Sommer v. Regence Bluecross Blueshield of Or.

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BRIAN SOMMER, Plaintiff, v. REGENCE BLUECROSS BLUESHIELD OF OREGON, Defendant.

No. 3:23-cv-01140-SB

United States District Court, D. Oregon

December 9, 2024

OPINION AND ORDER

HON STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

Plaintiff Brian Sommer (“Sommer”) filed this action against Regence BlueCross BlueShield of Oregon (“Regence”) seeking a determination of his rights to medical benefits and to recover such benefits, and other equitable relief, under the Employee Retirement Income Security Act of 1974 (“ERISA”). The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. (ECF No. 44.)

Before the Court is Regence's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56(a) (ECF No. 25), and Sommer's motion for leave to file a first amended complaint pursuant to Rule 15(a)(2) (ECF No. 36). The Court heard oral argument on both motions on November 8, 2024. For the reasons explained below, the Court denies both motions.

BACKGROUND^[1]

I. THE MEDICAL PLAN

Sommer is an “[e]mployee” of “[e]mployer” Immix Law Group, PC (“Immix”), consistent with 29 U.S.C. §§ 1002(5)-(6). (Compl. ¶ 4, ECF No. 1; Def.'s Answer (“Answer”) ¶ 4, ECF No. 11.) Sommer is a “[p]articipant” in Immix's group medical benefits plan (“Medical Plan”) pursuant to 29 U.S.C. § 1002(7). (Compl. ¶ 4; Answer ¶ 4.) Regence issued the Medical Plan to Immix, and it is subject to ERISA. (Def.'s Mot. Partial Summ. J. (“Def.'s Mot.”) at 2, ECF No. 25.)

II. SOMMER'S MEDICAL EXPENSES

In 2020, Sommer was prescribed the SomnoDent Appliance to treat his obstructive sleep apnea. (Aff. Brian Sommer Supp. Pl.'s Resp. Def.'s Mot. (“Sommer Aff.”) ¶ 2, ECF No. 33.) In February 2021, Sommer stopped wearing the device because “he started to develop significant pain in and around the area of both [temporomandibular joints (“TMJs”).]” (Pl.'s Resp. Def.'s Mot. (“Pl.'s Resp.”) at 4, ECF No. 31; Sommer Aff. ¶ 4.)

In May 2022, Dr. Lyly Fisher examined Sommer's TMJs and recommended that he schedule a surgical consultation with Dr. Brian Shah. (Sommer Aff. ¶ 6.) Sommer paid $960.00 for Dr. Fisher's services. (Id. ¶ 7; see also Sommer Aff. Ex. A, ECF No. 33-1, referencing the billing statement). /// On September 20, 2022, Dr. Shah evaluated Sommer's TMJs and determined that surgery was necessary. (Sommer Aff. ¶ 8.) Sommer paid $650.00 for an MRI and a $2,050.00 consultation fee in connection with Dr. Shah's evaluation. (Id. ¶ 9; see also Sommer Aff. Ex. B, ECF No. 33-2, referencing the MRI billing statement; Sommer Aff. Ex. C, ECF No. 33-3, referencing Dr. Shah's billing statement).

On November 17, 2022, Sommer wired $44,100.00 to Dr. Shah to prepay a surgeon fee and post-surgery imaging and evaluations. (Sommer Aff. ¶ 11; see also Sommer Aff. Ex. D, ECF No. 33-4, referencing six billing statements associated with Dr. Shah's services and a bank statement evidencing the wire transfer). Dr. Shah successfully performed the TMJ surgery on December 8, 2022. (Sommer Aff. ¶ 10.) In connection with the surgery, Sommer paid a $18,140.00 hospitalization fee and $4,046.25 for anesthesia. (Id. ¶¶ 13-14; see also Sommer Aff. Ex. F, ECF No. 33-6, referencing the hospital payment agreement; Sommer Aff. Ex. G, ECF No. 33-7, referencing the anesthesia billing statement).

At Dr. Shah's direction, Sommer also obtained pre-surgery orthodontic care and pre- and post-surgery chiropractic care at a cost of $3,200.00 and $1,750.00, respectively. (Sommer Aff. ¶¶ 12, 15; see also Sommer Aff. Ex. E, ECF No. 33-5, referencing the orthodontic billing statement; Sommer Aff. Ex. H, ECF No. 33-8, referencing the chiropractic billing statement). Dr. Shah also prescribed Sommer medication totaling $165.19. (Sommer Aff. ¶ 16; see also Sommer Aff. Ex. I, ECF No. 33-9, referencing the medication billing statement).

There are fourteen billing statements associated with Sommer's treatment, totaling approximately $75,000.00 in out-of-pocket expenses. (Pl.'s Resp. at 3.) /// ///

III. THE FILED CLAIMS

Of the fourteen billing statements, Sommer filed internal claims with Regence for three: one for the TMJ surgery and two for post-surgery imaging (the “Filed Claims”). (See Sommer Aff. Ex. D at 3-5, referencing the billing statements of the Filed Claims).

On October 12, 2022, Dr. Shah “request[ed] prior authorization for coverage of [] Sommer's [TMJ surgery].” (Pl.'s Resp. at 7; Decl. Medora Marisseau Supp. Def.'s Mot. (“Medora Decl.”) Ex. B at 9-10, ECF No. 30, referencing Dr. Shah's medical necessity letter to Regence). On October 18, 2022, Regence denied the request, explaining that “services and supplies provided for TMJ disorder treatment are listed as excluded from coverage.” (Medora Decl. Ex. B at 5-6, referencing Regence's denial letter).

After Sommer's surgery, Dr. Shah “submitted to Regence a [second] coverage claim for the [surgery].” (Pl.'s Resp. at 12; Medora Decl. Ex. B at 2, referencing the claim). Regence denied this claim too. (Medora Decl. Ex. B at 3-4, referencing Regence's processing of the surgery claim). Thereafter, on May 30, 2023, Sommer appealed Regence's prior authorization and post-service coverage denials. (Decl. Megan Glor Supp. Pl.'s Resp. (“Glor Decl.”) Ex. 2 at 4-10, ECF No. 37, referencing the appeal). On July 10, 2023, Regence denied the appeal and declared that TMJ “services and supplies provided in connection with TMJ disorder are a specific exclusion.... [T]his is treatment for TMJ disorder and therefore not covered.” (Sommer Aff. Ex. J at 2, ECF No. 33-10, referencing the denial letter).

On December 9, 2022, Regence approved a claim submitted by Dr. Shah for CT imaging performed the day after Sommer's TMJ surgery. (Def.'s Reply Supp. Def.'s Mot. (“Def.'s Reply”) at 5-6, ECF No. 39; see also Sommer Aff. Ex. D at 4, referencing the billing statement for the claim; Medora Decl. Ex. B at 3, referencing Regence's processing of the claim). Sommer acknowledges that Regence covered this claim, with the “qualifications that Regence did not use the word ‘approved' in the documentation . . . and that Regence noted ‘The Amount we paid' to be ‘$0.00.'” (See Medora Decl. Ex. C at 4, ECF No. 27-3, referencing Sommer's response to Regence's request for admission).

Dr. Shah also submitted a claim with Regence for a CT scan performed on March 27, 2023. (Def.'s Mot. at 5; see Sommer Aff. Ex. D at 5, referencing the billing statement). Regence responded that “[p]reauthorization was not obtained,” and the “[c]laim will be considered upon receipt of additional information from provider.” (Medora Decl. Ex. D at 2-3, ECF No. 27-4; Def.'s Mot. at 5.)

IV. THE UNFILED CLAIMS

Sommer did not file internal claims with Regence for any of his other out-of-pocket expenses (the “Unfiled Claims”).^[2](Pl.'s Mot. Am. Compl. (“Pl.'s Mot.”) at 4, ECF No. 36.) These include expenses from Dr. Fisher's examination, Dr. Shah's initial evaluation, and Sommer's hospitalization stay, anesthesia, post-surgery imaging, orthodontic and chiropractic care, and medications. (Id. at 3-4; Decl. Tim Huddleston Supp. Def.'s Mot. ¶ 5, ECF No. 26.)

V. PROCEDURAL HISTORY

On August 4, 2023, Sommer filed a complaint seeking relief under 29 U.S.C. §§ 1132(a)(1)(B) (the “Benefits Claim”), 1132(a)(3) (the “Equitable Claim”), and 1132(g)(1). (Compl. at 5-6.) In his complaint, Sommer alleges that Regence erroneously denied Dr. Shah's prior authorization and post-surgery claims, as well as Sommer's appeal, and “seeks a judgment overturning Regence's [] denial and awarding [] Sommer relief under ERISA.” (Id. ¶ 3.) Sommer seeks “to recover benefits due under the Medical Plan that were wrongfully denied . . . and to enforce his rights under the terms of the Medical Plan,” and “to the extent relief is not available under” the Benefits Claim, Sommer also “seeks equitable relief . . . arising from Regence's breaches of its fiduciary duties.” (Id. ¶¶ 16, 20.) Regence answered on November 20, 2023. (Answer at 1-5.)

On December 11, 2023, Sommer provided Regence's counsel a settlement communication seeking Sommer's “out-of-pocket expenses.” (See Glor Decl. ¶ 4, ECF No. 32, referencing the settlement communication; see also Decl. Megan Glor Suppl. Pl.'s Mot. (“Second Glor Decl.”) Ex. 1, ECF No. 48, same). In January 2024, Regence's counsel responded to Sommer, stating that Regence would not cover the Unfiled Claims “because they had never been submitted to Regence under the Plan's claim and appeal process, nor were they referenced anywhere in [Sommer's] Complaint.” (Decl. Medora Marisseau Supp. Def.'s Resp. Pl.'s Mot. (“Second Medora Decl.”) ¶ 4, ECF No. 42.)

On June 27, 2024, the parties submitted a joint status report in which Regence gave notice that it intended to file a motion for partial summary judgment. (Joint Status Report at 1-2, ECF No. 17.) Thereafter, on July 25, 2024, the parties conferred and discussed Regence's intent to move for partial summary judgment on the Unfiled Claims. (See Medora Decl. Ex. E, ECF No. 27-5, referencing emails between Sommer and Regence regarding Regence's motion).

On July 29, 2024, Regence moved for partial summary judgment (see generally Def.'s Mot.), and on August 26, 2024, Sommer responded. (See generally Pl.'s Resp.) One day later, Sommer moved for leave to file a first amended complaint. (See generally Pl.'s Mot.)

LEGAL STANDARDS

“A grant of summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting FED. R. CIV. P. 56(a)). “[T]he mere existence of some alleged factual dispute . . . will not defeat an otherwise properly supported motion for summary...