Langemo v. Blue Cross of Idaho Health Service, Inc.

• Court: District Court, D. Idaho
• Decided: March 30, 2021
• Docket: 1:19-cv-00370
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 AMBER LANGEMO, No. 1:19-cv-370 WBS 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE: DEFENDANTS’ LIMITED MOTION 15 BLUE CROSS OF IDAHO HEALTH FOR SUMMARY JUDGMENT AND SERVICE, INC., an Idaho RENEWED MOTION TO DISMISS 16 insurance corporation; and J.R. SIMPLOT COMPANY 17 GROUP HEALTH & WELFARE PLAN, an employee welfare benefit plan, 18 Defendants. 19 20 21 ----oo0oo---- 22 Amber Langemo (“plaintiff”) has brought this ERISA 23 action against Blue Cross of Idaho Health Service, Inc. (“Blue 24 Cross Idaho”), and J.R. Simplot Company Group Health & Welfare 25 Plan (“the Plan”) (collectively “defendants”). The case concerns 26 plaintiff’s attempts to recover from defendants for charges she 27 incurred when she was transported via air ambulance from Grand 28 1 Forks, North Dakota to Minneapolis, Minnesota. The parties do 2 not dispute that the transport was medically necessary, and it is 3 undisputed that Blue Cross Idaho paid $12,592.13 to the provider, 4 Valley Med Flight, Inc. (“Valley Flight”). However, plaintiff 5 alleges that her claim was underpaid in violation of the terms of 6 her employee welfare benefit plan governed by the Employee 7 Retirement Income Security Act (“ERISA”), 29 U.S.C. § 8 1132(a)(1)(b). (Compl. (Docket No. 1).) Presently before the 9 court is defendants’ limited motion for summary judgment, (“Mot. 10 for Summ. J.”) (Docket No. 52.), and their renewed motion to 11 dismiss (“Mot. to Dismiss”) (Docket No. 46-4). 12 I. Factual and Procedural Background 13 Plaintiff was at all relevant times a participant in 14 the J.R. Simplot Company Group Health & Welfare Plan (“the 15 Plan”). (See Defs.’ Statement of Undisputed Facts (“SUF”) at ¶ 16 11 (Docket No. 52-3).) The Plan is an employee welfare benefit 17 plan under 29 U.S.C. § 1002 and claims for healthcare benefits 18 thereunder are governed by ERISA. (See id. at ¶ 1.) The Plan is 19 established, sponsored, and self-funded by the J.R. Simplot 20 Company, and Blue Cross Idaho serves as the claims administrator. 21 (See id. at ¶ 2.) 22 On April 25, 2014, plaintiff was 34 weeks pregnant and 23 experiencing labor contractions when she was admitted to Altru 24 Health System in Grand Forks, North Dakota. (See Compl. at ¶ 25 11.) Plaintiff’s medical provider determined that she should be 26 transferred to a tertiary care center due to concerns about 27 premature delivery, a possible diagnosis of spina bifida in the 28 infant, and potential medical difficulties. (See id. at ¶ 12.) 1 Plaintiff’s attending physician decided that that she should be 2 medically transported by an air ambulance service, Valley Flight, 3 to Northwestern Hospital in Minneapolis, Minnesota. (See Defs.’ 4 SUF at ¶¶ 8–9.) 5 Following its ambulance transport, Valley Flight 6 submitted a claim to Blue Cross Idaho in the total billed amount 7 of $58,900. (See id. at ¶ 10.) On May 19, 2014, Blue Cross 8 Idaho sent an Explanation of Benefits (“EOB”) to plaintiff which 9 reported the processing and payment of the claim. (See id. at ¶ 10 13.) The EOB identified the health care provider, Valley Flight, 11 the date the services were provided, the amount of the total 12 billed charges ($58,950), the amount that Blue Cross Idaho paid 13 ($12,592.13), and the difference between the amount billed and 14 the amount paid ($46,357.87). (See id. at ¶ 14.) The remarks on 15 the EOB indicated that the difference between the amount Valley 16 Flight charged and the amount Blue Cross Idaho paid was because 17 the “charge exceeds the allowable amount for the service” under 18 the Plan. (See Defs.’ SUF at ¶ 15.) 19 On July 28, 2014, Valley Flight’s Insurance Collection 20 Specialist sent a letter to Provider Appeals at Blue Cross Blue 21 Shield North Dakota (“BCBS ND”) demanding “additional payment for 22 the charges incurred by [plaintiff]” in an effort to “resolve 23 this without having to put a financial burden of $46,357 on the 24 [plaintiff].” (See Decl. of Kelly Wise in Supp. of Mot. to 25 Dismiss at Ex. C (“Wise Decl.”) (Docket No. 46-2).) Valley 26 Flight also wrote that “as a non-provider, the Member is 27 responsible for any unpaid amounts.” (See id.) Valley Flight 28 did not state in this letter that it was writing on behalf of 1 plaintiff, and neither Valley Flight nor the plaintiff provided 2 an “Appointment of Authorized Representative” form signed by 3 plaintiff. (See id.) On August 1, 2014, BCBS ND responded to 4 Valley Flight that plaintiff was not a member of a plan 5 administered by BCBS ND and that Valley Flight should “send [the 6 claim] to the correct state.” (See id. at Ex. D.) On August 21, 7 2014, Valley Flight sent an identical letter to Provider Appeals 8 at Blue Cross Idaho. (See id. at Ex. E.) 9 On September 12, 2014, Valley Flight sent a second 10 demand to BCBS ND which was identical to the August 21, 2014 11 letter sent to Blue Cross Idaho. (See id. at Ex. F.) On 12 September 23, 2014, BCBS ND responded and stated that the claim 13 had been reviewed by its reimbursement team and they had 14 determined that the claim had been processed correctly “according 15 to the current BCBS ND fee schedule.” (See id. at Ex. G.) 16 On September 24, 2014, Blue Cross Idaho responded to 17 Valley Flight’s August 21, 2014 letter. (See id. at Ex. H.) In 18 the letter, Blue Cross Idaho said, “[a]fter careful review, it 19 has been determined that this claim was processed correctly to 20 apply the ‘Maximum Allowance’ for the services rendered” and that 21 “[p]ricing for this service comes from your local Blue Cross Blue 22 Shield plan to reflect your area UC.” (Id.) The letter 23 acknowledged that plaintiff could be billed for the difference 24 between Valley Flight’s billed charges and the amount paid by 25 Blue Cross Idaho and informed Valley Flight that it had no appeal 26 rights as a non-contracting provider. (See id.) Blue Cross 27 Idaho instructed that “[a]ny appeals must be submitted by the 28 member according to the terms of their member policy.” (Id.) 1 On August 31, 2015, Valley Flight wrote to Blue Cross 2 Idaho, purporting to act on plaintiff’s behalf and requesting 3 certain information. (See id. at Ex. I.) On September 9, 2015, 4 Blue Cross Idaho responded to plaintiff, and copied Valley Flight 5 on the letter. (See id. at Ex. J.) Blue Cross Idaho explained 6 that it was unable to review the appeal or provide documents 7 because “the 180 day time limit to file a formal appeal for this 8 claim expired on November 17, 2014” and that the claim was 9 therefore ineligible for review. (See id.) 10 On January 20, 2017, plaintiff’s counsel wrote to Blue 11 Cross Idaho and again attempted to assert an appeal on her 12 behalf. (See id. at Ex. K.) On February 3, 2017, Blue Cross 13 Idaho responded and stated that it was unable to review the 14 request for an appeal because “appeals must be submitted within 15 180 days after receiving notification of the Adverse Benefit 16 Determination” and “requests for appeal which do not comply with 17 the . . . requirements will not be considered.” (See id. at Ex. 18 L.) On September 19, 2019, plaintiff initiated the present 19 action for relief. (See generally Compl.) 20 In the court’s Order of October 14, 2020, the court 21 denied defendants’ motion to dismiss on exhaustion grounds 22 without prejudice to the issue being raised on a limited motion 23 for summary judgment under Rule 56. (See Docket No. 42 at 2.) 24 Defendants represented that the other grounds in their motion to 25 dismiss were so related to the motion to dismiss on exhaustion 26 grounds that they should be heard at the same time. (See id.) 27 The court accordingly denied the motion to dismiss as to those 28 grounds without prejudice, (see id.), in order to consider those 1 arguments in a renewed motion to dismiss at the same time as the 2 limited motion for summary judgment. 3 II. Limited Motion for Summary Judgment1 4 Summary judgment is proper “if the movant shows that 5 there is no genuine dispute as to any material fact and the 6 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 7 P. 56(a). The party moving for summary judgment bears the 8 initial burden of establishing the absence of a genuine issue of 9 material fact and can satisfy this burden by presenting evidence 10 that negates an essential element of the non-moving party’s case. 11 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “Where 12 the record taken as a whole could not lead a rational trier of 13 fact to find for the non-moving party, there is no genuine issue 14 for trial.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 15 475 U.S. 574, 587 (1986). Any inferences drawn from the 16 underlying facts must, however, be viewed in the light most 17 favorable to the party opposing the motion. See id. 18

19 1 As a preliminary matter, both parties make evidentiary objections. Plaintiff argues that the statement in the Matthews 20 Declaration that “remarks on the EOB” are “consistent with remarks commonly used in the industry” lacks foundation and 21 constitutes inadmissible hearsay.” (See Pl.’s Response to Defs.’ 22 SUF, ¶ 15.) (Docket No. 56.);(See Decl. of Jeanna Matthews in Supp. of Mot. for Summ. J. at ¶ 10 (“Matthews Decl.”) (Docket No. 23 52-2).) Defendants object to Exhibit 2 of the Conway Declaration which consists of several pages from an unspecified website of 24 Air Ambulance Treatment Codes on the grounds that the exhibit lacks foundation, has not been authenticated and constitutes 25 inadmissible hearsay. (See Defs.’ Reply to Pl.’s Response to Defs.’ SUF, ¶ 38.) (Docket No. 64.); (See Decl. of John J. Conway 26 in Opp’n to Mot. for Summ. J. at Ex. 2 (“Conway Decl.”) (Docket 27 No. 58).) Because the court did not rely on the portions of these documents that the parties object to, the court need not 28 rule upon these evidentiary objections at this time. 1 In her first claim, plaintiff seeks to recover benefits 2 due to her under the terms of her Plan pursuant to ERISA Section 3 502(a)(1)(B), codified at 29 U.S.C. § 1132(a)(1)(B). (See Compl. 4 at ¶¶ 105–116.) This provision allows a participant or 5 beneficiary “to recover benefits due to him under the terms of 6 his plan, to enforce his rights under the terms of the plan, or 7 clarify his rights to future benefits under the term of the 8 plan.” 29 U.S.C. § 1132(a)(1)(B). Defendants argue that they 9 are entitled to summary judgment because plaintiff did not comply 10 with her Plan’s requirement that an internal appeal of an adverse 11 benefit determination must be submitted within 180 days, and that 12 she has therefore failed to exhaust her administrative remedies. 13 (See Mot. for Summ. J. at 18-19.) 14 Under Ninth Circuit precedent, the general rule 15 governing ERISA claims is that a claimant must avail herself of a 16 plan’s own internal review procedures before bringing suit in 17 federal court. See Diaz v. United Agr. Emp. Welfare Ben. Plan 18 and Trust, 50 F.3d 1478, 1483 (9th Cir. 1995). The exhaustion 19 doctrine is consistent with ERISA’s background, structure, and 20 legislative history and serves several important policy 21 considerations, “including the reduction of frivolous litigation, 22 the promotion of consistent treatment of claims . . . and a 23 proper reliance on administrative expertise.” See id. 24 Consequently, federal courts “have the authority to enforce the 25 exhaustion requirement in suits under ERISA” and “as a matter of 26 sound policy they should usually do so.” Amato v. Bernard, 618 27 F.2d 559 (9th Cir. 1980). 28 Here, the Plan stated that an internal appeal must be 1 made within 180 days after receipt of an adverse benefit 2 determination and that requests for appeal that fail to comply 3 with the Plan’s requirements will not be considered. (See 4 Matthews Decl. at Ex. G, p. 69.) The Plan also said that in 5 order to designate an “Authorized Representative”, a claimant 6 must “provide written authorization on a form provided by the 7 Plan and clearly indicate on the form the nature and extent of 8 the authorization.” (Id. at p. 101.) The last day for plaintiff 9 to timely file an administrative appeal was November 17, 2014. 10 (See Wise Decl. at Ex. J.) 11 The letters sent to BCBS ND and Blue Cross Idaho by 12 Valley Flight prior to November 17, 2014 do not constitute an 13 appeal under the literal terms of plaintiff’s Plan because Valley 14 Flight never said that it was acting on plaintiff’s behalf or 15 provided a signed “Appointment of Authorized Representative” 16 form.2 Instead, Valley Flight declared that if it did not 17 receive payment from the insurance companies, it would seek 18 payment of the full amount due from plaintiff. (See Wise Decl. 19 at Exs. C–F.) The first letter that Valley Flight sent 20 2 Plaintiff attempts to circumvent the Plan’s requirement 21 that an “Appointment of Authorized Representative” form signed by 22 the plaintiff was required for Valley Flight to pursue an appeal on her behalf by contending that her claims were “Urgent Care 23 Claims” in which a medical provider is permitted to act as a representative for a plan member without authorization. (See 24 Pl.’s Opp’n to Mot. for Summ. J. at 15.) (Docket No. 55.) However, the Plan clearly states that an “Urgent Care Claim” is a 25 “pre-service claim” or “a claim that requires plan approval prior to obtaining medical care for the Claimant.” (See Matthews Decl. 26 at Ex. G, p. 110–11.) The claim at issue here is a “post-service 27 claim” or a “claim for a benefit under the Plan related to care or treatment that the participant or beneficiary has already 28 received.” (See id.) 1 purporting to act on plaintiff’s behalf, albeit still without 2 providing a signed “Appointment of Authorized Representative” 3 form, was nearly a year after plaintiff’s deadline to file an 4 administrative appeal. (See id. at Ex. I.) In short, neither 5 plaintiff nor Valley Flight filed a timely appeal under the terms 6 of the Plan. 7 Nevertheless, the Ninth Circuit has recognized 8 exceptions to the ERISA exhaustion requirement. “[D]espite the 9 usual applicability of the exhaustion requirement, there are 10 occasions when a court is obliged to exercise its jurisdiction 11 and is guilty of an abuse of discretion if it does not, the most 12 familiar examples perhaps being when resort to the administrative 13 route is futile or the remedy inadequate.” Amato, 618 F.2d at 14 568. Determining whether the exhaustion requirement is excused 15 is in the discretion of the court. See Horan v. Kaiser Steel 16 Retirement Plan, 947 F.2d 1412, 1416 (9th Cir. 1991)(overruled on 17 other grounds). 18 The futility exception to the exhaustion requirement 19 “is designed to avoid the need to pursue an administrative review 20 that is doomed to fail.” See Diaz, 50 F.3d at 1485–86. The 21 “futility exception is narrow -– the plan participant must show 22 that it is certain that [her] claim will be denied on appeal, not 23 merely that [she] doubts that an appeal will result in a 24 different decision.” Almont Ambulatory Surgery Ctr., LLC. v. 25 UnitedHealth Grp., Inc., 99 F.Supp.3d 1110, 1179 (C.D. Cal. 26 2015). “A plaintiff can demonstrate futility by pointing to a 27 similarly situated plaintiff who exhausted administrative 28 remedies to no avail, but bare assertions of futility are not 1 enough to invoke the futility exception.” Driscoll v. MetLife 2 Ins., Case No. 15-cv-1162-JLS (JMA), 2016 WL 11529805, * 10 (C.D. 3 Cal. May 2, 2016)(internal citations omitted). “Where 4 individuals have not gone through the administrative process at 5 all, a Plan’s refusal to pay does not, by itself, show futility.” 6 See Foster v. Blue Shield of California, No. CV 05-03324 DDP 7 (SSx), 2009 WL 1586039, *5 (C.D. Cal. Jun. 3, 2009). “On the 8 other hand, a history of unsuccessful correspondence and review 9 with the Plan can provide a sufficient showing of futility.” See 10 id. 11 Plaintiff persuasively argues that it would have been 12 futile for her to exhaust her administrative remedies given the 13 correspondence between Valley Flight and Blue Cross prior to the 14 November 17, 2014 deadline for filing an administrative appeal. 15 (See Pl.’s Opp’n to Mot. for Summ. J. at 22.) Blue Cross Idaho 16 responded to Valley Flight on September 24, 2014 and stated that 17 “[a]fter careful review, it has been determined this claim was 18 processed correctly to apply the ‘Maximum Allowance’ for the 19 services rendered.” (See Wise Decl. at Ex. H.) The letter said 20 that Blue Cross Idaho considered the inquiry closed and that “no 21 additional payment will be made” at this time. (See id.) BCBS 22 ND also responded to Valley Flight on September 23, 2014 and said 23 that “the requested claim was reviewed by our reimbursement team” 24 and “the claim did process correctly.” (See id. at Ex. G.) 25 Defendants argue that the correspondence between Valley 26 Flight and Blue Cross Idaho and BCBS ND cannot establish that an 27 appeal would have been futile because it was not clear that 28 Valley Flight was acting on plaintiff’s behalf. (See Defs.’ 1 Reply in Supp. of Mot. for Summ. J. at 5.)(Docket No. 62.) At 2 the hearing on this motion, defendants also contended that the 3 2017 letter sent by plaintiff’s counsel to Blue Cross Idaho, (see 4 Wise Decl. at Ex. K), which complied with the Plan’s appeal 5 requirements apart from being untimely, demonstrates that the 6 plaintiff did not truly believe that an administrative appeal 7 would be futile. 8 However, based on this history of correspondence, it is 9 inconceivable that plaintiff would have received a different 10 response from Blue Cross Idaho even if she had timely appealed 11 pursuant to the terms of the Plan. Valley Flight was told by 12 both Blue Cross Idaho and BCBS ND that plaintiff’s claim had been 13 processed correctly, that the “Maximum Allowance” had been paid, 14 and that no additional payment would be made. (See Wise Decl. at 15 Exs. G–H.) Moreover, Blue Cross Idaho has consistently 16 maintained throughout this litigation that “the EOB submitted to 17 [plaintiff] accurately reflects the processing of her claim” and 18 that “the maximum allowable amount under the Plan for the service 19 was paid in full.” (See Matthews Decl. at ¶ 7.) 20 In Horan v. Kaiser Steel Retirement Plan, the Ninth 21 Circuit held that it would be unnecessary to require the 22 plaintiffs to exhaust their administrative remedies because the 23 plan administrator filed an amicus brief during the course of 24 litigation in which it “unequivocally state[d] that the 25 plaintiffs [were] not entitled to [the benefits they sought] 26 under the plan.” See Horan, 947 F.2d at 1416. The Horan court 27 concluded that such a position by the plan administrators allowed 28 the court to be “fully apprised of the administrator’s expertise 1 and its decision as to the merits of the plaintiff’s claim.” Id. 2 This court agrees with the approach and reasoning laid out in 3 Horan and will follow it here. 4 After reviewing all the evidence in the record, the 5 court concludes that plaintiff has made a sufficient showing of 6 futility to excuse her failure to exhaust her administrative 7 remedies. Defendants’ limited motion for summary judgment will 8 therefore be denied.3 9 III. Renewed Motion to Dismiss 10 Federal Rule of Civil Procedure 12(b)(6) allows for 11 dismissal when the plaintiff’s complaint fails to state a claim 12 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 13 The inquiry before the court is whether, accepting the 14 allegations in the complaint as true and drawing all reasonable 15 inferences in the plaintiff’s favor, the complaint has stated “a 16 claim to relief that is plausible on its face.” Bell Atl. Corp. 17 v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard 18 is not akin to a ‘probability requirement,’ but it asks for more 19 than a sheer possibility that a defendant has acted unlawfully.” 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 21 recitals of the elements of a cause of action, supported by mere 22 conclusory statements, do not suffice.” Id. Although legal 23

24 3 Because the court will deny summary judgment upon the foregoing grounds, it need not address plaintiff’s arguments 25 that the Plan’s language suggested that exhaustion of administrative appeals was not mandatory or that her claims 26 should be deemed exhausted because Blue Cross Idaho failed to 27 establish or follow “reasonable claims procedures” consistent with the requirements of ERISA pursuant to 29 C.F.R. § 2560.503- 28 1(l). (See Pl.’s Opp’n to Mot. for Summ. J. at 14–20.) 1 conclusions “can provide the framework of a complaint, they must 2 be supported by factual allegations.” Id. at 679. 3 A. Equitable Relief Under 29 U.S.C. § 1132(a)(3) 4 In her second claim, plaintiff seeks equitable relief 5 from Blue Cross Idaho under ERISA Section 502(a)(3), codified at 6 29 U.S.C. § 1132(a)(3). (See Compl. at ¶¶ 117–27.) Defendants 7 argue that plaintiff’s claim for equitable relief under 29 U.S.C. 8 § 1132(a)(3) merely repackages her claim for benefits under 29 9 U.S.C. § 1132(a)(1)(B) and that she has therefore failed to 10 adequately state a claim for relief. (See Mot. to Dismiss at 21– 11 23.) 12 29 U.S.C. § 1132(a) sets forth a comprehensive civil 13 enforcement scheme that Congress intended to be exclusive. See 14 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 53–55 (1987). 29 15 U.S.C. § 1132(a)(3) permits a plan beneficiary to bring a civil 16 action to obtain appropriate equitable relief to redress such 17 violations or enforce any provisions or terms of the plan. See 18 29 U.S.C. § 1132(a)(3). This section is a “catchall” or “safety 19 net” designed to “offer [] appropriate equitable relief for 20 injuries caused by violations that [§ 1132] does not elsewhere 21 adequately remedy.” Varity Corp v. Howe, 516 U.S. 489, 512 22 (1996). However, the Ninth Circuit has held that plaintiffs may 23 present claims under both 29 U.S.C. § 1132(a)(1)(b) and 29 U.S.C. 24 § 1132(a)(3) as alternative theories of liability so long as 25 there is no double recovery. Moyle v. Liberty Mut. Ret. Ben. 26 Plan, 823 F.3d 948, 960–61 (9th Cir. 2016) (citing CIGNA Corp. v. 27 Amara, 563 U.S. 421 (2011).) In other words, “[29 U.S.C. § 1132 28 (a)(1)(B)] and [29 U.S.C. § 1132(a)(3)] claims can proceed 1 simultaneously if they plead distinct remedies.” See id. at 961; 2 see also Atzin v. Anthem, Inc., 2:17-cv-06816-ODW (PLAx), 2018 WL 3 501543, *3 (C.D. Cal. Jan. 19, 2018). 4 Plaintiff’s claim under 29 U.S.C. § 1132(a)(1)(B) 5 requests “full payment/reimbursement for all emergency medical 6 transport benefits under the Plan” and “affirmative injunctive 7 relief enforcing plaintiff’s rights under the plan by compelling 8 defendants to pay and/or reimburse plaintiff for the correct 9 level of coverage.” (See Compl. at ¶ 115.) Plaintiff’s claim 10 under 29 U.S.C. § 1132(a)(3) requests the right to “full and 11 fair” review and proper notice of the reasons for the denial of 12 her claimed benefits under ERISA Section 5034, 29 U.S.C. § 1133, 13 and any other applicable Department of Labor regulations, re- 14 administration of the underpaid claim, and the enjoining of the 15 further use of artificially lowered reimbursement rates for air 16 medical transportation services. (See Compl. at ¶¶ 119–127.) 17 Although some of plaintiff’s requested relief under 29 U.S.C. § 18 1132(a)(3) may be duplicative, such as re-administration of the 19 underpaid claim, plaintiff also requests relief under 29 U.S.C. § 20 1132(a)(3) that plainly is not. 21 Moreover, defendants’ argument is premature. The case 22 law reflects the more appropriate timing for defendants’ argument 23 -- the cases grappling with ERISA duplication do so at the 24 judgment or remedies phase, not the pleading phase. See, e.g. 25

4 Defendants note that ERISA § 503 does not give rise to 26 a private right of action for compensatory relief. See 27 Massachusetts Mut. Life. Ins. Co. v. Russell, 473 U.S. 134, 144 (1985). However, plaintiff does not seek compensatory relief, 28 but rather equitable relief under 29 U.S.C. § 1132(a)(3). 1 Moyle, 823 F.3d at 960–62; Forsyth v. Humana, Inc., 114 F.3d 2 1467, 1475 (9th Cir. 1997)(holding plaintiffs could not recover 3 under §1132(a)(3) because they “[had] already won a judgment for 4 damages under section 1132(a)(1) for the injuries they suffered 5 as a result of the defendant’s actions.”). “It is hornbook law 6 that Rule 12(b)(6) tests the sufficiency of the pleaded claims, 7 not necessarily the availability of relief.” Rappa v. Mut. of 8 Omaha Ins. Company, 2:16-cv-02984-KJM-CKD, 2017 WL 3394111, * 2 9 (E.D. Cal. Aug. 8, 2017). In sum, allowing plaintiff’s ERISA 10 claims to proceed comports with Amara, the liberal federal 11 pleading standards, and with ERISA’s purpose to protect the 12 interests of participants and beneficiaries. See Varity, 516 13 U.S. at 513 (“ERISA’s basic purposes favor a reading. . . that 14 provides plaintiffs with a remedy.”). 15 Viewing this motion in the light most favorable to the 16 plaintiff, the court is not prepared at this early stage of 17 litigation to determine whether or not recovery under 29 U.S.C. § 18 1132(a)(1)(b) alone would provide appropriate and adequate relief 19 for plaintiff. See Seekatz v. Metro. Life. Ins. Co., Case No. 20 3:15-cv-00017-RRB, 2016 WL 5429647 *2 (D. Alaska Sep. 26, 2016) 21 (holding the same). In other words, it is too early to tell if 22 plaintiff’s claim under 29 U.S.C. § 1132(a)(3) is effectively a 23 repackaged claim under 29 U.S.C. § 1132(a)(1)(b) or if the relief 24 available is truly duplicative. See id. Accordingly, 25 defendants’ motion to dismiss plaintiff’s second cause of action 26 is DENIED. 27 B. Breach of Fiduciary Duty 28 In her third claim, plaintiff contends that Blue Cross 1 Idaho breached its fiduciary duty under Section 502(a)(2) and 2 502(a)(3), codified at 29 U.S.C. § 1132(a)(2) and § 1132(a)(3). 3 (See Compl. at ¶¶ 128-134.) Blue Cross Idaho argues that 4 plaintiff cannot establish a breach of fiduciary duty because its 5 actions in processing her claim were not “fiduciary functions” 6 and therefore plaintiff has failed to adequately plead a claim 7 for relief. (See Mot. to Dismiss at 20–21.) 8 1. 29 U.S.C. § 1132(a)(2) 9 The court agrees with defendants that plaintiff has not 10 adequately pled a claim for breach of fiduciary duty under 29 11 U.S.C. § 1132(a)(2) but for a distinct reason not briefed, or 12 apparently considered, by either party. 29 U.S.C. § 1132(a)(2) 13 permits participants, beneficiaries, or fiduciaries to bring a 14 civil action for appropriate relief under 29 U.S.C. § 1109. 29 15 U.S.C. § 1109(a) provides: 16 Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, 17 obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to 18 make good to such plan any losses to the plan resulting from each such breach and to restore to 19 such plan any profits of such fiduciary which have been made through the use of the assets of 20 the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the 21 court may deem appropriate, including removal of such fiduciary. 22 23 29 U.S.C. § 1109(a). 24 The fiduciary relationship is one with the plan as a 25 whole, and individual beneficiaries bringing a breach of 26 fiduciary duty claim must do so for the benefit of the plan -- 27 not solely to recover for individual injuries. See LaRue v. 28 DeWolff, Boberg & Assocs., Inc., 552 U.S. 284, 254 (2008) (29 1 U.S.C. § 1109 “does not provide remedies for individual injuries 2 distinct from plan injuries”); Wise v. Verizon Commc’ns, Inc., 3 600 F.3d 1180, 1189 (9th Cir. 2010) (“The claim for fiduciary 4 breach gives a remedy for injuries to the ERISA plan as a whole, 5 but not for injuries suffered by individual participants.”). To 6 survive a Rule 12(b)(6) motion to dismiss, a plaintiff must 7 allege in the complaint that “the fiduciary injured the benefit 8 plan or otherwise jeopardized the entire plan or put at risk plan 9 assets.” See Wise, 600 F.3d at 1189. Merely alleging that an 10 ERISA breach of fiduciary duty claim “is brought on behalf of, 11 and for the benefit of, the plan and all its participants” is not 12 enough. Id. 13 Plaintiff does not allege anywhere in her complaint 14 that she brings her claim for breach of fiduciary duty on behalf 15 of the Plan and all its participants. Nor does she plead any 16 specific facts that allege Blue Cross Idaho harmed the Plan or 17 its participants other than herself. Instead, she solely claims 18 that Blue Cross Idaho has “breached its fiduciary duties to 19 plaintiff by knowingly underpaying her claim” and that they were 20 “operating under a financial conflict of interest with respect to 21 Plaintiff.” (See Compl. at ¶¶ 130–131.) In short, plaintiff 22 does not allege any specific facts tending to show that any claim 23 besides her own was mishandled or that the result of any such 24 mishandling caused plan-wide injury. Accordingly, plaintiff has 25 failed to state a claim for breach of fiduciary duty under 29 26 U.S.C. § 1132(a)(2). 27 2. 29 U.S.C. § 1132(a)(3) 28 Plaintiff also seeks relief for breach of fiduciary 1 duty under ERISA § 502(a)(3), codified at 29 U.S.C. §1132(a)(3). 2 (See Compl. at ¶¶ 128–134.) To state an equitable claim for 3 breach of fiduciary duty under 29 U.S.C. § 1132(a)(3), the 4 plaintiff must establish that (1) the defendant was a plan 5 fiduciary, (2) the defendant breached [its] fiduciary duties, and 6 (3) the breached caused harm to the plaintiff.”5 Wise v. MAXIMUS 7 Fed. Servs., Inc., 445 F. Supp. 3d 170, 196 (N.D. Cal. 2020). 8 Plaintiff has not alleged sufficient facts to 9 demonstrate that Blue Cross Idaho breached a fiduciary duty. 10 Plaintiff states that Blue Cross Idaho is “operating under a 11 financial conflict of interest with respect to plaintiff which 12 has impermissibly affected the handling of the underlying claim,” 13 (see Compl. at ¶ 130), but has pled no specific facts to show a 14 conflict of interests. Nor has she alleged specific facts to 15 support her conclusory allegations that Blue Cross Idaho 16 “wrongfully underpaid healthcare coverage on a bad faith basis”, 17 (see Compl. at ¶ 86), or that it “breached its fiduciary duties 18 to plaintiff by knowingly underpaying her claim.” (See Compl. at 19 ¶ 130.) Plaintiff does not even identify what specific fiduciary 20 duty, such as the duty of loyalty or the duty of care, Blue Cross 21 Idaho has allegedly breached. Accordingly, plaintiff has failed 22 to state a claim for breach of fiduciary duty under 29 U.S.C. § 23 1132(a)(3).6 24 5 There is no real dispute among the parties that 25 plaintiff was harmed when she was left with an outstanding medical bill of approximately $46,357.87. (See Compl. at ¶ 21.) 26

27 6 Because the court finds that plaintiff has not adequately stated a claim that Blue Cross Idaho breached its 28 fiduciary duties when it administered her claim, the court need 1 IT IS THEREFORE ORDERED that defendants’ limited motion 2 for summary judgment (Docket No. 52) be, and the same hereby is, 3 DENIED. 4 IT IS FURTHER ORDERED that defendants’ renewed motion 5 to dismiss, (Docket No. 46-4), be, and the same hereby is, DENIED 6 | as to plaintiff’s second claim for equitable relief 29 U.S.C. § 7 1132 □□□ (3), and GRANTED as to plaintiff’s third claim for breach 8 of fiduciary duty.’ 9 Plaintiff has twenty days from the date this Order is 10 Signed to file an amended complaint if she can do so consistent 11 with this Order. 12 | Dated: March 30, 2021 otk ttm th. Ad. bi—~ 13 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 fe not consider defendants’ arguments as to whether Blue Cross Idaho 29 acted in a “settlor” rather than a “fiduciary” function when 26 administering plaintiff’s claim. 27 7 The court expresses no opinion as to how such claims might be resolved in a further motion pursuant to Kearney v. 28 Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999). 19