United States District Court, D. Nebraska
DEBORAH PEARSON, and AVIATION WEST CHARTERS, LLC, d/b/a ANGEL MEDFLIGHT, Plaintiffs,
WELLMARK, INC., d/b/a BLUE CROSS AND BLUE SHIELD OF IOWA; and UNITED SUPPLIERS, INC. GROUP HEALTH PLAN, Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
plaintiffs, Deborah Pearson and Angel MedFlight, are suing
the defendants, Wellmark, Inc. and United Suppliers Inc.
Group Health Plan, under the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et
seq. The defendants have moved to dismiss counts II and
III of the plaintiffs' amended complaint under
Fed.R.Civ.P. 12(b)(6). Filing 40. For the reasons explained
below, the defendants' motion will be granted in part and
denied in part.
plaintiffs' allegations are briefly summarized as
follows. Plaintiff Deborah Pearson broke her leg while
travelling in the Dominican Republic. Filing 37 at 1. Due to
prior complications with surgery, Pearson's doctor
recommended that she be evacuated by air ambulance to Good
Samarian Hospital in Kearney, Nebraska. Plaintiff Angel
MedFlight, which specializes in air-ambulance services,
performed the medical evacuation on February 22, 2013. Filing
37 at 4.
is a beneficiary of an employee benefits plan that is
administered by defendant Wellmark. Filing 37 at 1. According
to Pearson, she contacted Wellmark before taking the flight
for precertification, but those requests were allegedly
ignored. Filing 37 at 2. Pearson claims that she did not hear
from Wellmark until several months after the flight, when it
informed her that it would cover $28, 402.00 of her claim-or
5% of the flight's cost. Filing 37 at 2. This
reimbursement rate was allegedly based on the "maximum
allowable fee" for a flight to Miami. Filing 37 at 4.
And because Wellmark had determined that the air ambulance
was "medically necessary" to Miami, but not
Kearney, it denied full reimbursement. Filing 37 at 4.
plaintiffs claim that Wellmark's "medical-necessity
determination" was without adequate reason or
justification. Filing 37 at 4. They also claim that Wellmark
has failed to explain the basis or methodology for its
calculation of benefits, and has refused to provide documents
"relevant to its benefit determination." Filing 37
at 5. The plaintiffs seek equitable relief in counts II and
III under 29 U.S.C. § 1132(a)(2) and (3). The defendants
have moved to dismiss those claims under Fed.R.Civ.P.
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). This standard does not require detailed
factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint need not contain detailed factual
allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
deciding a motion to dismiss under Rule 12(b)(6), the Court
is normally limited to considering the facts alleged in the
complaint. If the Court considers matters outside the
pleadings, the motion to dismiss must be converted to one for
summary judgment. Fed.R.Civ.P. 12(d). However, the Court may
consider exhibits attached to the complaint and materials
that are necessarily embraced by the pleadings without
converting the motion. Mattes v. ABC Plastics,
Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). Documents
necessarily embraced by the pleadings include those whose
contents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the
pleading. Ashanti v. City of Golden Valley, 666 F.3d
1148, 1151 (8th Cir. 2012).
plaintiffs' amended complaint contains three
separately-pled claims under ERISA. Count I is brought under
§ 1132(a)(1)(B), which provides that a plan participant
or beneficiary may sue "to recover benefits due to h[er]
under the terms of h[er] plan." § 1132(a)(1)(B).
Count II is brought under § 1132(a)(3), which authorizes
a plan participant to sue "to enjoin any act or practice
which violates any provision of this subchapter or the terms
of the plan[.]" § 1132(a)(3). And count III is
brought under § 1132(a)(2), which authorizes plan
participants or beneficiaries to sue "for appropriate
relief under section 1109 of this title[.]" §
1132(a)(2). The defendants move to dismiss counts II and III
(plaintiffs' "equitable claims") on various
grounds. Filing 40.
turning to the merits of the defendants' motion, the
Court will address two separate, yet related points. First,
for reasons that will become clear, it is worth reiterating
who is-and who is not-a party to this dispute. As noted
above, the plaintiffs are Deborah Pearson, the plan
beneficiary, and Angel MedFlight, the provider of the
air-ambulance service (collectively, "Pearson").
The defendants are Wellmark Inc. and United Suppliers, Inc.
Group Health Plan (collectively, "Wellmark").
Defendant Wellmark Inc. administers the group health plan
under which Pearson is a beneficiary. See, filing 37
at 2; filing 42-1 at 11. Defendant United Suppliers, Inc.
Group Health Plan is the underlying benefits plan that is
sponsored by United Suppliers, Inc. and administered by
Wellmark Inc. Filing 37 at 2. The plan sponsor-United
Suppliers, Inc.-is not a named defendant.
as discussed in more detail below, the present dispute
concerns Pearson's entitlement, if any, to documents that
Wellmark allegedly relied on in denying full reimbursement.
But Pearson has only specifically identified one such
document: the air-ambulance fee schedule. And she has
provided no basis for her contention that Angel MedFlight,
which is neither a plan beneficiary or participant, is
similarly entitled. So, for present purposes, the Court will
address whether Pearson (and Pearson alone) may proceed on
her claims based on an alleged entitlement to the
air-ambulance fee schedule.
equitable claims generally pertain to Wellmark's
allegedly improper withholding of its air-ambulance fee
schedule. By failing to produce this document, Pearson
alleges, Wellmark is in violation of certain ERISA disclosure
provisions, its fiduciary duty as claims administrator, and
the express terms of the underlying benefits plan.
See filing 36 at 7. Accordingly, Pearson seeks
equitable relief under § 1132(a)(2) and (3).
moves to dismiss Pearson's equitable claims on two main
grounds. First, Wellmark argues that counts II and III of the
amended complaint are duplicative of count I, and therefore
must be dismissed under controlling Supreme Court precedent.
Second, Wellmark argues that, notwithstanding the
"duplicative" nature of the complaint,
Pearson's equitable claims fail as a matter of law. The
Court will address both arguments, in turn.
argues that Pearson's equitable claims are duplicative of
count I, and therefore must be dismissed under controlling
Supreme Court precedent. To support this contention, Wellmark
argues that Pearson, despite pleading multiple grounds for
recovery, has suffered only one injury: a partial denial of
benefits. Seefiling 41 at 5. And because §
1132(a)(1)(B) (i.e., count I) provides an adequate
remedy for that alleged injury, Pearson cannot seek
additional equitable relief under § 1132(a)(2) and (3)
(i.e., counts II and III). Filing 41 at 6.
argument derives from Varity Corp. v. Howe, 516 U.S.
489 (1996). In Varity, the Supreme Court addressed
the interaction between § 1132(a)(1)(B), which provides
a remedy for the wrongful denial of benefits, and §
1132(a)(3), which authorizes civil actions
by a participant, beneficiary, or fiduciary (A) to enjoin any
act or practice which violates any provision of this
subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations
or (ii) to enforce any provisions of this subchapter or the
terms of the plan.
§ 1132(a)(3). In discussing these provisions, the Court
characterized § 1132(a)(3) as a "catchall"
that "act[s] as a safety net, offering appropriate
equitable relief" for certain injuries caused by
violations of § 1132. Varity, 516 U.S. at 512.
But despite this seemingly broad interpretation, the Court
was clear that equitable relief is not, in every
We should expect that courts, in fashioning
"appropriate" equitable relief, will keep in mind .
. . that where Congress elsewhere provided adequate relief
for a beneficiary's injury, there will likely be no need
for further equitable relief, in which case such relief
normally would not be "appropriate." Id.
at 515; See Kerr v. Charles F. Vatterott &
Co., 184 F.3d 938, 943 (8th Cir. 1999) (§
1132(a)(3) is not a "limitless free-for-all").
Eighth Circuit has interpreted Varity as limiting a
plaintiff's ability to pursue both equitable and
compensatory relief under § 1132. In Pilger v.
Sweeney, for example, the Eighth Circuit-citing
Varity-affirmed a district court's grant of
summary judgment denying the plaintiffs' claim for
equitable relief. 725 F.3d 922, 927 (8th Cir. 2013).
"Count Three fails, " the court wrote,
"because its § 1132(a)(3)(B) claim mirrors Count
One's § 1132(a)(1)(B) claim." Id. And
"'[w]here a plaintiff is provided adequate relief by
the right to bring a claim for benefits under §
1132(a)(1)(B), the plaintiff does not have a cause of ...