Conway v. Benefis Health System, Inc. , 369 Mont. 309 ( 2013 )

March 19 2013
DA 12-0180
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 73SHANNON CONWAY,
Plaintiff and Appellee,
v.
BENEFIS HEALTH SYSTEM, INC.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDV-10-1132
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Leo S. Ward, David M. McLean, Daniel J. Auerbach, Christy S. McCann,
Browning, Kaleczyc, Berry & Hoven, P.C., Missoula, Montana
For Appellee:
Alexander (Zander) Blewett, III, Andrew (Drew) Blewett,
Hoyt & Blewett, Great Falls, Montana
For Amicus Curiae:
Ian McIntosh, Steven R. Milch, Kenneth K. Lay, Crowley Fleck PLLP,
Billings, Montana
Submitted on Briefs: January 23, 2013
Decided: March 19, 2013
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Benefis Health System, Inc. (Benefis) appeals several orders of the Eighth Judicial
District Court, Cascade County, issued in an individual and class action lawsuit filed
against Benefis by Shannon Conway (Conway). First, Benefis alleges that the District
Court improperly converted Conway’s motion for judgment on the pleadings into a
motion for summary judgment. Next, Benefis challenges the District Court’s grant of
summary judgment on Conway’s individual breach of contract claims. Lastly, Benefis
appeals from the District Court’s order certifying the matter as a class action. We affirm
the District Court’s conversion of the motion for judgment on the pleadings to a motion
for summary judgment and reverse the District Court’s order of summary judgment.
Based on our reversal of summary judgment, we do not reach the class certification issue.
We affirm in part and reverse in part.
ISSUES
¶2 Benefis raises the following three issues on appeal:
¶3 1. Did the District Court err in converting Conway’s motion for judgment on the
pleadings to a motion for summary judgment?
¶4 2. Did the District Court err in granting summary judgment to Conway?
¶5 3. Did the District Court err in granting Conway’s motion to certify the class?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On November 6, 2009, Conway was injured in an automobile accident and
received medical treatment at Benefis. Conway had healthcare coverage as a TRICARE
beneficiary and also had medical payments coverage through his automobile insurance
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carrier, Kemper. TRICARE is a Department of Defense healthcare benefits program that
is regionally administered by TriWest Healthcare Alliance (TriWest). TRICARE
provides benefits to members of the military and their families. TriWest employed Blue
Cross Blue Shield, Inc. (BCBS) as a network subcontractor to establish a provider
network. BCBS entered into a preferred provider agreement (PPA) with Benefis.
¶7 Conway’s medical treatment costs totaled $2,073.65. Benefis billed TriWest,
Kemper, and other insurers for this amount. Benefis received payment from TRICARE
on January 26, 2010. Benefis accepted $662.74 from TRICARE as payment in full
satisfaction of the bill. Benefis accepted this reduced amount pursuant to the PPA
between BCBS and Benefis, which provided in pertinent part as follows:
Provider agrees to treat TRICARE Beneficiaries according to the terms and
conditions of this Agreement and in accordance with all applicable laws,
rules and regulations pertaining to TRICARE including, but not limited to,
the TRICARE manuals and the Code of Federal Regulations (CFR).
Provider shall accept the Reimbursement Rates (less the amount of any
Copayments payable by the TRICARE Beneficiary) as the only payment
expected from TriWest and TRICARE Beneficiaries for Covered Services,
and for all services paid for by the TRICARE program. TRICARE
Beneficiaries are responsible only for Copayments. The Reimbursement
Rates shall apply to Active Duty and civilian claims, to enrollees and to
non-enrollees, and to all TRICARE Beneficiaries whose care is reimbursed
by the Department of Defense, regardless of their residence. In no event
will Provider be paid for such services more than the
TRICARE/CHAMPUS Maximum Allowable Charge (CMAC) or
applicable TRICARE DRG rate or what is permissible under Federal law or
TRICARE policy.
On February 4, 2010, Benefis received payment of $1,866.29 from Kemper. Upon
receiving payment from Kemper, Benefis reimbursed TRICARE’s payment in full. As is
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the case with Medicaid and Medicare programs, TRICARE functions as a secondary
payer.
¶8 On December 9, 2010, Conway filed his individual and class action complaint.
Conway claimed that he was entitled to the additional $1,203.55 that Benefis received
from Kemper over and above the TRICARE reimbursement rate. The complaint alleged
individual and class action claims against Benefis for breach of contract, breach of third
party beneficiary contract, and intentional interference with contractual relations. The
complaint also included individual claims of fraud and violation of Montana’s Consumer
Protection Act.
¶9 On January 14, 2011, Benefis filed a notice of removal of the action to the United
States District Court for the District of Montana, Great Falls Division, on the basis of
federal subject matter jurisdiction under 28 U.S.C. § 1441(b) and (c). On March 2, 2011,
the federal court determined that there was no basis for federal jurisdiction and granted
Conway’s motion to remand the case back to Montana’s Eighth Judicial District Court,
Cascade County.
¶10 On March 25, 2011, Conway filed a motion requesting that the District Court issue
an order certifying the matter as a class action pursuant to M. R. Civ. P. 23. Conway
asserted that Benefis has entered into multiple agreements with health insurers to accept
reduced payments for medical services, and that it then violates those contracts by
accepting payments in full from third party insurers. Conway sought certification of a
class to include “all persons who are Benefis patients and insureds and/or beneficiaries of
TRICARE, BCBSMT, or other health insurers and from whom Benefis has accepted
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payments in excess of the predetermined and previously agreed upon ‘reimbursement
rate.’ ” Benefis opposed Conway’s motion for an order certifying the class.
¶11 On April 25, 2011, Conway filed a motion for judgment on the pleadings pursuant
to M. R. Civ. P. 12(c). Conway asked the District Court to find that Benefis breached its
contract with TRICARE1 and that Benefis was liable for Conway’s damages caused by
the breach as a matter of law. Conway asserted that Benefis had admitted in its answer
each fact necessary to conclude that it had breached the contract. Benefis countered that
judgment on the pleadings was not appropriate because it had raised several affirmative
defenses and challenged many of Conway’s assertions that were central to his breach of
contract claim.
¶12 After the motion was fully briefed, the District Court issued an order on August
25, 2011. First, the District Court converted the Rule 12(c) motion into a M. R. Civ. P.
56 motion for summary judgment so that it could consider documents outside the
pleadings in reaching a decision. Specifically, the District Court considered the PPA,
which had been attached to Benefis’ response brief. The District Court reviewed the
language of the PPA and determined that Conway was an intended beneficiary of the
PPA. Next, the District Court granted summary judgment in favor of Conway and
concluded that Benefis breached the PPA by accepting more money for its services than
the maximum allowable charge.
1
No contract actually existed between Benefis and TRICARE. Conway intended to refer the
District Court to the PPA between Benefis and BCBS.
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¶13 On December 1, 2011, Benefis petitioned this Court for a writ of supervisory
control. Benefis sought review of the District Court’s conversion of the motion for
judgment on the pleadings to a motion for summary judgment and the District Court’s
grant of partial summary judgment in favor of Conway on his individual breach of
contract claims. We denied Benefis’ petition for supervisory control on January 18,
2012, concluding that Benefis failed to establish urgency or emergency factors that would
render the normal appeal process inadequate.
¶14 The District Court held oral argument on Conway’s motion to certify the class on
November 16, 2011. The District Court awaited this Court’s decision on Benefis’
petition for a writ of supervisory control before issuing its order on class certification.
On March 7, 2012, the District Court issued an order granting Conway’s motion to certify
the class. The District Court determined that Conway satisfied the four prerequisites set
forth in Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of
representation. Next, the District Court concluded that class certification was appropriate
under Rule 23(b)(3) because it was “clearly desirable to concentrate the litigation of the
claims in this forum and the difficulties of managing the litigation are comparatively
minor.” Since the fundamental issue in the litigation involved recovery of the excess
payments collected by Benefis, the District Court reasoned that once all the data was
collected, the matter could be resolved by mathematical calculation.
¶15 On May 4, 2012, the District Court entered final judgment on the conversion of
the motion for judgment on the pleadings to a motion for summary judgment, the entry of
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summary judgment on Conway’s individual breach of contract claims, and the
certification of the class. Benefis appeals.
STANDARDS OF REVIEW
¶16 Since a motion for judgment on the pleadings is decided as a matter of law, we
review a district court’s decision for correctness. Ritter v. Bill Barrett Corp., 2009 MT
210, ¶ 10, 351 Mont. 278, 210 P.3d 688; Nelson v. Barlow, 2008 MT 68, ¶ 9, 342 Mont.
93, 179 P.3d 529.
¶17 We review a district court’s ruling on a motion for summary judgment de novo,
applying the same criteria of M. R. Civ. P. 56 as did the district court. Reichert v. State,
2012 MT 111, ¶ 18, 365 Mont. 92, 278 P.3d 455; Shattuck v. Kalispell Reg’l Med. Ctr.,
2011 MT 229, ¶ 8, 362 Mont. 100, 261 P.3d 1021. Summary judgment “should be
rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).
¶18 We review a district court’s decision on a motion for class certification for an
abuse of discretion. LaMere v. Farmers Ins. Exch., 2011 MT 272, ¶ 14, 362 Mont. 379,
265 P.3d 617; Hop v. Safeco Ins. Co., 2011 MT 215, ¶ 9, 361 Mont. 510, 261 P.3d 981.
DISCUSSION
¶19 Did the District Court err in converting Conway’s motion for judgment on the
pleadings to a motion for summary judgment?
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¶20 Conway’s motion for a judgment on the pleadings, and the District Court’s
subsequent conversion of the motion to a motion for summary judgment, is governed by
M. R. Civ. P. 12(c) and (d), which provide as follows:
(c) Motion for Judgment on the Pleadings. After the pleadings are
closed -- but early enough not to delay trial -- a party may move for
judgment on the pleadings.
(d) Result of Presenting Matters outside the Pleadings. If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the
motion.
A party moving for judgment on the pleadings pursuant to Rule 12(c) must establish that
no issues of fact exist and that it is entitled to judgment as a matter of law. Curtis v.
Citibank, 2011 MT 247, ¶ 6, 362 Mont. 211, 261 P.3d 1059; Ritter, ¶ 10. A court must
assume that all of the well-pleaded factual allegations in the nonmovant’s pleadings are
true and that all contravening assertions in the movant’s pleadings are false when
evaluating a Rule 12(c) motion. Curtis, ¶ 6; Firelight Meadows, LLC v. 3 Rivers
Telephone Coop., Inc., 2008 MT 202, ¶ 11, 344 Mont. 117, 186 P.3d 869. A motion for
judgment on the pleadings is appropriate in situations where all material allegations of
fact are admitted or not controverted in the pleadings, and only questions of law remain
to be decided by the court. Curtis, ¶ 6; Firelight Meadows, ¶ 10.
¶21 This Court has previously held that Rule 12(c) requires only that a party be given a
“reasonable opportunity” to present material pertinent to a motion for summary
judgment. See Rafanelli v. Dale, 1998 MT 331, ¶ 22, 292 Mont. 277, 971 P.2d 371;
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Bretz v. Ayers, 232 Mont. 132, 136, 756 P.2d 1115, 1118 (1988). A litigant has a
“reasonable opportunity” if he is “fairly apprised” that the court may consider other
documents and treat the motion for judgment on the pleadings as a motion for summary
judgment. Rafanelli, ¶ 22; Bretz, 232 Mont. at 136, 756 P.2d at 1118.
¶22 In Rafanelli, the non-moving party responded to a motion for judgment on the
pleadings by requesting that the district court take judicial notice of the pleadings from an
earlier case. Rafanelli, ¶ 20. The district court took judicial notice of the earlier case and
converted the motion to a motion for summary judgment because it had considered
matters outside the pleadings. Rafanelli, ¶ 20. The non-moving party argued that the
district court erred in converting the motion because it did not provide him with a
reasonable opportunity to present other pertinent materials and he had no notice of what
matters the district court would rely on in reaching its decision. Rafanelli, ¶ 21. We held
that the district court did not err because the non-moving party who was challenging the
conversion of the motion was the same party that had requested that the court consider
matters outside the pleadings. Rafanelli, ¶ 23.
¶23 In Bretz, we upheld a district court’s conversion of a M. R. Civ. P. 12(b)(6)2
motion to dismiss to a motion for summary judgment under circumstances similar to
those in the instant case. Bretz attached eleven documents to his response brief opposing
2
M. R. Civ. P. 12(b)(6) (1987) was analogous to Rule 12(c). It was governed by the following
similar provision: “If, on a motion asserting the defense numbered (6) to dismiss for failure of
the pleading to state a claim upon which relief can be granted, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such motion by Rule 56.”
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the motion to dismiss and referred to the contents of those documents throughout his
brief. Bretz, 232 Mont. at 135, 756 P.2d at 1117. Since Bretz himself had introduced the
additional documents and invited the district court to consider them, we determined that
he was fairly apprised that the court could treat the motion as a motion for summary
judgment, and he had a reasonable opportunity to present pertinent material to the court.
Bretz, 232 Mont. at 136, 756 P.2d at 1118.
¶24 Here, Conway filed the motion for judgment on the pleadings. Benefis attached
the PPA to its response brief in opposition to the motion. Benefis specifically requested
that the District Court base its decision on the language and contents of the PPA. Benefis
stated in its brief that the District Court “must examine the contract which forms the basis
of Plaintiff’s breach of contract claim in its entirety prior to considering the merits of
Plaintiff’s breach of contract claim, so that contract is attached to this Response as
Exhibit 1.” Relying on Rafanelli and Bretz, we will not allow Benefis to attach
documents outside the pleadings and encourage the District Court to consider those
documents, and then later claim that it was not “fairly apprised” that the District Court
would be required to convert the motion for a judgment on the pleadings to a motion for
summary judgment.
¶25 Benefis argues that Firelight Meadows controls the outcome of this case because
the PPA was a part of the pleadings. In Firelight Meadows, the plaintiff attached a
contract to its complaint. Firelight Meadows, ¶ 5. The defendant filed an answer and
later filed a motion for judgment on the pleadings. Firelight Meadows, ¶ 6. The district
court granted the defendant’s motion, and the plaintiff appealed contending that the
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district court failed to provide it with notice and an opportunity to present additional
materials. Firelight Meadows, ¶¶ 7-8. This Court held that the district court did not
improperly consider matters outside the pleadings because the agreement attached to the
complaint was a part of the pleadings pursuant to M. R. Civ. P. 10(c), which provides as
follows:
Adoption by Reference; Exhibits. A statement in a pleading may
be adopted by reference elsewhere in the same pleading or in any other
pleading or motion. A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes.
Firelight Meadows, ¶ 15. Since the agreement was appended to and referenced in the
plaintiff’s complaint, it constituted part of the pleadings. Firelight Meadows, ¶ 15.
¶26 Unlike Firelight Meadows, the PPA was not attached to any of the parties’
pleadings. Instead, the PPA was attached as an exhibit to Benefis’ response brief to
Conway’s motion for judgment on the pleadings. Rule 10(c) incorporates into the
pleadings “a written instrument that is an exhibit to a pleading.” M. R. Civ. P. 10(c)
(emphasis added). Here, since the PPA was not attached as an exhibit to a pleading, Rule
10(c) is inapplicable and our holding in Firelight Meadows is not controlling.
¶27 Our review of the record also demonstrates that during a July 20, 2011 hearing on
a separate motion, the District Court asked counsel for both parties if they desired a
hearing on any pending motions, including Conway’s motion for judgment on the
pleadings. Benefis represented to the District Court that all of the pending motions could
be determined on the briefs. At this point in the litigation, Benefis had already received
Conway’s reply brief on the motion for judgment on the pleadings, in which he asserted
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that Benefis’ attachment of the PPA effectively converted the motion to a motion for
summary judgment. Benefis opted to forego oral argument and registered no objection to
Conway’s assertion that the matter had been converted to a summary judgment
determination. Under these circumstances, Benefis cannot claim that it was unaware that
the District Court might convert the motion to a motion for summary judgment, nor can it
claim that it had no reasonable opportunity to present additional pertinent material.
¶28 Accordingly, we hold that the District Court did not err in converting Conway’s
Rule 12(c) motion for judgment on the pleadings into a motion for summary judgment.
¶29 Did the District Court err in granting summary judgment to Conway?
¶30 After the District Court converted Conway’s motion for judgment on the pleading
into a motion for summary judgment, it granted summary judgment in favor of Conway
on his individual breach of contract claims. First, the District Court determined that
Conway was an intended third party beneficiary of the PPA. Second, the District Court
concluded that Benefis breached the PPA by accepting payment from Kemper in excess
of the TRICARE reimbursement rate. Benefis maintains that Conway is not a third party
beneficiary, did not suffer any damages, and lacks standing to bring his claims.
Furthermore, Benefis asserts that it was entitled to accept payments from Kemper in
excess of the TRICARE reimbursement rate.
¶31 We begin our analysis of Conway’s breach of contract claims with an examination
of the pertinent language of the PPA. Again, the PPA provides as follows:
Provider agrees to treat TRICARE Beneficiaries according to the terms and
conditions of this Agreement and in accordance with all applicable laws,
rules and regulations pertaining to TRICARE including, but not limited to,
12
the TRICARE manuals and the Code of Federal Regulations (CFR).
Provider shall accept the Reimbursement Rates (less the amount of any
Copayments payable by the TRICARE Beneficiary) as the only payment
expected from TriWest and TRICARE Beneficiaries for Covered Services,
and for all services paid for by the TRICARE program. TRICARE
Beneficiaries are responsible only for Copayments. The Reimbursement
Rates shall apply to Active Duty and civilian claims, to enrollees and to
non-enrollees, and to all TRICARE Beneficiaries whose care is reimbursed
by the Department of Defense, regardless of their residence. In no event
will Provider be paid for such services more than the
TRICARE/CHAMPUS Maximum Allowable Charge (CMAC) or
applicable TRICARE DRG rate or what is permissible under Federal law or
TRICARE policy.
The PPA governs payments made by TRICARE to Benefis for “Covered Services.” The
PPA defines “Covered Services” as: “Services, items and supplies for which benefits are
available to TRICARE Beneficiaries in accordance with the rules, regulations, policies
and instructions of TRICARE Management Activity.”
¶32 Benefis and amicus curiae argue that the medical services Conway received were
not “Covered Services” as defined in the PPA. As noted by the District Court, federal
regulations mandate that TRICARE functions as a secondary payer. 32 C.F.R.
§ 199.8(a). In situations where the medical treatment at issue is necessitated as a result of
the negligence of an insured third party, any payment originally made by TRICARE must
be reimbursed. See 32 C.F.R. § 199.8(a), (b)(3). No TRICARE benefits are available to
a TRICARE beneficiary where there is third party insurance available to pay the
expenses of medical treatment. It is only where there is no such available third party
coverage that the services become “Covered Services” under the PPA. While Benefis is
required under the PPA to accept the TRICARE rates for “Covered Services,” nothing in
the PPA prohibits Benefis from accepting a greater amount from the responsible insurer,
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in this case Kemper. Kemper is a stranger to the PPA. As such, the rates at which
Kemper reimburses Benefis are not dictated by the PPA.
¶33 Central to Conway’s breach of contract claims is his assertion that he is owed the
difference between the $1,866.29 Benefis accepted from Kemper and the $662.74 paid by
TRICARE pursuant to the PPA. Conway contends that he was entitled to recover this
$1,203.55 as damages. However, the nature of medical payments coverage and the facts
of this case do not support Conway’s assertions that he is entitled to recover the alleged
damages.
¶34 This Court’s decision in Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT
156, 343 Mont. 279, 184 P.3d 1021, is instructive. In Newbury, the plaintiff was a
snowplow driver who was injured while attempting to assist a driver stuck in a ditch.
Newbury, ¶ 7. The plaintiff incurred medical expenses totaling $18,405. Newbury, ¶ 8.
The plaintiff filed a workers’ compensation claim and the State Fund paid all but $1,175
of his medical expenses. Newbury, ¶ 8. The plaintiff submitted a claim to his automobile
insurance provider, State Farm, requesting payment of the full $10,000 medical payment
coverage limits. Newbury, ¶ 10. State Farm paid the remaining medical expenses of
$1,175. Newbury, ¶ 10. The plaintiff filed suit against State Farm, seeking additional
payment under his medical payment coverage, even though his medical bills had been
fully paid. Newbury, ¶ 11. We determined that “while it was reasonable for Newbury to
expect that his State Farm policies would pay his medical expenses (up to the policy
limits of $ 10,000.00) once the State Fund had paid all it was required to pay, it was not
reasonable for Newbury to expect to receive funds in excess of his medical expenses.”
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Newbury, ¶ 38. This Court recognized that medical payment benefits are payable only
for medical expenses, and the undisputed facts demonstrated that the plaintiff received
full payment of his medical expenses and owed nothing more to his healthcare providers.
Newbury, ¶ 39. We ultimately upheld State Farm’s refusal to pay more than the medical
expenses actually incurred because a windfall would result if the plaintiff were to receive
additional money under his medical payments coverage in excess of his total medical
expenses. Newbury, ¶ 47.
¶35 Here, the record shows that Benefis accepted Kemper’s payment of $1,866.29 as
payment in full for the actual cost of Conway’s medical treatment that resulted from the
accident. Conway does not owe Benefis any remaining amount. Even though all of
Conway’s medical expenses have been paid, he still seeks to pocket $1,203.55 in medical
payments coverage benefits, representing the difference between Kemper’s payment to
Benefis and the TRICARE reimbursement rate. We disagree. Conway is no more
entitled to pocket excess medical payments here than he would be under the
circumstances in Newbury, or any other situation in which all of his medical expenses are
paid by his insurer under its medical payments coverage. Although the circumstances of
this case are somewhat complicated by the PPA situation, this does not alter the basic
premise that medical payments coverage is for the payment of medical expenses only; it
does not provide for the payment of additional or excess sums to the insured. The
District Court’s order of summary judgment wrongly endorses the type of windfall
recovery expressly disapproved in Newbury.
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¶36 Conway claims and the District Court concluded that Conway was an intended
beneficiary of the PPA. In light of our resolution here on alternate grounds, we need not
address the correctness of this ruling. However, even if we were to consider Conway an
intended beneficiary of the PPA, he still could establish no entitlement to damages from
Benefis.
¶37 In determining damages for a breach of contract action, Montana law provides:
Breach of contract. For the breach of an obligation arising from
contract, the measure of damages, except when otherwise expressly
provided by this code, is the amount which will compensate the party
aggrieved for all the detriment which was proximately caused thereby or in
the ordinary course of things would be likely to result therefrom. Damages
which are not clearly ascertainable in both their nature and origin cannot be
recovered for a breach of contract.
Section 27-1-311, MCA. Furthermore, “[a] person may not recover a greater amount in
damages for the breach of an obligation than the person could have gained by the full
performance of the obligation on both sides unless a greater recovery is specified by
statute.” Section 27-1-303, MCA. Pursuant to these statutes governing the measure of
damages for breach of contract actions, the undisputed facts reveal that Conway suffered
no loss or harm due to Benefis’ actions. Regardless of the difference between what
Kemper paid and what Benefis was contractually entitled to accept, the record shows that
Conway’s medical bills were paid in full and he was not personally entitled to receive
any additional payments directly from Kemper under his medical payments coverage.
This being so, he cannot by extension establish that Benefis must pay to him the money
Kemper paid to it for medical expenses. Benefis simply has not proximately caused any
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damages to Conway. Therefore, Conway has failed to demonstrate that he suffered a
compensable injury as a result of Benefis’ purported breach of contract.
¶38 In light of our conclusions that Conway is not entitled to pocket the difference
between the TRICARE reimbursement rate and the amount Benefis accepted from
Kemper, and that Conway has failed to establish any damages that resulted from the
alleged breach, the District Court’s grant of summary judgment was improper. We
therefore hold that the District Court erred in granting summary judgment to Conway.
Notably, we do not address here whether and under what circumstances Benefis is
entitled to retain the full payment for medical expenses in those situations where PPAs
are in play, as that is not the issue before us. We determine only that Conway is not
entitled to recover these sums.
¶39 Based on our resolution of this issue, it is unnecessary to reach the District Court’s
grant of Conway’s motion to certify the class. The District Court’s decision to certify the
matter as a class action was premised on its conclusion that Conway was entitled to
judgment as a matter of law on his breach of contract claims, and could therefore
represent others with similar claims.
CONCLUSION
¶40 For the foregoing reasons, we affirm the District Court’s conversion of Conway’s
motion for judgment on the pleadings to a motion for summary judgment, but reverse the
District Court’s grant of summary judgment in favor of Conway.
/S/ PATRICIA COTTER
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We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE
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