The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RONALD GILLAR and :
STEPHANIE GILLAR,
: CIVIL ACTION NO. 3:17-2128
Plaintiffs
: (JUDGE MANNION)
v.
:
BLUE CROSS/BLUE SHIELD
OF SOUTH CAROLINA, :
Defendant :
MEMORANDUM
Pending before the court are the defendant’s motion for summary
judgment (Doc. 12) and the plaintiffs’ motion for summary judgment (Doc. 19).
Based upon the court’s review of the record in this action, the defendant’s
motion will be granted and the plaintiffs’ motion will be denied.
The plaintiffs filed this action pursuant to 29 U.S.C. §1132(a) to recover
benefits under an ERISA regulated plan. In due course, the parties filed cross
motions for summary judgment. Summary judgment is appropriate “if the
pleadings, the discovery [including, depositions, answers to interrogatories,
and admissions on file] 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.” Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute
is genuine if a reasonable jury could find for the non-moving party, and is
material if it will affect the outcome of the trial under governing substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas.
& Sur. Co. v. Ericksen, 903 F.Supp. 836, 838 (M.D. Pa. 1995). At the
summary judgment stage, “the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (a court may not weigh
the evidence or make credibility determinations). Rather, the court must
consider all evidence and inferences drawn therefrom in the light most
favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d
Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving
party “fails to make a showing sufficient to establish the existence of an
element essential to [the non-movant’s] case, and on which [the non-movant]
will bear the burden of proof at trial,” Rule 56 mandates the entry of summary
judgment because such a failure “necessarily renders all other facts
immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffmann—La
Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
The summary judgment standard does not change when the parties
have filed cross-motions for summary judgment. Appelmans v. City of Phila.,
826 F.2d 214, 216 (3d Cir. 1987). When confronted with cross-motions for
summary judgment, as in this case, “the court must rule on each party’s
motion on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the summary
judgment standard.” Marciniak v. Prudential Financial Ins. Co. of America, 184
Fed.Appx. 266, 270 (3d Cir. 2006) (citations omitted) (not precedential). If
review of cross-motions reveals no genuine issue of material fact, then
judgment may be entered in favor of the party deserving of judgment in light
of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298,
302 (3d Cir. 1998) (citation omitted). See Nationwide Mut. Ins. Co. v. Roth,
2006 WL 3069721, at *3 (M.D. Pa. Oct. 26, 2006) aff’d, 252 Fed.Appx. 505
(3d Cir. 2007).
In reviewing the parties’ cross-motions for summary judgment, the
following facts are undisputed.1 The defendant provided a Master Group
Contract to Ronald Gillar’s employer, United Sporting Companies, which was
effective January 1, 2017 (“Contract”). Pursuant to the Contract, Blue Cross
administered the Plan of Benefits to employees of United Sporting Companies
(“Plan”). The Plan provides coverage for medical benefits but in Section IV
specifically delineates a list of benefits that are excluded from coverage under
the Plan. One of these specific exclusions from the Plan is:
INTOXICATION OR DRUG USE
Any service (other than Substance Use Disorder Services),
Medical Supplies, charges, or losses resulting from a Member
being Legally Intoxicated or under the influence of any drug or
other substance, or taking some action the purpose of which is to
create a euphoric state or alter consciousness. The Member, or
Member’s representative, must provide any available test results
1These statements combine the defendant’s statement of material facts
to which the plaintiffs have responded (Doc. 13, Doc. 17), the plaintiffs’
statement of material facts to which the defendant has not responded and are
therefore deemed admitted (Doc. 20), and the defendant’s supplemental
statement of material facts to which the plaintiffs have not responded and are
also deemed admitted (Doc. 23).
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showing blood alcohol and/or drug/substance levels upon request
of the Corporation. If the Member refuses to provide these results,
no benefits will be provided.
The Plan defines “Legal Intoxication/Legally Intoxicated” as occurring when
“the Member’s blood alcohol level was at or in excess of the amount
established under applicable state law to create a presumption and/or
inference that the Member was under the influence of alcohol, when
measured by law enforcement or medical personnel.”
While the Plan provides that the employer, United Sporting Companies,
is charged with the administration of the Plan, as indicated earlier, the
Contract between United Sporting Companies and Blue Cross provides that
Blue Cross has the final discretionary authority to determine whether plan
participants are eligible for benefits. Specifically, the Contract provides:
5. Corporation Authority. As claims fiduciary, the Corporation
shall have the final discretionary authority to determine the
eligibility for Covered Expenses and to construe the terms
of the Plan represented by this Plan of Benefits. All
decisions by the Corporation in this regard are conclusive
and binding, and any judicial review of such a decision shall
be conducted under the arbitrary and capricious standard
of review with deference given to the Corporation’s
decision.
Ronald Gillar was a Member covered by the Plan. According to Mr.
Gillar’s medical records, on or about June 9, 2017, he was found
unresponsive lying face down in the middle of a road approximately 100 yards
5
from an all-terrain vehicle (“ATV”). Having suffered significant injuries2, the
plaintiff was life-flighted to Danville Medical Center (“Danville”). Records show
that the trauma transport reported a blood alcohol level of 130 milligrams per
deciliter as of 23:48 on June 9, 2017, a level approximately 1.63 times the
legal limit for a person to be deemed intoxicated and materially and
appreciably impaired under either South Carolina law3, as made applicable by
the Plan, or Pennsylvania law4, where the accident occurred. The plaintiff
remained inpatient at Danville for 22 days.
At some point in time, a claim for benefits was submitted to the
defendant on Mr. Gillar’s behalf. According to a Notice of Denial dated June
20, 2017, from Medical Management BCBSSC to Geisinger Medical Center,
Mr. Gillar’s contract did not cover his inpatient admission on June 10, 2017,
because of the intoxication exclusion discussed previously. It was indicated
that Mr. Gillar could appeal the denial by completing an appeal form which
was included with the denial letter.
2The plaintiff provides that he suffered severe facial fractures, left and
right rib fractures, pulmonary contusions, fronto-temporal subdural
hemorrhage with right temporal lobe contusions and right temporal subdural
hematomas.
3S.C. Code of Laws Section 56-5-2933.
475 Pa.C.S. §3802.
6
On July 21, 2017, Mr. Gillar appealed the denial and, on August 4,
2017, the defendant upheld the exclusion of benefits. In denying Mr. Gillar’s
appeal, in conjunction with his blood alcohol concentration noted at the time
of trauma transport, the defendant considered the fact that Mr. Gillar was
found face down in the middle of the road having been in an accident
involving an ATV. Dr. Lena Bretous, the reviewer on appeal, opined based on
her education, training and experience, that with a blood alcohol content level
of 130 milligrams per deciliter, Mr. Gillar was severely intoxicated and “all of
his mental, physical and sensory functions, including, but not limited to, his
judgment, balance, motor coordination and vision were significantly impaired
due to alcohol intoxication, this impairment resulted in the member being
unable to drive and operate the ATV vehicle and avoid being thrown from the
vehicle and found face down over 100 yards from the ATV, thereby causing
the member’s injuries.”5 The administrative record, however, contains no
statement regarding the direct cause of the accident.
At all relevant times, there is no dispute that Mr. Gillar provided all the
5The plaintiff’s counsel denies this statement, in part, arguing that there
is no evidence in the record to show that the plaintiff was operating his ATV
at the time of his injuries. However, the plaintiff’s own allegations in his
amended complaint reflect “[o]n June 9, 2017, while operating an all terrain
vehicle, Plaintiff, Ronald Gillar, was involved in an accident . . .” (Doc. 10, ¶6)
(emphasis added). The plaintiff’s admission makes his counsel’s argument
somewhat disingenuous.
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information necessary to evaluate his claim including authorizations for
access to his medical and emergency medical treatment records. Moreover,
the defendant has never asserted that Mr. Gillar failed to cooperate, provide
information, supply authorizations, statements, records or any other
information requested of him. In reviewing the claim for benefits, the
defendant provided that it had sufficient information to evaluate Mr. Gillar’s
claim and his appeal.
As a result of the defendant’s denial of coverage, Mr. Gillar provides
that he has already incurred medical expenses totaling $518,483.58. Further,
Mr. Gillar provides that, without coverage for treatment, his injuries prevented
him from returning to his job as a receiver for United Sporting Companies and,
as a result, his employment was terminated and he lost the health coverage
provided by his employer. Without coverage, Mr. Gillar states that he has
been unable and will continue to be unable to pay for future medical care. The
plaintiffs are seeking to have the court enter judgment against the defendant
declaring that Mr. Gillar is entitled to benefits under the Plan and ordering the
defendant to pay Mr. Gillar the requested benefits along with interest and
reasonable attorney’s fees and costs.
In considering the plaintiffs’ claim, §1132(a)(1)(B) of ERISA provides the
plaintiff a right of action “to recover benefits due to him under the terms of his
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plan.” 29 U.S.C. §1132(a)(1)(B). To prevail on a claim under §1132(a)(1)(B),
the plaintiff must demonstrate that he has “a right to benefits that is legally
enforceable against the plan, and that the plan administrator improperly
denied those benefits.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012) (internal quotations omitted).
The Supreme Court has instructed that courts are to review the denial
of benefits challenged under §1132(a)(1)(B) “under a de novo standard
unless the benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the
plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)
(emphasis added). When a plan grants its administrator or fiduciary the
discretion to determine eligibility or to construe the plan terms, “we review a
denial of benefits under an ‘arbitrary and capricious’ standard.” Orvosh v.
Program of Grp. Ins. for Salaried Employees of Volkswagen of Am., Inc., 222
F.3d 123, 129 (3d Cir. 2000).
Here, although the Plan lists the employer, United Sporting Companies,
as the plan administrator, the Contract between United Sporting Companies
and Blue Cross provides that, in exchange for the premium and applicable
fees, “the Corporation [Blue Cross] has agreed to administer this Plan of
Benefits and provide the Services set forth in this Contract (“Services”).”
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Moreover, the Contract identifies Blue Cross as the claims fiduciary and
provides that “as claims fiduciary, [Blue Cross] shall have the final
discretionary authority to determine eligibility for Covered Expenses and to
construe the terms of the Plan represented by this Plan of Benefits.” Blue
Cross was expressly designated as the fiduciary and given discretionary
authority to determine eligibility for covered expenses and construe the terms
of the plan, as well as making a final decision on any appeal. Thus, the court
finds that the arbitrary and capricious standard of review applies in this case.
The plaintiffs argue that a heightened level of scrutiny applies because
there is a structural conflict of interest that exists in light of the fact that Blue
Cross both pays benefits due and makes eligibility determinations. However,
the standard of review does not change where a structural conflict of interest
exists, namely when an insurance company both funds and administers
benefits. Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008);
Davies v. First Reliance Standard Life Ins. Co., 713 Fed. Appx. 129 (3d Cir.
2017) (citing Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525
(3d Cir. 2009)). “Instead, courts reviewing the decisions of ERISA plan
administrators or fiduciaries in civil enforcement actions brought pursuant to
29 U.S.C. § 1132(a)(1)(B) should apply a deferential abuse of discretion
standard of review across the board and consider any conflict of interest as
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one of several factors in considering whether the administrator or the fiduciary
abused its discretion.” Id.
“An administrator’s decision is arbitrary and capricious ‘if it is without
reason, unsupported by substantial evidence or erroneous as a matter of
law.’” Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 (3d Cir. 2011) (quoting
Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)) (internal
quotation marks omitted). The Third Circuit has defined “substantial evidence”
as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Fleisher, 679 F.3d at 121.
Under the arbitrary and capricious standard, the “scope of review is
narrow and ‘the court is not free to substitute its own judgment for that of the
defendants in determining eligibility for plan benefits.’” Abnathya, 2 F.3d at 45
(quoting Lucash v. Strick Corp., 602 F.Supp. 430, 434 (E.D. Pa. 1984)).
Therefore, the court is limited to considering only the evidence that was
before Blue Cross at the time it reviewed and decided Mr. Gillar’s claim.
Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997).
The court concludes in this case that the evidence in the record
substantially supports the defendant’s finding that Mr. Gillar was legally
intoxicated at the time of the accident putting into play the intoxication
exclusion. Under the intoxication exclusion, coverage can be denied for any
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service, medical supplies, charges, or losses resulting from a member being
legally intoxicated or under the influence of any drug or other substance.
There is no indication in the Plan that the injuries have to result solely from
intoxication but only that the injuries be a result of intoxication.
In this case, the plaintiff was found unconscious, laying face down in the
middle of a road with a crashed ATV approximately 100 yards away. Upon
being life-flighted to Danville, the plaintiff’s blood alcohol content was noted
by trauma transport to be 130 milligrams per deciliter.6 An inference of
intoxication under both South Carolina law, which applies under the Plan, and
Pennsylvania law7, where the accident occurred, arises at a blood alcohol
6The plaintiff argues that the blood alcohol content finding at 23:48 on
June 9, 2017 does not demonstrate that he was intoxicated at the actual time
of his injuries, which is unknown. It defies logic to argue that the plaintiff’s
blood alcohol level was 1.63 times the legal limit after his injuries while he was
unconscious in the middle of the road, but that he was not intoxicated at an
earlier time when his injuries were actually incurred.
7Citing to Coughlin v. Massiquoi, 170 A.3d 399 (Pa. 2017), the plaintiff
argues that, in Pennsylvania, evidence of blood alcohol content for the
purpose of establishing negligence is dependent upon corroborating evidence
such as the observations of a police officer or other eye witness to describe
the behavior and actions of the person including slurred speech, staggered
gate, glazed eyes, or odor of alcohol. Initially, the Plan in this case provides
that South Carolina law applies, not Pennsylvania law. Moreover, this is not
a negligence case. Finally, the court in Coughlin actually rejected the standard
requiring independent corroborating evidence of intoxication before blood
alcohol content evidence may be admitted emphasizing that in a pedestrian
(continued...)
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level of 80 milligrams per deciliter. Thus, Mr. Gillar’s blood alcohol content
was 1.63 times the legal limit for an individual to be deemed intoxicated and
materially and appreciably impaired. Mr. Gillar’s initial application for benefits
was denied based on the finding that the ATV accident and his resulting
injuries were a result of his intoxication. Mr. Gillar appealed the initial denial
of benefits based upon the intoxication exclusion. In conjunction with that
appeal, Mr. Gillar could have presumably pointed to something other than his
intoxication as the cause of the accident and his resulting injuries, if such
were the case. No such evidence exists in the record. Given the evidence
before her, Dr. Lena Bretous opined within a reasonable degree of medical
certainty, based upon her education, training, and experience, that with a
blood alcohol content of 130 milligrams per deciliter, Mr. Gillar, including his
judgment, balance, motor coordination and vision, were significantly impaired
due to alcohol intoxication which resulted in him being unable to operate the
ATV and avoid the accident which caused his injuries. Given the
circumstances under which the plaintiff was found and his blood alcohol
content at the time, and the fact that there is nothing in the record presented
by Mr. Gillar that his intoxication was not a cause of his injuries, there is at
7(...continued)
case (which this is not) such evidence may be challenged by cross-
examination or with testimony from an expert. Id. at 410.
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least some evidence from which a reasonable mind might accept as adequate
to support the conclusion that the plaintiff’s intoxication was a cause of the
ATV accident and his resulting injuries. Therefore, the court finds that the
defendant’s decision applying the intoxication exclusion to deny Mr. Gillar
benefits was not arbitrary and capricious.
In light of the foregoing, the defendant’s motion for summary judgment
will be granted and the plaintiffs’ motion for summary judgment will be denied.
An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: August 30, 2019
17-2128-01.wpd
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