Douglas Ghee, as personal representative of the Estate of Billy Fleming v. USAble Mutual Insurance Company d/b/a Blue Cross Blue Shield of Arkansas and Blue Advantage Administrators of Arkansas. ( 2023 )

Rel: March 31, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300
Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
__________________________________
1200485
__________________________________
Douglas Ghee, as personal representative of the Estate of Billy
Fleming, deceased
v.
USAble Mutual Insurance Company d/b/a Blue Cross Blue
Shield of Arkansas and Blue Advantage Administrators of
Arkansas
Appeal from Calhoun Circuit Court
(CV-15-900383.80)
PARKER, Chief Justice.1
Douglas Ghee, as the personal representative of the estate of Billy
1Thiscase was originally assigned to another Justice and was
reassigned to Chief Justice Parker.
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Fleming, deceased, appeals a judgment of the Calhoun Circuit Court
dismissing Ghee's wrongful-death claim against USAble Mutual
Insurance Company d/b/a Blue Cross Blue Shield of Arkansas and Blue
Advantage Administrators of Arkansas ("Blue Advantage"). The circuit
court correctly dismissed the aspect of Ghee's claim that, on the face of
the complaint, was based on an insurance-benefits decision by Blue
Advantage. The court erred, however, by dismissing the aspect of Ghee's
claim that was based on Blue Advantage's alleged provision of medical
advice, because it was not clear from the complaint that that aspect was
based on an insurance-benefits decision. Accordingly, we affirm the
judgment in part and reverse it in part.
I. Facts
As required in an appeal of a dismissal under Rule 12(b)(6), Ala. R.
Civ. P., the underlying facts before this Court are those alleged in Ghee's
operative complaint. See Sumter Cnty. Bd. of Educ. v. University of W.
Alabama, 349 So. 3d 1264, 1265 (Ala. 2021). Blue Advantage was the
claims administrator for Fleming's employee-health-benefits insurance
plan. The plan was subject to the Employee Retirement Income Security
Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.
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In June 2013, Fleming went to a hospital's emergency department
and was diagnosed with constipation and fecal impaction. A doctor
recommended that he undergo a subtotal colectomy. However, "an agent
[of Fleming's surgeon] called [Fleming] and informed him that he could
not have the surgery because [Blue Advantage] had decided that a lower
quality of care -- continued non-surgical management -- was more
appropriate …." Ghee's complaint at p. 5. After Blue Advantage denied
coverage for surgery,
"[Fleming] and his family then had multiple conversations
with agents of [Blue Advantage] in an unsuccessful attempt
to convince the company that the higher quality of care
(surgery, as recommended by [Fleming]'s doctors) was the
more appropriate course. Ultimately, an agent of [Blue
Advantage] suggested to [Fleming] that he return to [the
hospital] in an attempt to convince hospital personnel and
physicians to perform the surgery on an emergency basis."
Id. at p. 6. Fleming returned to the emergency department three times
but was not provided the surgery, and he was eventually taken to a
different hospital. Fleming died on July 16, 2013, from "septic shock due
to peritonitis due to colonic perforation." Id. at p. 8.
Ghee commenced a wrongful-death action against Blue Advantage
and other defendants. After multiple appeals to this Court and
amendments of Ghee's complaint, the operative complaint alleged:
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"[Blue Advantage] had or voluntarily assumed ... a duty to act
with reasonable care in determining the quality of health care
that [Fleming] would receive; a duty not to provide [Fleming]
with a quality of health care so low that it knew [Fleming] was
likely to be injured or killed; and a duty to exercise such
reasonable care, skill, and diligence as other similarly
situated health care providers in the same general line of
practice ordinarily have and exercise in a like case.
"… [Blue Advantage] breached those duties ... as follows:
"a. Negligently providing for a lower
quality of healthcare for [Fleming];
"b. Wantonly providing for a lower quality
of healthcare for [Fleming];
"c. Breaching the standard of care by (i)
failing to provide a higher quality of healthcare to
[Fleming] (necessary, life-saving surgery) and (ii)
failing to communicate adequately with
[Fleming's] healthcare providers regarding his
need for surgery.
"… Those breaches combined with the actions of other
defendants as a legal cause of death for … Fleming, in that
without the breaches, [Fleming] would have more likely than
not survived.
" … Ghee makes no complaint that [insurance] benefits
were denied to [Fleming] .... Ghee's only complaint against
[Blue Advantage], as detailed above, involves the quality of
the benefit received, specifically that it was of such a low
quality (did not include necessary surgery) that it caused
[Fleming's] death. ... Ghee does not seek any benefits ... but
instead only the wrongful death, punitive damages allowed by
Alabama state law.
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"... To be clear, Ghee does not seek to hold [Blue
Advantage] liable for a mere denial of benefits, but instead
seeks to hold it liable for negligently undertaking to take
charge of and controlling [Fleming]'s health care, for
negligently interjecting itself as a healthcare provider for
[Fleming] and then negligently giving [Fleming] medical
advice, and for negligently providing a suboptimal standard
of care (i.e. passive treatments instead of surgery).
"… [Blue Advantage] did not just make administrative
decisions, it interjected itself as [Fleming]'s medical provider,
interfered with his treatment, and combined with [Fleming]'s
medical providers to proximately cause his death. [Blue
Advantage] crossed the line from claims administration into
the practice of medicine."
Ghee's second amendment to the complaint. Blue Advantage moved to
dismiss Ghee's operative complaint under Rule 12(b)(6), arguing that his
claims were defensively preempted by a provision of ERISA, 29 U.S.C. §
1144(a), under this Court's decision in Hendrix v. United Healthcare
Insurance Co. of the River Valley, 327 So. 3d 191 (Ala. 2020). The circuit
court granted Blue Advantage's motion to dismiss and certified the
court's order as a final judgment under Rule 54(b). Ghee appeals.
II. Standard of Review
"The appropriate standard of review under Rule 12(b)(6)[, Ala.
R. Civ. P.,] is whether, when the allegations of the complaint
are viewed most strongly in the pleader's favor, it appears
that the pleader could prove any set of circumstances that
would entitle [it] to relief. In making this determination, the
Court does not consider whether the plaintiff will ultimately
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prevail, but only whether [it] may possibly prevail. ... [A] Rule
12(b)(6) dismissal is proper only when it appears beyond
doubt that the plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to relief."
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993) (citations omitted).
Blue Advantage's Rule 12(b)(6) motion to dismiss was based on defensive
preemption under ERISA, which is an affirmative defense, see Butero v.
Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999).
When a Rule 12(b)(6) motion is based on an affirmative defense,
dismissal is proper only if the applicability of the defense is clear from
the complaint. Crosslin v. Health Care Auth. of Huntsville, 5 So. 3d 1193,
1195-96 (Ala. 2008).
III. Analysis
As a plurality of this Court explained in Hendrix v. United
Healthcare Insurance Co. of the River Valley, 327 So. 3d 191 (Ala. 2020),
defensive preemption under ERISA bars certain state-law claims:
"ERISA governs 'voluntarily established health and
pension plans in private industry.' Kennedy v. Lilly Extended
Disability Plan, 856 F.3d 1136, 1138 (7th Cir. 2017). It
'comprehensively regulates, among other things, employee
welfare benefit plans that, "through the purchase of insurance
or otherwise," provide medical, surgical, or hospital care, or
benefits in the event of sickness, accident, disability, or death.
... 29 U.S.C. § 1002(1).' Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987).
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"ERISA's express preemption provision, ... 29 U.S.C. §
1144(a), provides that ERISA 'shall supersede any and all
State laws insofar as they may now or hereafter relate to any
employee benefit plan.' State law that may be preempted
because it relates to an ERISA employee-benefit plan
'includes all laws, decisions, rules, regulations, or other State
action having the effect of law.' 29 U.S.C. § 1144(c)(1). This
includes civil causes of action brought pursuant to state
law. Aldridge v. DaimlerChrysler Corp., 809 So. 2d 785, 792
(Ala. 2001) ('ERISA's express preemption provision ... "defeats
claims that seek relief under state-law causes of action that
'relate to' an ERISA plan." ' (quoting Butero v. Royal
Maccabees Life Ins. Co., 174 F.3d 1207, 1215 (11th Cir.
1999))); Seafarers' Welfare Plan v. Dixon, 512 So. 2d 53 (Ala.
1987) (holding that causes of action alleging breach of
contract and bad-faith failure to pay insurance benefits were
preempted by ERISA). …
"....
"The preemption language used in § [1144(a)] is
'deliberately expansive.' Pilot Life Ins. Co., 481 U.S. at 46, 107
S.Ct. 1549. It is aimed at ' "eliminating the threat of
conflicting or inconsistent State and local regulation of
employee benefit plans." ' Id. at 46, 107 S.Ct. 1549 (quoting
120 Cong. Rec. 29197 (1974)). See also Egelhoff v. Egelhoff,
532 U.S. 141, 148, 121 S.Ct. 1322, 149 L.Ed.2d 264(2001) (stating that a 'principal goal[] of ERISA' was 'to enable
employers "to establish a uniform administrative scheme,
which provides a set of standard procedures to guide
processing of claims and disbursement of benefits" ' and that
'[u]niformity is impossible ... if plans are subject to different
legal obligations in different States' (quoting Fort Halifax
Packing Co. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 96 L.Ed.2d
1 (1987))); Kuhl v. Lincoln Nat'l, Health Plan of Kansas City,
Inc., 999 F.2d 298, 301 (8th Cir. 1993) ('Consistent with the
decision to create a comprehensive, uniform federal scheme
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for regulation of employee benefit plans, Congress drafted
ERISA's preemption clause in broad terms.').
"A state law relates to a benefit plan 'if it has a
connection with or reference to such a plan.' Shaw v. Delta Air
Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490(1983). A state law has an impermissible connection to an
ERISA plan if it ' "governs ... a central matter of plan
administration" or "interferes with nationally uniform plan
administration." ' Gobeille v. Liberty Mut. Ins. Co., 577 U.S.
312, 136 S.Ct. 936, 943, 194 L.Ed.2d 20(2016) (quoting Egelhoff, 532 U.S. at 148, 121 S.Ct. 1322).
' "[A] state law may 'relate to' a benefit plan, and thereby be
preempted, even if the law is not specifically designed to affect
such plans, or the effect is only indirect." ' Weems v. Jefferson-
Pilot Life Ins. Co., 663 So. 2d 905, 908 (Ala.
1995) (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), quoting in
turn Pilot Life Ins. Co., 481 U.S. at 47, 107 S.Ct. 1549)."
327 So. 3d at 193-94, 199.
Nevertheless, the United States Supreme Court has cautioned that
the scope of ERISA defensive preemption must be understood in light of
Congress's objectives:
"[W]e have never assumed lightly that Congress has
derogated state regulation, but instead have addressed claims
of pre-emption with the starting presumption that Congress
does not intend to supplant state law. Indeed, in cases like
this one, where federal law is said to bar state action in fields
of traditional state regulation, we have worked on the
'assumption that the historic police powers of the States were
not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.'
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"... Section [1144(a)] marks for pre-emption 'all state
laws insofar as they ... relate to any employee benefit plan'
covered by ERISA, and one might be excused for wondering,
at first blush, whether the words of limitation ('insofar as they
... relate') do much limiting. If 'relate to' were taken to extend
to the furthest stretch of its indeterminacy, then for all
practical purposes pre-emption would never run its course, for
'[r]eally, universally, relations stop nowhere.'[2] But that, of
course, would be to read Congress's words of limitation as
mere sham, and to read the presumption against pre-emption
out of the law whenever Congress speaks to the matter with
generality. ...
"... '[A] law "relates to" an employee benefit plan, in the
normal sense of the phrase, if it has a connection with or
reference to such a plan.' ... [As to the] question whether the
[subject state] laws have a 'connection with' the ERISA plans,
... an uncritical literalism is no more help than in trying to
construe 'relate to.' For the same reasons that infinite
relations cannot be the measure of pre-emption, neither can
infinite connections. We simply must ... look ... to the
objectives of the ERISA statute as a guide to the scope of the
state law that Congress understood would survive.
"....
"... [Section 1144] indicates Congress's intent to
establish the regulation of employee welfare benefit plans 'as
exclusively a federal concern.' ... [I]n passing § [1144(a)],
Congress intended
" 'to ensure that plans and plan sponsors would be
subject to a uniform body of benefits law; the goal
2Indeed, "as many a curbstone philosopher has observed,
everything is related to everything else." California Div. of Labor
Standards Enf't v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335
(1997) (Scalia, J., concurring).
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was to minimize the administrative and financial
burden of complying with conflicting directives
among States or between States and the Federal
Government ..., [and to prevent] the potential for
conflict in substantive law ... requiring the
tailoring of plans and employer conduct to the
peculiarities of the law of each jurisdiction.'
"... The basic thrust of the pre-emption clause ... was to avoid
a multiplicity of regulation in order to permit the nationally
uniform administration of employee benefit plans."
New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 654-57 (1995) (citations omitted). Accordingly, as
stated above, "[a] state law has an impermissible connection to an ERISA
plan if it ' "governs ... a central matter of plan administration" or
"interferes with nationally uniform plan administration." ' " Hendrix, 327
So. 3d at 199 (citations omitted). "Pre-emption does not occur ... if the
state law has only a 'tenuous, remote, or peripheral' connection with
covered plans." District of Columbia v. Greater Washington Bd. of Trade,
506 U.S. 125, 130 n.1 (1992) (citation omitted).
Given these principles, legal scholars have described the line
between preempted and nonpreempted claims, in the context of tort
claims alleging medical negligence, as follows:
"If the claim ... is based on the assertion of ordinary
malpractice and vicarious liability, not based upon the denial
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of coverage or benefits, it is simply not preempted. On the
other hand, if the claim is that the plan wrongly denied
benefits such as hospitalization, that would be a benefits-
denied case and preempted, even if the coverage decision was
made negligently."
2 Dan B. Dobbs et al., The Law of Torts § 318, at 271 (2d ed. 2011)
(footnotes omitted).
"Generally, state tort laws for various types of
negligence ... are preempted as they apply to the basic activity
of an ERISA plan. ... In claims arising out of physical injury
or even death caused by someone related to the plan to a
claimant or a [decedent] who was a plan participant,
preemption depends on the relationship to the person's
ERISA duties. If claims arise because of negligence in the
administration of the ERISA plan, then the claim is
preempted. However, if the claim is a medical malpractice
action, then it is not preempted."
1A Steven Plitt et al., Couch on Insurance § 7:42 (3d ed. 2010) (footnote
omitted).
In Hendrix, a three-Justice plurality of this Court applied
principles of ERISA defensive preemption to a case in which the plaintiff,
like Ghee, alleged that a decedent's ERISA health-insurance-plan
administrator had voluntarily undertaken a duty of a health-care
provider. In that case, the decedent was injured in an automobile
accident and then died after the plan administrator refused to approve
payment for treatment recommended by his physician. The decedent's
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personal representative commenced a wrongful-death action against the
plan administrator. As the plurality detailed:
"[A]fter [the decedent's] treating physician ordered inpatient
rehabilitation, representatives of the hospital and a
rehabilitation facility 'all contacted [the plan administrator]
numerous times in an attempt to get [the decedent] admitted
to an inpatient facility.' [The plaintiff] assert[ed] that [the
plan administrator] then 'imposed itself as [the decedent's]
health care provider, took control of [his] medical care, and
made a medical treatment decision that [he] should not
receive further treatment, rehabilitation, and care at an
inpatient facility.' [The plaintiff] asserted in the complaint
that, instead, [the plan administrator] 'made the medical
treatment decision that [the decedent] should be discharged
to his home ... and receive a lower quality of care (i.e., home
health care) than had been ordered by [his] physicians,
therapists, and nurses.' Because [the plan administrator]
rejected [the decedent's] request for inpatient rehabilitation,
[he] was sent home. [The decedent] died ... due to a pulmonary
thromboembolism, which, the complaint assert[ed], would not
have occurred had [the plan administrator] approved
inpatient rehabilitation.
"... [The plaintiff] alleged that [the plan administrator]
" 'voluntarily assumed one or more of the following
duties ...[:] (1) a duty to act with reasonable care in
determining the quality of health care that [the
decedent] would receive; (2) a duty to not provide
to [the decedent] a quality of health care so low
that it knew that [the decedent] was likely to be
injured or killed; and/or (3) a duty to exercise such
reasonable care, skill, and diligence as other
similarly situated health care providers in the
same general line of practice ordinarily have and
exercise in a like case.'
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"[The plaintiff] alleged further that [the plan administrator]
" 'negligently and wantonly breached the standard
of care that applied to [the plan administrator's]
voluntarily undertaken duties in one or more of
the following respects: (a) by providing healthcare
for [the decedent] that fell beneath the standard of
care; (b) by making the medical treatment decision
and mandating that [the decedent] not receive
further treatment, rehabilitation, and care at an
inpatient facility following his discharge from [the
hospital]; (c) by violating a physician's orders
which required that [the decedent] receive further
treatment, rehabilitation, and care at an inpatient
facility following his discharge from [the hospital];
(d) by interfering with [the decedent's] medical
care and preventing him from receiving further
treatment, rehabilitation, and care at an inpatient
facility following his discharge from [the hospital].'
"... [T]he complaint demonstrate[d] that, based on the
recommendation of his treating physician ..., [the decedent]
wanted to be admitted to an inpatient-rehabilitation facility,
that his medical providers requested [the plan administrator]
pay for that course of treatment pursuant to an insurance
policy that is part of an ERISA-governed plan, that [the plan
administrator] denied that request, and that [the decedent]
was unable to participate in inpatient rehabilitation because
[the plan administrator] refused to pay for it."
327 So. 3d at 194-95.
After surveying relevant federal precedent, the plurality reasoned:
"[The plaintiff] seeks to punish [the plan administrator] for a
death that allegedly resulted because of a denial of benefits.
Thus, ... [the plaintiff]'s claim 'is, at bottom, "[b]ased on the
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alleged improper processing of a claim for benefits" ' and, if
allowed to proceed, would ' "interfere[] with nationally
uniform plan administration." ' Any 'medical treatment
decision' made by [the plan administrator] was made in its
role as the administrator of the health-benefit plan, not as a
health-care provider."
Id. at 201 (citations omitted). The plurality rejected the plaintiff's
argument that the claim was not preempted because it involved a
medical-treatment decision, reasoning:
"There are no facts alleged in the complaint in the
present case supporting [the plaintiff's] conclusory assertion
that an agent of [the plan administrator] voluntarily
undertook a duty to act as [the decedent's] treating physician
by taking 'control' of [the decedent's] treatment …. The
complaint makes clear that [the decedent's] treating
physician at the hospital recommended inpatient
rehabilitation and that he applied for benefits from [the plan
administrator] to pay for that treatment, but [the plan
administrator] denied that request."
Id. at 203. Accordingly, the plurality concluded that the plaintiff's claim
"relate[d] to an ERISA-governed benefits plan" and was therefore
defensively preempted under § 1144(a). Id. at 203.
Justice Shaw, joined by Justice Bryan, concurred in the result,
writing:
"I am not convinced that the preemption provided by … §
1144(a) bars a wrongful-death action in circumstances where
an insurance company, allegedly acting to administer a
health-benefit plan, in fact assumes medical care of its
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insured and by that action causes the death of the insured.
However, after reviewing the particular complaint at issue in
this case, I am not persuaded that, for the purpose of
reviewing the trial court's entry of a dismissal under the
applicable Rule 12(b)(6), Ala. R. Civ. P., standard of review,
such preemption can be avoided."
Id. at 204 (Shaw, J., concurring in the result). Three Justices dissented,
and one Justice recused himself.
Thus, in those separate opinions in Hendrix, a majority of the Court
agreed that, under the facts alleged in the complaint, the claim was
preempted by ERISA. "[I]f, in [a] prior case, a particular rationale
supporting the result was agreed with by [a] majority of judges, even in
separate opinions, the zone of their agreement constitutes binding
precedent ...." Ex parte Ball, 323 So. 3d 1187, 1188 (Ala. 2020) (Parker,
C.J., concurring specially); see, e.g., Bilbrey v. State, 531 So. 2d 27, 31-32
(Ala. Crim. App. 1987) (applying this type of zone-of-agreement analysis
to fragmented decision of United States Supreme Court), abrogated on
other grounds, State v. Thrasher, 783 So. 2d 103 (Ala. 2000); cf. Holk v.
Snider, 295 Ala. 93, 94, 323 So. 2d 425, 426 (1976) ("[T]he resolution of
an issue must be concurred in by the requisite number of judges[;] ... here,
... there was a concurrence of five judges in the determination that
specific performance was warranted. This is the law of the case and was
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binding upon the trial court."). Therefore, the binding effect of Hendrix is
that, under the allegations in that case -- a wrongful-death claim alleging
that an ERISA plan administrator breached the duties of a health-care
provider by declining to approve payment for a particular treatment --
such a claim is preempted.
In the present case, certain of the allegations in Ghee's complaint
are indistinguishable from the allegations in Hendrix. Ghee alleged that
Blue Advantage breached duties of a health-care provider by declining to
approve payment for the proposed surgery. Even though that decision
may have involved medical judgment, it was a decision about the
administration of benefits. Hence, this aspect of Ghee's claim was
ultimately an assertion that Blue Advantage was subject to state-law
liability for the consequences of its coverage decision. Under Hendrix,
such a claim is preempted. Accordingly, we affirm the dismissal of Ghee's
claim to the extent that it was based on those allegations. 3
3As an alternative basis for reversal of the judgment, Ghee argues
that the circuit court should have treated Blue Advantage's Rule 12(b)(6)
motion as a summary-judgment motion, and allowed Ghee to conduct
discovery, because Blue Advantage attached to the motion various
insurance-plan documents that had not been attached to Ghee's
complaint. However, under our analysis above, the preemption of the
coverage-decision aspect of Ghee's claim is clear on the face of Ghee's
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Ghee's claim is not limited to those allegations, however. Unlike the
complaint in Hendrix, Ghee's complaint further alleges that, after Blue
Advantage had made its coverage decision declining to approve payment
for the requested surgery, Blue Advantage then went further and
suggested that Fleming return to the hospital's emergency department
to try to obtain the surgery on an emergency basis. Ghee argues that his
complaint can be read as alleging that Blue Advantage, independently of
its decision to deny coverage for the surgery, medically advised him to
return to the hospital and seek the surgery on an emergency basis.
In Hendrix, as a result of the caveat in Justice Shaw's special
writing, the majority's decision left open the possibility that a claim
against an ERISA plan administrator might not be preempted if the
plaintiff sufficiently alleges that the administrator, separate and apart
complaint; it is not based in any way on the plan documents attached to
Blue Advantage's motion. Therefore, any alleged impropriety in Blue
Advantage's attachment of those documents, or in the circuit court's
consideration of them, is rendered harmless by our above analysis. See
Hendrix, 327 So. 3d at 197-98 & n.5 (plurality opinion) (discussing
plaintiff's argument that attachment of insurance documents rendered
plan administrator's Rule 12(b)(6) motion a summary-judgment motion
and noting: "[T]his Court can determine from [the plaintiff]'s complaint
alone, without reference to the insurance documents, that her claim
against [the plan administrator] 'relate[s] to' the health-benefit plan.").
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from the administrative function of processing a claim, negligently
provided medical care to the plan beneficiary. See 327 So. 3d at 204
(Shaw, J., concurring in the result) ("I am not convinced that the
preemption provided by … § 1144(a) bars a wrongful-death action in
circumstances where an insurance company, allegedly acting to
administer a health-benefit plan, in fact assumes medical care of its
insured and by that action causes the death of the insured."). 4
Although relevant legal authority is sparse, it confirms that the
type of claim contemplated by Justice Shaw's caveat is indeed not
preempted. As outlined above, we start with a presumption that ERISA's
defensive-preemption provision does not "bar state action in fields of
traditional state regulation" involving " 'the historic police powers of the
States,' " Travelers, 514 U.S. at 655 (citation omitted). See Egelhoff v.
Egelhoff, 531 U.S. 141, 151 (2001) (stating, in ERISA defensive-
preemption case: "There is indeed a presumption against pre-emption in
4The plurality opinion in Hendrix alluded to a similar possibility.
See 327 So. 3d at 203 (plurality opinion) ("There are no facts alleged in
the complaint in the present case supporting [the plaintiff's] conclusory
assertion that an agent of [the plan administrator] voluntarily undertook
a duty to act as [the decedent's] treating physician by taking 'control' of
[the decedent's] treatment ….").
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areas of traditional state regulation ...."). This presumption means that
such state-law matters are not preempted " 'unless that was the clear and
manifest purpose of Congress.' " Travelers, 514 U.S. at 655 (citation
omitted). To determine whether a state-law cause of action comes within
Congress's manifest purpose in enacting § 1144(a), we must consider
whether the cause of action, as presented under the facts of the case,
" ' "governs ... a central matter of plan administration" or "interferes with
nationally uniform plan administration," ' " Hendrix, 327 So. 3d at 199
(plurality opinion) (citations omitted).
As explained in Hendrix, to allow a negligence claim based on an
ERISA plan administrator's medical decisions made in the course of plan
administration would, ordinarily, "interfere[] with nationally uniform
plan administration":
"[The plaintiff's] claim 'is, at bottom, "[b]ased on the alleged
improper processing of a claim for benefits" ' and, if allowed to
proceed, would ' "interfere[] with nationally uniform plan
administration." ' Any 'medical treatment decision' made by
[the plan administrator] was made in its role as the
administrator of the health-benefit plan .... The fact that a
medical judgment is made in the course of denying a request
for benefits does not mean that a cause of action seeking
recovery for an injury or death resulting from that denial does
not 'relate to' the relevant ERISA benefit plan."
Id. at 201 (plurality opinion) (citations omitted). By contrast, if a plan
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administrator makes a medical decision outside its role as administrator,
not in the course of a benefits determination, that decision is by definition
not part of plan administration. Thus, there is no reason to think that
allowing a claim based on negligence in such a decision will "interfere[]
with nationally uniform plan administration," Egelhoff, 532 U.S. at 148.
Hence, although the line between preempted and nonpreempted claims
may not be easy to apply in practice, in principle it has been correctly
drawn as follows. On one hand, claims "that the plan wrongly denied
benefits," Dobbs, supra, or that "arise because of negligence in the
administration of the ERISA plan," Plitt, supra, are preempted. On the
other hand, claims "based on the assertion of ordinary malpractice,"
Dobbs, supra, are not preempted.
There is a paucity of similar cases applying this preemption line,
but one federal case illustrates when a claim may fall on the
nonpreempted side of the line. In Bui v. American Telephone and
Telegraph Co., 310 F.3d 1143 (9th Cir. 2002), the plaintiff's decedent was
working in Saudi Arabia. Due to a serious health condition, the
decedent's doctor told him that he needed to undergo surgery within a
week. The decedent tried to determine whether to leave or to stay in
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Saudi Arabia for the surgery, and he consulted with a doctor employed
by the decedent's employer. The doctor advised the decedent to stay. The
decedent checked into a hospital in Saudi Arabia, underwent two
unsuccessful operations, one of which had never been performed at that
hospital, and died. Id. at 1145-46.
The plaintiff sued the decedent's employer, alleging that the
employer (through its doctor) negligently advised the decedent to have
the surgery in Saudi Arabia. The trial court entered a summary judgment
for the employer, ruling that the claim was defensively preempted under
ERISA (§ 1144). Id. at 1146.
The United States Court of Appeals for the Ninth Circuit held that,
given the procedural posture of the case, the claim could not be
conclusively determined to be preempted. Id. at 1146, 1152-53. The court
observed, consistently with our above analysis, that
"[m]edical malpractice is one traditional field of state
regulation that several circuits have concluded Congress did
not intend to preempt. We join the Third, Fifth, and Tenth
Circuits in holding that ERISA's preemption clause, 29 U.S.C.
§ 1144, does not preempt actions involving allegations of
negligence in the provision of medical care ....
"... [W]e look to the behavior underlying the allegations
in the complaint to determine whether ERISA preempts a
plaintiff's claims. If a claim alleges a denial of benefits, ERISA
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preempts it. A denial of benefits involves an administrative
decision regarding coverage. ... [I]t is clear that ERISA
preempts suits predicated on administrative decisions.
Subjecting such decisions to an individual state's laws would
subvert the intent of Congress to allow for the uniform
administration of ERISA benefits ... by requiring
administrators to follow many state laws instead of one
federal law[ and] by interfering with the relationship between
ERISA administrators and beneficiaries ....
"If a claim alleges medical malpractice, however, ...
ERISA does not preempt it and ... state law governs. ... [I]t is
clear that state medical malpractice standards should not be
preempted. They do not mandate employee benefit structures
or their administration[ and] do not preclude uniform
administrative practices .... In addition, they are state
standards of general application that do not depend upon
ERISA. Finally, they will not affect the relationships between
principal ERISA participants when acting in their roles as
principal ERISA participants. In short, they do not impinge
upon Congress's stated goal for ERISA: to ensure uniform
administrative enforcement."
Id. at 1147-48 (footnotes omitted).
In light of these principles, the court held that, given the facts
before the trial court on the employer's summary-judgment motion, the
claim based on the employer's negligent medical advice could not be
conclusively determined to be preempted. Among other things, "it [was]
unclear from the ... record whether [the employer] was acting as a direct
service provider or an administrator" when it gave the advice. Id. at 1152.
The court explained that "[t]he fact that [the employer] may have acted
22
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as an administrator at other times is irrelevant. What matters is the hat
it was wearing during the time it committed the acts of which [the
plaintiff] complains." Id. at 1153. And the plaintiff had "shown that a
genuine issue of material fact exist[ed] regarding whether [the employer]
was wearing the hat of an administrator or the hat of a service provider"
when it gave the medical advice. Id.
Although Bui was decided in a summary-judgment posture, the
analysis in this case is very similar. Because this is an appeal of an order
on a motion to dismiss, we must view the allegations of the complaint in
the light most favorable to Ghee. Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993). Further, because the dismissal was based on an affirmative
defense, we can affirm only if the applicability of the defense is clear from
the complaint. Crosslin v. Health Care Auth. of Huntsville, 5 So. 3d 1193,
1195-96 (Ala. 2008). And similarly to the facts in Bui, here it is not clear
from the complaint that Blue Advantage was acting within its role as
plan administrator, in the course of plan administration, when it advised
Fleming to go to the emergency department. At that time, Blue
Advantage had already denied coverage and repeatedly confirmed its
decision. Although it is possible to infer that Blue Advantage's agent so
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advised Fleming because of a desire to help him obtain coverage for the
surgery, it is also possible to infer other motives, or even the absence of
any particular motive. Given the posture of this case, it is not clear
whether Blue Advantage was acting in the course of plan administration
when it advised Fleming.
Finally, we address an aspect of Blue Advantage's argument that
requires a clarification. Within Blue Advantage's argument that the
medical-advice aspect of Ghee's claim was preempted, Blue Advantage
seems to intermix suggestions that this aspect was simply not viable as
a medical-negligence claim. For example, Blue Advantage argues that
Ghee's complaint did not establish that Blue Advantage's advice
constituted medical services or that the advice caused Fleming's death.
However, Blue Advantage apparently conflates the issue of ERISA
preemption (an affirmative defense) with the issue whether this aspect
of Ghee's claim states a cause of action (establishes the elements of
negligence). The latter has no bearing on the former, because an
affirmative defense necessarily assumes arguendo that the plaintiff has
established the elements of the claim, see Brannon v. BankTrust, Inc., 50
So. 3d 397, 408 (Ala. 2010) (" 'An "affirmative defense" is defined as a
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"matter asserted by [the] defendant which, assuming the complaint to be
true, constitutes a defense to it." ' For a position to constitute an
affirmative defense assumes that the claim against which it is asserted
is, in the absence of the assertion of that defense, a cognizable claim
under Alabama law." (citation omitted)). Therefore, Blue Advantage's
suggestions about the viability of the medical-advice aspect of Ghee's
claim cannot establish that it is preempted; preemption is a separate
matter that must be analyzed separately, as we have done above.
For these reasons, it is not clear from the face of the complaint,
viewed in the light most favorable to Ghee, that ERISA defensive
preemption barred the aspect of his claim that alleged negligent medical
advice. Accordingly, we reverse the dismissal of this aspect of the claim. 5
5Blue Advantage argues, as an alternative basis for affirmance of
the judgment, that Ghee's claim failed to sufficiently state a cause of
action for medical malpractice under the Alabama Medical Liability Act
("AMLA"), § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, or a
cause of action for voluntary undertaking under common law.
Blue Advantage argues that the claim was insufficient under
AMLA because it did not establish that Blue Advantage was a "health
care provider" as defined by AMLA and because the claim did not comply
with AMLA's heightened pleading requirements. But Blue Advantage's
argument incorrectly assumes that any claim of negligence that relates
in some way to medical care must comply with AMLA. Notably, AMLA
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does not create a cause of action; rather, AMLA regulates certain existing
common-law causes of action in tort or contract. See § 6-5-551; Collins v.
Ashurst, 821 So. 2d 173, 176-77 & n.1 (Ala. 2001); Mobile Infirmary v.
Delchamps, 642 So. 2d 954, 957 (Ala. 1994). Specifically, AMLA imposes
restrictions on common-law claims against a "health care provider" for
"medical injury" "based on a breach of the standard of care." See §§ 6-5-
540, -543(a), -544(a), -546, -551; Ex parte Addiction & Mental Health
Servs., Inc., 948 So. 2d 533, 535-37 (Ala. 2006); Ex parte Vanderwall, 201
So. 3d 525, 537 (Ala. 2015); Jenelle Mims Marsh, Alabama Law of
Damages § 36:45, at 948-50 (6th ed. 2012). If one of those criteria is not
true of the plaintiff's claim, that does not mean the plaintiff has no claim;
it simply means the claim is not governed by AMLA. See Taylor v. Smith,
892 So. 2d 887, 892-93 (Ala. 2004) (plurality opinion) ("[I]t does not follow
that, because a [particular plaintiff] may not sue under [AMLA], such a
suit is barred by [AMLA] .... [T]he [plaintiffs] are seeking recovery for
damage[] and injuries [that were] not 'medical injuries[]' ....
Consequently, [this action] is neither subject to -- nor barred by --
[AMLA]."); cf. Vanderwall, 201 So. 3d at 537 (" ' "Just as the Alabama
Legal Services Liability Act does not apply to every action against a
person who is a lawyer, the AMLA does not apply to every action against
a person who is a doctor." ' " (citations omitted)). Here, if Blue Advantage
is correct that it was not a "health care provider," then the claim was not
governed by AMLA. See Ex parte Sawyer, 892 So. 2d 898, 901-02 (Ala.
2004). And if the claim was not governed by AMLA, then it was also not
subject to AMLA's heightened pleading requirements. See Brown v. Endo
Pharms., Inc., 38 F. Supp. 3d 1312, 1321-22 (S.D. Ala. 2014). Thus, Blue
Advantage's argument under AMLA does not support affirming the
dismissal of the medical-advice aspect of Ghee's claim.
As for Blue Advantage's contention that this aspect of Ghee's claim
failed to state a common-law cause of action for negligence based on a
voluntary undertaking, this point was not raised or ruled on in the circuit
court. A defendant's reason why a claim fails to state a cause of action
(Rule 12(b)(6)) must be raised in a responsive pleading, in a motion for
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IV. Conclusion
We affirm the dismissal of Ghee's wrongful-death claim against
Blue Advantage insofar as Ghee sought to predicate liability on Blue
Advantage's decision not to pay for the requested surgery or on any other
judgment on the pleadings, or at trial. Rule 12(h)(2) ("Waiver or
Preservation of Certain Defenses. ... A defense of failure to state a claim
upon which relief can be granted ... may be made in any pleading
permitted or ordered under Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits."). Such an argument cannot be
made for the first time on appeal, even as an alternative basis for
affirmance. See 5C Charles A. Wright et al., Federal Practice and
Procedure § 1392, at 530 (3d ed. 2004) ("According to the plain language
of Rule 12(h)(2), the three enumerated defenses are waived if they are
not presented before the close of trial. Thus, for example, they may not
be asserted for the first time on appeal."); Sierra v. City of Hallandale
Beach, 904 F.3d 1343, 1348 & n.6 (11th Cir. 2018) (holding that appellee
could not raise, as basis for affirmance, new argument that appellant's
complaint failed to state a claim); AntennaSys, Inc. v. AQYR Techs., Inc.,
976 F.3d 1374, 1379 (Fed. Cir. 2020) (appellee raised failure-to-state-a-
claim argument for first time on appeal; "Under Rule 12(h)(2), ... the
defense of failure to state a claim for relief may be asserted in a
responsive pleading or a motion for judgment on the pleadings, or in a
motion to dismiss at trial. ... [S]uch a defense may not be presented for
the first time on appeal absent 'unusual circumstances.' " (citations
omitted)). See generally Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006)
("[T]he objection that a complaint 'fail[s] to state a claim upon which
relief can be granted,' Rule 12(b)(6), may not be asserted post-trial. Under
Rule 12(h)(2), that objection endures up to, but not beyond, trial on the
merits ....").
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action it took that was clearly part of processing Fleming's claim. We
reverse the dismissal only as to the aspect of Ghee's claim that alleged
that Blue Advantage negligently advised Fleming to seek the surgery on
an emergency basis. We remand for further proceedings consistent with
this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Bolin, Special Justice, * concurs.
Parker, C.J., concurs specially, with opinion.
Stewart, J., concurs specially, with opinion, which Wise, J., joins.
Mendheim, J., concurs in part and concurs in the result, with
opinion.
Bryan, J., and Moore, Special Justice,* dissent, with opinions.
Shaw, Sellers, Mitchell, and Cook, JJ., recuse themselves.
*Retired Associate Justice Mike Bolin and Judge Terry Moore of the
Alabama Court of Civil Appeals were appointed to serve as Special
Justices in regard to this appeal.
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PARKER, Chief Justice (concurring specially).
I write specially to respond to the special writing concurring in part
and concurring in the result ("the partial concurrence"), specifically its
critique of the main opinion's analogizing this case to Bui v. American
Telephone & Telegraph Co., 310 F.3d 1143 (9th Cir. 2002).
Admittedly, there are points of similarity between defensive
preemption and complete preemption under the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. But there
are also fundamental differences between these two kinds of preemption,
differences that render the partial concurrence's distinction of Bui
inapposite.
Defensive preemption and complete preemption are based on
different statutes, serve different purposes, and are determined using
different legal tests. As noted in the main opinion, defensive preemption
is based on 29 U.S.C. § 1144. That section expressly preempts all state-
law causes of action that "relate to" an ERISA employee-benefit plan. §
1144(a), (c)(1). The purpose of defensive preemption is to enable ERISA
to provide a uniform nationwide scheme of administration of these plans,
by eliminating inconsistent state regulation. See Pilot Life Ins. Co. v.
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Dedeaux, 481 U.S. 41, 46 (1987); Egelhoff v. Egelhoff, 532 U.S. 141, 148
(2001); Hendrix v. United Healthcare Ins. Co. of the River Valley, 327 So.
3d 191, 199 (Ala. 2020) (plurality opinion). Because of that purpose, the
broad test for defensive preemption is whether the state-law cause of
action " ' "governs ... a central matter of plan administration" or
"interferes with nationally uniform plan administration," ' " Hendrix, 327
So. 3d at 199 (plurality opinion) (citations omitted).
In contrast, complete preemption is based on 29 U.S.C. § 1132. That
section provides a federal enforcement mechanism for ERISA's
administrative scheme. In particular, the section provides private civil
causes of action:
"A civil action may be brought --
"(1) by a[n ERISA-plan] participant or beneficiary
--
"...
"(B) to recover benefits due to him
under the terms of his plan, to enforce his
rights under the terms of the plan, or to
clarify his rights to future benefits under the
terms of the plan;
"...
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"(3) by a participant, beneficiary, or fiduciary (A)
to enjoin any act or practice which violates any provision
of this subchapter [('Protection of Employee Benefit
Rights')] 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). The United States Supreme Court has concluded that § 1132's
remedies were intended to be exclusive, completely preempting any
state-law cause of action that duplicates, supplements, or supplants
them. See Pilot Life, 481 U.S. at 54-56; Ingersoll-Rand Co. v. McClendon,
498 U.S. 133, 143-45 (1990); Aetna Health Inc. v. Davila, 542 U.S. 200,
209 (2004). Thus, unlike defensive preemption's broad purpose of
eliminating all state regulation that would interfere with ERISA's
administrative scheme, complete preemption's purpose is narrower: to
make ERISA's own enforcement provisions the exclusive remedies for
violations of ERISA and ERISA plans. The test for complete preemption
then flows from that purpose. In the context of a state-law claim against
a plan administrator for denial of medical-care coverage, the test is
whether the claim is based on a duty that is dependent on ERISA or
ERISA-plan terms. See Davila, 542 U.S. at 210.
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Because of these clear differences between defensive preemption
and complete preemption, courts should be careful not to conflate or
mingle the two in their analysis. Occasionally, courts have inadvertently
slipped into that error. For example, the United States Court of Appeals
for the Eleventh Circuit has admitted that it has done so in multiple prior
decisions. See Cotton v. Massachusetts Mut. Life Ins. Co., 402 F.3d 1267,
1288-90 (11th Cir. 2005) (recognizing that court had previously made this
error). It appears that the Supreme Court may also have done so in a
nondispositive part of Davila. See 542 U.S. at 218-21 & n.6. The Texas
case cited by the today's partial concurrence did so as well. See
Ambulatory Infusion Therapy Specialist, Inc. v. North Am. Adm'rs, Inc.,
262 S.W.3d 107, 113-15 (Tex. App. 2008). And it seems that the Hendrix
plurality opinion may have made the same (nondispositive) mistake. See
327 So. 3d at 200, 202-03. Further, I myself made that mistake in my
Hendrix dissent, arguing that a claim had not been shown to be
defensively preempted because it was not clearly supplanted by the civil-
enforcement mechanism of § 1132. See id. at 204-05 (Parker, C.J.,
dissenting).
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That mistake is easy partly because there are genuine points of
connection between the two kinds of preemption. First, in general, the
set of completely preempted state-law causes of action is a subset of the
set of defensively preempted state-law causes of action. See Cotton, 402
F.3d at 1281 & n.14, 1288-89, 1292; Connecticut State Dental Ass'n v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir. 2009). This is
because, if a state-law cause of action is completely preempted because it
is essentially for a violation of ERISA or an ERISA plan, then ordinarily
that cause of action will " ' "govern[] ... a central matter of plan
administration" or "interfere[] with nationally uniform plan
administration," ' " Hendrix, 327 So. 3d at 199 (plurality opinion)
(citations omitted), and thus also be defensively preempted. See Cotton,
402 F.3d at 1281 n.14. 6 However, because complete preemption is a
subset of defensive preemption, the logic does not work in the other
direction. See id. at 1281 & n.14, 1289. Specifically, the fact that a cause
6I say "in general" and "ordinarily" because there are statutory
exceptions to defensive preemption that apply to specific kinds of state
regulation. See § 1144(b)(2)(A) ("insurance, banking, or securities"), (4)
("criminal law"). For cases within those exceptions, complete preemption
may apply even though defensive preemption does not. See Cotton, 402
F.3d at 1281 n.14.
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of action " ' "governs ... a central matter of plan administration" or
"interferes with nationally uniform plan administration," ' " Hendrix, 327
So. 3d at 199 (plurality opinion) (citations omitted), and thus is
defensively preempted, does not always mean that that cause of action
depends on an ERISA(-plan) duty and thus is completely preempted.
Therefore, under a given set of facts, the inapplicability of complete
preemption does not logically support an argument either for or against
the applicability of defensive preemption. Hence, crucially as to the
partial concurrence's distinction of Bui, the presence of certain facts that
might negate complete preemption does not imply that defensive
preemption is less likely than it would be if those facts were absent.
Specifically, the possibility that, under Davila, the presence of an
employee-doctor/patient relationship might prevent complete
preemption does not imply that the absence of such a relationship
supports defensive preemption.
Second, as noted above, for a denial-of-coverage claim, the relevant
test for complete preemption is whether the state-law cause of action is
based on a legal duty that is dependent on ERISA or the terms of an
ERISA plan. See Davila, 542 U.S. at 210. Although that concept of a
34
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dependent duty is the whole test for complete preemption, it is also a
factor in analyzing defensive preemption. If a state-law cause of action is
based on a duty that is ERISA-dependent, it is likely that allowance of
that cause of action would " ' " interfere[] with nationally uniform plan
administration," ' " Hendrix, 327 So. 3d at 199 (plurality opinion)
(citations omitted), and thus that the cause of action is defensively
preempted. On the other hand, if the cause of action is based on an
independent duty, that may weigh in favor of concluding that the cause
of action does not so interfere and thus is not defensively preempted.
Again, however, the logical correlation is not one-to-one. So courts must
be careful not to assume that the dependent-duty concept functions
identically within analysis of complete preemption and defensive
preemption.
For these reasons, I believe that the partial concurrence's
distinction of Bui is misplaced. Like the present case, Bui was a
defensive-preemption case, but the partial concurrence seeks to
distinguish it using reasoning from complete-preemption cases and cases
that arguably conflated the analysis of the two kinds of preemption.
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Last, the partial concurrence attaches undue significance to Billy
Fleming's purpose for telephoning USAble Mutual Insurance Company
d/b/a Blue Cross Blue Shield of Arkansas and Blue Advantage
Administrators of Arkansas ("Blue Advantage"). See ___ So. 3d at ___ ("If
there was no administrative aspect to the telephone conversations, and
instead they involved dispensing medical advice, it seems ERISA
preemption would not apply. On the other hand, the telephone
conversations merely could have been attempts by Fleming to get Blue
Advantage to reconsider its benefits determination."). In determining
whether Blue Advantage's advice was in the course of plan
administration, a court's focus must be on the nature of that act under
all the circumstances. Fleming's purpose is merely one relevant
circumstance. Even if Fleming's sole purpose was to get Blue Advantage
to reconsider its coverage decision, that does not necessarily mean that
Blue Advantage's advice was about coverage.
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STEWART, Justice (concurring specially).
Although I concur fully with the main opinion, I write to emphasize
my belief that today's decision might have been reached by simple
application of the pertinent standard of review. The standard for
granting a motion to dismiss based on an affirmative defense such as
preemption is " ' " whether the existence of the affirmative defense
appears clearly on the face of the pleading. " ' " Crosslin v. Health Care
Auth. of Huntsville, 5 So. 3d 1193, 1195 (Ala. 2008) (quoting Jones v. Alfa
Mut. Ins. Co., 875 So. 2d 1189, 1193 (Ala. 2003), quoting in turn Braggs
v. Jim Skinner Ford, Inc., 396 So. 2d 1055, 1058 (Ala. 1981)). Here, it is
clear from the face of the complaint that those claims that are based on
the alleged wrongful denial of insurance benefits by USAble Mutual
Insurance Company d/b/a Blue Cross Blue Shield of Arkansas and Blue
Advantage Administrators of Arkansas ("Blue Advantage") are, indeed,
preempted by the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. § 1001 et seq. However, Douglas Ghee, as the
personal representative of the estate of Billy Fleming, deceased, also
alleges that Blue Advantage -- beyond its role as a health-benefits plan
administrator -- negligently provided medical advice to Fleming.
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Viewing the allegations of that claim most strongly in Ghee's favor, as we
must, the face of the complaint does not clearly and unequivocally
establish that Ghee's claim alleging direct medical negligence by Blue
Advantage is preempted under ERISA. Therefore, the dismissal as to
that claim must be reversed.
Wise, J., concurs.
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MENDHEIM, Justice (concurring in part and concurring in the result).
I agree with the main opinion to the extent that it concludes that
"certain of the allegations in [the] complaint are indistinguishable from
the allegations in Hendrix[ v. United Healthcare Ins. Co. of the River
Valley, 327 So. 3d 191 (Ala. 2020) (plurality opinion)]," because Douglas
Ghee, as the personal representative of the estate of Billy Fleming,
deceased, alleged that USAble Mutual Insurance Company d/b/a Blue
Cross Blue Shield of Arkansas and Blue Advantage Administrators of
Arkansas ("Blue Advantage") "breached duties of a health-care provider
by declining to approve payment for the proposed surgery. Even though
that decision may have involved medical judgment, it was a decision
about the administration of benefits." ___ So. 3d at ___. I also agree that
Ghee's assertion that Blue Advantage employees suggested to Fleming
during telephone conversations that he should return to the emergency
room to obtain the colectomy on an emergency basis presents an
allegation that Hendrix did not and that "it is not clear from the
complaint that Blue Advantage was acting within its role as plan
administrator, in the course of plan administration, when it advised
Fleming to go to the emergency department." Id. at ___. In other words,
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the main opinion correctly concludes that the complaint's allegations do
not completely foreclose the possibility that Blue Advantage employees
provided medical advice to Fleming -- a claim that would not be
preempted by the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. § 1001 et seq. -- rather than potentially being
negligent in the administration of its ERISA plan -- which would be
preempted.
However, in reaching the foregoing conclusion, the main opinion
draws an inapt parallel to Bui v. American Telephone & Telegraph Co.,
310 F.3d 1143 (9th Cir. 2002). The medical-advice claim the Bui court
concluded was not preempted is simply not analogous to Ghee's claim.
Thus, although I agree with the main opinion's ultimate conclusion that
we cannot determine whether Ghee's claim based on his telephone-
conversation allegations should be preempted at this motion-to-dismiss
stage of the litigation, I concur only in the result to that portion of the
main opinion.
The Bui court summarized its relevant facts as follows:
"In the week before his death, [Hung M.] Duong knew
his situation was critical. His physician had told him that he
needed to undergo surgery, either in Saudi Arabia or
elsewhere, in less than a week. Duong attempted to determine
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whether he should remain in Saudi Arabia for surgery or
whether he should leave the country to seek treatment.
"Duong consulted SOS [Assistance, Inc.], a company
with which his employer, [American Telephone & Telegraph
Company and Lucent Technologies, Inc. ('AT&T/Lucent')],
had contracted to provide emergency medical advice and
evacuation services. SOS personnel told Duong that
evacuation presented a greater risk than remaining in Saudi
Arabia for treatment, especially given the quality of the
facilities and services available at Erfan Hospital. Thus, SOS
advised Duong to remain in Saudi Arabia.
"Duong also consulted with a physician employed by
AT&T/Lucent, Dr. Waugh. Waugh seconded SOS's
recommendation, advising Duong to remain in Saudi Arabia
as well.
"....
"Bui asserts that, after offering the above advice and
information, SOS and Lucent failed to follow up on Duong's
requests for additional information and further advice, as well
as his requests for evacuation. When Duong got no response
from SOS and Lucent regarding his additional questions and
requests, and the date Duong's doctor had given him for
surgery was at hand, Duong checked into the Erfan Hospital
and submitted to treatment there, after which he died."
310 F.3d at 1145-46 (emphasis added). The Bui court then explained why
it did not believe that, at the summary-judgment stage of the litigation,
Bui's medical-advice claims involving Dr. Waugh were preempted by
ERISA:
"Genuine issues of material fact exist regarding Bui's
41
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last two claims against Lucent for negligent medical advice
and for delay in responding to Duong. Although ERISA
preempts suits based on negligent administrative decisions,
including negligent delays in such decisions, it is unclear from
the current record whether Lucent was acting as a direct
service provider or an administrator when it engaged in the
behavior on which Bui bases her claims. Bui has pointed to
evidence in the record that raises substantial factual
questions regarding Duong's relationship with [Dr.] Waugh,
who was unquestionably Lucent's agent and employee. Bui
filed an affidavit stating that Waugh gave Duong medical
advice regarding whether to stay in Saudi Arabia and that
Duong asked Waugh for further advice and evaluation. If
Waugh and Duong had a doctor-patient relationship, then Bui
may sue Lucent for any medical malpractice its agent
committed.36 Bui's claims may include negligent medical
advice and negligent delay in responding to Duong's medical
questions, if that delay was made in the course of medically
evaluating or treating Duong, rather than in the course of
administering the ERISA plan.
"Lucent has countered Bui's evidence that Waugh gave
Duong medical advice with nothing save blanket statements
that the evidence is unconvincing and that Lucent was an
administrator. We may not, on summary judgment, weigh
evidence. The fact that Lucent may have acted as an
administrator at other times is irrelevant. What matters is
the hat it was wearing during the time it committed the acts
of which Bui complains. Bui has shown that a genuine issue
of material fact exists regarding whether Lucent was wearing
the hat of an administrator or the hat of a service provider
when Waugh and Duong conferred and when Waugh did not
respond to Duong's request for further medical advice and
evaluation. Accordingly, summary judgment is inappropriate
on Bui's claims against Lucent for negligent medical advice
and for negligent delay.
"____________
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"36See Roach[ v. Mail Handlers Benefit Plan,] 298 F.3d
[847,] 850-51 [(9th Cir. 2002)]; Pacificare[ of Oklahoma, Inc.
v. Burrage,] 59 F.3d [151,] 155 [(10th Cir. 1995)] ('When an
[entity] elects to directly provide medical services or leads a
participant to reasonably believe that it has, rather than
simply arranging and paying for treatment, a vicarious
liability medical practice claim based on substandard
treatment by an agent ... is not preempted.') (quoting Haas v.
Group Health Plan, Inc., 875 F. Supp. 544, 548 (S.D. Ill.
1994))."
310 F.3d at 1152-53 (emphasis added; some footnotes omitted).
A key difference in the factual allegations in Bui distinguishes them
from Ghee's claim based on the telephone conversations Fleming
allegedly had with Blue Advantage employees. In Bui, the relevant
claims concerned alleged medical advice given by a doctor that Lucent
indisputably employed. Specifically, the Bui claims concerned medical
advice from a medical provider, Dr. Waugh, plainly making them
medical-negligence claims that implicated a duty of care independent of
plan administration. Defensive preemption forecloses any state-law
claim that " 'broadly "supersede[s] any and all State laws insofar as they
... relate to any [ERISA] plan." … 29 U.S.C. § 1144(a) (emphasis added).' "
Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1344 (11th Cir. 2009) (quoting Cotton v. Massachusetts Mut. Ins.
43
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Co., 402 F.3d 1267, 1281 (11th Cir. 2005)). "Necessarily, state law claims
based on the violation of a legal duty independent of ERISA do not 'relate
to' ERISA so as to implicate preemption or federal jurisdiction." 7
7The United States Supreme Court has made a similar observation
in relation to complete preemption under ERISA:
"It follows that if an individual brings suit complaining
of a denial of coverage for medical care, where the individual
is entitled to such coverage only because of the terms of an
ERISA-regulated employee benefit plan, and where no legal
duty (state or federal) independent of ERISA or the plan
terms is violated, then the suit falls 'within the scope of' [29
U.S.C. § 1132(a)(1)(B)]. Metropolitan Life[ Ins. Co. v. Taylor,
481 U.S. 58,] 66 [(1987)]. In other words, if an individual, at
some point in time, could have brought his claim under
[§ 1132(a)(1)(B)], and where there is no other independent
legal duty that is implicated by a defendant's actions, then the
individual's cause of action is completely preempted by
[§ 1132(a)(1)(B)]."
Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004) (emphasis added).
In his special writing that seeks to bolster the main opinion's use of
Bui, the Chief Justice criticizes me for using Davila, a case that primarily
involved ERISA complete preemption, even though Davila plainly also
discussed defensive preemption. I find that an odd criticism given that a
plurality of this Court in Hendrix specifically observed that,
"[a]lthough Davila was a complete preemption case, it is still
helpful in considering whether Hendrix's claim in the present
case 'relate[s] to' the health-benefit plan. Indeed, the Supreme
Court considered an argument made by the plaintiffs in
Davila that their claims did not 'relate to' the ERISA plan
involved in that case because, they argued, the ERISA plan
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administrators had exercised judgment regarding proper
medical care. In addressing that argument, the Court noted
that benefit determinations under ERISA-regulated plans are
'part and parcel of the ordinary fiduciary responsibilities
connected to the administration of a plan,' even if those
determinations are 'infused with medical judgments.' 542
U.S. at 219, 124 S.Ct. 2488."
327 So. 3d at 200. See also Cotton v. Massachusetts Mut. Life Ins. Co.,
402 F.3d 1267, 1281 (11th Cir. 2005) (noting that, "[a]lthough we address
complete preemption in this Part, we will also discuss several defensive
preemption cases. These cases are helpful because claims that are
completely preempted are also defensively preempted.").
The Chief Justice explains away those cases and others as instances
where "courts have inadvertently slipped into th[e] error" of "conflat[ing]
or mingl[ing defensive and complete preemption] in their analysis,"
despite also pontificating about the supposedly "clear differences between
defensive preemption and complete preemption." ___ So. 3d at ___
(emphasis added). Regardless, all of those cases indicate that defensive
preemption is broader than complete preemption, but that the tests for
the two types of preemption potentially overlap in certain cases. The
Chief Justice admits as much, observing that, "in general, the set of
completely preempted state-law causes of action is a subset of the set of
defensively preempted state-law causes of action." ___ So. 3d at ___.
Despite this, he insists that "the possibility that, under Davila, the
presence of an employee-doctor/patient relationship might prevent
complete preemption does not imply that the absence of such a
relationship supports defensive preemption." ___ So. 3d at ___. But the
point is that in Bui the Ninth Circuit Court of Appeals held that the
presence of an employee-doctor/patient relationship negated defensive
preemption because that relationship made Bui's claim an assertion of
medical negligence. See Bui, 310 F.3d at 1149-50. An assertion of medical
negligence was clear in Bui because Duong's doctor was employed by his
employer. No such clarity exists on the facts as pleaded by Ghee. The
Chief Justice's discursive explication on defensive and complete
preemption merely serves to obscure that fact.
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Ambulatory Infusion Therapy Specialist, Inc. v. North American
Administrators, Inc., 262 S.W.3d 107, 115 (Tex. App. 2008).
In contrast to Bui, it is far from clear that Ghee's claim based on
the telephone-conversation allegations involves medical negligence by a
health-care provider. According to Ghee's own allegations, the only
reason Fleming and his family continued to talk to Blue Advantage was
"to convince [Blue Advantage] that the higher quality of care (surgery, as
recommended by [Fleming's] doctors) was the more appropriate course."
Those efforts failed because, instead of agreeing to pay for the surgery,
Blue Advantage employees "suggested to [Fleming] that he return to [the
hospital] in an attempt to convince hospital personnel and physicians to
perform the surgery on an emergency basis." Thus, it is conceivable that
the Flemings' conversations with Blue Advantage employees merely
constituted instances in which Blue Advantage denied Fleming medical-
insurance benefits under his ERISA plan. In other words, those
telephone conversations could be deemed acts of dispensing medical
advice within the context of denying an administration of benefits. In
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), the United States
Supreme Court made it clear that such a claim is preempted by ERISA.
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"A benefit determination under ERISA ... is generally a
fiduciary act. 'At common law, fiduciary duties
characteristically attach to decisions about managing assets
and distributing property to beneficiaries.' Pegram[ v.
Herdrich, 530 U.S. 211,] 231 [(2000)]. .... Hence, a benefit
determination is part and parcel of the ordinary fiduciary
responsibilities connected to the administration of a plan. The
fact that a benefits determination is infused with medical
judgments does not alter this result."
Davila, 542 U.S. at 218-19 (most citations omitted; emphasis added).
On the other hand, "truly 'mixed eligibility and treatment
decisions' " that fall outside ERISA are those in which " 'the underlying
negligence also plausibly constitutes medical maltreatment by a party
who can be deemed to be a treating physician or such a physician's
employer.' " Id. at 221 (quoting Pegram v. Herdrich, 530 U.S. 211, 229
(2000), and Cicio v. Does, 321 F.3d 83, 109 (2d Cir. 2003) (Calabresi, J.,
dissenting in part)). That plainly describes the situation in Bui in which
Duong sought and received medical advice from a doctor employed by his
employer; it does not so readily fit this case, in which Fleming simply
may have been seeking reconsideration of the benefits decision when he
called Blue Advantage employees and they allegedly told Fleming to seek
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another way to have the surgery.8 As the Bui court itself summarized the
preemption determination: "If a claim involves a medical decision made
in the course of treatment, ERISA does not preempt it; but if a claim
involves an administrative decision made in the course of administering
an ERISA plan, ERISA preempts it." 310 F.3d at 1149.
Because we must view the allegations in the complaint in the light
most favorable to Ghee at this stage of the litigation, I do not believe we
can make a determination about preemption based solely on Ghee's
allegations. It is possible a set of facts may exist in which Ghee's
telephone-conversation allegations support a claim of medical
malpractice against Blue Advantage because, as Ghee argues, Blue
Advantage had already denied coverage for the colectomy when Fleming
8The Chief Justice asserts in his special concurrence that I am
"attach[ing] undue significance to … Fleming's purpose for telephoning
[Blue Advantage]" even though, "[i]n determining whether Blue
Advantage's advice was in the course of plan administration, a court's
focus must be on the nature of that act under all the circumstances.
Fleming's purpose is merely one relevant circumstance." ___ So. 3d at
___. But all I have done is quote Ghee's complaint and infer a potential
legal conclusion from those allegations. As I also observe infra in the text,
that is not the only potential legal conclusion that may be drawn from
the allegations, which is precisely why I agree that the circuit court's
judgment should be reversed in part and the case remanded for further
factual development.
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had the telephone conversations in question with Blue Advantage
employees. If there was no administrative aspect to the telephone
conversations, and instead they involved dispensing medical advice, it
seems ERISA preemption would not apply. On the other hand, the
telephone conversations merely could have been attempts by Fleming to
get Blue Advantage to reconsider its benefits determination. Indeed, Blue
Advantage asserts that if Fleming had been able to receive the surgery
on an emergency basis, the surgery would have been covered by his
ERISA plan, and so the telephone conversations could have been another
iteration of the administration of benefits. 9 In short, the allegations
themselves are not specific enough to render an ERISA preemption
determination on a motion to dismiss.
9The parties debate this point in their briefs. In his appellant brief,
Ghee claims that, "[h]ere, the not-so-subtle hint [Blue Advantage's]
employees gave to [Fleming] and his family was if [Fleming] kept going
back to the same place that maybe he could convince them to give him an
emergency surgery, and if so, the hospital and/or the physicians would
have to eat the costs." Ghee's brief, pp. 28-29. In contrast, Blue
Advantage insists that "the plan provided coverage for treatment
performed on an emergency basis. ... [Blue Advantage's] suggestion was
not an undertaking of medical advice or treatment, but helpful
information on where Ghee could go to get the treatment he wanted that
was covered under the plan." Blue Advantage's brief, p. 41. Both of those
arguments involve factual inferences that are not present in the
complaint's allegations.
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Therefore, I agree with the main opinion's conclusion that Ghee's
claim based on the telephone-conversation allegations should not be
preempted by ERISA at this time, but I also believe that further
elucidation of the facts in discovery may reveal that preemption is
ultimately warranted. However, for the reasons I have stated, I do not
believe that Bui is helpful for analyzing the issue of preemption on the
facts before us, and I therefore concur only in the result to the portion of
the main opinion that reverses the circuit court's judgment.
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BRYAN, Justice (dissenting).
I respectfully dissent. A majority of this Court reverses the
judgment of the Calhoun Circuit Court dismissing what the main opinion
describes as an "aspect" of a wrongful-death claim asserted by Douglas
Ghee, as the personal representative of the estate of Billy Fleming,
deceased, against USAble Mutual Insurance Company d/b/a Blue Cross
Blue Shield of Arkansas and Blue Advantage Administrators of Arkansas
("Blue Advantage"). The majority concludes that that particular aspect
of the claim is not defensively preempted by the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. As I
explain below, I believe there is only one aspect to Ghee's claim, and I
would affirm the circuit court's judgment without addressing the issue of
preemption under ERISA.
The parties and amicus curiae all acknowledge that this Court is
bound by the decisions of the United States Supreme Court concerning
the issue of defensive preemption under ERISA. See Ghee's brief at 20
("It is up to the U.S. Supreme Court to inform this Honorable Court
whether it has interpreted federal law correctly ...."); Blue Advantage's
brief at 29; and amicus brief at 16. One United States Supreme Court
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Justice has observed that that Court's jurisprudence in this area has
resulted in an " 'accordion-like' test that seems to expand or contract
depending on the year ...." Rutledge v. Pharmaceutical Care Mgmt.
Ass'n, 592 U.S. ____, ____, 141 S. Ct. 474, 485 (2020)(Thomas J.,
concurring)(citing Sharon Reece, The Accordion Type Jurisprudence of
ERISA Preemption Creates Unnecessary Uncertainty, 88 UMKC L. Rev.
115, 124 n.71 (2019)).
I do not believe it is necessary to address the issue of defensive
preemption under ERISA in this case. Consequently, I express no
opinion concerning the correctness of the Court's holdings in that regard.
For the reasons explained below, Ghee's remaining arguments regarding
the viability of his claim do not demonstrate reversible error by the circuit
court. Therefore, I conclude that the circuit court's judgment is due to be
affirmed. 10
10ThisCourt set forth the applicable standard of review in a prior
appeal in this case, Ghee v. USAble Mutual Insurance Co., 291 So. 3d
465, 472 (Ala. 2019):
" ' "The appropriate standard of review under
Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when
the allegations of the complaint are viewed most
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Based on Ghee's appellate arguments, it is clear that the only
conduct now forming the basis of Ghee's wrongful-death claim against
Blue Advantage is the alleged conversations between Blue Advantage
agents and Fleming and his family, during which the Blue Advantage
agents purportedly advised Fleming to return to the emergency
department of the hospital he had originally visited to try to obtain
strongly in the pleader's favor, it appears that the
pleader could prove any set of circumstances that
would entitle [it] to relief. Raley v. Citibanc of
Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985); Hill v. Falletta, 589 So. 2d 746 (Ala. Civ.
App. 1991). In making this determination, the
Court does not consider whether the plaintiff will
ultimately prevail, but only whether [it] may
possibly prevail. Fontenot v. Bramlett, 470 So. 2d
669, 671 (Ala. 1985); Rice v. United Ins. Co. of
America, 465 So. 2d 1100, 1101 (Ala. 1984). We
note that a Rule 12(b)(6) dismissal is proper only
when it appears beyond doubt that the plaintiff
can prove no set of facts in support of the claim
that would entitle the plaintiff to relief. Garrett v.
Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v.
Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986)." '
"DGB, LLC v. Hinds, 55 So. 3d 218, 223 (Ala. 2010)(quoting
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993)."
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emergency surgery. Ghee contends that this conduct did not relate to a
claims decision by Blue Advantage and was, therefore, independently
actionable under either the Alabama Medical Liability Act ("the AMLA"),
§ 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, or the common-
law theory of negligent undertakings. See Ghee's brief at 31 ("This is a
classic undertaking case."); Ghee's brief at 43 ("[I]n this case, neither the
Alabama common law of negligent undertakings, nor the [AMLA],
purports to regulate, directly or indirectly, the terms and conditions of
any employee benefit plan."); Ghee's brief at 54 ("Negligent undertaking
claims are not only common and legitimate in Alabama, they are
frequently asserted to hold defendants who undertake to provide
services, including medical services, liable for their negligent
performance."); Ghee's brief at 55 ("By their very nature, medical
malpractice cases are undertaking cases because [the] health care
provider nearly always willingly undertakes to provide medical care for
a patient."); and Ghee's brief at 56 ("[E]ven if the AMLA does not apply
(which it does), this does not mean Ghee would have no Alabama law
wrongful death claim arising under a duty separate and distinct from
ERISA. To the contrary, cases not controlled by the AMLA are controlled
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by the common law, where the undertaking doctrine
originates.")(footnote omitted).
The majority does not reach a definitive determination regarding
Ghee's AMLA argument and reasons that the Court should not address
the voluntary-undertaking argument, concluding that Blue Advantage
did not raise an argument concerning that point in the circuit court. See
____ So. 3d at ____ n.5. However, as noted above, these are Ghee's
arguments, explaining why, he says, his wrongful-death claim is not
defensively preempted by ERISA and is instead based on independent
state-law theories of liability. Thus, I see no issue with this Court's
considering and addressing these arguments on appeal. Moreover, I
believe the circular logic of the analysis in the main opinion demonstrates
why doing so would be preferable to deciding this case based on the
doctrine of defensive preemption under ERISA.
I first note that the majority concludes that Blue Advantage's
alleged advice that Fleming return to the emergency room is the only
aspect of Ghee's claim that is not defensively preempted by ERISA.
Based on this Court's decision in Hendrix v. United Healthcare Insurance
Co. of the River Valley, 327 So. 3d 191 (Ala. 2020)(plurality opinion), the
55
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majority notes the possibility that independent state-law negligence
claims may not be defensively preempted by ERISA. See ____ So. 3d at
____ ("In Hendrix, as a result of the caveat in Justice Shaw's special
writing, the majority's decision left open the possibility that a claim
against an ERISA plan administrator might not be preempted if the
plaintiff sufficiently alleges that the administrator, separate and apart
from the administrative function of processing a claim, negligently
provided medical care to the plan beneficiary."); ____ So. 3d at ____ n.4
("The plurality opinion in Hendrix alluded to a similar possibility. See
327 So. 3d at 203 (plurality opinion)('There are no facts alleged in the
complaint in the present case supporting [the plaintiff's] conclusory
assertion that an agent of [the plan administrator] voluntarily undertook
a duty to act as [the decedent's] treating physician by taking "control" of
[the decedent's] treatment ….').").
Rather than decide whether Ghee's amended complaint actually
alleges such a claim, however, the majority concludes that the Court
must "necessarily assume[] arguendo that the plaintiff has established
the elements of the claim," ____ So. 3d at ____, and proceeds to decide
that Ghee's claim may not be defensively preempted by ERISA. Thus,
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the majority's preemption conclusion in this case begs the question. In a
circular fashion, the majority reasons that Ghee's claim may not be
defensively preempted by ERISA if Ghee has adequately alleged an
independent state-law cause of action and then assumes arguendo that
Ghee has adequately alleged an independent state-law cause of action in
order to hold that Ghee's claim, therefore, may not be defensively
preempted by ERISA.
Of course, if Ghee's amended complaint does not adequately allege
a claim upon which relief can be granted under Alabama law to begin
with, there exists no viable claim potentially subject to defensive
preemption under ERISA. Thus, I begin my analysis by examining
whether Ghee's amended complaint adequately alleges the state-law
theories he asserts. Because I do not find Ghee's arguments in that
regard persuasive, I do not believe it is necessary to also address the issue
of defensive preemption under ERISA in this case, and, as noted above, I
express no opinion concerning that issue.
Regarding Ghee's invocation of the AMLA, the primary issue is
whether Blue Advantage is a health-care provider for the purposes of the
AMLA. See § 6-5-552, Ala. Code 1975 (explaining that the AMLA
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"applies to all actions against health care providers based on acts or
omissions accruing after June 11, 1987 ...."). Ghee argues that Blue
Advantage meets the definition of "other health care provider[]" set out
in § 6-5-481(8), Ala. Code 1975, which defines that term as follows: "Any
professional corporation or any person employed by physicians, dentists,
or hospitals who are directly involved in the delivery of health care
services." See Ghee's brief at 56.
In response, Blue Advantage asserts that it is not a professional
corporation and that it is not employed by physicians, dentists, or
hospitals who are directly involved in the delivery of health-care services.
Blue Advantage further contends that it is not a "medical institution,"
which is defined in § 6-5-481(3) as follows: "Any licensed hospital, or any
physician's or dentist's office or clinic containing facilities for the
examination, diagnosis, treatment, or care of human illnesses." Blue
Advantage also correctly points out that Ghee's amended complaint does
not contain allegations that, if true, would establish that Blue Advantage
is the type of entity defined either in § 6-5-481(8) or § 6-5-481(3). Thus,
there is no basis upon which to conclude that Ghee's wrongful-death
claim against Blue Advantage is cognizable under the AMLA because
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Blue Advantage is not a "health care provider" within the meaning of the
AMLA.
In his reply brief, Ghee does not directly respond to the deficiencies
in his alleged AMLA claim noted by Blue Advantage. Instead, Ghee
shifts the focus to his alternative common-law theory of liability: "[I]f the
AMLA does not apply to Ghee's claims against [Blue Advantage], they
would go forward purely under the common law rules unaffected by the
AMLA. Indeed, the undertaking doctrine originates from the common
law, not the AMLA." Ghee's reply brief at 21-22 (footnotes omitted). It
is clear that Ghee's theory of liability is based on his assertion that Blue
Advantage acted beyond the claims-administration duties it was
otherwise obligated to provide by virtue of Blue Advantage's agreement
with Fleming's employer and that Blue Advantage voluntarily assumed
an additional duty.
Specifically, as explained above, Ghee has clarified his argument on
appeal to assert that his claim is based on his allegation that Blue
Advantage's "employees gave [Fleming] medical advice 'to return to [the
hospital] in an attempt to convince hospital personnel and physicians to
perform the surgery on an emergency basis.' " Ghee's reply brief at 7.
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Thus, the duty that Blue Advantage allegedly voluntarily assumed was
the duty of giving medical advice to Fleming. See Ghee's brief at 17
("[T]his is a medical malpractice action brought pursuant to the Alabama
Wrongful Death Act to vindicate and punish a health insurer, which --
after denying [Fleming]'s claim for benefits -- undertook to give him
medical advice on how and when to get a surgery." (emphasis in
original)).
Among other authority, Ghee cites this Court's decision in Yanmar
America Corp. v. Nichols, 166 So. 3d 70, 84 (Ala. 2014), in support of his
argument. In Nichols, this Court stated the following regarding the
standard applicable to voluntary-undertaking claims:
"As this Court noted in Beasley v. MacDonald
Engineering Co., 287 Ala. 189, 249 So. 2d 844 (1971), liability
for the breach of a duty voluntarily undertaken is governed by
Restatement (Second) of Torts § 324A (1965), which states:
" ' "Liability to third person for negligent
performance of undertaking. One who
undertakes, gratuitously or for consideration, to
render services to another which he should
recognize as necessary for the protection of a third
person or his things, is subject to liability to the
third person for physical harm resulting from his
failure to exercise reasonable care to protect his
undertaking, if
" ' "(a) his failure to exercise reasonable care
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increases the risk of such harm, or
" ' "(b) he has undertaken to perform a duty
owed by the other to the third person, or
" ' "(c) the harm is suffered because of reliance
of the other or the third person upon the
undertaking." '
"287 Ala. at 193, 249 So. 2d at 847 (quoting Restatement
(Second) of Torts § 324A). See also Commercial Union Ins.
Co. v. DeShazo, 845 So. 2d 766 (Ala. 2002)."
166 So. 3d at 84 (footnote omitted).
Rule 8(a), Ala. R. Civ. P., provides, in relevant part:
"A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party
claim, shall contain (1) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (2) a
demand for judgment for the relief the pleader seeks."
The Committee Comments on 1973 Adoption of Rule 8 elaborate:
"Although Rule 8(a) eliminates many technical
requirements of pleading, it is clear that it envisages the
statement of circumstances, occurrences, and events in
support of the claim presented. This is indicated by a central
theme running through the rules and can be readily seen by
reading certain rules together. See, inter alia, Rules 8(c)-(e),
9(b)-(l), 10(b), 12(b), 6, 12(h), 15(c), 20 and 54(b). This is also
evident from the Appendix of Official Forms which also
illustrate the ease with which Rule 8(a) pleading
requirements may be satisfied. Rule 12(e), which provides for
a motion for a more definite statement also shows that the
complaint must disclose information with sufficient
definiteness. The intent and effect of the rules is to permit
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the claim to be stated in general terms. The rules are
designed to discourage battles over mere form of statement
which often delay trial on the merits or prevent a party from
having a trial because of mistakes in statement."
(Emphasis added.) "Although the Alabama Rules of Civil Procedure have
established notice pleading, see Rule 8, a pleading must give fair notice
of the claim against which the defendant is called to defend." Archie v.
Enterprise Hosp. & Nursing Home, 508 So. 2d 693, 696 (Ala. 1987). "It
is not the duty of the courts to create a claim which the plaintiff has not
spelled out in the pleadings." McCullough v. Alabama By-Prods. Corp.,
343 So. 2d 508, 510 (Ala. 1977).
Blue Advantage argues that "nothing in the complaint, as amended,
establishes how a suggestion that Fleming go to the doctor to see if he
could convince the doctor to perform surgery ... 'caused his death.' " Blue
Advantage's brief at 38. Put another way, nothing in Ghee's amended
complaint alleges how Fleming's death "result[ed] from" the advice
allegedly given by Blue Advantage. See Nichols, 166 So. 3d at 84.
Additionally, Ghee's amended complaint does not allege how the advice
allegedly given to Fleming by Blue Advantage agents to return to the
emergency department of a hospital "increased the risk" of Fleming's
ultimate death or why Fleming died "because of [his] reliance" on Blue
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Advantage's alleged advice that he return to the emergency department.
Id.Ghee notes his allegation that Fleming followed Blue Advantage's
medical advice by going back several times to the emergency department
of the hospital he had originally visited. Ghee states:
"This is strong evidence that, in weighing his options after
[Blue Advantage]'s denial, [Fleming] took [Blue Advantage]'s
subsequent and repeated medical advice seriously and used
his final days repeatedly going back to the [emergency room]
and doing exactly what [Blue Advantage]'s employees told
him to do. As such, the course of [Fleming]'s last days was
irrevocably changed by [Blue Advantage]'s voluntar[il]y
undertaken post-denial conduct. [Fleming] followed the
medical advice of the people he thought were giving him the
best medical guidance. Notably, [Fleming] and his family
ultimately turned to another hospital, ... but by [that] time it
was too late. Based on this evidence, the jury could
reasonabl[y] conclude that if [Blue Advantage] had not
interfered, [Fleming] and his family would likely have [gone]
to [the other hospital] sooner, and [Fleming] would have
lived."
Ghee's brief at 29-30 (emphasis added).
Thus, on appeal, it appears that Ghee is contending that Blue
Advantage should have advised Fleming to attend a different hospital
than the one he originally visited and that Blue Advantage's failure to do
so was a failure to exercise reasonable care because, if Fleming had gone
to the different hospital first after speaking with Blue Advantage's
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agents, it is more likely that Fleming would have obtained the necessary
surgery and, therefore, more likely that Fleming would have lived.
The first problem with Ghee's contention is that none of these
allegations are actually stated in Ghee's amended complaint. Moreover,
although the applicable standard of review dictates that all reasonable
inferences favorable to Ghee be entertained at this stage in the
proceedings, see Ghee v. USAble Mut. Ins. Co., 291 So. 3d 465, 472 (Ala.
2019), nothing in the allegations actually asserted in Ghee's amended
complaint give rise to the salient inferences Ghee draws on appeal.
Specifically, there is no reason to infer from Ghee's actual allegations
that the other hospital he visited would have performed the requested
surgical procedure if Fleming had only visited that hospital sooner;
indeed, it is undisputed that Fleming died after visiting that hospital,
and there is no allegation that that hospital even attempted to perform
the surgery Fleming had requested.
" 'Section 324A(a)[of the Restatement (Second) of Torts, which
governs liability for the breach of a duty voluntarily
undertaken,] applies only to the extent that the alleged
negligence of the defendant "exposes the injured person to a
greater risk of harm than had existed previously." '
Herrington v. Gaulden, 294 Ga. 285, 288, 751 S.E.2d 813, 816
(2013)(quoting Taylor v. AmericasMart Real Estate, 287 Ga.
App. 555, 559, 651 S.E.2d 754, 758 (2007)). ... Liability can be
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imposed on one who voluntarily undertook the duty to act only
where the actor 'affirmatively either made, or caused to be
made, a change in the conditions which change created or
increased the risk of harm' to the plaintiff. [Myers v. United
States, 17 F.3d 890, 903 (6th Cir. 1994)]. See also Patentas v.
United States, 687 F.2d 707, 717 (3d Cir. 1982)('[T]he
comment [c] to section 324A makes clear that "increased risk"
means some physical change to the environment or some
other material alteration of the circumstances.')."
Nichols, 166 So. 3d at 84-85.
Additionally, even assuming that an inference could be drawn that
visiting the other hospital first would have increased Fleming's chances
of obtaining the relevant surgery, there is no reason to also infer from
Ghee's allegations that Blue Advantage should or could have known that
the other hospital was more likely to perform the relevant surgery, such
that Blue Advantage's failure to advise Fleming to visit that hospital
amounted to a failure to exercise reasonable care by Blue Advantage.
Thus, even viewing Ghee's allegations most strongly in his favor, as
we are required to do, see Ghee, 291 So. 3d at 472, I cannot conclude that
his amended complaint gives Blue Advantage "fair notice of the claim
against which [it has been] called to defend." Archie, 508 So. 2d at 696.
Moreover, "[i]t is not the duty of the courts to create a claim which the
plaintiff has not spelled out in the pleadings." McCullough, 343 So. 2d at
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510. Therefore, it would be inappropriate for this Court to supplement
Ghee's amended complaint with additional allegations in an attempt to
create for him an adequate "statement of circumstances, occurrences, and
events in support of the claim presented." Committee Comments on 1973
Adoption of Rule 8. Because the allegations set out in Ghee's amended
complaint are insufficient to allege a common-law voluntary-undertaking
claim against Blue Advantage based on the alleged advice given by Blue
Advantage to Fleming and his family, Ghee has failed to demonstrate
reversible error by the circuit court in granting Blue Advantage's motion
to dismiss for failure to state a claim upon which relief could be granted
under Alabama law.
As explained above, I express no opinion regarding whether Ghee's
wrongful-death claim against Blue Advantage is defensively preempted
by the provision of ERISA codified at 29 U.S.C. § 1144(a). Because Ghee
has failed to demonstrate the viability of his claim under Alabama law,
he has failed to demonstrate reversible error by the circuit court in
dismissing his complaint, and I believe it is unnecessary to address the
doctrine of federal preemption under the circumstances of this case.
Therefore, I would affirm the circuit court's judgment, and I respectfully
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dissent from the majority's decision to reverse the judgment.
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MOORE, Special Justice (dissenting).
I agree with Justice Bryan that the judgment dismissing the
complaint, as amended, is due to be affirmed based on the legally valid
ground that it fails to state a claim upon which relief can be granted
under Alabama law. See Liberty Nat'l Life Ins. Co. v. University of
Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003)
("[T]his Court will affirm the trial court on any valid legal ground
presented by the record, regardless of whether that ground was
considered, or even if it was rejected, by the trial court."). By merely
advising Billy Fleming to return to the emergency department of the
hospital that he had originally visited to try to obtain emergency surgery,
the unnamed agent of USAble Mutual Insurance Company d/b/a Blue
Cross Blue Shield of Arkansas and Blue Advantage Administrators of
Arkansas ("Blue Advantage") did not thereby form a health-care
provider/patient relationship with Fleming or undertake to render any
professional medical service to Fleming that would render Blue
Advantage liable for wrongful death under the Alabama Medical
Liability Act ("the AMLA"), Ala. Code 1975, § 6-5-480 et seq. and § 6-5-
540 et seq. See generally Estate of Kundert v. Illinois Valley Cmty.
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Hosp., 964 N.E.2d 670, 677, 358 Ill. Dec. 1, 8 (Ill. Ct. App. 2012). Because
the amended complaint fails to state an actionable claim for medical
malpractice under Alabama law, I see no need to discuss whether a valid
medical-malpractice claim is preempted by the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1001 et seq.
69