives, the plan under “Step Two,” labeled “Voluntary Request for Review,” states that the claim ant m ay file a second appeal with the claim s adm in istrator, which is Wellm ark. 56 The language itself instructs claim ants to file the second appeal with Wellm ark. It is “unclear what part, if any, [Wellm ark] plays in the determ ination of the second appeal or whether [Wellm ark] m erely serves as the receiving point for all appeals and forwards the second appeals to the Plan Adm inistrator.”57 The Court finds that Defendants have not established based on plan docum ents, or any other com petent sum m ary judgm ent eviden ce, that Wellm ark did not exercise actual control over the plan. Defendants have failed to dem onstrate that no genuine issue of m aterial fact exists as to whether Wellm ark exercised actual control over the adm inistration of the plan. 58 Sum m ary judgm ent on Count I of the Fifth Am ended Com plaint with respect to the claim s appearing on lines C424, C425, C426, and H382 is denied. C. Claim s C30 2– C30 5, H258– H259, C336– C337, H30 0 – H30 3 against Regence Blue Shield Defendants argue that Regence Blue Shield is not the proper defendant under Count I with respect to the claim s regarding Patient L.C., appearing on lines C30 2, C30 3, C30 4, C30 5, H258, and H259 of Exhibit I to the Fifth Am ended Com plaint, and the claim s 55 R. Doc. 458-24 at 3. Id. 57 See Ctr. for Restorative Breast Surgery , L.L.C. v. Hum ana Health Ben. Plan of La., Inc., No. 10 -4346, 20 15 WL 43940 34, at *12 (E.D. La. J uly 15, 20 15). 58 See id. at *11– 12. 56 10 regarding a second patient with the in itials L.C., appearing on lines C336, C337, H30 0 , H30 1, H30 2, and H30 3 of Exhibit I. 59 Both patients are m em bers of plans that are sponsored by Boeing and for which Regence Blue Shield is the claim adm inistrator. 60 Under those plans, Boeing’s Board of Directors designated the Em ployee Ben efit Plans Com m ittee (“Com m ittee”) to be the plan adm in istrator. 61 The plans provide as follows: Notwithstanding any other provision in the Plan, . . . the Plan Adm inistrator [the Com m ittee] has the exclusive right, power, and authority, in its sole and absolute discretion, to • • Adm inister, apply, construe, and interpret the Plan and all related Plan docum ents. Decide all m atters and questions arising in connection with entitlem ent to benefits and the nature, type, form , am ount, and duration of benefits. ... • Delegate its adm inistrative duties and responsibilities to persons or entities of its choice such as the Boeing Service Center, the service representatives, and em ployees of the Com pany. All decisions that the Plan Adm inistrator (or any duly authorized designees) m akes with respect to any m atter arising under the Plan and any other Plan docum ents are final an d binding. 62 The parties did not provide any inform ation on the process regarding claim s determ inations and appeals thereof. Based on the plan language and the lim ited eviden ce on the record, the Court cannot determ ine the role of Regence Blue Shield in the claim s benefits process. The plan states that the plan adm inistrator m ay delegate its plan adm in istration duties or 59 R. Doc. 458-1 at 16. Id.; R. Doc. 458-25 at 4, ¶¶ 4, 5. 61 R. doc. 458-25 at 6. 62 Id. 60 11 responsibilities to any person or entity. Thus, authority m ay have been delegated to Regence Blue Shield to exercise discretionary functions under the plan, such as m aking claim s determ inations or interpreting plan provisions. 63 Further, without plan docum ents describing the claim s determ ination and appeals process, the Court cannot determ ine what role, if any, Regen ce Blue Shield has in m aking claim s and ben efits determ inations. Defendants have failed to establish there is no genuine issue of m aterial fact that Regence Blue Shield did not exercise actual control over the ben efits claim s process and adm inistration of the plan. 64 Sum m ary judgm ent on Count I of the Fifth Am ended Com plaint with respect to the claim s appearing on lines C30 2, C30 3, C30 4, C30 5, H258, H259, C336, C337, H30 0 , H30 1, H30 2, and H30 3 is denied. D. Claim s H374, H415, H416 again st Regence Blue Shield Defendants argue that Regence Blue Shield is not the proper defendant under Count I with respect to the claim regarding Patient T.D., appearing on line H374 of Exhibit I to the Fifth Am ended Com plaint, and the claim s regarding a second patient with the initials T.D., appearing on lines H415 and H416 of Exhibit I. 65 Both patients are m em bers of plans that are sponsored by Boeing and for which Regence Blue Shield is the claim adm inistrator. 66 Those plans contain the sam e language cited above in Section C of this Order with respect to Claim s C30 2– C30 5, H258– H259, C336– C337, and H30 0 – H30 3. 67 For the reasons stated in Section C, sum m ary judgm ent on Count I of the Fifth Am ended Com plaint with respect to the claim s appearing on lin es H374, H415, and H416 is denied. 63 See LifeCare, 70 3 F.3d at 8 45. See Hum ana, 20 15 WL 43940 34, at *13. 65 R. Doc. 458-1 at 17. 66 Id.; R. Doc. 458-25 at 7, ¶¶ 6, 7. 67 R. Doc. 458-25 at 9– 10 . 64 12 E. Claim s C140 4, H1215– H1216 against Regence BlueCross BlueShield of Utah Defendants argue that Regence BlueCross BlueShield of Utah is not the proper defendant under Count I with respect to the claim s regarding Patient M.W., appearing on lines C140 4, H1215, and H1216 of Exhibit I to the Fifth Am en ded Com plaint. 68 Patient M.W. is a m em ber of a plan, sponsored by O.C. Tanner Com pany, for which Regence BlueCross BlueShield of Utah is the claim adm inistrator. 69 The plan provides that “[b]enefits under this Plan will be paid only if the Plan Adm inistrator [O.C. Tanner] 70 decides, in their [sic] sole discretion, that you are entitled to them .”71 With respect to claim s reviews, the plan states the following: The first level of review will be perform ed by the Claim s Adm inistrator [Regence BlueCross Blue Shield of Utah] on the Plan’s behalf. . . . If the Claim ant does not agree with the Claim s Adm inistrator’s determ ination from the first level review, the Claim ant m ay subm it a second level appeal in writing . . . . to: Plan Adm inistrator [O.C. Tanner], Regence BlueCross BlueShield of Utah, 2890 East Cottonwood Parkway, Salt Lake City, UT 84121, Attn: Claim s Appeals. An appeal will not be deem ed subm itted until it is received by the Plan Adm inistrator [O.C. Tanner]. . . . The second level of review will be done by the Plan Adm inistrator [O.C. Tanner]. The Plan Adm in istrator will review the inform ation initially received and an y additional inform ation provided by the Claim ant, and m ake a determ ination on the appeal based on the term s and conditions of the Plan and other relevant inform ation. The Plan Adm inistrator will send a written or electronic Notice of Determ ination for the secon d level of review to the Claim ant within 30 days of receipt of the appeal. The determ ination by the Plan Adm inistrator upon review will be final, binding, and conclusive and will be afforded the m axim um deference perm itted by law. 72 68 R. Doc. 458-1 at 17. Id.; R. Doc. 458-25 at 13, ¶ 8. 70 R. Doc. 458-25 at 13. 71 Id. 72 Id. at 14. 69 13 Defendants rely on this language to support their contention that Defendants have “highlighted the absen ce of evidentiary support for . . . Regence having ‘actual control’ over plan adm inistration for certain claim s.”73 Another court in this district considered sim ilar plan language in Center for Restorative Breast Surgery , L.L.C. v. Hum ana Health Benefit Plan of Louisiana, Inc. 74 In Hum ana, the relevant plan language stated that the first-level appeal would be determ ined by the third-party adm inistrator but that the claim ant could appeal that decision to the plan adm inistrator. 75 The plan also stated that the first- and second-level appeals m ust be sent in person or by m ail to the third-party adm inistrator, and the plan provided the address of the third-party adm inistrator. 76 The court found that, based on the plan’s language, there was “a disputed m aterial fact as to whether [the third-party adm in istrator] exercised ‘actual control’ over the claim s adm inistration.” The court em phasized that, “[w]hile the Plan initially states that [the third-party adm inistrator] will resolve the initial appeal and the Plan Adm in istrator will determ ine the second appeal, the Plan then instructs the claim ant to send both appeals to [the third-party adm in istrator].”77 The court concluded it was “unclear what part, if any, [the third-party adm in istrator] plays in the determ ination of the second appeal or whether [the thirdparty adm inistrator] m erely serves as the receiving point for all appeals and forwards the second appeals to the Plan Adm inistrator.”78 73 R. Doc. 485 at 2. Hum ana, 20 15 WL 43940 34, at *12– 13. 75 Id. at *11. 76 Id. 77 Id. at *12 (em phasis in original). 78 Id. 74 14 Sim ilarly, although the Regence BlueCross BlueShield of Utah plan states “[t]he second level of review will be done by the Plan Adm inistrator,”79 it instructs claim ants to m ail the second-level appeal to Regence BlueCross BlueShield of Utah and not to O.C. Tanner. Based on the plan language, the Court finds a disputed m aterial fact exists as to whether Regence BlueCross BlueShield of Utah exercises actual control over the claim s adm in istration. As in Hum ana, it is unclear what role, if any, Regence BlueCross BlueShield of Utah “plays in the determ in ation of the second appeal or whether [it] m erely serves as the receiving point for all appeals and forwards the second appeals to the Plan Adm inistrator.”80 The Court finds this disputed factual issue is m aterial. 81 “If [Regence BlueCross BlueShield of Utah] handles both levels of appeals or selectively decides which appeals go to the Plan Adm in istrator, this exercise of discretion would signify actual control, and [Regence BlueCross BlueShield of Utah] would be a proper defendant under Lifecare.”82 The Court finds the plan’s conflicting language creates a genuine issue of m aterial fact. Accordingly, sum m ary judgm ent on Count I of the Fifth Am ended Com plaint with respect to the claim s appearing on lines C140 4, H1215, and H1216 is den ied. II. COUNT I: W HETHER SOME OF P LAINTIFFS’ ERISA BENEFITS CLAIMS F AIL AS A M ATTER OF LAW BECAUSE THEY ARE BASED ON I NSURANCE P OLICIES OR P LANS THAT ARE N OT SUBJ ECT TO ERISA Defendants argue that several patients’ plans from which Plaintiffs’ claim s arise are not governed by ERISA and, accordingly, Count I of the Fifth Am ended Com plaint should be dism issed as to the claim s arising from those plans. 83 79 R. Doc. 458-25 at 14. Hum ana, 20 15 WL 43940 34, at *12. 81 See id. 82 Id. 83 R. Doc. 458-1 at 17– 19. 80 15 The parties subsequently filed a joint stipulation identifying m ultiple claim s that are based on plans not subject to ERISA84 : Patie n t Lin e ( s ) J .B. C112, C113 B.H. H624 J .A. C10 , H50 V.B. C176 M.B. C186, C187 L.B. C237, C238 B.B. H225 T.C. C334, C335, H294 J .C. H339 S.D. H344 I.D. H350 , H351, H352 E.D. H356 L.D. H360 C.D. H376, H377 S.F. C476, C477, H456 J .F. H488 K.G. H519 T.H. H621 M.H. H638 D.H. C687, C688, C689, C690 , H643 Z.I. J .M. C8 18 D.M. H779 C.P. 84 C70 3 C956, C957, C958, C959, C960 , C961, H872, H873 R. Doc. 468. 16 M.R. H934 J .R. H935, H936 J .R. H945, H946 T.R. H950 J .R. H976 T.S. H10 37 B.S. H10 38, H10 39 D.S. H10 70 C.S. H10 83 C.T. H110 4 R.H. H612 J .R. H979, H980 M.H. C663, C664, C665, C666, H60 5, H60 6 A.L. C735, H683 B.A. C42, C43, C44, H35 M.R. C10 46, H927 B.W. C.F. C1419, C1420 , C1421, H1248, H1249 H457, H458 H.K. C719, H665, H666 J .P. H874 T.F. C528, C529, H497 C.C. J .B. C313, C314, C415, H269, H270 H221 K.H. C668 , C669, H60 8 L.R. C10 91 L.Z. C1448, C1449, C1450 , C1451 K.A. H52, H53, H54 17 Accordingly, the Court grants sum m ary judgm ent on Count I as to the claim s listed above, as ERISA does not apply to them . The parties also stipulated that the following two claim s do arise from ERISA plans: Patie n t Lin e ( s ) S.C. C272, C273, C274, H230 D.G. H512 Accordingly, the Court denies sum m ary judgm ent on Count I as to these two claim s. III. COUNT I: W HETHER SOME OF P LAINTIFFS’ ERISA BENEFITS CLAIMS ARE U NTIMELY AS A M ATTER OF LAW Defendants contend that the Court should grant sum m ary judgm ent on certain of Plaintiffs’ claim s for benefits under ERISA in Count I of the Fifth Am ended Com plaint. 85 Defendants argue those claim s are barred (1) by the applicable statutory lim itations period, for those claim s arising under plans that lack a contractual lim itations period, or (2) by the lim itations period contained in the plans on which they are based. 86 A. Whether Certain of Plaintiffs’ ERISA Claim s Fail Because They Are Barred by the One-Year Statute of Lim itations Applicable to ERISA Claim s Based on Plans that Lack a Contractual Lim itations Period Defendants argue that certain of Plaintiffs’ ERISA claim s for ben efits arising under plans not containing contractual lim itations periods are untim ely. 87 A statute of lim itations establishes the period of tim e within which a claim ant m ust bring an action. 88 “As a general m atter, a statute of lim itations begins to run when the 85 R. Doc. 458-1 at 20 . Id. at 21– 27. 87 R. Doc. 458-1 at 24– 27. 88 Heim eshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 60 4, 610 (20 13). 86 18 cause of action accrues—that is, when the plaintiff can file suit and obtain relief.”89 ERISA does not specify a statute of lim itations for claim s brought under § 1132(a)(1)(B). 90 Nevertheless, a cause of action under ERISA “accrues after a claim for benefits has been m ade an d form ally denied.”91 Because ERISA provides no specific lim itations period, courts apply the statute of lim itations of the state-law cause of action “m ost analogous” to the cause of action raised. 92 The parties agree that the statute of lim itations for the cause of action under Louisiana law m ost analogous to Plaintiffs’ claim s for benefits under the ERISA health plans is contained in La. Rev. Stat. § 22:975(A)(11), which governs health and accident policy provisions. 93 La. Rev. Stat. § 22:975(A)(11) provides, “No legal action shall be brought after the expiration of one year after the tim e proof of loss is required to be filed.” The Court agrees that La. Rev. Stat. § 22:975(A)(11) provides the lim itations period for the m ost analogous cause of action under state law. Therefore, the applicable lim itations period for those ERISA plans that do not contain contractual lim itations periods is one year. The parties disagree as to when prescription com m ences. The parties devote several pages of argum ent to defining “loss” as used in La. Rev. Stat. § 22:975(A)(11). 94 The Court need not, however, determ in e when “loss” occurs under Louisiana law. “Although state law determ ines the lim itations period, federal law governs the accrual 89 Id. Id.; Hogan v. Kraft Foods, 969 F.2d 142, 145 (5th Cir. 1992). 91 Harris Methodist Fort W orth v. Sales Support Servs. Inc. Em ploy ee Health Care Plan, 426 F.3d 330 , 337 (5th Cir. 20 0 5). See also Hall v. N at’l Gy psum Co., 10 5 F.3d 225, 230 (5th Cir. 1997). 92 Harris, 426 F.3d at 337; N . Cy press Med. Ctr. Operatin g Co. v. Cigna Healthcare, 781 F.3d 182, 20 4 (5th Cir. 20 15). 93 R. Doc. 458-1 at 25; R. Doc. 478 at 8– 11. 94 See R. Doc. 458-1 at 26 – 27; R. Doc. 478 at 8 – 10 ; R. Doc. 485 at 11– 14; R. Doc. 489 at 4– 6. 90 19 date for a claim under ERISA.”95 A cause of action under ERISA “accrues after a claim for benefits has been m ade and form ally denied.”96 Therefore, to determ ine when the lim itations period com m enced, the Court m ust determ in e when the claim s for ben efits were “form ally denied.” The Suprem e Court in Heim eshoff v. Hartford Life & Accident Insurance Co. explain ed that a cause of action under ERISA does not accrue until a claim ant has exhausted the internal appeals process: ERISA and its regulations require plans to provide certain presuit procedures for reviewing claim s after participants subm it proof of loss (internal review). The courts of appeals have uniform ly required that participants exhaust internal review before bringing a claim for judicial review under [§ 1132(a)(1)(B)]. A participant’s cause of action under ERISA accordingly does not accrue until the plan issues a final denial. 97 The Fifth Circuit has also recognized that “claim ants seeking benefits from an ERISA plan m ust first exhaust available adm inistrative rem edies under the plan before bringing suit to recover benefits.”98 Accordingly, Plaintiffs’ cause of action under ERISA with respect to plans lacking a contractual lim itations period began to accrue with respect to each claim when the applicable plan issued a final denial at the conclusion of the internal review process. The Court finds, per Heim eshoff and Harris, that the one-year prescriptive period for each claim for benefits under § 1132(a)(1)(B), borrowed from La. Rev. Stat. § 22:975(A)(11), 95 Ivanovic v. IBM Pers. Pen sion Plan, 47 F. Supp. 3d 163, 167 (E.D.N.Y. 20 14), aff’d, 620 F. App’x 64 (2d Cir. 20 15). See also Jensen v. Snellings, 841 F.2d 60 0 , 60 6 (5th Cir. 198 8) (“Although we borrow the applicable lim itations period from state law, the determ ination of when that lim itations period begins to run is governed by federal law.”); Salcedo v. John Hancock Mut. Life Ins. Co., 38 F. Supp. 2d 37, 42 (D. Mass. 1998) (“Although the lim itations period in an action to recover benefits under ERISA is borrowed from state law, federal law determ in es the date on which the cause of action accrues and from which the lim itations period is m easured.”). 96 Harris, 426 F.3d at 337. See also Hall, 10 5 F.3d at 230 (“A cause of action under ERISA accrues when a request for benefits is den ied.”). 97 Heim eshoff, 134 S. Ct. at 610 . 98 Bourgeois v. Pension Plan for Em ploy ees of Santa Fe Int’l Corps., 215 F.3d 475, 479 (5th Cir. 20 0 0 ). 20 com m enced when the applicable plan issued a fin al denial following exhaustion of the plan’s internal review process. Sum m ary judgm ent on Count I is granted as to any claim s for benefits under § 1132(a)(1)(B) arising from a plan lacking a contractual lim itations period that was filed m ore than one year from the date on which the applicable plan issued a final den ial. B. Whether Certain of Plaintiffs’ ERISA Benefits Claim s, Based on ERISA Plans that Include a Contractual Lim itations Period, Are Barred Defendants argue that certain of Plaintiffs’ claim s for benefits under ERISA § 1132(a)(1)(B) fail as a m atter of law because Plaintiffs failed to bring those claim s within the contractual lim itations periods contained in the plans under which the claim s arise. 99 As previously explain ed, a cause of action under ERISA “accrues after a claim for benefits has been m ade and form ally denied.”10 0 Because ERISA provides no specific lim itations period, courts apply state law principles of lim itation. 10 1 “Where a plan design ates a reasonable, shorter tim e period, however, that lesser lim itations schedule governs.”10 2 In Heim eshoff, the Suprem e Court explained that a plan participant’s cause of action under ERISA “does not accrue until the plan issues a final denial.”10 3 The Court held, however, that, “[a]bsent a controlling statute to the contrary, a participant an d a plan m ay agree by contract to a particular lim itations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable.”10 4 The Court noted that statutes of lim itations “provide only a default rule that perm its parties to choose a 99 R. Doc. 458-1 at 21. Harris, 426 F.3d at 337. See also Hall, 10 5 F.3d at 230 . 10 1 Harris, 426 F.3d at 337. 10 2 Id. 10 3 Heim eshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 60 4, 610 (20 13). 10 4 Id. 10 0 21 shorter lim itations period,”10 5 and the Court reasoned, “[i]f parties are perm itted to contract around a default statute of lim itations, it follows that the sam e rule applies where the statute creating the cause of action is silent regarding a lim itations period.”10 6 “The principle that contractual lim itations provisions ordin arily should be enforced as written is especially appropriate when enforcing an ERISA plan” because “[t]he plan, in short, is at the center of ERISA.”10 7 The Court therefore concluded that it m ust give effect to the plan’s lim itations provision unless the Court determ ines either that the period is unreasonably short or that a “controlling statute” prevents the lim itations provision from taking effect. 10 8 Plaintiffs do not identify, and the Court has not found, any controlling statute that prevents a contractual lim itations period from taking effect in this case. Indeed, Louisiana perm its parties to reduce a prescriptive period by contract. 10 9 Therefore, the Court need only determ in e whether the contractual lim itations periods at issue are “unreasonably short.”110 Plaintiffs argue that “Fifth Circuit precedence [sic] clearly bars any contractual lim itations period that is shorter than [the one-year period] prescribed by relevant statute.”111 This, however, is clearly contrary to Heim eshoff. To support their argum ent, Plaintiffs cite only one case, Arm el v. Sun Life Assurance Com pany of Canada, a 20 0 6 district court case that predated Heim eshoff. 112 In Arm el, the court deem ed La. Rev. Stat. 10 5 Id. Id. 10 7 Id. at 611– 12. 10 8 Id. at 612. 10 9 See Saul Litvinoff, 6 La. Civ. L. Treatise, Law of Obligations § 11.22 (2d ed.) (“Louisiana courts have quite often asserted that parties m ay agree to a prescriptive period shorter than the one provided by law.”); Barrilleaux v. Hartford Life and Acc. Ins. Co., No. 12-1542, 20 14 WL 3778696 (E.D. La. J uly 29, 20 14). 110 Heim eshoff, 134 S. Ct. at 612. 111 R. Doc. 478 at 8 . 112 Arm el v. Sun Life Assur. Co. of Canada, No. 0 5-0 327, 20 0 6 WL 980 679, at *3 (E.D. La. Apr. 11, 20 0 6). 10 6 22 § 22:213(A)(11), which contained a one-year prescriptive period, analogous to a cause of action seeking ben efits under ERISA. 113 The contractual lim itations period at issue in Arm el, however, was three years. 114 The court applied the contractual lim itations period and explained that “when an insurance policy specifies a contractual period, which is m ore favorable to the insured than the one-year prescriptive period, the tim e for filing is governed by the tim e period specified in the policy.”115 The Arm el court did not address the issue of whether a contractual lim itations period m ay shorten the prescriptive period provided by statute. Clearly under Heim eshoff and its progeny, a contractual lim itations period m ay shorten the default lim itations period, absent a controlling statute to the contrary, unless the contractual lim itations period is unreasonably short. 116 The Court in Heim eshoff did not define “unreasonably short.” The Court provided som e guidance, however, when it found that the three-year contractual lim itations period at issue in that case was not unreasonably short on its face, 117 even though the lim itations period began when proof of loss was due, which was before a participant could exhaust internal review under the plan. 118 The Court explained as follows: Neither Heim eshoff nor the United States claim s that the Plan’s 3-year lim itations provision is unreasonably short on its face. And with good reason: the United States acknowledges that the regulations governing internal review m ean for “m ainstream ” claim s to be resolved in about one year, leaving the participant with two years to file suit. Even in this case, where the adm inistrative review process required m ore tim e than usual, Heim eshoff was left with approxim ately one year in which to file suit. 119 113 Id. at 2– 3. Id. at *3. 115 Id. 116 Heim eshoff, 134 S. Ct. at 612 (“We m ust give effect to the Plan's lim itations provision unless we determ ine either that the period is unreasonably short, or that a “controlling statute” prevents the lim itations provision from taking effect.”). 117 See id. at 612– 13. 118 Id. at 610 . 119 Id. at 612 (citations om itted). 114 23 This suggests that a lim itations period that provides a claim ant one year to file suit from the date of exhaustion of the internal appeals is not unreasonably short, a finding that is consistent with application of the statutory lim itations period borrowed from La. Rev. Stat. § 22:975(A)(11) to plans that do not contain a contractual lim itations period. 120 In Baptist Mem orial Hospital—De SoTo Inc. v. Crain Autom otive Inc., the plan at issue contain ed a lim itations period that provided, “No action at law or in equity . . . shall be brought after the expiration of two (2) years from the date the expense was incurred, or one (1) year from the date a com pleted claim was filed, whichever occurs first.”121 The court found that the com pleted claim was filed on Novem ber 13, 20 0 3. 122 The lawsuit was filed on August 25, 20 05, well outside the plan’s applicable one-year lim itations period. 123 The trial court, however, found that the contractual lim itations period of one year was “unreasonable” and thus unenforceable. 124 The Fifth Circuit affirm ed, concluding the one-year lim itations period was unreasonable: First, the one-year lim itations period begins to run when a participant m erely files a com pleted claim , potentially long before the claim ant’s ERISA cause of action even accrues. The adm inistrator’s initial denial of a claim could take as long as 90 days under the . . . Plan, depending on whether the adm inistrator requests that the claim ant subm it additional inform ation. The claim ant then has an additional 18 0 days to adm inistratively appeal the denial of a claim , and the adm inistrator then has 60 days to issue a decision on the appeal. In total, the . . . Plan’s claim and internal appeal procedures could take as long as 330 days, leaving an unsatisfied claim ant with only 35 days to file suit. 125 120 See supra Part III.A. Mem ’l Hosp.—DeSoto Inc. v. Crain Auto. Inc., 392 F. App’x 288 , 294 (5th Cir. 20 10 ) (per curiam ). Although this case predated Heim eshoff, the court was following Harris, in which the Fifth Circuit held that, “[w]here a plan designates a reasonable, shorter tim e period [than provided by an applicable state law], that lesser lim itations schedule governs.” Harris, 426 F.3d at 337. 122 Id. 123 Id. 124 Id. 125 Id. at 294– 95. 121 Baptist 24 In Baptist, the plan adm inistrator failed to provide the claim ant with a form al denial, and the court found that the plaintiff’s ERISA cause of action had not accrued by October 13, 20 0 4, less than one year before the plaintiff filed suit. 126 In Dy e v. Associates First Capital Corporation Long-Term Disability Plan 50 4, the Fifth Circuit found that a 120 -day lim itation period in the context of disability benefits was not unreasonable. 127 The court explained that “there is no apparent reason that a court should treat a lim itations period [in the health care context] differently” in the context of disability benefits. 128 Of course, a contractual lim itations period that expires before the issuance of a final denial of benefits is unreasonable. 129 Because “claim ants seeking benefits from an ERISA plan m ust first exhaust available adm inistrative rem edies under the plan before bringing suit to recover benefits,”130 any period that expires before a claim ant has exhausted the available internal rem edies is unreasonably short. 131 “If the adm inistrator’s conduct causes a participant to m iss the deadline for judicial review, waiver or estoppel m ay prevent the adm inistrator from invoking the lim itations provision as a defen se.”132 For exam ple, in Hansen v. Aetna Health and Life Ins. Co., the United States District Court for the District of Oregon found that a two-year lim itations period was unreasonable when 126 Id. at 295. Dy e v . Associates First Capital Corp. Long-Term Disability Plan 50 4, 243 F. App’x 80 8 , 810 (5th Cir. 20 0 7). 128 Id. 129 See Baptist, 392 F. App’x at 294– 95 (im plyin g that a contractual lim itations period that, as applied, provides a claim ant only 35 days to file suit is unreason able). 130 Bourgeois, 215 F.3d at 479. 131 See, e.g., Heim eshoff, 134 S. Ct. at 615 (“If the adm in istrator’s conduct causes a participant to m iss the deadline for judicial review, waiver or estoppel m ay prevent the adm inistrator from invoking the lim itation s provision as a defense.”); Baptist, 392 F. App’x at 294 (suggesting that a plan with a one-year lim itations period is unreasonable when the lim itations period is m ostly consum ed by the internal review process and leaves the claim ant with on ly 35 days to file suit). 132 Heim eshoff, 134 S. Ct. at 615. 127 25 a protracted internal review process had “consum ed that entire period.”133 The court explain ed, “Enforcem ent of a two-year suit lim itation in this case, after plaintiff has diligently pursued her appeals rights in a protracted internal review process, would render that provision unreasonable in practical term s.”134 In Plaintiffs’ supplem ental statem ent of contested facts, Plaintiffs identify at least one claim that prescribed under the contractual lim itations period contained in the respective plan before the plan adm inistrator issued a fin al appeal. 135 Therefore, with respect to that claim , Plaintiffs have shown that the contractual lim itations period as applied was unreasonably short, as Plaintiffs’ claim s prescribed before Plaintiffs could even file suit. Any contractual lim itations period that expired before the issuance of a final denial of benefits is un enforceable. Further, after reviewing the applicable case law and the argum ents of the parties, the Court finds that a contractual lim itations period that results in the claim ant’s having at least 90 days to file suit from the date the plan issues a decision on final appeal 136 is presum ptively reasonable. 137 Claim ants who fail to bring actions within the contractual lim itations period m ay nevertheless rebut the presum ption of reasonableness by showing 133 Hansen v. Aetna Health & Life Ins. Co., No. 98-949, 1999 WL 10 740 78, at *4 (D. Or. Nov. 4, 1999). Id. 135 See R. Doc. 514 at ¶ 116. 136 The Court m ust consider the am ount of tim e a claim ant has to file suit to determ in e whether a contractual lim itations period is reason able. See Heim eshoff, 134 S. Ct. at 612– 13. Because “claim ants seeking benefits from an ERISA plan m ust first exhaust available adm inistrative rem edies under the plan before brin ging suit to recover benefits,” Bourgeois, 215 F.3d at 479, the Court determ ines whether a period is reasonable based on the tim e a claim ant has to file suit from the date the plan issues a decision on the final internal appeal. 137 Indeed, Plaintiffs concede that a 90 -day lim itations period is not unreasonably short with respect to the ERISA plan applicable to Claim C1395. See R. Doc. 458 -2 at ¶ 76; R. Doc. 514 at ¶ 76. 134 26 they are entitled to application of traditional doctrines such as waiver, estoppel, or equitable tolling. 138 Plaintiffs have offered no eviden ce to rebut the presum ption that 90 days is reasonable with respect to any particular claim . Nor have Plaintiffs provided any evidence to establish that waiver, estoppel, or equitable tolling should apply to any particular claim . 139 Despite the Court’s having granted Plaintiffs leave to supplem ent their opposition to the m otion for sum m ary judgm ent, 140 Plaintiffs provided no com petent sum m ary judgm ent evidence to support their contention that various contractual lim itations periods are unreasonable as applied. For exam ple, with respect to Paragraph 8 1, which corresponds to Claim C-943, Plaintiffs and Defendants agree that the plan provided claim ants 180 days to file suit “after the claim ant has exhausted the claim s and appeal procedures under the Plan.”141 The parties also agree that the lim itations period 138 See Heim eshoff, 134 S. Ct. at 615 (“[E]ven in the rare cases where internal review prevents participants from bringin g [§ 1132(a)(1)(B)] actions within the con tractual period, courts are well equipped to apply traditional doctrines that m ay nevertheless allow participants to proceed. If the adm in istrator’s conduct causes a participant to m iss the deadline for judicial review, waiver or estoppel m ay prevent the adm inistrator from invokin g the lim itations provision as a defense. . . . To the extent the participant has diligently pursued both internal review and judicial review but was preven ted from filing suit by extraordinary circum stances, equitable tolling m ay apply.” (citations om itted)). 139 See Heim eshoff, 134 S. Ct. at 611– 12 (“The principle that contractual lim itations provisions ordinarily should be en forced as written is especially appropriate when enforcing an ERISA plan. The plan , in short, is at the center of ERISA. . . . We m ust give effect to the Plan’s lim itations provision unless we determ ine either that the period is unreasonably short, or that a ‘controlling statute’ prevents the lim itations provisions from taking effect.”); Mun ro-Kienstra v . Carpenters’ H ealth & W elfare Trust Fund of St. Louis, 790 F.3d 799, 80 2– 0 3 (8th Cir. 20 15) (not reaching whether contractual lim itation s period was reasonable because “[the plaintiff] does not argue that the plan’s two year statute of lim itations is un reasonable under Heim eshoff . . . .” (quotin g Heim eshoff, 134 S. Ct. at 612, 616)); Mazur v. UN UM Ins. Co., 590 F. App’x 518, 522 (6th Cir. 20 14) (“We apply the lim itations periods specified in the policy because they apply to [the plaintiff’s] ERISA claim s, and because [the plain tiff] has not argued that these lim itations are unreasonable.”); Ow ner-Operator Indep. Drivers Ass'n, Inc. v. May flow er Transit, Inc., No. 98-457, 20 0 7 WL 290 0 561, at *11 (S.D. In d. Sept. 28, 20 0 7) (non-ERISA) (“Plaintiffs have not dem onstrated that one- or two-year contractual lim itations periods are unreason ably short. . . . Plaintiffs have provided no evidence to distinguish these cases or otherwise bolster their assertion that such tim e lim its are unreasonable; their argum ent on this ground cannot succeed.”). 140 See R. Doc. 512 at 4; R. Doc. 514. 141 R. Doc. 458-2 at ¶ 81; R. Doc. 514 at ¶ 81. 27 began to run on May 2, 20 13, the date of resolution of Plaintiffs’ second-level appeal. 142 Thus, Plaintiffs had until October 29, 20 13, to file suit. Plaintiffs did not file suit on Claim C-943, however, until Novem ber 15, 20 13. 143 In their supplem en tal statem ent of contested facts, Plaintiffs argum ent provides only as follows: “Plaintiffs assert that a 180 day prescriptive period is unreasonable under these circum stances. Plaintiffs further assert that suit for this claim was filed within a reasonable tim e.”144 This, however, is insufficient to defeat sum m ary judgm ent, as “unsubstantiated assertions are not com petent sum m ary judgm ent evidence.”145 “The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m ann er in which that evidence supports his or her claim ,”146 but in this case Plaintiffs assert only conclusory allegations in support of their argum ent that the plans’ contractual lim itations periods are unreasonable. 147 Because Plaintiffs have failed to show that these contractual lim itations periods are unreasonably short or otherwise unenforceable, 148 the Court will enforce the contractual lim itations period contained in those plans. 149 The Court further finds that a lim itations period resulting in the claim ant’s having fewer than 90 days to file suit from the date of final appeal is unreasonably short on its face, as it would im pose an unreasonable 142 burden on the claim ant. R. Doc. 458-2 at ¶ 81; R. Doc. 514 at ¶ 81. R. Doc. 458-2 at ¶ 81; R. Doc. 514 at ¶ 81. 144 R. Doc. 514 at ¶ 81. 145 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998). 146 Id. 147 See generally R. Doc. 514. 148 With respect to m any claim s, Plaintiffs concede that the plans under which the claim s arise contained contractual lim itations periods that are “reasonable un der [the] circum stances.” See R. Doc. 514. The Court will enforce the contractual lim itations periods in those plans as written . 149 See Heim eshoff, 134 S. Ct. at 611– 12 (“The principle that contractual lim itations provisions ordinarily should be en forced as written is especially appropriate when enforcing an ERISA plan. The plan , in short, is at the center of ERISA. . . . We m ust give effect to the Plan’s lim itations provision unless we determ ine either that the period is unreasonably short, or that a ‘controlling statute’ prevents the lim itations provisions from taking effect.”). 143 28 “Reason ableness . . . [turns] on a determ ination of whether the contractual lim itations period gives the claim ant a chance to investigate the claim and exhaust adm inistrative rem edies before the tim e lim itation has run, and whether it gives the plan adm inistrator appropriate protection from stale claim s.”150 A period of at least 90 days to file suit from the date on which the plan issues a decision on final appeal strikes the appropriate balance between en suring a claim ant has sufficient tim e to investigate his or her claim and file suit and protecting the plan adm inistrator from stale claim s. In sum m ary, with respect to any plan that allows the claim ant fewer than 90 days to file suit from the date the plan issued the final appeal, the lim itations period is unreasonably short on its face. For those plans, the one-year lim itations period borrowed from La. Rev. Stat. § 22:975(A)(11) applies. The Court grants sum m ary judgm ent on Count I with respect to any claim s not filed within one year from the date such a plan issued a final decision on appeal. 151 With respect to any plan that allows a claim ant at least 90 days to file suit from the date the plan issue the final appeal, the lim itations period is not unreasonably short on its face, and, because there is no particularized evidence showing extraordinary circum stances with respect to any claim , the lim itations period is enforceable. For those claim s arising under plans with enforceable lim itations periods, the Court grants sum m ary judgm ent on Count I with respect to any claim not filed within the lim itations period provided by the plan under which the claim arose. 150 Furleigh v. Allied Grp. Inc., 281 F. Supp. 2d 952, 969 (N.D. Iowa 20 0 3). Harris, 426 F.3d at 337; Munro-Kienstra, 790 F.3d at 80 2– 0 3 (8th Cir. 20 15) (“If the parties ‘have adopted a lim itations period by contract,’ as the parties have done here, ‘there is n o need to borrow a state statute of lim itations’ unless a court concludes ‘either that the period is un reasonably short, or that a controlling statute prevents the lim itations provision from taking effect.’” (quotin g Heim eshoff, 134 S. Ct. at 612, 616)). 151 29 IV. COUNT VII: W HETHER SOME HAVE P RESCRIBED OF P LAINTIFFS’ N EGLIGENT M ISREPRESENTATION Defendants argue that som e of Plaintiffs’ negligent m isrepresentation claim s in Count VII of the Fifth Am ended Com plaint have prescribed. 152 The parties agree, 153 and the Court concurs, that negligent m isrepresentation is a tort claim 154 and is subject to a one-year prescriptive period under Louisiana law. 155 The parties dispute, however, when a negligent m isrepresentation cause of action begins to accrue. Under Louisiana law, prescription com m en ces when a plaintiff has actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. 156 “Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantam ount to knowledge or notice of everything to which a reasonable inquiry m ay lead.”157 Defendants argue that the prescriptive period on Plaintiffs’ negligent m isrepresentation claim s began, at the latest, on the date Plaintiffs filed their first internal appeals. 158 Defendants contend that when Plaintiffs filed their first appeal, “they had 152 R. Doc. 458-1 at 28– 33. See id. at 28; R. Doc. 478 at 11. 154 Lifecare Hospitals, Inc. v. B & W Quality Grow ers, In c., 39,0 65 (La. App. 2 Cir. 20 0 4), 8 87 So. 2d 624, 633 w rit denied, 20 0 4-2935 (La. 20 0 5), 8 93 So. 2d 872 (citing M em orial Hospital Sy s. v. N orthbrook Life Ins. Co., 90 4 F.2d 236 (5th Cir. 1990 )). 155 See N at’l Council on Com pensation Ins v. Quixx Tem porary Servs., Inc., 665 So. 2d 120 , 122 (La. App. 4 Cir. 1995) (“The action for negligent m isrepresentation arises ex delicto, . . . and is subject to the one year prescriptive period of Civil Code article 3492.”). 156 Cam po v. Correa, 20 0 1-270 7 (La. 6/ 21/ 0 2), 8 28 So. 2d 50 2, 510 . See also Dardar, 20 11 WL 976539, at *2; Dugger v. Upledger Inst., No. CIV. A. 90 -0 8 29, 1992 WL 210 0 46, at *1 (E.D. La. Aug. 21, 1992), aff'd sub nom . Dugger v. Upledger Inst., 8 F.3d 20 (5th Cir. 1993) (“In a suit for n egligent m isrepresentation, prescription does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, n egligent, or unreasonable. Therefore, prescription does not com m ence until the plaintiff has actual or constructive notice of the tortious act, the resulting dam age and the causal connection between the two.” (internal citation and quotation m arks om itted)). 157 Cam po, 828 So. 2d at 510 – 11. 158 R. Doc. 458-1 at 30 – 31. 153 30 actual knowledge of the facts they needed to brin g their negligent m isrepresentation . . . claim s and that prescription had begun to run.”159 Plaintiffs, on the other hand, argue that the prescriptive period com m enced on the date Plaintiffs exhausted their internal appellate rights. 160 To support their argum ent, Plaintiffs rely on Arm el v. Sun Life Assur. Co. of Canada, but this case is distinguishable because it involved the determ in ation of benefits under an ERISA plan and not under Louisiana law. 161 In Harvey v. Dixie Graphics, Inc., the Suprem e Court of Louisiana explain ed that a cause of action in tort begins to accrue “when the plaintiff’s right to be free of illegal dam age has been violated.”162 The dam age suffered m ust be actual, determ inable, and not m erely speculative, but “there is no requirem ent that the quantum of dam ages be certain or that they be fully incurred, or incurred in som e particular quantum , before the plaintiff has a right of action.”163 In Harvey , the plaintiff sued an accounting firm for alleged negligence in preparing incom e tax returns for the plaintiff’s com pany. 164 The plaintiff learned in Novem ber 1984 that his tax returns were prepared incorrectly, and in Decem ber 1986, after negotiating with the IRS, the plaintiff paid the IRS m ore than $ 175,0 0 0 tax and interest. 165 The plaintiff sued the accounting firm in J une 1987. 166 The Louisiana Suprem e Court affirm ed the trial court’s ruling that the plaintiffs’ negligence claim had prescribed. 167 The court found that it was not m anifestly erroneous to conclude 159 Id. at 31. R. Doc. 478 at 13– 14. 161 Arm el v. Sun Life Assur. Co. of Canada, 20 0 6 WL 98 0 679 (E.D. La. Apr. 11, 20 0 6). 162 Harvey v. Dixie Graphics, Inc., 593 So. 2d 351, 354 (La. 1992). 163 Id. 164 Id. at 353. 165 Id. 166 Id. 167 Id. at 354– 55. 160 31 that prescription on the plaintiff’s tort claim com m enced in Novem ber 1984—as opposed to Decem ber 1986—because the plaintiff knew of the accounting firm ’s negligence at that tim e. 168 The court explained, “The m ere fact that all of [the plaintiff’s] dam ages were not yet suffered because he had not yet written a check to the IRS does not change the key fact that the plaintiff was certainly aware that he had suffered appreciable harm from the allegedly tortious act of [the defendant].”169 To prevail in an action for negligent m isrepresentation, a plaintiff m ust prove that the defendant had a legal duty to supply correct inform ation, the defendant breached that duty, and the breach of that duty caused the plaintiff dam ages. 170 Plaintiffs allege that Defendants had a duty “to act in good faith and provide up-to-date inform ation regarding [their] plan[s] through [their] agent[s] to third parties who rely on that inform ation in m aking their adm ission and patient treatm ent decision s.”171 Plaintiffs allege that Defendants breached their duty to Plaintiffs “by providing m isleadin g inform ation about the benefits to be paid after authorizing the procedure to be perform ed.”172 Plaintiffs argue these alleged m isrepresentations caused them to sustain dam ages including loss of revenue for services rendered to the subscribers, loss of profits, loss of business opportunities, and costs of services of ren dering care and treatm ent to the subscribers. 173 168 Id. Id.at 355. 170 Hardy v. Easy T.V. & Appliances of Louisiana, Inc., 20 0 1-0 0 25 (La. App. 4 Cir. 12/ 12/ 0 1), 80 4 So. 2d 777, 781. 171 R. Doc. 30 8 at ¶ 235 (citin g B & W Quality Grow ers, 887 So. 2d at 632 (“We further conclude that [the defendant] was under a duty to act in good faith and provide up-to-date inform ation regardin g its plan to reduce coverage through its agent to third parties such as [the plaintiff], who rely on that inform ation in m aking their adm ission an d patient treatm ent decisions.”)). 172 R. Doc. 40 8 at ¶ 236. 173 Id. at ¶ 241. 169 32 Plaintiffs state in their com plaint that, “after the benefits were not paid in accordance with the representations,” they appealed the benefit determ inations. 174 By the date of the first appeal, Plaintiffs clearly knew that they had received less than the am ount Defendants allegedly represented that Plaintiffs would receive for the services ren dered. As a result, Plaintiffs knew they had “suffered appreciable harm ” from the alleged negligent m isrepresentation by the date they filed their first appeals. 175 The Court finds that prescription com m enced, at the latest, when the first appeal was filed with respect to each claim . Accordingly, any claim under Count VII that was filed m ore than one year after the date the first appeal was filed with respect to such claim is prescribed, and sum m ary judgm ent is granted on Count VII as to each prescribed claim . V. COUNT V: W HETHER SOME OF P LAINTIFFS’ DETRIMENTAL R ELIANCE CLAIMS H AVE P RESCRIBED Defendants argue that certain of Plaintiffs’ detrim ental reliance claim s in Count V of the Fifth Am ended Com plaint have prescribed. 176 The parties dispute the applicable prescriptive period for Plaintiffs’ cause of action for detrim ental reliance. While Defendants argue Plaintiffs’ cause of action for detrim ental reliance is delictual and is subject to a one-year prescriptive period, Plaintiffs contend that their detrim ental reliance cause of action sounds in contract and is subject to a ten-year prescriptive period. 177 A claim for detrim ental reliance can sound in either contract or tort. 178 Delictual actions are subject to a prescriptive period of one year, while contractual actions are 174 Id. at ¶ 10 8 – 0 9. Harvey , 593 So. 2d 355. 176 R. Doc. 458-1 at 28– 33. 177 See R. Doc. 458-1 at 28 – 30 ; R. Doc. 478 at 12– 13. 178 Keenan v. Donaldson, Lufkin & Jen rette, Inc., 575 F.3d 483, 487 (5th Cir. 20 0 9); Copeland v . W asserstein, Perella & Co., 278 F.3d 472, 479 (5th Cir. 20 0 2). 175 33 subject to a ten-year prescriptive period. 179 “The prescriptive period is not determ ined by the label of the cause of action but by the nature of the transaction and the underlying basis of the claim .”180 “The classical distinction between contractual and delictual dam ages is that the form er flow from an obligation contractually assum ed by the obligor, whereas the latter flow from a violation of general duty owed by all persons.”181 The Fifth Circuit has applied both on e-year and ten-year prescriptive periods to detrim ental reliance claim s. 182 For exam ple, in Stokes v. Georgia-Pacific Corp., the Fifth Circuit concluded that a ten-year prescriptive period for actions on contracts applied to the plaintiff’s detrim en tal reliance claim . 183 The court noted that La. Civ. Code art. 1967, the article governing detrim ental reliance claim s, appears in Book III, Title IV, titled “Conventional Obligations or Contracts,” of the Louisiana Civil Code. 184 The Fifth Circuit also explained that “the em inent scholar who directed the drafting of the new articles expressly places detrim ental reliance in the contract realm .”185 In Copeland v. W asserstein, Perella & Co., on the other hand, the Fifth Circuit affirm ed application of a one-year prescriptive period for the plaintiff’s detrim ental reliance claim . 186 In Copeland, the plaintiff alleged that the defendant, a financial adviser, fell short of the standard of care am ong financial advisers, a claim the court described as “quintessentially delictual.”187 179 See La. Civ. Code arts. 3492, 3499; First La. Bank v. Morris & Dickson, Co., LLC, 45,668 (La. App. 2 Cir. 11/ 3/ 10 ), 55 So. 3d 815, 825. 180 Id. (internal quotation m arks om itted). 181 Terrebonn e Par. Sch. Bd. v . Mobil Oil Corp., 310 F.3d 870 , 8 86 (5th Cir. 20 0 2). 182 Keenan, 575 F.3d at 487. 183 Stokes v. Georgia-Pac. Corp., 894 F.2d 764, 770 (5th Cir. 1990 ). 184 Id.; see also LA. CIV. CODE art. 1967. 185 Stokes, 894 F.2d at 770 (citing Saul Litvinoff, Still Another Look at Cause, 48 LA. L. R EV. 3, 27– 28 (1987)). 186 Copeland, 278 F.3d at 479– 80 . 187 Id. 34 The Court finds that Plaintiffs’ detrim ental reliance claim s “derive from a breach of prom ise, like Stokes, rather than a breach of duty, like Copeland.”188 To establish a contractual claim for detrim ental reliance, a plaintiff need only show that “a prom ise was m ade, he relied on the prom ise, the prom ise was broken, and as a result he suffered loss.”189 Plaintiffs have clearly alleged that an oral contract was created when Plaintiffs contacted Defendants to obtain preauthorization to perform the procedures. 190 Plaintiffs allege, for exam ple, that the verifications of benefits and preauthorizations of the procedures created “bilateral onerous com m utative oral contracts whereby Plaintiffs would provide their agreed upon covered and pre-authorized services at a predeterm ined rate that reflect the benefits provided by their subscribers’ respective plans”191 and, in exchange, Defendants created a duty “to tender the represented percentage to [Plaintiffs] based on the represen tation.”192 Thus, Plaintiffs have alleged that a prom ise on part of Defendants was m ade. Plaintiffs also allege that “Plaintiffs based their decisions to provide said services on Defendants’ representations of paym ent” and that, had they known that the representations “were nothing m ore than a hoax to lure them into providing their services at a discounted rate, [Plaintiffs] would have declin ed to provide sam e unless other guaranteed paym ent arrangem ents could be m ade.”193 Thus, Plaintiffs have alleged that they relied on a prom ise m ade by Defendants. “A prom ise becom es an enforceable obligation [a contract] when it is m ade in a m anner that induces the other 188 Keenan, 575 F.3d at 487. State v. Murphy Corm ier Gen. Contractors, Inc., 20 15-111 (La. App. 3 Cir. 6/ 3/ 15), 170 So. 3d 370 , 379– 80 , w rit denied, 20 15-1297 (La. 9/ 25/ 15), 178 So. 3d 573 (“There is a prom isor and a prom ise . . . , there is cause, there is offer and acceptance, i.e., the prom isor offers to do or not do som ething, and the prom isee, accepting that offer or prom ise, acts accordingly and suffers loss to his detrim ent.”). 190 See R. Doc. 30 8 at ¶¶ 20 6– 30 . 191 Id. at ¶ 224. 192 Id. at ¶ 225. 193 Id. at ¶¶ 214– 15. 189 35 party to rely on it to his detrim ent.”194 Plaintiffs have also alleged that “Defendants failed to tender the represented am ount”195 and that, as a result, Plaintiffs have suffered “financial harm in the form of lost incom e for services perform ed.”196 Therefore, the Court finds that Plaintiffs’ detrim ental reliance claim s are contractual in nature and subject to a ten-year prescriptive period. 197 Accordingly, sum m ary judgm ent on Plaintiffs’ claim s for detrim ental reliance in Count V is denied. CON CLU SION For the foregoing reasons; IT IS ORD ERED that the m otion for sum m ary judgm ent is GRAN TED IN PART and D EN IED IN PART as set forth above. 198 IT IS FU RTH ER ORD ERED that the parties provide the Court with an am ended Exhibit I to the Fifth Am ended Com plaint by Ju n e 6 , 2 0 16 , to reflect the rulings contained in this Order. If the parties cannot agree on the disposition of any claim as a result of this Order, Defendants have until May 2 0 , 2 0 16 , to file a supplem ental m em orandum identifying each claim Defen dants argue is subject to sum m ary judgm ent based on this Order. Defendants m ust provide com petent sum m ary judgm ent evidence to dem onstrate why Defendants are entitled to sum m ary judgm ent on each disputed claim . Plaintiffs have until May 2 7, 2 0 16 , to file an opposition to Defendants’ supplem ental m em orandum . Plaintiffs m ust provide com petent sum m ary judgm ent eviden ce to support any contested dates or establish other m aterial facts with respect to each claim identified by Defendants. 194 Murphy , 170 So. 3d at 380 . R. Doc. 30 8 at ¶ 213. 196 Id. at ¶ 217. 197 See Murphy , 170 So. 3d at 379– 80 . 198 R. Doc. 458. 195 36 N e w Orle a n s , Lo u is ian a, th is 6 th d ay o f May, 2 0 16 . _____________________ __________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 37

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