Unitedhealthcare Insurance Company Unitedhealthcare of Texas, Inc. v. Acs Primary Care Physicians Southwest, P.A. Hill County Emergency Medical Associates, P.A. Longhorn Emergency Medical Associates, P.A. Central Texas Emergency Associates, P.A. Emergency Associates of Central Texas, P.A. Emergency Services of Texas, P.A. ( 2023 )

Supreme Court of Texas
══════════
No. 21-0291
══════════
Texas Medicine Resources, LLP; Texas Physician
Resources, LLP; and Pediatric Emergency Medicine Group, LLP,
Petitioners,
v.
Molina Healthcare of Texas, Inc.,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════
~ consolidated for oral argument with ~
══════════
No. 22-0138
══════════
UnitedHealthcare Insurance Company;
UnitedHealthcare of Texas, Inc.,
Appellants,
v.
ACS Primary Care Physicians Southwest, P.A.; Hill County
Emergency Medical Associates, P.A.; Longhorn Emergency
Medical Associates, P.A.; Central Texas Emergency
Associates, P.A.; Emergency Associates of Central Texas, P.A.;
Emergency Services of Texas, P.A.,
Appellees
═══════════════════════════════════════
On Certified Question from the
United States Court of Appeals for the Fifth Circuit
═══════════════════════════════════════
Argued September 20, 2022
CHIEF JUSTICE HECHT delivered the opinion of the Court.
Three sections of the Texas Insurance Code we refer to as the
Emergency Care Statutes require a health-insurance company to pay a
non-network physician for emergency care rendered to the company’s
insureds “at the usual and customary rate”. 1 Recent amendments to
1 TEX. INS. CODE §§ 1271.155(a), 1301.0053(a), 1301.155(b).
2
Chapter 1467 of the Code provide a mandatory arbitration process for
resolving payment disputes accruing on or after January 1, 2020. 2 Two
cases before us present the question whether the Code authorizes a
private cause of action by a physician against an insurer for payment of
claims that accrued prior to 2020. The answer is no. We also hold that
the physician–plaintiffs’ claims for recovery in quantum meruit and for
unfair settlement practices 3 fail as a matter of law.
In No. 21-0291, Texas Medicine Resources, LLP v. Molina
Healthcare of Texas, Inc., we affirm the judgment of the court of appeals.
In No. 22-0138, UnitedHealthcare Insurance Co. v. ACS Primary Care
Physicians Southwest, P.A., we answer the certified question no.
I
Unlike other medical specialists, emergency-medicine doctors are
required by law and ethics to provide emergency care to any patient
regardless of the patient’s insurance status or ability to pay. In each of
the cases before us, groups of emergency-medicine doctors outside an
insurer’s provider network sued the insurer, alleging that it did not pay
them at the usual and customary rates for treating its insureds. 4
A
Section 1271.155(a) of the Insurance Code states that “[a] health
maintenance organization shall pay for emergency care performed by
2Act of May 24, 2019, 86th Leg., R.S., ch. 1342, § 2.15, 2019 Tex. Gen.
Laws 3940, 3958-3960 (SB 1264) (codified at TEX. INS. CODE §§ 1467.081-
1467.089).
3 See TEX. INS. CODE § 541.060(a)(2)(A).
4 We refer to the plaintiffs as the Doctors.
3
non-network physicians or providers at the usual and customary rate or
at an agreed rate.” 5 Subsection (e) provides that an HMO “shall comply”
with (a) “regardless of whether the physician or provider furnishing the
emergency care has a contractual or other arrangement” with the
insurer. 6 Other sections of the Code address the same directive to
insurers that offer exclusive provider benefit plans, or EPOs, 7 and to
those that offer preferred provider benefit plans, or PPOs. 8 In the
underlying lawsuits, the Doctors allege that the defendants underpaid
them for emergency care provided to thousands of the defendants’
insureds and assert claims for damages under the Emergency Care
Statutes. All claims asserted by the Doctors are for care provided before
January 1, 2020.
B
Enacted in 2009, Chapter 1467 of the Insurance Code is titled
5 TEX. INS. CODE § 1271.155(a).
6 Id. § 1271.155(e).
7 See id. § 1301.0053(a) (“If an out-of-network provider provides
emergency care . . . to an enrollee in an exclusive provider benefit plan, the
issuer of the plan shall reimburse the out-of-network provider at the usual and
customary rate or at a rate agreed to by the issuer and the out-of-network
provider for the provision of the services and any supply related to those
services.”); see also id. § 1301.001(1) (defining “[e]xclusive provider benefit
plan”).
8 See id. § 1301.155(b) (“If an insured cannot reasonably reach a
preferred provider, an insurer shall provide reimbursement for . . . emergency
care services at the usual and customary rate or at an agreed rate and at the
preferred level of benefits . . . .”); see also id. § 1301.001(9) (defining
“[p]referred provider benefit plan”).
4
Out-of-Network Claim Dispute Resolution. 9 But for the first ten years of
its existence, the chapter’s scope was quite limited. The only dispute-
resolution process set forth in it was a mediation for balance-billing
disputes between an individual enrolled in one of a few enumerated
types of plans and the out-of-network provider that billed the
individual. 10 The original version of Chapter 1467 did not address
disputes between providers and insurers at all.
Yet from the beginning, Chapter 1467 has included a standard
remedies-not-exclusive provision in Section 1467.004. The original
language is still in effect:
§ 1467.004. Remedies Not Exclusive
The remedies provided by this chapter are in addition to
any other defense, remedy, or procedure provided by law,
including the common law. 11
In 2019, the Legislature added Subchapter B-1, which includes a
mandatory binding arbitration process for disputes between an insurer
and an out-of-network emergency-care physician over the amount the
insurer must pay the physician for care rendered to an individual
enrolled in the insurer’s plan. 12 These new provisions:
• explain how the provider or insurance company requests
9Act of May 27, 2009, 81st Leg., R.S., ch. 1290, § 1, 2009 Tex. Gen. Laws
4072, 4072-4078 (HB 2256) (enacting TEX. INS. CODE ch. 1467).
10Compare id. § 1, 2009 Tex. Gen. Laws at 4072-4073, with Act of May
24, 2019, supra note 2.
11Compare Act of May 27, 2009, supra note 9, 2009 Tex. Gen. Laws at
4073, with TEX. INS. CODE § 1467.004 (current version).
12 Act of May 24, 2019, supra note 2.
5
arbitration 13 and how the arbitrator will be selected; 14
• limit the scope of arbitration to “the reasonable amount” owed the
provider for the services rendered; 15
• list ten categories of technical information that the arbitrator
must consider in calculating the reasonable payment amount; 16
• provide for procedures; 17 and
• authorize a suit for judicial review in which the arbitrator’s
decision is reviewed by the court without a jury under the
substantial evidence standard. 18
New Section 1467.085(a) reinforces the mandatory nature of the
arbitration process by clarifying that notwithstanding the remedies-not-
exclusive provision in Section 1467.004, an out-of-network provider
cannot file suit until the arbitration is completed:
§ 1467.085 Effect of Arbitration and Applicability of
Other Law
(a) Notwithstanding Section 1467.004, an out-of-network
provider or health benefit plan issuer or administrator
may not file suit for an out-of-network claim subject to
this chapter until the conclusion of the arbitration on
the issue of the amount to be paid in the out-of-network
claim dispute. 19
The arbitration process applies only to healthcare services
13 TEX. INS. CODE § 1467.084.
14 Id. § 1467.086.
15 Id. § 1467.083(a).
16 Id. § 1467.083(b).
17 Id. §§ 1467.087-1467.088.
18 Id. § 1467.089(b)-(c).
19 Id. § 1467.085(a).
6
rendered on or after January 1, 2020. 20 All parties agree that it does not
apply to the Doctors’ claims here because the claims are for services
rendered before January 1, 2020. They also agree that the new
arbitration process would apply to the Doctors’ claims if they were for
services rendered on or after that date.
C
The two cases before us arrived by different paths.
1
In Molina, the Doctors 21 sued Molina Healthcare of Texas, Inc.,
an HMO, in state district court. The Doctors allege that they provided
emergency care to more than 3,800 of Molina’s insureds between
January 1, 2017, and the end of 2019 and that “on average, Molina has
reimbursed less than 15% of [the Doctors’] usual and customary
charges.” The Doctors allege two sets of claims under the Insurance
Code: (1) claims under Sections 1271.155 and 1301.0053, for failing to
pay the Doctors’ usual and customary rates; and (2) claims under
Section 541.060, for engaging in unfair settlement practices. 22 They also
allege a common law claim for quantum meruit. They seek damages,
including statutory penalties, and “a declaration that the rate that the
20 Act of May 24, 2019, supra note 2, § 5.01, 2019 Tex. Gen. Laws at
3963.
The Doctors in Molina are Texas Medicine Resources, LLP; Texas
21
Physician Resources, LLP; and Pediatric Emergency Medicine Group, LLP.
22In Molina, the Doctors also brought claims for recovery of “prompt
pay” penalties. See TEX. INS. CODE § 843.342 (imposing penalties for an HMO’s
failure to pay a “clean claim” within prescribed periods of time); see also id.
§ 843.336 (defining clean claim). Molina has not appealed the dismissal of
those claims to this Court.
7
jury determines to be the usual and customary rate for the past
healthcare claims asserted . . . [will be] the usual and customary rate
that Molina [will be] required to pay” to the Doctors for emergency care
rendered in the future.
Molina removed the case to federal court, but it was remanded.
Molina then filed a plea to the jurisdiction. Though Molina phrased its
arguments in terms of standing and justiciability, the thrust of its plea
was that the Emergency Care Statutes do not create a private right of
action and that the Doctors’ other claims also fail as a matter of law.
After a hearing, the trial court granted the plea and dismissed all the
Doctors’ claims. The court of appeals affirmed. 23
2
In UnitedHealthcare, the Doctors 24 sued UnitedHealthcare
Insurance Company, which provides PPOs and other plans, and
UnitedHealthcare of Texas, Inc., an HMO, in state district court
initially. They assert a claim for thousands of violations of the
Emergency Care Statutes arising out of care rendered from January
2016 through the end of 2019. The Doctors in this case also assert a
quantum meruit claim and a claim for breach of an implied contract.
UnitedHealthcare removed the case to federal court and then
moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) for
23 620 S.W.3d 458 (Tex. App.—Dallas 2021).
24 The Doctors in UnitedHealthcare are ACS Primary Care Physicians
Southwest, P.A.; Hill County Emergency Medical Associates, P.A.; Longhorn
Emergency Medical Associates, P.A.; Central Texas Emergency Associates,
P.A.; Emergency Associates of Central Texas, P.A.; and Emergency Services of
Texas, P.A.
8
“failure to state a claim upon which relief can be granted”. 25 The district
court granted the motion with respect to the Doctors’ implied-contract
and quantum meruit claims. 26 With respect to the claims under the
Emergency Care Statutes, the court also dismissed the claims under the
PPO statute, Section 1301.155(b), because it had determined in earlier
proceedings on the Doctors’ motion to remand that the PPO claims were
completely preempted by ERISA. 27 The court denied the motion with
respect to the other Emergency Care Statute claims. 28 The district court
then granted UnitedHealthcare’s motion for a permissive interlocutory
appeal under 28 U.S.C. § 1292(b) of the issues arising under the
Emergency Care Statutes. 29
On the Doctors’ motion, the U.S. Court of Appeals for the Fifth
Circuit certified the following question to this Court:
Do §§ 1271.155(a), 1301.0053(a), and 1301.155(b) of the
Texas Insurance Code authorize Plaintiff Doctors to bring
a private cause of action against UHC for UHC’s failure to
reimburse Plaintiff Doctors for out-of-network emergency
25 FED. R. CIV. P. 12(b)(6).
26ACS Primary Care Physicians Sw., P.A. v. UnitedHealthcare Ins. Co.,
514 F. Supp. 3d 927, 934-935, 942 (S.D. Tex. 2021).
27 Id. at 931, 942.
28 Id. at 939, 942.
29Under that section, “[w]hen a district judge . . . [is] of the opinion that
[an] order [not otherwise appealable] involves a controlling question of law as
to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation,” the judge may authorize a permissive
interlocutory appeal of the question. 28 U.S.C. § 1292(b). The court of appeals
may then, “in its discretion,” permit the appeal. Id.9
care at a “usual and customary” rate? 30
No other issue raised in this case is before us.
3
We granted Molina’s petition for review and accepted the certified
question. Because each case presents the same question under the
Emergency Care Statutes, and the Doctors are represented by the same
counsel in each case, we consolidated the cases for oral argument.
II
The first and main issue—raised in both cases—is whether the
Insurance Code authorizes a private action by an emergency-medicine
physician against an insurer for payment of the usual and customary
rate for services rendered before 2020 to the insurer’s enrollees. Because
the Emergency Care Statutes are worded similarly, and no party argues
that our answer might be different for one provision than another, our
analysis will focus on Section 1271.155. As we have noted, it states that
an HMO “shall pay for emergency care performed by non-network
physicians or providers at the usual and customary rate”. 31 The Doctors
argue that when this language is viewed in the context of our caselaw
and the 2019 amendments to Chapter 1467, the Code can be fairly read
to authorize their claims. We disagree.
A
Our starting point is Brown v. De La Cruz, which provides the
controlling legal standard: the existence of a private cause of action must
30 ACS Primary Care Physicians Sw., P.A. v. UnitedHealthcare Ins. Co.,
26 F.4th 716, 720 (5th Cir. 2022).
31 TEX. INS. CODE § 1271.155(a).
10
be clearly implied in the statutory text. 32
1
Like this case, Brown involved a statute that was amended after
the plaintiff’s claim accrued. What was then Section 5.102 of the
Property Code (now Section 5.079) requires certain sellers of residential
real estate to transfer a deed to the buyer within 30 days of purchase.
From 1995 to 2000, subsection (b) provided that the seller’s failure to
comply was “subject to a penalty” of up to $500 a day, but the statute
was silent on who was entitled to collect the penalty. 33 In 2001, (b) was
amended to provide that a seller who violates (a) “is liable to the
purchaser for . . . liquidated damages” of $250 a day up to the 90th day
and $500 a day after that, plus “reasonable attorney’s fees.” 34 The Court
acknowledged that “[t]he 2001 amendment clearly provide[d] a private
cause of action for purchasers”. 35 But only the pre-2001 statute was at
issue in the case, and the Court concluded that it did not authorize a
private cause of action. 36
“When a private cause of action is alleged to derive from a
constitutional or statutory provision, our duty is to ascertain the
drafters’ intent.” 37 To do that, we look to “the language of the specific
32 156 S.W.3d 560, 563 (Tex. 2004).
33 Id.34 Id. at 564-565 (quoting TEX. PROP. CODE § 5.079(b)).
35 Id. at 562.
36 Id.
37Id. at 563 (citing Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 77 S.W.3d 253, 260 (Tex. 2002)).
11
provisions involved” and determine whether they “clearly impl[y]” a
private cause of action. 38 In Brown, we said “the answer . . . must be
found in the language of section 5.102.” 39 Further, “[w]ithout some
indication in [that section] that [the] penalty belongs to [the buyer]”, we
did “not believe [that] he ha[d] brought himself so clearly within the
statute’s terms as to justify implying a private cause of action.” 40
Other passages in Brown make clear that the bar for implying a
private cause of action is high. We noted there that the court of appeals
had “felt compelled to imply a private cause of action” because it could
not find authority for the Attorney General to enforce Section 5.102, and
the court “fear[ed] that otherwise the provision would go unenforced.” 41
Indeed, the Office of the Attorney General filed an amicus brief in this
Court acknowledging that it had never filed an action for penalties
under Section 5.102(b). 42 Nonetheless, we said that “even if future
events [were to] prove that section 5.102 is unenforceable by any public
official, attorney, or agency, we [did] not believe that alone would justify
an implied private cause of action”. 43 That is because legislative silence
cannot override a lack of clear authorization in the text. “[L]egislative
silence . . . [can] reflect many things, including . . . lack of consensus,
38 Id. (citing City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-149
(Tex. 1995)).
39 Id.40 Id. at 564 (emphasis added).
41 Id. at 565-566.
42 Id. at 566.
43 Id.
12
oversight, or mistake” and “does not give us the power” to legislate from
the bench. 44
Furthermore, we outright rejected a “rule of necessary
implication” that had been adopted by some courts of appeals. 45 Under
that rule, “when a legislative enforcement scheme fails to adequately
protect intended beneficiaries, the courts must imply a private cause of
action to effectuate the statutory purposes.” 46 Instead, we expressly
approved “a contradictory rule”, in which “causes of action may be
implied only when a legislative intent to do so appears in the statute as
written.” 47 That rule, we observed, is consistent with modern federal
law. 48 We proclaimed that “[t]o the extent there has been confusion
about the Texas rule, we too disapprove of the former [rule of necessary
implication] in favor of the latter [textual-mandate rule].” 49
We closed the opinion by recalling that “[t]he very balance of state
governmental power imposed by the framers of the Texas Constitution
depends on each branch, and particularly the judiciary, operating within
its jurisdictional bounds.” 50 “By implying a private cause of action in a
44 Id.
45 Id. at 567 (internal quotation marks omitted).
46 Id. & n.40 (collecting cases).
47 Id.
48 See id. & n.42 (collecting cases).
49Id.; see also id. at 566 (cautioning against a statutory approach
centered on the statute’s underlying purpose, which “will usually be less
helpful when the issue is not whether a wrong should be addressed but
whether private parties are entitled to do so”).
50 Id. at 569 (quoting State v. Morales, 869 S.W.2d 941, 949 (Tex. 1994)).
13
statute that did not provide for one,” we wrote, “the court of appeals
[had] exceeded those bounds.” 51
2
Our analysis in Brown cited to City of Beaumont v. Bouillion. 52
The plaintiffs in Bouillion were former police officers who alleged that
they were constructively discharged after publicly challenging the
qualifications of the new police chief. One issue before us was whether
we should recognize an implied cause of action for damages for the
violation of the free speech 53 and assembly 54 clauses of the Texas
Constitution. We failed to find “any textual basis” for a damages
action, 55 especially since the Bill of Rights expressly provides for an
equitable action to declare a law void. 56 We also failed to find any
“historical basis to create the remedy sought” because there was “no
authority” indicating “that at the time the Constitution was written, it
was intended to provide an implied private right of action for damages
51 Id.52 896 S.W.2d 143 (Tex. 1995).
53 “Every person shall be at liberty to speak, write or publish his
opinions on any subject . . . .” TEX. CONST. art. I, § 8.
54“The citizens shall have the right, in a peaceable manner, to assemble
together for their common good; and apply to those invested with the powers
of government for redress of grievances or other purposes, by petition, address
or remonstrance.” Id. art. I, § 27.
55 Bouillion, 896 S.W.2d at 149.
56 See id. at 148-149 (discussing TEX. CONST. art. I, § 29 (“[W]e declare
that every thing in this ‘Bill of Rights’ is excepted out of the general powers of
government, and shall forever remain inviolate, and all laws contrary thereto,
or to the following provisions, shall be void.”)).
14
for the violation of constitutional rights.” 57
The officers pointed to the takings clause “as evidence that [we
had] approved actions for damages arising under the Constitution
before.” 58 We explained that “[t]heir reliance on that section [was]
misplaced” because:
Section 17 provides that no person’s property shall be
taken, damaged or destroyed or applied to public use
without adequate compensation. The converse of the
provision is that if property is taken, the owner is entitled
to adequate payment. Section 17 provides a textual
entitlement to compensation in its limited context. 59
Later, in Brown, we cited Bouillion to exemplify our fidelity, when
construing statutory or constitutional text, to “ascertain[ing] the
drafters’ intent” and also for the rule that the Texas Constitution or a
statute will be construed to “create[] a private action for damages only
if the language of the specific provisions involved clearly impl[y] one.” 60
To illustrate that rule, we contrasted the language of the takings clause
prohibiting takings “without adequate compensation” with the language
in Article I, Section 29 declaring that any law in violation of the free
speech or assembly clauses “shall be void.” 61
3
The Doctors cast aside most of Brown by characterizing Section
57 Id. at 148.
58 Id. at 149.
59 Id. (emphasis added) (citation omitted).
60 Brown, 156 S.W.3d at 563 (citing Bouillion, 896 S.W.2d at 148-149).
61 Id.
15
5.102’s “penal nature” as “key to [our] analysis”. They urge us to hold
that under Bouillion, Section 1271.155(a) implies a damages claim
because it creates a textual entitlement to compensation. Specifically,
the Doctors point out that Section 1271.155(a) “creates a compensation
requirement (‘shall pay’), identifies who is entitled to compensation
(‘non-network physicians or providers’), and identifies the measure of
compensation (‘usual and customary rate’).” The rule they propose is
that if a statute or constitutional provision does not impose a penalty,
then a textual entitlement to compensation is sufficient to create a
private damages action. But the analytical framework the Doctors put
forward is based on a cherry-picking of language from Bouillion. It also
ignores our clear statements in Brown.
To start, we cautioned in Bouillion that the takings clause has
limited relevance to the question whether another text implies a private
cause of action for damages. 62 In a previous case, we had traced the
origin of a government’s obligation to compensate its citizens for the
taking of property back to “before Magna Carta.” 63 In contrast to the rich
history of takings jurisprudence, “we [found] no historical basis” for a
damages action alleging a violation of the free speech and assembly
clauses because there was no authority that either clause was
62 See Bouillion, 896 S.W.2d at 149 (“The text of section 17 waives
immunity only when one seeks adequate compensation for property lost to the
State. We are not persuaded that a right to damages for injuries to
constitutional interests can be implied solely from a limited explicit
entitlement for compensation for the loss of property.”).
63 Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex. 1980), discussed
in Bouillion, 896 S.W.2d at 149.
16
interpreted to provide one “at the time the Constitution was written”. 64
The takeaway from Bouillion should not be our acknowledgment that
the takings clause of the Texas Constitution authorizes a damages
action. It should be our analytical focus on the drafters’ intent. 65 That is
precisely why we cited to Bouillion in Brown. 66
We never limited our statutory analysis in Brown to the context
of a penal statute, and we fail to see why such a limitation would make
sense. The separation-of-powers concerns we pointed out in Brown are
just as present here. In Brown, we noted the possibility that, but a lack
of clarity whether, the Attorney General could file suit under the
Deceptive Trade Practices–Consumer Protection Act to collect the
penalties provided for in Section 5.102. 67 We also observed that in the
context of a statute imposing penalties—which could be civil in nature
or criminal in nature or both—“too permissive an implication of [a]
64 Bouillion, 896 S.W.2d at 148.
65 See id. (“To interpret our Constitution, we give effect to its plain
language. We presume the language of the Constitution was carefully selected,
and we interpret words as they are generally understood.” (citation omitted));
id. (“[W]e note that we have been presented no authority, and our research has
revealed no authority, that would indicate that at the time the Constitution
was written, it was intended to provide an implied private right of action for
damages for the violation of constitutional rights.”); id. (“[T]he text of the Texas
Bill of Rights cuts against an implied private right of action for the damages
sought because it explicitly announces the consequences of unconstitutional
laws.”).
66 See Brown, 156 S.W.3d at 563 (“When a private cause of action is
alleged to derive from a constitutional or statutory provision, our duty is to
ascertain the drafters’ intent. For example, in City of Beaumont v.
Bouillion . . . .” (footnote omitted)).
67 Id. at 566.
17
private civil action[]” could run the risk of our appropriating for the civil
courts “jurisdiction the Legislature never intended.” 68
The separation of powers will be implicated any time we are asked
to decide whether the Legislature has delegated to the courts the
authority to enforce a statutory obligation through a damages action.
But this case presents additional reasons we must be careful to stay in
our lane.
One is that the Legislature has given the Department of
Insurance broad authority to “regulate the business of insurance in this
state” and “ensure that [the] code and other laws regarding insurance
and insurance companies are executed”. 69 In its oral argument exhibits,
Molina has pointed to approximately thirty provisions of the Insurance
Code that address the Department’s powers of regulation and
enforcement. Section 843.461(a) empowers the Department to take
enforcement actions against an HMO that include “impos[ing]
sanctions” or “administrative penalties” or “suspend[ing] or revok[ing]
[its] certificate of authority”. 70 Section 843.463 authorizes the
Department to initiate “an action in a Travis County district court” to
enjoin specific Code violations. 71 The Doctors say that Chapter 843
“omits the HMO emergency-care statute from its specific provision
detailing [the Department’s] dominion”, but that characterization is
incompatible with the text. Section 843.461(b) lists Code violations that
68 Id. at 567.
69 TEX. INS. CODE § 31.002(1), (3).
70 Id. § 843.461(a).
71 Id. § 843.463.
18
may prompt an enforcement action under (a); one is an HMO’s failure to
“compl[y] substantially with . . . Chapter 1271”. 72 Section 843.463
expressly lists Chapter 1271 among the Code chapters whose violation
could result in the Department’s filing a civil action. 73
Our warning in Brown about the need for caution when the
criminal law could be impacted applies here too. 74 Section 843.464, titled
“Criminal Penalty”, provides that “[a] person, including an agent or
officer of [an HMO], commits an offense if the person . . . willfully
violates . . . Chapter 1271”. 75 “An offense under [Section 843.464] is a
Class B misdemeanor.” 76
4
In sum, Brown governs this case. The test it applies is whether
the statutory text “clearly implie[s]” a private damages action. 77 Section
1271.155 does not.
B
That is not the end of the story, the Doctors say. They argue that
language in new Section 1467.085, added to the Code in the 2019
amendments, signals the Legislature’s understanding that a private
cause of action already existed in the Code for claims under the
Emergency Care Statutes arising under the old law. Section 1467.085
72 Id. § 843.461(b)(10)(B).
73 Id. § 843.463.
74 See Brown, 156 S.W.3d at 567.
75 TEX. INS. CODE § 843.464(a)(1).
76 Id. § 843.464(b).
77 Brown, 156 S.W.3d at 563.
19
states that “[n]otwithstanding Section 1467.004, an out-of-network
provider or health benefit plan issuer or administrator may not file suit
for an out-of-network claim subject to this chapter until the conclusion
of the arbitration”. 78 There are two parts to the Doctors’ argument: (1) by
stating that a provider or insurer “may not file suit . . . until the
conclusion of the arbitration”, Section 1467.085 presupposes that a right
to file suit existed before the amendments; and (2) the reference to
Section 1467.004 also points to a pre-existing right to sue. 79 Neither is
persuasive.
Before the 2019 amendments, Chapter 1467 did not apply to
claims under the Emergency Care Statutes. 80 Section 1467.004
therefore could not have authorized a private cause of action before the
amendments took effect. What the Doctors really must demonstrate is
that the 86th Legislature retroactively created a private cause of action
for claims arising under the old, pre-arbitration law. They cannot do so
because we “may not judicially amend a statute [to] add words” that are
not there. 81
The interpretation of Section 1467.085 that the Doctors advance
is a stretch at best. They say that the “may not file suit . . . until”
language reflects a pre-existing right to file a private cause of action, but
this argument ignores what kind of suit can be filed under the new law.
78 TEX. INS. CODE § 1467.085(a) (emphases added).
79 In UnitedHealthcare, the federal district court agreed with this
analysis. See 514 F. Supp. 3d at 936-939.
80 See supra Part I.B.
81 Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988).
20
There will be no damages action tried to a jury. The arbitrator’s decision
“is binding.” 82 A party dissatisfied with the decision has 45 days to file
a suit for judicial review, in which “the court [will] determine whether
the arbitrator’s decision is proper based on a substantial evidence
standard of review.” 83 Indeed, if Chapter 1467 tells us anything about
the 86th Legislature’s intent, it is that determining the amount that an
out-of-network provider should be paid by an insurer is a technical
exercise to be performed by a subject-matter expert—not an issue to be
decided by a jury of laymen. 84
* * * * *
We hold that the Insurance Code does not create a private cause
of action for claims under the Emergency Care Statutes.
III
In Molina, the Doctors challenge the lower courts’ dismissal of
two additional claims. We affirm on each.
A
The first claim is for recovery in quantum meruit. Quantum
82 TEX. INS. CODE § 1467.089(a).
83 Id. § 1467.089(b)-(c).
84 See id. § 1467.086(b) (“[T]he commissioner shall give preference to an
arbitrator who is knowledgeable and experienced in applicable principles of
contract and insurance law and the health care industry generally.”); id.
§ 1467.083(b) (detailing ten categories of information that the arbitrator must
take into account before rendering a decision, including “the 80th percentile of
all billed charges for the service . . . performed by a health care provider in the
same or similar specialty” in the same geographical area).
21
meruit is an equitable theory 85 “founded in the principle of unjust
enrichment.” 86 There are four elements:
1. valuable services were rendered or materials furnished;
2. for the defendant;
3. the services or materials were accepted by the defendant; and
4. the defendant was reasonably notified that the plaintiff
performing the services or providing the materials was expecting
to be paid. 87
Regarding the second element, we have emphasized that “[i]t is not
enough to show that [the plaintiff’s] efforts benefited [the defendant]”. 88
Rather, the plaintiff’s “efforts must have been undertaken ‘for the
person sought to be charged.’” 89
We agree with the court of appeals that the Doctors cannot satisfy
this test. 90 The Doctors claim that by treating Molina’s insureds, they
directly benefited Molina itself. The argument goes like this:
Chapter 843 requires an HMO to “provid[e] or arrang[e] for health care
85 Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018);
Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988).
86 Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985).
87 Hill, 544 S.W.3d at 732-733.
88 Bashara, 685 S.W.2d at 310.
89 Id. (quoting City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.
Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.)); see also Truly, 744 S.W.2d
at 937 (“To recover in quantum meruit, the plaintiff must show that his efforts
were undertaken for the person sought to be charged; it is not enough to merely
show that his efforts benefitted the defendant.” (citing Bashara, 685 S.W.2d at
310)).
90 620 S.W.3d at 470.
22
services on a prepaid basis through insurance or otherwise” rather than
“indemnify[] [its enrollees] for the cost of health care services.” 91
Because an HMO is statutorily obligated to “provid[e] or arrang[e]” for
care, the Doctors fulfilled Molina’s core statutory duty by providing
emergency medical care to Molina’s enrollees. The Doctors cite one
federal district court decision that has accepted this reasoning, 92 but we
are unpersuaded.
An emergency-room physician does not undertake to provide life-
saving treatment for an HMO or any other kind of insurance company. 93
As the Doctors emphasize in their briefing on the Emergency Care
Statute claims, it is an emergency physician’s ethical duty to provide
care to a patient regardless of whether the patient is insured at all. At
the time the services are rendered, the physicians themselves may not
know anything about the patient’s insurance status. We thus agree with
the reasoning of another federal district court, which recently dismissed
an identical claim against a group of insurers:
Serving a defendant’s customers is hardly the same as
serving the defendant itself. . . . Recovery in quantum
meruit cannot be had from an insurer based on services
rendered to an insured, because those services aren’t
directed to or for the benefit of the insurer. As our sister
district courts have repeatedly pointed out, “a ripened
obligation to pay money to the insured . . . hardly can be
91 TEX. INS. CODE § 843.002(12)(B); see also id. § 843.002(14).
92See El Paso Healthcare Sys., Ltd. v. Molina Healthcare of N.M., Inc.,
683 F. Supp. 2d 454, 461-462 (W.D. Tex. 2010).
93 See Bashara, 685 S.W.2d at 310.
23
called a benefit.” 94
We hold that the Doctors cannot satisfy the second element of a
quantum meruit claim as a matter of law. 95
B
The remaining claim is for unfair settlement practices under
Chapter 541 of the Insurance Code. Subchapter B of Chapter 541
contains several provisions that define “unfair methods of competition
and unfair or deceptive acts or practices”. Among them is Section
541.060(a), which prohibits the practices subsequently listed “with
respect to a claim by an insured or beneficiary”. 96 One listed practice is
“failing to attempt in good faith to effectuate a prompt, fair, and
equitable settlement of . . . a claim with respect to which the insurer’s
liability has become reasonably clear”. 97 The Doctors allege that Molina
violated Section 541.060(a) by “failing to attempt in good faith to
94Angelina Emergency Med. Assocs. PA v. Health Care Serv. Corp., 506
F. Supp. 3d 425, 432 (N.D. Tex. 2020) (footnote omitted) (quoting Travelers
Indem. Co. of Conn. v. Losco Grp., Inc., 150 F. Supp. 2d 556, 563 (S.D.N.Y.
2001), and collecting cases).
95 The Doctors point us to the Restatement (Third) of Restitution and
Unjust Enrichment § 20 cmt. a (2011), which seems to support a claim for
restitution under the facts presented here. In this case, we decline to jettison
the longstanding requirement of Texas law that the plaintiff’s efforts must
have been undertaken for the defendant directly. See Bashara, 685 S.W.2d at
310 (“It is well settled that ‘[n]o one can legally claim compensation
for . . . incidental benefits and advantages to one, flowing to him on account of
services rendered to another . . . .’” (first and second alterations in original)
(quoting Landman v. State, 97 S.W.2d 264, 265 (Tex. Civ. App.—El Paso 1936,
writ ref’d))).
96 TEX. INS. CODE § 541.060(a) (emphasis added).
97 Id. § 541.060(a)(2)(A).
24
effectuate a prompt, fair, and equitable settlement” of the Doctors’
claims under the Emergency Care Statutes. They further allege that
Molina did this “knowingly” and is therefore liable for treble damages
under Section 541.152(b). 98
As an initial matter, failing to attempt a good-faith settlement is
only unfair “with respect to a claim by an insured or beneficiary”. 99 And
as the court of appeals correctly observed, the Doctors are neither
insureds nor beneficiaries. 100 Furthermore, in light of our holding that
the Doctors cannot recover the difference between the payment they
received and the amount they claim is the usual-and-customary rate by
suing under the Emergency Care Statutes directly, it would be odd
indeed if they could potentially recover three times that amount by
pleading the same claim under Chapter 541.
The Doctors raise two theories to try and salvage this claim, but
neither does. First, they point to the language of Section 541.151, which
authorizes a “person” to sue for damages caused by an act or practice
that is “defined by Subchapter B to be . . . unfair”. 101 The broad
statutory definition of “person” includes “an individual, corporation,
98See id. § 541.152(b) (“Except as provided by Subsection (c), on a
finding by the trier of fact that the defendant knowingly committed the act
complained of, the trier of fact may award an amount not to exceed three times
the amount of actual damages.”).
99 Id. § 541.060(a).
100 620 S.W.3d at 468.
TEX. INS. CODE § 541.151(1). Section 541.151 also authorizes a suit
101
for damages caused by a person’s engaging in an act or practice that is an
unlawful deceptive trade practice under Section 17.46(b) of the Business and
Commerce Code. Id. § 541.151(2).
25
association, [or] partnership” and is not limited to an insured or
beneficiary. 102 Thus, the Doctors argue, they have “standing” under
Section 541.151 to sue for a violation of Section 541.060(a).
In Part IV, we address why the issues raised in this case are not
issues of standing, but of merits. That aside, we agree with the Doctors
that they are persons within the meaning of Section 541.151, but it does
not matter. They still can never prevail on the specific Subchapter B
claim they have pleaded because it requires “a claim by an insured or
beneficiary”. 103
The Doctors’ second theory is that they can maintain a Section
541.060(a) claim as assignees of Molina’s insureds because, as part of
the patient-intake process, they obtained an assignment of the insured’s
benefits and claims for benefits against Molina. 104 We start with the
102 “‘Person’ means an individual, corporation, association, partnership,
reciprocal or interinsurance exchange, Lloyd’s plan, fraternal benefit society,
or other legal entity engaged in the business of insurance, including an agent,
broker, or adjuster.” Id. § 541.002(2).
103 The Doctors rely on Crown Life Insurance Co. v. Casteel, 22 S.W.3d
378 (Tex. 2000), but Casteel is consistent with our analysis today. We held that
Casteel, an insurance agent, was a person under Section 16(a) of Article
21.21—the statutory predecessor to Section 541.151—and that he could
maintain a claim under Article 21.21 if he could “meet[] the other required
elements for a cause of action” in Section 16(a). Id. at 385. But we went on to
hold that Casteel could not state a cause of action under Article 21.21 for some
of the claims because, “by their terms,” they “require[d] consumer status.” Id.
at 387.
104 This is common practice. In fact, the Legislature has prohibited
insurers from issuing policies that “restrict[] a covered person from making a
written assignment of benefits to a physician or other health care provider who
provides health care services to the person.” TEX. INS. CODE § 1204.053(a).
Section 1204.053(a) thus protects the ability of a provider who has obtained an
26
observation that this theory does not make sense. “[A]n assignee under
Texas common law stands in the shoes of his assignor.” 105 The Doctors
are not asserting a claim that the insureds could have brought. They are
not suing Molina for engaging in unfair settlement practices with
respect to claims by Molina’s insureds. The Doctors allege that Molina
engaged in unfair practices with respect to claims asserted by them, and
those claims are not actionable under Section 541.060(a).
In any event, we also agree with the court of appeals below and
with the other courts that have concluded that “claims under chapter
541 . . . may not be assigned.” 106 In PPG Industries, Inc. v.
JMB/Houston Centers Partners, Ltd., we held that “DTPA
claims . . . cannot be assigned by an aggrieved consumer to someone
else.” 107 One reason we gave is that DTPA claims and damages are
personal and punitive rather than property-based and remedial. 108 We
contrasted a DTPA claim, which entails “a ‘personal’ aspect in being
‘duped’ that does not pass to subsequent buyers”, with a warranty claim,
assignment of benefits from the patient to bring a breach-of-contract claim
against the insurer that the insured could have brought. In an amicus brief to
this Court, the Texas Association of Health Plans argues that the existence of
Section 1204.053(a) is further proof that, prior to the addition of the arbitration
process in the 2019 amendments, the Code did not authorize a damages claim
under the Emergency Care Statutes directly or by any other theory. We agree.
105 Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 920 (Tex.
2010) (citing Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1994)).
106 620 S.W.3d at 469 (collecting cases).
107 146 S.W.3d 79, 92 (Tex. 2004).
108 Id. at 89; see also id. at 92.
27
which is purely property based and can be passed. 109 We also pointed
out that “DTPA claims generally are . . . punitive” in that they “overlap[]
[with] many common-law causes of action” but offer more favorable
remedies, including treble damages. 110
The same reasoning applies to the claim for unfair settlement
practices under Section 541.060(a). In many cases, the same set of facts
could support a breach of contract claim. But this claim is personal to
the insured because it is for harm caused by the insurer’s behavior and
attitude towards the insured: for the insurer’s “fail[ure] to attempt in
good faith” to settle a claim with respect to which its “liability has
become reasonably clear”. 111 And it is punitive because if the insured
proves that the insurer engaged in that behavior knowingly, then treble
damages are authorized. 112 Thus, if the Doctors are somehow asserting
a claim that Molina’s insureds could have brought themselves, that
claim is not assignable under PPG Industries.
IV
Throughout this litigation, the parties and the lower courts have
characterized Molina’s challenges to the Doctors’ claims as challenges to
the Doctors’ standing. 113 Some of our older opinions use standing as a
109 Id. at 89.
110 Id.
111 TEX. INS. CODE § 541.060(a)(2)(A).
112 Id. § 541.152(b).
113 See 620 S.W.3d at 461 (“Physicians assert the trial court erred in
dismissing their claims because they have standing to assert same and their
complaints present a justiciable controversy.”).
28
short-hand reference for a plaintiff’s ability to fulfill some statutory
prerequisite to bringing suit or recovering on a claim. 114 The phrasing is
regrettable and has tangled the line demarcating issues that truly
implicate a trial court’s subject-matter jurisdiction from those
pertaining to the merits. 115 The integrity of that line is fundamental to
the working of the civil justice system because a court without subject-
matter jurisdiction cannot decide the case at all. 116
“A challenge to a party’s standing is an attack on the party’s
ability under the United States and Texas Constitutions to assert a
claim.” 117 The constitutional requirements of standing are (1) a concrete,
particularized, actual or imminent injury; (2) that is traceable to the
defendant’s conduct; and (3) that would be redressed by a favorable
114See, e.g., Casteel, 22 S.W.3d 378 (throughout the opinion, incorrectly
characterizing as an issue of standing the defendant’s argument that Casteel
could not bring a claim under the predecessor to Chapter 541 of the Insurance
Code because he did not meet the statutory definition of person).
115 See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 773 (Tex. 2020)
(“[S]tanding ‘is a word of many, too many, meanings.’” (quoting Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 90 (1998))).
116 See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443
(Tex. 1993) (“Subject matter jurisdiction is essential to the authority of a court
to decide a case.”); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.
2000) (“[A] judgment will never be considered final if the court lacked subject-
matter jurisdiction. ‘The classification of a matter as one of subject-matter
jurisdiction opens the way to making judgments vulnerable to delayed attack
for a variety of irregularities that perhaps better ought to be sealed in a
judgment.’” (cleaned up) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 12
cmt. b, at 118 (1982))).
117 Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 700 (Tex. 2021).
29
decision. 118 A plea to the jurisdiction is one appropriate vehicle for
challenging a plaintiff’s ability to meet these constitutional
requirements in state court.
But “[a]s we have repeatedly recognized, a plaintiff does not lack
standing simply because some other legal principle may prevent it from
prevailing on the merits”. 119 That is because the “question whether a
plaintiff has established his right to go forward with his suit or satisfied
the requisites of a particular statute pertains in reality to the right of
the plaintiff to relief rather than to the subject-matter jurisdiction of the
court to afford it.” 120 As the U.S. Supreme Court has put it, “the failure
of a cause of action does not automatically produce a failure of
jurisdiction,” 121 which is why a party loses on the merits when an
arguable cause of action ultimately turns out not to exist.
More than two decades ago, we held in Dubai Petroleum Co v.
Kazi that whether the plaintiff satisfied statutory prerequisites to
maintaining a wrongful-death action arising from conduct that occurred
in a foreign territory was an issue of merits, not subject-matter
jurisdiction. 122 More recently, in Pike v. Texas EMC Management, LLC,
“we discouraged the use of the term standing to describe extra-
Id. at 696 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
118
561 (1992)).
119 Id.120 Pike, 610 S.W.3d at 774 (cleaned up) (quoting Dubai, 12 S.W.3d at
76-77).
121 Steel Co., 523 U.S. at 91.
12 S.W.3d at 77 (“[S]ection 71.031 [of the Civil Practice and Remedies
122
Code] is not jurisdictional . . . .”).
30
constitutional restrictions on the right of a particular plaintiff to bring
a particular lawsuit.” 123 There, a defendant challenged a damages
award against him by arguing that the limited-partnership plaintiff
“lack[ed] ‘standing’ as a limited partner to recover damages individually
for an injury suffered by the Partnership.” 124 Recalling Dubai, we
explained that “a plaintiff does not lack standing in its proper,
jurisdictional sense ‘simply because he cannot prevail on the merits of
his claim’”. 125 We then “conclude[d] . . . that the authority of a partner
to recover for an alleged injury to the value of its interest in the
partnership is not a matter of constitutional standing that implicates
subject-matter jurisdiction.” 126 Since Pike, we have also corrected
arguments characterizing Sections 2001.038(a) and 2001.174(2) of the
Administrative Procedure Act as “statutory standing” provisions. 127
The issues before this Court are (1) whether the Insurance Code
creates a private damages action for claims under the Emergency Care
Statutes; (2) whether the Doctors can satisfy the elements of a common-
123Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 616 S.W.3d 558,
567 (Tex. 2021) (discussing Pike, 610 S.W.3d at 774).
124 Pike, 610 S.W.3d at 773.
Id. at 774 (quoting Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477,
125
484-485 (Tex. 2018)).
126 Id. at 775; see also Cooke v. Karlseng, 615 S.W.3d 911 (Tex. 2021)
(reversing the court of appeals’ judgment and remanding for the court of
appeals to reconsider its holding that the trial court lacked jurisdiction over
claims of a limited partner for harm done to the partnership in light of our
decision in Pike).
127See Dyer v. Tex. Comm’n on Env’t Quality, 646 S.W.3d 498, 506 n.36
(Tex. 2022); Tex. Bd. of Chiropractic Exam’rs, 616 S.W.3d at 566-567.
31
law quantum meruit claim; and (3) whether the Doctors can state a
claim for unfair settlement practices under Chapter 541 of the Code.
None of these issues implicates constitutional standing. Each is a pure
issue of law pertaining to the merits that should have been raised in the
trial court by traditional motion for summary judgment 128 or under
Rule 91a 129—not in a plea to the jurisdiction.
Nonetheless, both parties agree that we can render a decision on
the merits, which we have done. The title of a pleading or motion does
not affect a court’s subject-matter jurisdiction to decide the issues raised
in it. 130 “We look to the substance of a plea for relief to determine the
nature of the pleading, not merely at the form of the title given to it.” 131
We have included this discussion to clarify again for the judiciary and
the bar that the satisfaction of a statutory or common-law prerequisite
to a plaintiff’s filing suit or recovering on a claim is not an issue of
standing but of merits.
* * * * *
We affirm the court of appeals’ judgment in Molina. We answer
128 TEX. R. CIV. P. 166a(b).
129 See id. R. 91a (dismissal of baseless causes of action).
130See id. R. 71 (“When a party has mistakenly designated any plea or
pleading, the court, if justice so requires, shall treat the plea or pleading as if
it had been properly designated.”).
131State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see also
In re J.Z.P., 484 S.W.3d 924, 925 (Tex. 2016) (“We have stressed that ‘courts
should acknowledge the substance of the relief sought despite the formal
styling of the pleading.’” (quoting Ryland Enter., Inc. v. Weatherspoon, 355
S.W.3d 664, 666 (Tex. 2011))).
32
the certified question no in UnitedHealthcare.
Nathan L. Hecht
Chief Justice
OPINION DELIVERED: January 13, 2023
33