United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
FLEISSIG UNITED STATES DISTRICT JUDGE.
putative class action is before the Court on the motions (ECF
Nos. 73 & 79) of Defendants Mercy Hospitals East
Communities (“Mercy”) and Medical Reimbursements
of America, Inc., (“MRA”) for summary judgment.
On November 15, 2017, the Court gave the parties notice that
it believed one or more of Plaintiff Cynthia Hoops's
claims may be subject to summary judgment on a ground not
raised by Defendants, and allowed the parties an opportunity
to submit supplemental briefing on this issue, which they
have done. The Court also heard oral argument on the motions
on January 17, 2018. Upon careful review of the entire
record, the Court will grant in part and deny in part the
motions for summary judgment.
purposes of the motions before the Court, the record
establishes the following. On May 31, 2016, Hoops was
involved in an automobile accident while driving her 2012
Acura TSX. Hoops suffered injuries during the accident and
was treated in the emergency room that day at a Mercy
hospital in Missouri. The medical treatment Hoops received
from Mercy resulted in charges totaling $6, 519.54.
claims arise out of the way Mercy, and its billing
consultant, MRA, billed Hoops and her insurers for these
charges. The resolution of Hoops's claims requires
consideration of four contracts and two relevant
Missouri insurance regulations.
Hoops obtained treatment on May 31, 2016, her husband, acting
as her authorized representative, and Mercy signed a
“Consent and Agreement - Physician Services and
Hospital Services” (“Consent and
Agreement”). The Consent and Agreement provided that
Hoops consented to the services performed at Mercy, and that
Hoops agreed to pay for goods and services provided at the
rates disclosed by Mercy “unless [she was] entitled to
pay a different amount under [her] health insurance plan . .
. .” ECF No. 82-2. The Consent and Agreement contained
an assignment in favor of Mercy of Hoops's “rights
under all insurance and benefit plan documents, and
authorize[d] direct payment to each healthcare provider of
all insurance and benefits payments for services provided . .
. .” Id.
relevant times, Mercy had a Network Agreement with
RightChoice Managed Care, Inc., the BlueCrossBlueShield
(“BCBS”) entity in Missouri. The Network
Agreement applied to other BCBS affiliates, including
CareFirst of Maryland (“CareFirst”), the entity
through which Hoops had group health insurance coverage, as
discussed below. The Network Agreement included a Plan
Compensation Schedule, which has not been submitted to the
Court and is not part of the record, but which the parties
agree set forth a discounted rate for covered services
charged by Mercy to BCBS affiliates like CareFirst.
2.5 of the Network Agreement provided that Mercy must submit
claims to CareFirst within 90 days from “(i) the date
the Health Services are rendered for outpatient services, or
(ii) the date of discharge or transfer for an inpatient
admission or [CareFirst] will refuse payment, or (iii) the
date of payment by the primary payor if [CareFirst] is not
the primary payor.” ECF No. 82-1 at 8. This section
further provided that Mercy “shall not bill or seek
payment from [CareFirst], a Covered Individual or any other
person for Covered Services not billed within such ninety
(90) day period, unless [Mercy] can establish, to the
satisfaction of [CareFirst] that extenuating circumstances
existed which prevented timely submission . . . .”
2.8 of the Network Agreement was titled “Payment in
Full and Hold Harmless, ” and was divided into three
subsections. Section 2.8.1 provided:
Except as expressly set forth herein, [Mercy] agrees to
accept as payment in full, in all circumstances, the
applicable Company Rate whether such payment is in the form
of a Cost Share,  or a payment by [CareFirst], or payment
from another source If [sic] [CareFirst] is other than the
primary payor, [Mercy] is not precluded from accepting
amounts in excess of the Company Rate from the primary payor.
[Mercy] shall bill, collect, and accept compensation for Cost
Shares. [Mercy] agrees to make reasonable efforts to verify
Cost Shares prior to billing for such Cost Shares. In no
event shall [CareFirst] be obligated to pay [Mercy] . . . any
amounts in excess of the Company Rate, less Cost Shares or
payment by another source, as set forth above.
Notwithstanding the foregoing, [Mercy] agrees to accept the
Company Rate as payment in full if the Covered Individual has
not yet satisfied his/her deductible.
2.8.2 provided, in relevant part:
[Mercy] agrees that in no event, including but not limited
to, nonpayment by [CareFirst], insolvency of [CareFirst], or
breach of this Agreement, shall [Mercy] . . . bill, charge,
collect a deposit from, seek compensation from, or have any
other recourse against a Covered Individual, or a person
acting on the Covered Individual's behalf, for Covered
Services provided pursuant to this Agreement. This section
does not prohibit [Mercy] from collecting reimbursement for
the following from the Covered Individual: . . . Cost Shares,
if applicable . . . .
2.8.3 provided, in relevant part:
Except as provided in this section . . ., this Agreement does
not prohibit [Mercy] from pursuing any available legal
remedy, including, but not limited to, collecting from any
insurance carrier providing coverage to a Covered Individual.
ECF No. 82-1 at 9.
9.9 of the Network Agreement, titled “Intent of the
Parties, ” stated, in relevant part:
It is the intent of the parties that this Agreement is to be
effective only in regards to their rights and obligations
with respect to each other; it is expressly not the intent of
the parties to create any independent rights in any third
party or to make any third party a third party beneficiary of
this Agreement, except . . . to the extent specified in the
Payment in Full and Hold Harmless section of this Agreement.
Id. at 19.
noted above, at the time of the accident, Hoops had group
health insurance coverage from CareFirst (“CareFirst
Policy”), which was provided through Hoops's
husband's employer. Hoops has admitted that the details
of her health insurance policy are set forth in the CareFirst
Evidence of Coverage document produced by Hoops and attached
as Exhibit E to MRA's statement of uncontroverted
material facts (ECF No. 75-5). See ECF No. 99 ¶
7. The CareFirst Policy contained the following
“Coordination of Benefits (COB)” section:
Coordination of Benefits (COB)
1. This Coordination of Benefits (COB) provision applies to
this CareFirst Plan when a Member has health care coverage
under more than one Plan.
2. If this COB provision applies, the Order of Determination
of Rules should be looked at first. Those rules determine
whether the benefits of this CareFirst Plan are determined
before or after those of another plan. The benefits of this
a) Shall not be reduced when, under the order of
determination rules, this CareFirst Plan determines its
benefits before another Plan; and
b) May be reduced when, under the order of determination
rules, another Plan determines its benefits first . . . .
Plan means any health insurance policy, including
those of nonprofit health service Plan and those of
commercial group, blanket, and individual policies, any
subscriber contracts issued by health maintenance
organizations, and any other established programs under which
the insured may make a claim . . . .
The term Plan does not include . . .
3 Coverage regulated by a motor vehicle reparation law; . . .
6. Personal Injury Protection (PIP) benefits under a motor
vehicle liability insurance policy.
Primary Plan or Secondary Plan means the order of
benefit determination rules stating whether this CareFirst
Plan is a Primary Plan or Secondary Plan as to another Plan
covering the Member.
1. When this CareFirst Plan is a Primary Plan, its benefits
are determined before those of the other Plan and without
considering the other Plan's benefits.
2. When this Plan is a Secondary Plan, its benefits are
determined after those of the other Plan and may be reduced
because of the other Plan's benefits.
Order of Benefit Determination Rules
When there is a basis for a claim under this CareFirst Plan
and another Plan, this CareFirst Plan is a Secondary Plan
which has its benefits determined after ...