W. A. Griffin, MD v. Delta Air Lines, Inc. ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10417
________________________
D.C. Docket No. 1:17-cv-04656-AT
W. A. GRIFFIN, MD,
Plaintiff - Appellant,
versus
COCA-COLA REFRESHMENTS USA, INC.,
UNITED HEALTHCARE INSURANCE COMPANY,
Defendants - Appellees,
UNITED HEALTHCARE OF GEORGIA, INC.,
Defendant.
________________________
No. 18-10418
________________________
D.C. Docket No. 1:17-cv-04657-AT
W. A. GRIFFIN, MD,
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Plaintiff - Appellant,
versus
DELTA AIR LINES, INC.,
UNITED HEALTHCARE INSURANCE COMPANY,
Defendants - Appellees,
UNITED HEALTHCARE PLAN OF GEORGIA, INC.,
Defendant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(February 24, 2021)
Before BRANCH and MARCUS, Circuit Judges, and UNGARO,∗ District Judge.
BRANCH, Circuit Judge:
Dr. Wakitha Griffin, a dermatologist in Atlanta, Georgia, has filed many
appeals in this Court in recent years, all of which have involved her attempts to
receive in-network payments despite being an out-of-network provider. Our other
opinions have been unpublished; we choose to publish today in hopes of resolving
this recurring litigation.
∗ The Honorable Ursula Ungaro, United States District Court for the Southern District of
Florida, sitting by designation.
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These consolidated appeals arise from Griffin’s treatment of two patients
who were insured under two separate employee welfare benefit plans which are
administered by United Healthcare (“United”). The Employee Retirement Income
Security Act of 1974 (“ERISA”) covers both plans. Because Griffin does not have
a contract with United whereby she provides services in exchange for
reimbursement at a negotiated rate, she is an out-of-network provider under both
plans. Generally, patients are reimbursed at lower rates when receiving healthcare
services from out-of-network providers rather than in-network providers.
Eschewing a contractual relationship with United and payment from her
patients, Griffin instead requested that the two patients assign their benefits under
their plans to her. They obliged. Griffin then attempted to collect from United the
same payment that she would have received had she been an in-network provider.
When United only paid her the benefits she was entitled to as an out-of-network
provider, Griffin brought two separate lawsuits—one against Coca-Cola
Refreshments, Inc. (“Coca-Cola”) and United and the other against Delta Air
Lines, Inc. (“Delta”) and United (collectively, “Defendants”)—asserting various
ERISA violations. The district court dismissed both cases for failure to state a
claim because the plans’ anti-assignment clauses prevented Griffin from obtaining
statutory standing under ERISA to sue on behalf of her patients. Griffin appealed
both cases to this Court.
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These consolidated appeals raise an unsettled issue about whether an ERISA
plan administrator or its claims agent may waive its right to rely on an anti-
assignment provision in an ERISA-covered plan. We need not reach that issue,
however. Even assuming that waiver is available in the ERISA context,
Defendants did not waive their ability to assert the anti-assignment provisions as a
defense. And regardless of waiver, Griffin’s lawsuit still fails to state a claim:
United paid her in full, both under the terms of the patients’ assignments and the
provisions of the healthcare plans. We therefore affirm the district court’s orders.
I. Background
Although these consolidated appeals implicate two distinct health benefit
plans, patients, and assignments, the facts giving rise to Griffin’s claims in each
case are largely the same. A few years ago, Griffin provided medical treatment for
two patients: Patient J.J., who was insured under the Coca-Cola Plan, and Patient
G.A., who was insured under the Delta Plan. 1 United is the Coca-Cola Plan’s
Claims Fiduciary and the Delta Plan’s Claims Administrator. Under the terms of
both plans, Griffin is an “out of network” physician. Generally, the plans
reimburse the beneficiary at a higher percentage when he visits an in-network
physician rather than an out-of-network physician. For example, the Coca-Cola
1
The Coca-Cola Company Benefits Committee is the Coca-Cola Plan Administrator and
the Administrative Committee of Delta Air Line, Inc. is the Delta Plan Administrator.
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Plan provides that when a beneficiary has an office visit with an out-of-network
physician, the plan pays 60 percent of the cost of service and the beneficiary pays
40 percent. By contrast, if the beneficiary has an office visit with an in-network
physician, the plan pays at least 80 percent.
In exchange for medical treatment and in lieu of payment, the two patients
executed an assignment of their plan benefits to Griffin. Both assignments are
identical. By signing, the patient acknowledges that the document is “a direct legal
assignment of my rights and benefits under this policy and designation of
authorized representative” and “authorize[s] any plan administrator or fiduciary,
insurer, and my attorney to release to such provider(s) any and all plan
documents.” The assignment further provides that the patient has assigned “all
medical benefits and/or insurance reimbursement, if any, otherwise payable to [the
patient] for services rendered from such provider(s), regardless of such provider’s
managed care network participation status.”
Griffin believed that the assignments entitled her to full payment for her
services, as if she were an in-network provider. She submitted claims to United,
which she alleges United only partially paid. Griffin appealed United’s payment
determinations. In her appeals, Griffin made numerous requests, including: (1)
that United disclose the plan’s unambiguous anti-assignment provision, should the
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plan have one; (2) copies of the plan documents; and (3) the identification of the
Plan Administrator.
United denied each appeal and responded directly to the patients, copying
Griffin on the communications. In each appeal denial, United explained that
Griffin was not reimbursed the full amount of her charges because of the relevant
plan’s provisions regarding out-of-network coverage and deductibles. United
therefore upheld the payment determinations and did not address Griffin’s specific
requests. Undeterred, Griffin submitted second level appeals for both claims and
reiterated her requests. United again denied the appeals without addressing
Griffin’s requests.
After exhausting her administrative remedies, Griffin, proceeding pro se,
filed two complaints in Georgia state court: one against United and Coca-Cola, for
her treatment of Patient J.J., and the other against United and Delta, for her
treatment of Patient G.A. The operative complaints are nearly identical and bring
the same four claims: failure to pay plan benefits under 29 U.S.C. § 1132 (Count
1), breach of fiduciary duty under 29 U.S.C. § 1104 (Count 2), failure to provide
plan documents under 29 U.S.C. §§ 1024(b), 1104, and 1132(2) (Count 3); and
breach of co-fiduciary duties under 29 U.S.C. § 1105(a)(2) (Count 4). Defendants
removed both lawsuits to the United States District Court for the Northern District
of Georgia and moved to dismiss Griffin’s complaints for failure to state a claim.
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Griffin was in familiar territory in the district court. In the last four years,
Griffin has filed more than two dozen cases either directly in the Northern District
of Georgia or in state court that were later removed to that district court. 2 All
involve Griffin seeking reimbursement from health plans through her patients’
assignment of benefits.
2
See Griffin v. Blue Cross and Blue Shield Healthcare Plan of Ga., Inc., et al, No. 1:14-
cv-1610-AT (N.D. Ga. filed May 28, 2014); Griffin v. S. Co. Servs., Inc., No. 1:15-cv-0115-AT
(N.D. Ga. filed Jan. 14, 2015); Griffin v. SunTrust Bank, Inc., No. 1:15-cv-0147-AT (N.D. Ga.
filed Jan. 16, 2015); Griffin v. FOCUS Brands Inc., No. 1:15-cv-0170-AT (N.D. Ga. filed Jan.
20, 2015); Griffin v. Health Sys. Mgmt., Inc., No. 1:15-cv-0171-AT (N.D. Ga. filed Jan. 20,
2015); Griffin v. Lockheed Martin Corp., No. 1:15-cv-0267-AT (N.D. Ga. filed Jan. 28, 2015);
Griffin v. Gen. Mills, Inc., No. 1:15-cv-0268-AT (N.D. Ga. filed Jan. 28, 2015); Griffin v.
Oldcastle, Inc., No. 1:15-cv-0269-AT (N.D. Ga. filed Jan 28, 2015); Griffin v. Habitat for
Humanity Int’l, Inc., No. 1:15-cv-0369-AT (N.D. Ga. filed Jan 28, 2015); Griffin v. Verizon
Commc’ns, Inc., No. 1:15-cv-0569-AT (N.D. Ga. filed Feb. 26, 2015); Griffin v. Humana
Employers Health Plan of Ga., Inc., No. 1:15-cv-3574-AT (N.D. Ga. filed Oct. 8, 2015); Griffin
v. Aetna Health Inc., et al., No. 1:15-cv-3750-AT (N.D. Ga. filed Oct. 26, 2015); Griffin v. Gen.
Elec. Co., No. 1:15-cv-4439-AT (N.D. Ga. filed Dec. 22, 2015); Griffin v. Navistar, Inc., No.
1:16-cv-0190-AT (N.D. Ga. filed Jan. 21, 2016); Griffin v. Humana Employers Health Plan of
Ga., Inc., No. 1:16-cv-0245-AT (N.D. Ga. filed Jan. 26, 2016); Griffin v. Coca-Cola Enters.,
Inc., No. 1:16-cv-0389-AT (N.D. Ga. filed Feb. 9, 2016); Griffin v. Sevatec, Inc., No. 1:16-cv-
0390-AT (N.D. Ga. filed Feb. 9, 2016); Griffin v. Cassidy Turley Com. Real Estate Servs.s, Inc.,
No. 1:16-cv-0496-AT (N.D. Ga. filed Feb. 17, 2016); Griffin v. Americold Logistics, LLC, No.
1:16-cv-0497-AT (N.D. Ga. filed Feb. 17, 2016); Griffin v. Applied Indus. Techs., Inc., No. 1:16-
cv-0552-AT (N.D. Ga. filed Feb. 23, 2016); Griffin v. Areva, Inc., No. 1:16-cv-0553-AT (N.D.
Ga. filed Feb. 23, 2016); Griffin v. FOCUS Brands, Inc., No. 1:16-cv-0791-AT (N.D. Ga. filed
Mar. 10, 2016); Griffin v. Northside Hosp., Inc., No. 1:16-cv-1934-AT (N.D. Ga. filed June 10,
2016); Griffin v. Crestline Hotels & Resorts, LLC, No. 1:16-cv-2022-AT (N.D. Ga. filed June 16,
2016); Griffin v. Verizon Commc’ns, Inc., No. 1:16-cv-2639 (N.D. Ga. filed July 20, 2016);
Griffin v. RightChoice Managed Care, Inc., et al, No. 1:16-cv-3102 (N.D. Ga. filed Aug. 23,
2016); Griffin v. Aetna Health Inc., et al, No. 1:17-cv-00077 (N.D. Ga. filed Jan. 6, 2017);
Griffin v. United Healthcare of Ga., Inc., et al, No. 1:17-cv-4561-AT (N.D. Ga. filed Nov. 13,
2017); Griffin v.Coca-Cola Refreshments USA, Inc., et al, No. 1:17-cv-4656-AT (N.D. Ga. filed
Nov. 20, 2017). Griffin v. Delta Air Lines, Inc., et al, No. 1:17-cv-4657-AT (N.D. Ga. Nov. 20,
2017).
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Similar to her past claims, her allegations here focus on United’s failure to
disclose to her whether the plans had anti-assignment provisions, even though she
requested them in her claim appeals. And because Defendants did not provide her
the plan documents containing those provisions, Griffin’s complaints allege that
they cannot rely on them in defense of their lawsuit.
In their motions to dismiss Griffin’s complaints, Defendants asserted that the
plans’ anti-assignment provisions rendered the assignment of benefits void. The
plans each contain anti-assignment provisions. 3 The Coca-Cola Plan provides:
9.02 Assignment. If applicable, an Enrolled Person may authorize the
Plan to directly pay the service provider or hospital that provided the
Enrolled Person’s covered care and treatment. Except as provided in
the foregoing sentence, and subject to Section 9.06 of this Plan
relating to Qualified Medical Child Support Orders, an Enrolled
Person may not assign or alienate any payment with respect to any
Benefit which an Enrolled Person is entitled to receive from the Plan,
and further, except as may be prescribed by law, no Benefits shall be
subject to attachment or garnishment of or for an Enrolled Person’s
debts or contracts, except for recovery of overpayments made on an
Enrolled Person’s behalf by this Plan.
Another section of the plan states, “While benefits payable at any time may be
used to make direct payments to health care providers, no amount payable at any
3
The Coca-Cola Plan has two operative plan documents: the Coca-Cola Company Health
and Welfare Benefits Plan (“Wrap Document”) and the Summary Plan Descriptions and Benefit
Policies (“SPD”). The SPD is incorporated by reference into the Plan through the Wrap
Document. We refer to them together as the “Coca-Cola Plan.”
The Delta Plan also has two operative plan documents: the Account-Based Healthcare
Plan (“Wrap Document”) and the Summary Plan Descriptions and Benefit Policies (“SPD”).
The SPD is incorporated by reference into the Plan through the Wrap Document. We refer to
them together as the “Delta Plan.”
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time shall be subject in any matter to alienation by assignment of any kind. Any
attempt to assign any such amount shall be void.” The Coca-Cola Plan further
provides that beneficiaries “may not assign any rights or cause of action that [they]
may have against a third-party to recover medical expenses without the express
written consent of the Plan Administrator.”
Similarly, the Delta Plan provides:
13.07 Anti-Alienation of Benefits. Except as required by law, no
benefit, payment or distribution under the Plan shall be subject to the
claim of any creditor of the Participant, or to any legal process by any
creditor of the Participant, or to any legal process by any creditor of
the Participant, and the participant shall not have any right to alienate,
commute, anticipate or assign (either at law or in equity) all or any
portion of any benefit, payment or distribution under the Plan except
to the extent provided herein; provided, however, a Participant may
make a voluntary and revocable assignment, but only for such
purposes as the Administrative Committee may from time to time
specify.
Another section of the plan states:
Except as required by law, no benefit, payment or distribution under
the plans will be subject to the claim of any creditor of a participant,
or to any legal process by any creditor of the participant, and the
participant will not have any right to alienate, commute, anticipate or
assign all or any portion of any benefit, payment or distribution under
the plans.
However, a participant may make a voluntary and revocable
assignment, but only for such purposes as the Plan Administrator may
specify from time to time.
The district court dismissed both of Griffin’s complaints for failure to state a
claim. Regarding her suit against Delta and United, the district court found the
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Delta Plan’s anti-assignment provisions barred all of Griffin’s claims. In its order
dismissing the suit against Coca-Cola and United, the district court similarly found
the Coca-Cola Plan’s anti-assignment provisions indisputably barred Griffin’s
claim for payment under the plan (Count 1). The court also found that, even if the
language of the anti-assignment provisions did not bar the remaining non-payment
claims (Counts 2, 3, and 4), the assignment itself did not include the right to bring
those non-payment claims. Accordingly, she lacked derivative statutory standing
to bring those claims as well. The district court did not address Griffin’s waiver
arguments. Griffin appealed the district court’s orders to this Court.
Griffin presents three issues on appeal. First, did the patients legally assign
Griffin the right to bring the breach of fiduciary duty and statutory penalties claims
(the “non-payment-related claims”) as well as benefit claims? Second, do the anti-
assignment provisions apply to Griffin’s claims for underpayment of benefits
and/or the non-payment claims? Third, if they do apply to some or all of the
claims, are Defendants estopped from relying on the anti-assignment provisions or
have they otherwise waived the right to assert them?
We appointed Griffin counsel sua sponte and set this case for oral argument.
After reviewing the record, the parties’ briefs, and oral argument, we affirm the
lower court’s decisions.
II. Standard of Review and ERISA
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The Court of Appeals reviews “de novo the district court’s grant of a motion
to dismiss under [Federal Rule of Civil Procedure] 12(b)(6) for failure to state a
claim, accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff.” Lanfear v. Home Depot, Inc., 679 F.3d 1267,
1275 (11th Cir. 2012) (quoting Ironworkers Local Union 68 v. AstraZeneca
Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)).
ERISA, which governs this case, sets the minimum standards for employee
benefit plans, such as the healthcare plans at issue here. See 29 U.S.C. §§ 1001,
1002. Section 502(a) of ERISA creates federal causes of action for recovery of
benefits under such plans. See 29 U.S.C. § 1132(a)(1)(B) (“A civil action may be
brought . . . by a participant or beneficiary . . . 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[.]”). ERISA also allows
participants to bring actions under section 502(a) against plan fiduciaries for
breach of fiduciary duty. 29 U.S.C. § 1104. In addition, section 405(a) of ERISA
imposes co-fiduciary liability on all plan fiduciaries in certain circumstances. Id..
§ 1105. Finally, ERISA requires plan administrators, upon request, to provide plan
information to participants and allows for participants to seek statutory penalties
for a plan’s failure to do so. Id. § 1132(c)(1). Critically, to maintain an action
under ERISA, a plaintiff must have standing to sue under the statute. Physicians
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Multispecialty Grp. v. Health Care Plan of Horton Homes, Inc., 371 F.3d 1291,
1293–94 (11th Cir. 2004).4
In enacting ERISA, Congress broadly preempted state law relating to
employee benefit plans. Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 829 (1988); see generally Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41(1987). Where ERISA is silent on an issue, Congress intended for courts to
fashion a federal common law governing employee benefit plans. Glass v. United
of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994). We have explained
the process for determining federal common law under ERISA:
To decide whether a particular rule should become part of ERISA’s
common law, courts must examine whether the rule, if adopted, would
further ERISA’s scheme and goals . . . ERISA has two central goals:
(1) protection of the interests of employees and their beneficiaries in
employee benefit plans; and (2) uniformity in the administration of
employee benefit plans.
Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998).
When tasked with shaping federal common law in the ERISA context, this Court
has explicitly relied on rules found in the Restatement of Contracts, see, e.g.,
Turner v. Am. Fed’n of Teachers Local 1565, 138 F.3d 878, 882 (11th Cir. 1998),
4
As used in this context, standing is not jurisdictional, Article III standing, but rather the
right to make a claim under the statute. Physicians Multispecialty Grp. v. Health Care Plan of
Horton Homes, Inc., 371 F.3d 1291, 1293–94 (11th Cir. 2004).
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and state law, see, e.g., Tippit v. Reliance Standard Life Ins. Co., 457 F.3d 1227,
1235 (11th Cir. 2006) (using Georgia law to interpret ambiguous plan).
III. Analysis
a. The Scope of the Patients’ Assignments
We first determine the scope of the patients’ assignments to Griffin—
whether they purport to give her the right to bring both payment and non-payment
(breach of fiduciary duties and statutory penalties) claims.
To maintain an action under ERISA, a plaintiff must have statutory standing.
ERISA limits the right to sue for plan participants, plan beneficiaries, plan
fiduciaries, and the Secretary of Labor. 29 U.S.C. § 1132(a). “Healthcare
providers . . . are generally not ‘participants’ or ‘beneficiaries’ under ERISA.”
Physicians Multispecialty Grp., 371 F.3d at 1294. Still, an assignee may obtain
derivative standing for payment of medical benefits through a written assignment
from a plan participant or beneficiary. See Gables Ins. Recovery, Inc. v. Blue
Cross & Blue Shield of Fla., Inc., 813 F.3d 1333, 1339 (11th Cir. 2015).5
In this case, no party doubts that the assignments’ language purports to
convey to Griffin a right to bring the claim for unpaid benefits. But Griffin argues
that the patients assigned all their rights—including the right to bring fiduciary and
5
For the reasons discussed herein, we need not decide whether the assignment of nonpayment
claims provides derivative standing.
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statutory penalty claims—under the plans because the assignments state: “This is a
direct legal assignment of my rights and benefits under the policy.” That sentence,
Griffin claims, is enough to transfer the participant’s right to bring claims both for
unpaid payments and non-payment related claims.
In numerous unpublished decisions, we have rejected similar claims (all
made by Griffin) regarding the assignment of the right to bring non-payment
claims like those in Counts 2, 3, and 4. See, e.g., Griffin v. SunTrust Bank Inc.,
648 F. App’x 962, 967 (11th Cir. 2016) (“Nothing in an assignment of benefits
transfers the patient’s right to bring a cause of action” for similar non-payment-
related claims.); Griffin v. Health Sys. Mgmt. Inc, 635 F. App’x 768, 772 n.4 (11th
Cir. 2015). Griffin argues that these prior decisions only examine particular lines
in the assignment, and we have not considered the exact language she points to in
this appeal. Because the language Griffin relies on in this appeal assigns both
“rights and benefits under the policy,” Griffin claims, it expressly assigns the right
to bring both payment and non-payment-related claims.
Even assuming this “rights and benefits” language evinces the assignment of
two distinct rights—the right to bring claims for both payment and non-payment—
the assignments themselves contradict Griffin’s argument. The general form
assignments on which Griffin relies contain 10 separately listed paragraphs
outlining the scope of the assignments. The patients checked the box next to each
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one. None of the paragraphs mention breach of fiduciary duty or statutory penalty
claims. Rather, they provide the details of Griffin’s “right” to receive the patients’
“medical information” and “payment of benefits” under the Plan. Therefore, the
assignments make clear that the patients only assigned their right to bring claims
for payment pursuant to 29 U.S.C. § 1132. Accordingly, the district court was
correct to dismiss Griffin’s non-payment claims.
b. The Plans’ Anti-Assignment Provisions
i. Applicability to Griffin’s Payment Claim
We next turn to whether Griffin’s payment claim survives the language of
the plans’ anti-assignment provisions. We find that her payment claim does not.
We have held that “an unambiguous anti-assignment provision in an ERISA-
governed welfare benefit plan is valid and enforceable” against healthcare
providers. Physicians Multispecialty Grp., 371 F.3d at 1296. The anti-assignment
language in the plans at issue is unambiguous and thus enforceable. The Coca-
Cola Plan says a participant “may not assign or alienate any payment with respect
to any Benefit,” and “no amount payable at any time shall be subject in any matter
to alienation by assignment of any kind. Any attempt to assign any such amount
shall be void.” Similarly, the Delta Plan provides that “the participant shall not
have any right to alienate, commute, anticipate or assign (either at law or in equity)
all or any portion of any benefit, payment or distribution under the Plan.” And
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another provision similarly states: “the participant will not have any right to
alienate, commute, anticipate or assign all or any portion of any benefit, payment
or distribution under the plans.” On their face, these provisions restrict a patient’s
ability to assign his rights and therefore bar Griffin’s claims.
In fact, Griffin “recognizes the weight of authority from this Court affirming
the dismissals of several cases filed by Dr. Griffin based on the application of anti-
assignment provisions to similar claims brought by Dr. Griffin under ERISA for
unpaid benefits.” But she urges this Court to reverse course and follow the Fifth
Circuit’s lead in its 1992 opinion in Hermann Hospital v. MEBA Medical and
Benefits Plan, 959 F.2d 569 (5th Cir. 1992), overruled in part on other grounds by
Access Mediquip, L.L.C. v. United Healthcare Insurance Co., 698 F.3d 229, 230
(5th Cir. 2012) (en banc).
In Hermann, the Fifth Circuit held that the defendant plan’s anti-assignment
provisions were unenforceable against a healthcare provider. The patient in that
case assigned “all rights, title and interest in the benefits payable for services
rendered by the [healthcare provider]” to the provider-plaintiff. Id. at 571. The
anti-assignment provision at issue stated:
No employee, dependent or beneficiary shall have the right to assign,
alienate, transfer, sell, hypothecate, mortgage, encumber, pledge,
commute, or anticipate any benefit payment hereunder, and any such
payment shall not be subject to any legal process to levy execution
upon or attachment or garnishment proceedings against for the
payment of any claims.
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Id. at 574. The Fifth Circuit held that the anti-assignment clause did not, by its
terms, void the assignment to the provider because it did not explicitly cover
healthcare providers. Id. at 575. The court found it would be inequitable to
prevent providers from recovering for the services they rendered unless the
participants first sued the plan and the provider then sued the participants. Id.Thus, Griffin claims that this Court should find the Coca-Cola Plan’s and Delta
Plan’s anti-assignment provisions do not bar the assignments because she received
the assignment in her capacity as a healthcare provider.
But Griffin effectively asks this Court to invalidate an unambiguous contract
provision which is valid and enforceable under our precedent based on the policy
preferences of another circuit. We cannot depart from our precedent. See Wilson
v. Taylor, 658 F.2d 1021, 1034 (5th Cir. May 1, 1981) (“It is the firm rule of this
circuit that we cannot disregard the precedent set by a prior panel, even though we
perceive error in the precedent. Absent an intervening Supreme Court decision
which changes the law, only the en banc court can make the change.”). Thus, if
nothing else prevents Defendants from relying on the anti-assignment provisions in
this litigation, the provisions bar Griffin’s claims for unpaid benefits.
ii. Void v. Voidable
Before we turn to Griffin’s remaining arguments as to why Defendants
either waived or are estopped from relying on these anti-assignment provisions, we
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must address an often-overlooked threshold issue: whether the anti-assignment
provisions make the assignments void or voidable. 6 If the assignments are void ab
initio then there is no need to proceed to the equitable claims because each
assignment is inherently null. On the other hand, if the assignments are merely
voidable, then they are effective unless and until they are challenged. See, e.g.,
Pitts ex rel. Pitts v. Am. Sec. Life Ins. Co., 931 F.2d 351, 356 (5th Cir. 1991)
(discussing consequences of determining whether insurance policy was void rather
than voidable). Estoppel and waiver would only be available defenses to a
voidable anti-assignment clause.
As discussed above, federal courts fill in the gaps Congress left in ERISA
with federal common law. Glass, 33 F.3d at 1347. ERISA itself does not give an
answer to the issue of void versus voidable. Nor have the parties addressed it.
And federal courts have not discussed the distinction between void and voidable in
the ERISA context. Courts sometimes even use these concepts interchangeably. 7
6
Black’s Law Dictionary defines “void” as “[o]f no legal effect; to null.” Void, Black’s
Law Dictionary (11th ed. 2019). Something that is “void ab initio” is “[n]ull from the beginning,
as from the first moment when a contract is entered into. A contract is void ab initio if it
seriously offends law or public policy, in contrast to a contract that is merely voidable at the
election of one party to the contract.” Id. The term “voidable” is defined as “[v]alid until
annulled,” that is, “capable of being affirmed or rejected at the option of one of the parties.”
Voidable, Black’s Law Dictionary (11th ed. 2019).
7
“[C]ourts have lamented that ‘[t]he distinction between void and voidable is not as
distinctly defined as could be wished.’ As a result, ‘[c]ourts have used the words “void,”
“voidable,” “invalid,” and “unenforceable” imprecisely’ or even interchangeably.” Jesse A.
Schaefer, Beyond a Definition: Understanding the Nature of Void and Voidable Contracts, 33
CAMPBELL L. REV. 193, 194 (2010) (quoting Arnold v. Fuller’s Heirs, 1 Ohio 458, 467 (Ohio
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Absent other guidance, we may look to the applicable state law to fill in
ERISA’s gaps. Glass, 33 F.3d at 1347. The Georgia Code renders as void: (1)
contracts to do immoral or illegal things, (2) contracts against public policy, and
(3) gambling contracts. O.C.G.A. §§ 13-8-1, 13-8-2, 13-8-3. This definition
comports with our century-old precedent: in 1906, the former Fifth Circuit
explained:
The distinction between ‘void’ and ‘voidable’ in their application to
contracts is sometimes one of practical importance. A transaction
may be void as to one party, and not as to another. When entire
technical accuracy is desired, the term ‘void’ can only be properly
applied to those contracts that are of no effect whatsoever, . . . or in
contravention of that which the law requires, and therefore incapable
of confirmation or ratification.
Haggart v. Wilczinski, 143 F. 22, 27 (5th Cir. 1906). The assignments here are not
illegal. Nor do they contravene public policy. See Cagle v. Bruner, 112 F.3d
1510, 1515 (11th Cir. 1997) (“[N]either § 1132(a) nor any other ERISA provision
prevents derivative standing based upon an assignment of rights[.]”). And they
have nothing to do with gambling. Accordingly, the assignments here are merely
voidable rather than void ab initio and thus are enforceable unless and until
Defendants raise the anti-assignment provisions. To put it another way, the
1824) and Daugherty v. Kessler, 286 A.2d 95, 97 (Md. 1972)). This confusion is noted in
Black’s Law Dictionary: “the word [void] is often used and construed as bearing the more liberal
meaning of ‘voidable.’” Void, Black’s Law Dictionary (11th ed. 2019).
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existence of those provisions did not automatically nullify the assignments, and
thus equitable doctrines are available. Having said all that, we can turn to Griffin’s
waiver and estoppel arguments.
c. Waiver
Griffin argues that Defendants waived their right to rely on the anti-
assignment provisions because they did not alert her to their existence prior to
litigation. We disagree.
“Waiver is the voluntary, intentional relinquishment of a known right.”
Glass, 33 F.3d at 1347; see also Pitts, 931 F.2d at 357; Appleman, Insurance Law
and Practice, § 9251, at 488–89 (1981). Waiver can be express or implied from
conduct. In re Garfinkle, 672 F.2d 1340, 1347 (11th Cir. 1982). “Where a party
alleges an implied waiver, ‘the acts, conduct, or circumstances relied upon to show
waiver must make out a clear case’” of intentional relinquishment. Witt v. Metro
Life Ins. Co., 772 F.3d 1269, 1279 (11th Cir. 2014) (quoting In re Garfinkle, 672
F.2d at 1347).
Because ERISA does not address waiver, courts have fashioned federal
common law to address cases where a defendant relies on a contractual provision
to defeat a claim. But various circuits have approached the problem differently.
For example, the Fourth Circuit considers waiver to be a “prohibited concept” with
respect to ERISA. Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239
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(4th Cir. 2008). Other circuits have reached the opposite conclusion. See, e.g.
Glista v. Unum Life Ins. Co. of America, 378 F.3d 113, 132 (1st Cir. 2004)
(insurance company waived its right to raise a policy’s clause for the first time in
litigation). This circuit has “left open the question of whether waiver principles
might apply under the federal common law in the ERISA context,” Witt, 772 F.3d
at 1279, and we do so again today because we need not decide it.
Even if the doctrine applies in the ERISA context, waiver would not be
available under the facts of this case. None of the Defendants expressly
relinquished its right to assert the anti-assignment clauses in litigation. And Griffin
does not allege any acts that would indicate they intentionally did so. Boiled
down, Griffin alleges that defendants ignored her pre-litigation requests for plan
documents and any anti-assignment provisions, if they existed. Evidence that an
insurance plan’s claims administrator ignored a third party’s pre-litigation request
for information about a contract with another party, without more, is insufficient to
show that the claims administrator or provider voluntarily or intentionally
abandoned a contractual defense to litigation. Thus, even if waiver applied,
Griffin’s allegations are insufficient to establish that the Defendants waived the
anti-assignment provisions.
d. Estoppel
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As an alternative to her waiver claim, Griffin argues that Defendants are
equitably estopped from relying on the anti-assignment provisions because they
did not respond to her pre-litigation inquiries as to whether the Coca-Cola Plan and
the Delta Plan contained such provisions.
In the ERISA context, equitable estoppel applies when “the plaintiff can
show that (1) the relevant provisions of the plan at issue are ambiguous, and (2) the
plan provider or administrator has made representations to the plaintiff that
constitute an informal interpretation of ambiguity.” Jones v. Am. Gen. Life & Acc.
Ins. Co., 370 F.3d 1065, 1069 (11th Cir. 2004). Equitable estoppel in the ERISA
context is “very narrow.” Id.The anti-assignments provisions in the two plans at issue here are not
ambiguous. Even if they were, Griffin does not submit any evidence, or even
allege, that Coca-Cola, Delta, or United made any representation to Griffin that
informally interpreted the provision. A straightforward application of the narrow
ERISA estoppel doctrine compels this Court to find that Griffin cannot turn to it
here.
Griffin asks this Court to rely on the Fifth Circuit’s decision in Hermann and
the Sixth Circuit’s dicta in Sprague v. Gen. Motors Corp., 133 F.3d 388, 404 (6th
Cir. 1998) to find that equitable estoppel’s ambiguity requirement does not apply
to Griffin. We are unpersuaded. In Hermann, the Fifth Circuit held that the
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defendant was estopped from asserting that the anti-assignment clause applied
because Hermann, the medical provider, “was not privy to” the plan documents
and it was the defendant plan’s “responsibility to notify Hermann” of the anti-
assignment clause. 959 F.2d at 574. Similarly, in Sprague, the Sixth Circuit
observed that the party asserting estoppel’s reliance “can seldom, if ever, be
reasonable or justifiable if it is inconsistent with the clear and unambiguous terms
of the plan documents available to or furnished to the party.” 133 F.3d at 404(emphasis added). But the facts of Hermann differ from the facts here. In that
case, the payor repeatedly made false representations to the provider. See
Hermann, 959 F.2d at 574. And in Sprague, the Sixth Circuit clarified that in
order to assert an estoppel claim, “there must be conduct or language amounting to
a representation of a material fact.” 133 F.3d at 403. Here, none of the Defendants
made any representations directly to the provider: they communicated with the
beneficiaries and copied Griffin on the communications. And while United did not
provide Griffin with the requested information, neither did it lie to her.
Further, Griffin’s estoppel argument is foreclosed by our precedent. In the
years following Herman and Sprague, this Court has never disregarded the
ambiguity requirement. See, e.g., Jones, 370 F.3d at 1070 (“[W]hether proceeding
on a breach of contract or equitable estoppel theory, an ERISA plaintiff can only
succeed . . . if he can establish that the plan at issue is at least ambiguous with
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respect to the relevant benefits for which he claims entitlement.”). And, in the past
five years, we have addressed Griffin’s estoppel argument in a series of
unpublished decisions relating to similar claims based on similar facts. Each time,
we held that equitable estoppel does not apply. See Griffin v. United Healthcare of
Ga., Inc., 754 F. App’x 793, 797 (11th Cir. 2018) (“[E]quitable estoppel cannot
apply” where plan documents were not provided); Griffin v. Coca-Cola Enters.,
Inc., 686 F. App’x 820, 822 (11th Cir. 2017) (same); Griffin v. Habitat for
Humanity Int’l, Inc., 641 F. App’x 927, 932 (11th Cir. 2016) (same); Griffin v.
Verizon Commc’ns, Inc., 641 F. App’x 869, 874 (11th Cir. 2016) (same); Griffin v.
S. Co. Servs., 635 F. App’x 789, 795 (11th Cir. 2015) (same); Griffin v. Focus
Brands, Inc., 635 F. App’x 796, 801 (11th Cir. 2015) (same); Griffin v. Health Sys.
Mgmt., Inc., 635 F. App’x 768, 773 (11th Cir. 2015) (same). A decades-old case
from another circuit does not disturb that conclusion. Equitable estoppel does not
prevent plan administrators or claims fiduciaries from relying on anti-assignment
provisions simply because they did not alert the provider of such provisions.
In sum, although the assignments gave Griffin statutory standing pursuant to
ERISA to bring claims for payment for the services she provided, the Defendants’
anti-assignment provisions made the assignments voidable. Even assuming waiver
is available in the ERISA context, Defendants did not waive their ability to assert
the anti-assignment provisions when Griffin filed claims against them. Neither
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does estoppel aid Griffin in avoiding the effect of the anti-assignment provisions.
Therefore, the anti-assignment provisions deprived Griffin of her ability to bring
these ERISA claims.
e. Failure to State a Claim
We make a final observation about Griffin’s claims before concluding.
Assuming, arguendo, that Defendants’ plans did not have enforceable anti-
assignment provisions and Griffin had statutory standing to bring claims for
payment pursuant to ERISA, Griffin would still fail to state a claim because she is
not entitled to any more compensation than she already received.
Recall that each assignment at issue is “a direct legal assignment of [the
patient’s] rights and benefits under this policy and designation of authorized
representative.” They also state:
In considering the amount of medical expenses to be incurred, I, [the
patient], have insurance and/or employee health care benefits
coverage, and hereby assign and convey directly to the above named
healthcare provider(s), as my designated Authorized
Representative(s), all medical benefits and/or insurance
reimbursement, if any, otherwise payable to me for services rendered
from such provider(s), regardless of such provider’s managed care
network participation status.
Griffin’s “managed care network participation status” is critical. The patients
visited an out-of-network provider—Griffin. Had they paid Griffin out of pocket
and filed a claim for reimbursement with United, United would have been
obligated to reimburse the patients according to their policies for out of network
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providers. That analysis does not change simply because the patient assigned the
payments to Griffin. 8 Because the patients have no right to full reimbursement for
the charged services, neither does Griffin. The assignment changes nothing.
Either way, Griffin does not have a claim against Defendants.
We therefore AFFIRM the district court’s orders.
8
For example, Griffin charged Patient J.J. $129.96 for the office visit. Patient J.J.’s plan
covered 60 percent of that charge. Therefore, United directly paid Griffin $77.98. United paid
Griffin exactly what it would have paid the Patient J.J. if that patient had followed the process
above.
26