United States District Court, E.D. California
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
AND MOTION TO STRIKE
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
Dina Miller ("Miller") brings this action against
defendant UnitedHealthcare Insurance Company
("United") alleging that defendant violated the
Employee Retirement Income Security Act ("ERISA"),
29 U.S.C. § 1132(a), when it failed to pay Aviation West
Charters, LLC ("Aviation West") for ambulatory
services provided to M.M., Miller's minor child. Before
the court is defendant's Motion for summary judgment and
Motion to strike Miller's declaration.
Factual and Procedural Background
covered by an employer-sponsored health benefit plan
sponsored by McClone Construction Company ("the
Plan"), for which United is the insurer and claims
administrator. (See Stalinski Decl., Ex. A, the Plan
(Docket No. 24-1).) The Plan offers emergency and
non-emergency ambulatory services.
on vacation in La Paz, Mexico, M.M. broke her right leg and
was subsequently taken to a Mexican hospital. From the
hospital, M.M.'s family called and spoke with M.M.'s
primary care physician as well as an orthopedic surgeon in
Seattle, Washington, and arranged for M.M. to be transported
back to Seattle. (PX032.) On Friday, January 10, 2014,
Aviation West, an air ambulance service, requested
pre-authorization from defendant for air and ground ambulance
service to transport M.M. from Mexico to Seattle
Children's Hospital. (Stalinski Decl., Ex. B at 1 (Docket
No. 24-1) .) A United representative told Aviation West that
somebody would contact them soon to request documents.
(PX033.) Aviation West later called back and was told that
the United system showed that the request had not been
categorized as urgent, and that the flight could occur at any
time between January 10 and August 10, 2014. (Id.)
Aviation West explained the urgency of the request and stated
that the flight needed to leave that day. (Id.) The
United representative stated that she would put the request
"on a rush" and that a case manager would review
the request that day. (Id.) Aviation West later
called back once more and was again told that the request had
not been submitted as urgent. (Id.) Aviation West
again explained that the request was urgent and that the
flight needed to leave that day. In response, the United
representative explained that a case manager had been
assigned and would contact Aviation West to request records.
(Id.) The representative then stated that United
closed at 6 p.m., and explained that "[i]f it's that
severe and the patient needs to go to an emergency room, then
it's best that you take [her] to the emergency
January 11, 2014, after still not hearing from a United case
manager, Aviation West flew M.M. from Mexico to Seattle, at a
cost of $495, 925. (Stalinski Decl., Ex. D at 203 (Docket No.
24-2) .) Upon arrival at Seattle Children's Hospital,
M.M. was immediately taken to the emergency department.
(PX032.) M.M.'s family "wished to proceed with the
planned intramedullary fixation, " and M.M. immediately
received this treatment. (Id.)
West submitted a reimbursement claim for emergency
transportation, which United denied. (Stalinski Decl., Ex. C at
1-2 (Docket No. 24-1).) Aviation West brought three internal
appeals from the denial of this claim as M.M.'s
authorized representative, which United denied. (See
PX15; PX16; PX21.) Aviation West then filed a request for
external review, which United also denied. (See
PX41.) On March 1, 2016, Aviation West initiated a lawsuit
against United, seeking to recover benefits due under the
Plan and ERISA as M.M.'s purported assignee.
(See First Am. Compl. (Docket No. 13).)
moved for summary judgment on the basis that Aviation West
lacked standing to bring the action. (See Def.'s
July 24 Mot. for Summ. J. (Docket No. 23).) Miller
subsequently filed a motion to intervene as plaintiff. On
August 24, 2017, the court granted United's motion for
summary judgment along with Miller's motion to intervene.
(Docket Nos. 46, 47.) As the new plaintiff, Miller is seeking
recovery of benefits under 29 U.S.C. § 1132(a) (1) (B),
as well as prejudgment interest and reasonable attorneys'
fees under 29 U.S.C. § 1132(a)(3) and § 1132(g)(1).
Standard of Review
court must first address the argument regarding what standard
of review to apply to the administrator's denial of
Aviation West's claim for benefits. When an ERISA plan
grants discretion to the administrator to interpret the terms
of the plan and determine benefits eligibility, the
administrator's denial of benefits is subject to abuse of
discretion review. See Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989); Abatie v. Alta
Health & Life Ins., 458 F.3d 955, 962-64 (9th Cir.
2006). Here, it is undisputed that the Plan explicitly stated
that United had discretion to "[i]nterpret Benefits
under the Policy, " "[i]nterpret the other terms,
conditions, limitations and exclusions set out in the Policy,
" and "[m]ake factual determinations related to the
Policy and its Benefits." (Stalinski Decl., Ex. A at
contends that the application of California Insurance Code
§ 10110.6 voids provisions that purport to grant
discretion to insurance companies. According to plaintiff, the
discretionary clause in the Plan is therefore void, and thus
abuse of discretion review is inapplicable and de novo review
should be applied instead. However, the Plan contains a
choice of law provision explaining that Virginia law will
apply to any disputes involving the terms of the Plan.
(Stalinski Decl., Ex. A at 40.) Thus California Insurance
Code § 10110.6 is inapplicable.
also argues that de novo review should apply because
defendant engaged in a flagrant procedural violation of ERISA
that "shifts the standard of review from abuse of
discretion to de novo." See Abatie, 458 F.3d at
972. Specifically, plaintiff points to United's failure
to grant Aviation West's request for an independent
external review and its determination that the claim denial
did not involve medical judgment. Assuming these to be
violations, they are not of the type so egregious as to shift
the standard of review from abuse of discretion to de novo.
Under Abatie, the administrator must have
"failed to comply with virtually every applicable
mandate of ERISA." Id. at 971. The court does
not find that here.
Motion to Strike
declaration was not part of the administrative record. In
reviewing a denial of ERISA benefits under the abuse of
discretion standard, the court is limited to the evidence
that was reviewed by the administrator at the time the denial
decision was made. See Taft v. Equitable Life Assurance
Soc'y, 9 F.3d 1469, 1471 (9th Cir. 1993) (abrogated
on another ground by Abatie, 458 F.3d 955)
("Permitting a district court to examine evidence
outside the administrative record would open the door to the
anomalous conclusion that a plan administrator abused its
discretion by failing to consider evidence not before
it."); Abatie, 458 F.3d at 971 ("review is
limited to the record before the plan administrator.")
In fact, plaintiff's attorneys themselves previously
objected to certain interrogatories, arguing that ...