Opinion
CIVIL ACTION NO. H-11-1355.
October 20, 2011
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Clarification and/or Reconsideration ("Motion") [Doc. # 44] filed by Defendants United Healthcare Services, Inc. ("United") and Ingenix, Inc., and supplemented [Doc. # 53] on September 21, 2011. Defendants seek clarification of the Court's Memorandum and Order [Doc. # 43] entered August 30, 2011, ruling on Defendants' Motion to Dismiss. Plaintiffs filed a Response [Doc. # 57], and Defendants filed a Reply [Doc. # 58]. The Court has reviewed the record and has considered the parties' arguments presented at the September 14, 2011 conference. Based on this review and the application of governing legal authorities, the Court grants the Motion to the extent that it clarifies certain statements in the August 30, 2011 Memorandum and Order. The Court denies the Motion in all other respects.
I. BACKGROUND
Each Plaintiff is a Texas professional association wholly-owned by a doctor (referred to herein as "Doctor" or "Owner-Doctor") whose specialty requires them to perform out-patient surgeries on a regular basis. Frequently, the Doctors will perform the surgeries at an ambulatory surgical center ("ASC") rather than in a hospital. Each Plaintiff entered into an Ambulatory Surgical Center Use Agreement ("Use Agreement") with The Palladium for Surgery — Houston, L.L.P. ("Palladium"), a licensed ASC operator.
Plaintiffs submitted health insurance claims to United for reimbursement for the facility fee charged by Palladium. Beginning in late 2009, United stopped paying Plaintiffs' claims for the facility fees and sent each Plaintiff an "Overpayment Demand" letter ("Demand Letter"), contending that Plaintiffs were not entitled to the facility fee because they do not qualify as licensed ASCs under Texas law.
Plaintiffs filed this lawsuit, asserting claims for negligent misrepresentation, breach of an "implied-in-fact" contract, violations of the Texas Insurance Code, quantum meruit, and promissory estoppel. Defendants then filed a Motion to Dismiss, asserting that all state law claims were preempted by the Employee Retirement Income Security Act ("ERISA") and, alternatively, that the state law claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The Court rejected the ERISA preemption argument, and denied the Motion to Dismiss as to all claims except the Texas Insurance Code claims, which Plaintiffs were allowed to replead.
Defendants now seek clarification of statements in the August 30, 2011 Memorandum and Order. Defendants also seek reconsideration of the Court's denial of their Motion to Dismiss the negligent misrepresentation claim. The Motion has been fully briefed and are ripe for decision.
II. MOTION FOR CLARIFICATION — ERISA PREEMPTION
In denying Defendants' Motion to Dismiss all state law claims as preempted by ERISA, the Court stated that the outcome of this lawsuit "will depend on the interpretation of Texas state law, not on an analysis of whether an ERISA plan provides coverage." See Memorandum and Order [Doc. # 43], p. 8. Defendants seek clarification that this statement does not preclude them from asserting the ERISA preemption argument again in the future should it become appropriate.
With reference to the statement that the outcome of this case will depend on the interpretation of Texas state law, the Court noted that "Defendants in the Demand Letters did not base the refusal to pay Plaintiffs for the facility fees on any provision of any ERISA plan." See id. at 7. The Court noted that "Defendants relied exclusively on independent provisions of Texas law that govern ASCs." See id. at 7-8. To the extent that Defendants denial of Plaintiffs' claims for facility fees was based on the position that the arrangements with Palladium violated Texas law, the outcome of the case will indeed depend on the interpretation of that Texas law. Should Plaintiffs later change course and seek to recover under ERISA plans, it could then become appropriate for Defendants in this case to assert one or more different bases for the denial of the claims for facility fees. The Court will address those bases at that time if necessary and appropriate.
With reference to the statement that the outcome of the case will not depend on an analysis of whether an ERISA plan provides coverage for the claimed facility fees, the Court noted that "Plaintiffs maintain unequivocally that they are not seeking damages `as an assignee of benefits under an insurance plan' — ERISA or otherwise." See id. at 6. The Court noted also that "Plaintiffs assert that their claims are not based on the insurance plans between United and its insureds, but are based instead on United's separate and independent promise to pay Plaintiffs for the facility fees in accordance with United's fee schedule." See id. at 7. The Court held that, because Plaintiffs affirmatively assert that they are not pursuing any claims based on an assignment of benefits and that they do not otherwise rely on the terms of any ERISA plan, the state law claims were not preempted by ERISA. See id. As long as Plaintiffs maintain that they are not seeking to recover under an assignment of benefits under an ERISA plan, and maintain that they do not otherwise rely on the terms of an ERISA plan for reimbursement of the facility fees, an analysis of the ERISA plans is not relevant. It is unclear whether Plaintiffs can prevail in this lawsuit while taking the position that they do not rely on any assignments they have from ERISA plan participants or otherwise rely on the terms of ERISA plans for reimbursement of the facility fees. The Court agrees that it should clarify that, should Plaintiffs attempt to alter this theory that their claims are entirely independent of any ERISA plan, the Court will revisit the ERISA preemption issue and revisit whether analysis of the terms of an ERISA plan at that point has become appropriate.
As noted by the Court at the September 14, 2011, conference, it may nonetheless be appropriate for Defendants to refer to the various ERISA plans to provide factual support for relevant arguments, such as an assertion that Defendants were not negligent in making the representations it allegedly made to Plaintiffs.
In their Reply, Defendants state that "Plaintiffs continue to box themselves into theories that will inevitably lead to the demise of their case." See Reply [Doc. # 58], p. 1. While this may well be true, it is not a basis for the Court to rewrite Plaintiffs' Complaint.
III. MOTION FOR RECONSIDERATION — NEGLIGENT MISREPRESENTATION CLAIM
IV. CONCLUSION AND ORDER
See Kastner v. Jenkens Gilchrist, P.C.231 S.W.3d 571577In Re Stonebridge Techs., Inc.430 F.3d 260267See regarding existing facts. Id.
The Court again concludes that Plaintiffs have adequately alleged that Defendants supplied false information regarding existing facts. As a result, Plaintiffs adequately alleged a negligent misrepresentation claim. Plaintiffs may not, under Texas law, pursue a negligent misrepresentation claim based on promises to perform in the future.
Based on the foregoing, it is hereby
ORDERED that Defendants' Motion for Clarification [Doc. # 44] is GRANTED as set forth herein, and Defendants' Motion for Reconsideration [Doc. # 44] is DENIED.