Barbara Schermer v. BCBSM, Inc., etc. , 356 F. App'x 916 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2039
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Barbara A. Schermer, *
*
Appellant, *
*
v. *
*
BCBSM, Inc., doing business as *
Blue Cross Blue Shield of Minnesota, *
*
Appellee. *
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Appeals from the United States
No. 09-2041 District Court for the
___________ District of Minnesota.
Irvin E. Schermer, * [UNPUBLISHED]
*
Appellant, *
*
v. *
*
BCBSM, Inc., doing business as *
Blue Cross Blue Shield of Minnesota, *
*
Appellee. *
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Submitted: December 14, 2009
Filed: December 18, 2009
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Before BYE, BEAM, and COLLOTON, Circuit Judges.
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PER CURIAM.
Barbara and Irvin Schermer challenge the district court's1 dismissal of their
amended complaint. These appeals arise out of a denial of a claim for home health
care benefits for Barbara Schermer. Barbara Schermer and her husband, the primary
insured on the group health insurance policy issued by BCBSM, sought
reimbursement from BCBSM for the expense of having a person come to their home
to assist Barbara in tasks such as "walking, bathing, getting around, getting into bed,
[and] getting dressed." As the district court pointed out, and as is apparent in the
complaint, it is clear that medical reports recommend such care for Barbara, and that
such care was likely needed. Yet, the issue is whether the relevant BCBSM policy
covers the expenses associated with the receipt of these services. In a thorough and
detailed analysis, the magistrate judge2 concluded that the requested custodial care
was not covered. The district court, in response to objections to the Report and
Recommendation, agreed, as set out in the court's similarly detailed analysis. The
Schermers appeal, raising various legal theories and statutory claims challenging
BCBSM's claims procedure and ultimate denial of benefits as well as challenging
particular plan language.
Having reviewed the complaint and those portions of the plan that the pleadings
necessarily embrace, see Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697-98 n.4 (8th
Cir. 2003), as well as the Schermers' arguments on appeal, we conclude that dismissal
was proper for the very reasons stated in the district court's opinion, which expressly
adopts the report and recommendation of the magistrate judge. Friends of Lake View
Sch. Dist. Inc. No. 25 v. Beebe, 578 F.3d 753, 757-58 (8th Cir. 2009) ("We review de
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2
The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota.
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novo a district court's decision to grant a motion to dismiss."); Hillstrom v. Kenefick,
484 F.3d 519, 524 (8th Cir. 2007) (discussing judicial review of a decision to deny
benefits under an ERISA plan–whether for abuse of discretion or plenary).
Accordingly, we affirm. See 8th Cir. R. 47B.
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