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Central Valley AG Cooperative v. Leonard

United States District Court, D. Nebraska

August 30, 2019

CENTRAL VALLEY AG COOPERATIVE, for itself and as Fiduciary of the Central Valley Ag Cooperative Health Care Plan; and CENTRAL VALLEY AG COOPERATIVE HEALTH CARE PLAN, Plaintiffs,


          Laurie Smith Camp Senior United States District Judge.

         This matter is before the Court on several motions. For the reasons discussed below, the Defendants' Motions for Summary Judgment, ECF Nos. 257, 263, and 270, will be granted. The Plaintiffs' Motion for Partial Summary Judgment, ECF No. 273, will be denied. Because this action will be dismissed, the Court will not address the Motions in Limine, ECF Nos. 223, 243, 347, 350, 352, 355, and 371, and they will be denied as moot.


         In compliance with the Court's local rules, the parties submitted numbered statements of undisputed facts and corresponding responses. While the Court will not list here every statement of fact admitted by the several parties, it has thoroughly reviewed all the facts and evidence submitted.[1] Unless otherwise indicated, the following facts are undisputed for purposes of the pending Motions for Summary Judgment.

         I. The Parties and the ERISA Plan

         Central Valley Ag Cooperative (“Central Valley”)[2] is a Nebraska corporation with its principal place of business in York, Nebraska. Central Valley provides farm planning, supplies, and services to members of its cooperative in Nebraska, Kansas, and Iowa. Central Valley Non-Stock and United Farmers were separate entities that each had their own group employee health and welfare plan prior to the entities' corporate merger in 2014. After the merger, Central Valley provided its employees the Central Valley Ag Cooperative Health Care Plan (“Central Valley Plan” or “Plan”), which was a qualified employee welfare plan within the definition of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. In addition to health coverage offered by the Central Valley Plan, individual employees could choose to purchase additional insurance including a Vision Benefit Plan (“VSP”) as well as insurance against accidents, critical illness, and cancer, directly from the Plan's broker. Those individual policies were not part of the Plan.

         Central Valley's Plan was overseen by an informal Benefits Committee in charge of selecting and managing the benefits, including health insurance, offered to employees. The Benefits Committee members included Central Valley's President, Carl Dickinson; Senior Vice President for Human Resources, Tim Esser; Senior Vice President of Member Services, Peggy Hopwood; and Central Valley's current Chief Financial Officer, Don Swanson. Dickinson, Hopwood, and Swanson were employees of United Farmers before the merger. In July or August 2015, Central Valley's Vice President of Risk Management, Rick Smithpeter, was added to the Benefits Committee. Dickinson had ultimate decision-making authority over Plan selection for the 2015 and 2016 Plan years.

         Defendant GMS Benefits, Inc. (GMS) is the trade name for Group Marketing Services, Inc. GMS provides broker and employee benefit plan consulting services to employers. Defendants Susan Leonard and Daniel Leonard are the President and Vice-President, respectively, of Group Marketing Services, Inc., and its sole shareholders. United Farmer hired GMS as its broker in 2005 and GMS continued in that capacity for Central Valley in 2014 following the merger. GMS is not named as a fiduciary of the Central Valley Plan in any document describing, establishing, or related to the Plan for any Plan year. At no time were GMS, Susan Leonard, or Daniel Leonard fiduciaries with respect to the Central Valley Plan.

         In 2013, Defendant The Benefit Group, Inc. (Benefit Group), was the third-party administrator for the United Farmers Cooperative Health Care Plan (the “United Farmers Plan”). Hopwood Dep. Ex. 77, ECF No. 264-1. In 2015 and 2016, Central Valley engaged Benefit Group to provide administrative services for the Plan, governed by an administrative services agreement. Esser, on behalf of Central Valley, signed the administrative services agreement for the 2015 Plan Year, effective January 1, 2015 (the “2015 ASA”), see ECF No. 264-13, and signed another administrative services agreement with Benefit Group for the 2016 Plan Year, effective January 1, 2016 (the “2016 ASA”), see ECF No. 264-15. The 2015 and 2016 ASAs stated that Benefit Group was not a fiduciary under the Plan by virtue of paying benefits in accordance with the Plan's rules. Under both administrative services agreements, Central Valley retained “all final authority and responsibility for the Plan and its operation.” See id. at 1, PageID.7467. The administrative services agreements also stated that “Employer [Central Valley] shall have final authority in determining the eligibility of claims to be paid by the Plan.” Id. No. documents governing the Central Valley Plan in either 2015 or 2016 identify Benefit Group as a fiduciary of the Central Valley Plan.

         Defendant Anasazi Medical Payment Solutions, Inc. d/b/a Advanced Medical Pricing Solutions (AMPS) provides medical bill review (MBR) services to employee benefit plans. AMPS provided MBR services to the United Farmers Plan and then to the Central Valley Plan in 2015. Defendant Claims Delegate Services, LLC (CDS)[3] was a wholly owned subsidiary of AMPS providing reference-based reimbursement (“RBR”) services to employee benefit plans. CDS was not involved in providing MBR services and did not provide any services to Central Valley or the Central Valley Plan before January I, 2016. However, CDS provided RBR services to the Central Valley Plan in 2016. AMPS also provided MBR services to support CDS's RBR services during the 2016 Plan Year.

         II. MBR and the 2015 Plan Year

         In each year relevant to this case, Central Valley selected the type of benefits the Plan would offer. For the 2015 Plan Year, Central Valley chose the option with the lowest monthly payment, specifically the option that included AMPS providing MBR services. Effective January 1, 2015, Central Valley entered into a Medical Bill Review Addendum (the “MBR Agreement”) with Benefit Group. Esser read the MBR Agreement before signing it on Central Valley's behalf and was authorized to enter into the MBR Agreement. Before entering into the MBR Agreement, no Central Valley representative ever spoke to anyone at AMPS or CDS.

         Under the MBR program, Benefit Group would receive claims from Plan participants and would forward the claim to AMPS. AMPS would then submit the claim to its proprietary database for review. The AMPS review process would determine whether the claim included charges that were inappropriate and/or excessive. Following this review, AMPS would issue a “recommended allowable payment” amount to Benefit Group, recommending the amounts that should be paid on certain hospital and facility claims. See Humpal Dep. Ex. 16 § 2.7, ECF No. 264-9. Benefit Group would then send Central Valley the payment recommendation for each claim. For each claim, Central Valley could accept AMPS's recommendations, or reject AMPS's recommendations and pay the Preferred Provider Organization (PPO) contracted rate, if available. Hopwood Dep. 74:19-75:1; 75:15-19; 85:2-88:5, ECF No. 262-5; see also MBR Agreement § 2.7, ECF No. 262-11 (“All final determinations and decisions as to eligibility, benefit availability, correctness or appropriateness of charges billed by a provider, and all determinations whether any bill is payable under a benefit plan, are the responsibility of Client [Central Valley].”). Each Central Valley representative who approved funding requests for the 2015 Plan Year was authorized to do so by Central Valley.

         The MBR Agreement also set AMPS's fee for Plan Year 2015. It provided that AMPS's fee for MBR services was “equal to 30% of Savings.” MBR Agreement, Attachment A, ECF No. 262-11, PageID.6099. The MBR Agreement defined “savings” as “the difference between the lower of either (a) the original total charges billed by the provider or (b) the amount of such charges that would normally be paid by [Central Valley] and its member under its existing contract with the provider, less the allowable amount recommended by AMPS.” Id. Attachment A of the MBR Agreement further provided that

If AMPS has received a percentage of Savings payment from Client on a claim in accordance with this Attachment A, but such claim later is subsequently successfully challenged in the appeals process by the provider and a higher adjusted charge is recommended by AMPS and paid by Client, then upon receipt by AMPS of verification of such payment and a copy of the applicable revised or supplemental Explanation of Payment, AMPS shall credit or reimburse TPA for the account of Client for such proportionate amount of percentage of Savings fees previously paid or currently due to AMPS.

Id. Essentially, if Central Valley accepted the AMPS recommendation, and savings were achieved, Central Valley retained 70% of the savings and AMPS retained 30% of the savings. Humpal Dep. Ex. 16, Attachment A, Benefit Group 2383, ECF No. 264-9. The 30% AMPS fee was paid by Central Valley through a funding request submitted by Benefit Group. Benefit Group would then forward the 30% fee to AMPS. AMPS would then pay back to Benefit Group a percentage of the savings.

         Healthcare providers became concerned about their payments from the Plan under the MBR program. In July 2015, Central Valley's PPO network, First Health, threatened to terminate Central Valley's access to the network because of AMPS's MBR program and the repricing of already discounted hospital claims below PPO contracted rates. In November 2015, First Health terminated Central Valley's access to the network. Because First Health terminated Central Valley's access to the network, Central Valley sought out a different type of plan for the 2016 Plan Year.

         III. RBR and the 2016 Plan Year

         In the fall of 2015, GMS proposed several types of plans to Central Valley for health insurance for the 2016 Plan Year. The proposals included an option to use reference-based reimbursement (RBR) for hospital and facility claims. Under an RBR program, the plan sets payment levels at a certain percentage of Medicare as a reference. Central Valley asserts that it wanted payment levels set at 185% of Medicare for “metropolitan” providers and 200% of Medicare for rural providers. Central Valley asserts that Linus Humpal, President of Benefit Group, opined that hospitals would be happy to accept 185% of Medicare.

         Central Valley also wanted to avoid a practice known as balance billing. Balance billing occurs when a health insurance plan receives a claim from a hospital and pays benefits that are less than the full amount of the hospital charges. The hospital may then send the patient a bill for the balance that the health insurance plan did not pay. While presenting options for the 2016 Plan Year, John Powers of AMPS told The Benefit Group that there would be less balance billing with RBR than MBR. The Benefit Group doubted this assertion because there would be a larger number of claims eligible for review under RBR than MBR. Robin Wall of AMPS confirmed there would be more balance billing under RBR. Inman Dep. 31:13-7, ECF No. 266-18. Central Valley was aware that balance billing was a possibility under RBR. Dickinson Dep. 177:12-19, Filing No. 266-6; Hopwood Dep. 78:20-79:8, 149:1-3; ECF No. 266-3; see also ECF No. 264-30.

         Central Valley chose the RBR option for the 2016 Plan Year and, in connection with its choice of the RBR plan design option, Central Valley adopted a new plan document (the “RBR Plan Document” or the “2016 Plan Document”). Under the 2016 Plan Document, Central Valley served as Plan Sponsor and Plan Administrator, and was the Plan's named fiduciary. As the Plan's named fiduciary, Central Valley had the obligation to ensure that the RBR Plan Document complied with applicable law. Esser read and signed the RBR Plan Document and was authorized to sign the RBR Plan Document.

         The RBR Plan Document appointed CDS as a fiduciary for the purpose of serving as a “Claims Delegate” to, among other things, “review and make benefit determinations on all post-service Hospital and Facility Claims.” RBR Plan Doc. at 3, ECF No. 264-25, PageID.7620. AMPS and CDS would review all hospital and facility charges and would then determine a fair and reasonable amount for the services. Humpal Dep. Ex. 8, Benefit Group2194-95, ECF No. 264-6. Central Valley, as the Plan Administrator, was appointed as “[t]he named fiduciary for all other purposes.” Id. Central Valley had a fiduciary obligation to oversee the fiduciary duties delegated to CDS.

         The RBR Plan Document set the Permitted Payment Level (“PPL”) for hospital and facility claims at 160% of the Medicare allowable amount or, if greater, 135% of the Cost of the Covered Services, with a cap of 180% of the Medicare allowable amount. The RBR Plan Document further provided that if CDS believed it would serve the best interests of the Plan and Plan participants, in its sole discretion, CDS could “increase reimbursement for Allowable Expenses . . . by up to 30% of the amount of the Permitted Payment Levels set forth above.” Id. at 72, PageID.7689 (e.g., up to 208% of Medicare.)

Under the RBR Plan Document,
the Plan Administrator [Central Valley] and CDS shall jointly have the discretion to make a Benefit Determination to pay charges in any amount on Hospital or Facility Claims, but only when, in light of the specific facts and circumstances relating to the incident of care in question, such increased payment is otherwise Reasonable and: (i) it has been clearly and definitively established that the payment of a lesser amount could not in good faith be considered to represent fair and equitable consideration for the Services included in the Claim, or (ii) it is rationally determined to be necessary, appropriate and in the best interests of the Plan and its Participants to make such increased payment under the circumstances, taking into consideration the availability of alternative sources of the Services in question in the relevant geographic locale or area, and the value of maintaining Provider relationships for purposes of future access to such Services in that locale or area; or (iii) in circumstances where applicable law or regulation otherwise clearly requires the Plan to pay such charges in such amounts.

Id. at 72-73, PageID.7689-90. On January 19, 2016, the same day that Central Valley adopted the 2016 Plan Document, Esser read and signed the RBR Program Services Agreement (the “RBR Agreement”) on behalf of Central Valley and the Plan, and was authorized to enter into the RBR Agreement.

         Once the 2016 Plan Year was underway, Benefit Group sent hospital and facility claims to CDS through an electronic clearinghouse. CDS then used AMPS's proprietary database to re-price hospital and facility claims in accordance with the PPLs set forth in the RBR Plan Document. Once CDS reviewed the claim, it would recommend a payment amount to Benefit Group. Benefit Group then sent weekly funding requests to Central Valley with copies to GMS identifying each claim that Benefit Group proposed to pay in a given week. The funding requests listed amounts to be paid with Plan assets on a claim-by-claim basis for claims submitted to the Plan. Central Valley sent emails approving claims for payment. Each Central Valley representative who approved Benefit Group funding requests for the 2016 Plan Year was authorized to do so by Central Valley.

         Central Valley alleges that beginning in or about May 2016, providers began to tell Plan participants that they would be billed directly for their services. As the year progressed, some Central Valley Plan participants began receiving balance bills from providers. Participants received balance bills at a rate much higher than any party anticipated. Additionally, on or about May 19, 2016, several hospitals who were part of the First Health PPO network filed a lawsuit against the “Central Valley Ag Flexible Benefit Plan” and several other plans alleging that the plans were obligated to pay the full PPO rates on certain MBR claims reviewed by AMPS.

         To attempt to address payment issues, CDS negotiated direct payment contracts with several providers. On July 20, 2016, CDS executed a direct contract with York General Hospital on behalf of the Central Valley Plan, which specified that all claims aside from inpatient surgical claims would be paid at 185% of the Critical Access Hospital Medicare rate. On September 30, 2016, CDS executed a direct contract with Memorial Heath Care Systems in Seward on behalf of the Central Valley Plan, which specified that claims would be paid at the lesser of 100% of billed charges or 180% of the Critical Access Hospital Medicare rate. At the end of 2016, at Central Valley's direction, AMPS re-priced and Benefit Group reprocessed and paid certain claims at 204% of the Medicare rate.

         Central Valley decided not to renew the RBR Agreement beyond the 2016 Plan year. Beginning in the summer or fall of 2016, Smithpeter was tasked with negotiating claims on Central Valley's behalf and began a series of direct negotiations with several hospitals. Thereafter, Central Valley entered into agreements with several hospitals in which Central Valley agreed to pay a percentage of the charges billed by the hospitals.

         IV. Stop Loss

         Central Valley engaged GMS to procure excess liability (stop-loss) coverage for claims submitted to the Plan for Plan Year 2016. GMS offered Central Valley a choice of stop-loss policies that had different terms. The Benefit Group acted as a wholesaler for insurance brokers with respect to stop-loss coverage by obtaining quotes from carriers and providing them to brokers/agents. Benefit Group solicited bids from stop-loss carriers for Plan Year 2016 and provided those bids to GMS for presentation to Central Valley. The proposals for stop-loss insurance solicited by Benefit Group and presented to Central Valley by GMS were from Companion Life (Montgomery Management) and U.S. Fire.

         GMS recommended that Central Valley switch from its Companion stop-loss contract to a U.S. Fire stop-loss contract because there was a 28.74% rate increase if Central Valley renewed the Companion policy-a $1.7 million difference. Neither AMPS nor CDS had any involvement in soliciting, selecting, or recommending stop-loss insurance to the Central Valley Plan. Six months after The Benefit Group provided the stop-loss quote to GMS, on March 31, 2016, Central Valley signed an Application for Excess Insurance with U.S. Fire. Central Valley made the final decision about which stop-loss carrier to select, and it signed and approved all stop-loss contracts relating to the Plan.


         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med, Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

         In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

         In other words, in deciding “a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” there is no “genuine issue of material fact” for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).


         Central Valley asserts eight causes of action against each of the Defendants. The causes of action fall under two theories of recovery under ERISA. First, Central Valley alleges that Defendants breached their fiduciary duty to the Plan under 29 U.S.C. §§ 1109(a) and 29 U.S.C. § 1132(a)(2). Second, Central Valley alleges that Defendants breached their fiduciary duty under 29 U.S.C. § 1106(b) by engaging in prohibited transactions under ERISA.[4] Central Valley's claims under its first theory fail because, with the limited exception of CDS in 2016, the Defendants were not Plan fiduciaries nor did they become de facto fiduciaries. Central Valley's claims under its second theory fail because the transactions at issue were not prohibited by the Plan.

         I. Breach of Fiduciary Duty

         Section 1132(a)(2) states that “[a] civil action may be brought . . . by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title.” Under § 1109(a), a fiduciary who breaches its duties under ERISA “shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary.” To establish a breach of fiduciary duty, a plaintiff must show that “(1) a plan fiduciary (2) breach[ed] an ERISA-imposed duty (3) causing a loss to the plan.” Leckey v. Stefano, 501 F.3d 212, 225-26 (3d Cir. 2007), as amended (Dec. 21, 2007) (citing Roth v. Sawyer-Cleator Lumber Co., 61 F.3d 599, 602 (8th Cir. 1995)). Central Valley has failed to prove these elements as a matter of law because Defendants were not plan fiduciaries nor did they become “de facto” fiduciaries. Further, there is no evidence of breach of an ERISA-imposed duty.

         A. Defendants as Named Fiduciaries

         A fiduciary's duties under ERISA “have been described as ‘the highest known to the law.'” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598 (8th Cir. 2009) (quoting Donovan v. Bierwirth, 680 F.2d 263, 272 n.8 (2d Cir.1982)). “In every case charging breach of ERISA fiduciary duty, then, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary's interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.” Pegram v. Herdrich, 530 U.S. 211, 226 (2000). “ERISA does not regulate nonfiduciaries or provide a remedy for a nonfiduciary's misconduct.” Sparks v. Mo-Kan Iron Workers Pension Fund, 765 F.Supp. 566, 568 (W.D. Mo. 1990). The Supreme Court has specifically stated that “damages may not be recovered against ERISA non-fiduciaries.” FirsTier Bank, N.A. v. Zeller, 16 F.3d 907, 914 (8th Cir. 1994).[5] “[W]here the facts are not in question, whether a party is an ERISA fiduciary is ‘purely a question of law.'” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (quoting Kayes v. Pac. Lumber Co., 51 F.3d 1449, 1458 (9th Cir. 1995)).

With respect to an ERISA plan, a person is a fiduciary
to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A).[6] The “term fiduciary is to be broadly construed.” Olson v. E.F. Hutton & Co.,957 F.2d 622, 625 (8th Cir. 1992). However, “[a] person is a fiduciary only with respect to those portions of a plan over which he [or she] exercises discretionary authority or control.” Johnston v. Paul Revere Life Ins. Co.,241 F.3d 623, 632 (8th Cir. 2001) (quoting American Fed'n of Unions Local 102 v. Equitable Life Assurance Soc,841 F.2d 658, 662 (5th Cir. 1988)). “We look to the substance of the transaction in deciding whether a person is a fiduciary or whether the relationship is more contractual than fiduciary.” Hunter v. Philpott,373 F.3d 873, 876 (8th Cir. 2004). ‚ÄúPersons who provide professional services to plan administrators ...

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