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.

Supreme Court of Texas

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No. 21-0291

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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.

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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).

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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.

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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.”).

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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