Loper v. Lifeguard Ambulance Service LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HEATHER LOPER, on behalf of )

herself and all others similarly )

situated, )

)

Plaintiff, )

)

v. ) Case No. 2:19-CV-583-CLM

)

LIFEGUARD AMBULANCE )

SERVICE, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Heather Loper brought a class action against Lifeguard Ambulance Service,

LLC, to challenge Lifeguard’s alleged practice of billing certain ambulance

passengers excessive rates without contracting for or otherwise disclosing the price

Lifeguard would charge for its services. Lifeguard seeks summary judgment on

Loper’s individual claims. (Doc. 51). And Lifeguard asks the Court to strike and

disregard evidence of certain forms of monetary harm that Loper claims she suffered

as a result of Lifeguard’s billing practices. (Doc. 74). In sum, the Court grants in part

and denies in part Lifeguard’s motion for summary judgment, and the Court grants

in part and denies in part Lifeguard’s motion to strike and disregard.

FACTUAL AND PROCEDURAL BACKGROUND

The Court draws the facts from the summary-judgment record. At this stage

of the litigation, “[a]ll evidence and factual inferences are viewed in the light most

favorable to the non-moving party, and all reasonable doubts about the facts are

resolved in favor of the non-moving party.” Hardigree v. Lofton, 992 F.3d 1216,

1223 (11th Cir. 2021).

I. Factual Background of Loper’s Claims

A. Ordering the Transport

In March 2017, Loper was a patient at Thomas Hospital in Fairhope, Alabama.

(Docs. 55 ¶ 1, 61 ¶ 1). After a few days in the hospital, Loper’s doctor decided to

transfer her either to UAB Hospital in Birmingham or Vanderbilt Hospital in

Nashville, whichever had the first available bed, to obtain more effective treatment.

(Docs. 55 ¶ 2, 61 ¶ 2). Loper’s doctor contacted both hospitals on her behalf. (Id.).

Several days later—on Saturday, March 11—Vanderbilt Hospital informed

Loper’s doctor that it had an available bed. (Docs. 55 ¶ 3, 61 ¶ 3). But Loper had

only 24 hours to make it to Nashville, 458 miles away. (Docs. 55 ¶ 3, 61 ¶ 3, 67-2 at

256). Otherwise, Loper would lose the bed. (Docs. 55 ¶ 3, 61 ¶ 3).

Loper’s husband, Murray, handled her communications because Loper “was

under extreme pain and under severe medication.” (Docs. 55 ¶ 4, 61 ¶ 4, 67-3 at 30).

2

When Loper’s doctor told Murray that Vanderbilt Hospital had an open bed (Docs.

55 ¶ 3–4, 61 ¶ 3–4), Murray authorized Thomas Hospital to arrange for a ground

ambulance to take Loper to Vanderbilt Hospital (Doc. 67-3 at 26). The same day,

Thomas Hospital contacted Lifeguard about providing an ambulance transport.

(Docs. 55 ¶ 6, 61 ¶ 6). And the hospital directed Lifeguard to deliver Loper by no

later than Sunday, March 12, which was the next day. (Docs. 55 ¶ 12, 61 ¶ 12).

B. Disclosing the Cost

Two of Lifeguard’s policies need explanation. First, Lifeguard’s billing

structure. For uninsured passengers and privately insured passengers, like Loper,

Lifeguard calculates its price based on a formula that reflects: (1) whether the

transport is emergent or non-emergent; (2) the level of care that ambulance

technicians provide during the trip (there are four levels); and (3) the transport

distance multiplied by a per-mile rate. (Docs. 55 ¶ 9, 61 ¶ 9).

Second, Lifeguard’s “Out-of-Town Transport Policy.” Lifeguard usually

investigates a passenger’s insurance coverage before conducting any non-

emergency transport that exceeds 100 miles. (Docs. 55 ¶ 7, 61 ¶ 7). And if the

passenger lacks coverage for any portion of the estimated bill, Lifeguard prepares a

written quote showing the amount it plans to charge, the passenger’s insurance

coverage, and how much that the passenger will have to pay personally. (Id.). The

3

policy itself says to “[p]rovide [a] quote for expected charges the [passenger] will

incur.” (Doc. 62-2 at 250). After doing so, Lifeguard obtains a written, pre-transport

commitment from the passenger that he or she will pay the amount not covered by

insurance. (Docs. 55 ¶ 7, 61 ¶ 7).

Lifeguard knew that Loper had health insurance through BlueCross and

BlueShield of Alabama. (Docs. 55 ¶ 11, 61 ¶ 11). But because this story began on

Saturday and concluded on Sunday, Lifeguard was unable to determine the amount

of coverage BlueCross would provide and thus didn’t know whether BlueCross

would pay for all, some, or none of the transport. (Id.).

So Lifeguard didn’t make a pre-transport disclosure of the estimated cost.

(Docs. 55 ¶ 14, 61 ¶ 14). Lifeguard says that it didn’t for three reasons. First, it had

no way to know the scope of Loper’s coverage. (Doc. 55 ¶ 12). Second, it had no

chance to discuss the cost with Loper or Murray because the hospital coordinated

the pick-up. (Doc. 55 ¶ 14). And third, neither Loper nor Murray asked about the

cost. (Id.). Still, even though Lifeguard says it had no way or chance to make a

complete pre-transport disclosure of the amount Loper would have to pay herself,

its corporate representative testified in his deposition that Lifeguard could have

made a limited disclosure based on available information. (Doc. 67-2 at 91).

4

Loper and Murray believed that BlueCross would cover the entire cost. In his

deposition, Murray vaguely recalled a Thomas Hospital representative saying that

BlueCross would cover the transport. (Doc. 67-3 at 28, 31). And Loper and Murray

each recalled an on-site Lifeguard representative saying that insurance would cover

the trip. (Docs. 67-3 at 43, 67-4 at 10).

C. Billing the transport

Lifeguard picked up Loper on Sunday morning and delivered her to

Vanderbilt Hospital around 5:00 PM that afternoon. (Docs. 55 ¶ 13, 61 ¶ 13, 67-2 at

256). Near the end of the transport, at 4:45 PM, Loper signed an agreement

(“Acknowledgment Form”) stating:

The person signing below . . . assigns to Supplier all rights to (and

related or associated with) any benefits claims and/or payments due

from any third-party payor as reimbursement or payment for the

Services . . . [and] agrees that the patient is financially responsible for,

and obligated to pay, the amount charged by Supplier for the medical

services, including any amount that is not paid by any third-party payor.

(Docs. 55 ¶ 15, 61 ¶ 15, 67-2 at 242). But the form did not set out the amount that

Lifeguard would charge. (Docs. 67-2 at 67, 242–43).

Lifeguard submitted an $8,166.11 bill to BlueCross. (Docs. 55 ¶ 16, 61 ¶ 16).

That amount represented Lifeguard’s base charge of $590.79 for a non-emergency

basic-life-support transport and a mileage charge of $7,575.32 (458 miles at $16.54

5

per mile). (Doc. 55 ¶ 10, 16; Doc. 61 ¶ 10, 16). Lifeguard calculated the total using

its commercial rates for uninsured and privately insured passengers. (Docs. 55 ¶ 17,

61 ¶ 17, 67-2 at 116–17). But the parties dispute whether those align with “market”

rates. (Docs. 55 ¶ 18, 61 ¶ 18).

BlueCross paid $3,889.96 to Lifeguard. (Docs 55 ¶ 19, 61 ¶ 19, 67-3 at 88–

89). That amount represented Loper’s $4,862.45 in coverage minus Loper’s 20%

deductible. (Id.). BlueCross then sent a notice to Murray that explained the amount

it paid and that Loper still owed $4,276.15 to Lifeguard—i.e., the sum of her

deductible and the balance of the charge. (Id.). In April 2017, Lifeguard sent an

invoice to Loper for $4,276.15. (Doc. 67-3 at 91). Then, in August 2017, Lifeguard

referred the debt to a collection agency. (Doc. 61 ¶ 22; Doc. 67-4 at 16, 49).

So Loper hired an attorney. In December 2017, Loper’s counsel sent a letter

to Lifeguard expressing that no written contract existed, that Loper did not consent

to charges beyond what BlueCross paid, and that Lifeguard’s rates were

unreasonable. (Doc. 67-4 at 73–74). Loper made several demands, including

“[c]ease and desist any attempts at collection,” and she threatened to sue. (Id.).

In her October 2020 deposition, Loper testified that she began paying “around

$20 or $30 a month” for a credit-monitoring service because of the collection effort.

(Doc. 67-4 at 22, 37). But Lifeguard has not reported Loper’s debt to any credit

6

agencies and her credit has not suffered. Nor has Lifeguard pursued collection efforts

since December 2017. (Docs. 55 ¶ 22, 61 ¶ 22, 71 ¶ 22). Indeed, Loper testified that

she “never heard another word” about the debt after her counsel sent the December

7th letter. (Doc. 67-4 at 49).

II. Procedural Background

Loper filed her complaint in the Circuit Court of Jefferson County, Alabama.

(Doc. 1-1). Lifeguard removed it to this federal court under the Class Action Fairness

Act. See 28 U.S.C. § 1332(d)(2). After removal, the Court denied Loper’s requests

to voluntarily dismiss and to remand to state court. (Doc. 31).

Loper then filed an amended complaint with claims for declaratory judgment

(seeking declaratory and injunctive relief), fraudulent suppression, negligent

misrepresentation, and breach of contract. (Doc. 43-1). Her amended complaint

seeks these declarations:

a. “that Defendant and Plaintiff and the Class did not enter into any

express written contract for Plaintiff and the Class to pay the prices

charged by the Defendant for the transportation services it provided”;

b. “that Defendant and Plaintiff and the Class did not enter into any

express oral contract for Plaintiff and the Class to pay the prices

charged by the Defendant for the transportation services it provided”;

c. “that the law implies a contract between the Defendant and Plaintiff and

Plaintiff [C]lass whereby the Defendant rendered services and in return

is to receive a reasonable value for its services”;

7

d. “that Defendant charged Plaintiff and the Class rates in excess of

reasonable charges as required by state law”;

e. “that Defendant ha[s] no legally enforceable right to charge and/or

collect the prices charged in any court proceeding or other collection

effort, and Plaintiff and the Class have no legal obligation to pay

Defendant the prices charged by Defendant for the transportation of

patients”; and

f. “that Defendant charges prices that are excessive and unsupportable by

market rates.”

(Doc. 43-1 at 14–15). Loper also asks for an injunction ordering Lifeguard to stop

“charging excessive rates for the transporting of patients without an express

agreement” and to quit its “attempts to collect outstanding bills representative of

excessive rates for which no express agreement as to price exists.” (Id. at 15). She

also requests “disgorgement” of funds wrongfully collected. (Id. at 15, 19).

Lifeguard filed a motion for summary judgment on Loper’s claims. (Doc. 51).

Foreseeing a different ending, Loper filed a motion (and corrected motion) for class

certification. (Docs. 53, 54). She asks to proceed on behalf of:

All individuals with private health insurance and/or uninsureds who,

within the applicable statute of limitations under their respective state’s

law, have been charged in excess of reasonable market rates by

Defendant for medical transport services from a location within the

United States without an express contract to pay specific mileage and

other amounts charged.

(Doc. 54 at 1). Lifeguard opposes class certification. (Doc. 64).

8

DISCUSSION

The Court divides its discussion section into two main parts. First, the Court

addresses Lifeguard’s motion to strike and disregard. (Doc. 74). Second, it analyzes

whether Lifeguard is entitled to summary judgment. (Doc. 51).

I. Lifeguard’s Motion to Strike and Disregard

After briefing and a hearing on Lifeguard’s summary judgment motion, Loper

presented two documents contending that Lifeguard’s actions harmed her in three

ways: (1) unlawfully billing her; (2) forcing her to incur the cost of a credit-

monitoring service; and (3) forcing her to hire counsel to fight Lifeguard’s collection

effort. (Docs. 74-1 at 3, 78-1 at 1). Lifeguard asks the Court to strike those filings

and to disregard those damages allegations because Loper introduced them “for the

first time in response to Lifeguard’s motion for summary judgment.” (Doc. 74 at 5).

That request is granted in part and denied in part.

We begin with the disclosure and supplementation requirements of the

Federal Rules of Civil Procedure. Rule 26(a) requires parties to make initial

disclosures near the outset of the case. Among other things, each party must provide

a copy of documents it might use to support its claims or defenses, as well as “a

computation of each category of damages claimed.” FED. R. CIV. P. 26(a)(1)(A)(ii)–

(iii). But because initial disclosures “may (and often do) prove incomplete” as the

9

case proceeds, the rules often require supplementation of those disclosures. Morris

v. BNSF Railway Co., 969 F.3d 753, 765 (7th Cir. 2020). And so, Rule 26(e) explains

that a party that made a disclosure or responded to discovery must “supplement or

correct its disclosure or response . . . in a timely manner if the party learns that in

some material respect the disclosure or response is incomplete or incorrect, and if

the additional or corrective information has not otherwise been made known to the

other parties during the discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A).

In essence, these requirements promote fairness and eliminate surprise.

Colon-Millin v. Sears Roebuck de Puerto Rico, 455 F.3d 30, 37 (1st Cir. 2006). And

Rule 37 gives teeth to these obligations by barring reliance on information that a

party failed to properly disclose under Rule 26(a) or Rule 26(e). As Rule 37 explains,

“[i]f a party fails to provide information or identify a witness as required by Rule

26(a) or (e), the party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially

justified or is harmless.” FED. R. CIV. P. 37(c)(1).

Loper made her initial disclosures in February 2020. (Doc. 74-3). In that

document, Loper said that she suffered “compensatory damages for charges

wrongfully billed and/or collected by Defendant, emotional distress damages,

attorneys’ fees, and costs of litigation.” (Id. at 4). Then, in an August 2020 discovery

10

response, Loper listed her damages as including emotional distress, mental anguish,

damage to her credit, attorneys’ fees and costs, and charges from Lifeguard. (Doc.

74-4 at 16). Then, in her September 2020 amended complaint, Loper alleged that

“[a]s a result of Defendant’s breaches, Plaintiff and the Class have been damaged by

being charged and/or paying excessive prices, accumulating debt, suffering damaged

credit, and/or incurring interest and legal costs.” (Doc. 43-1 at 18–19).

After all that, Loper testified in a deposition in October 2020. (Doc. 67-4). In

it, Loper recalled that she has paid “about $20 or $30 a month” for a credit-

monitoring service for the previous three years “to keep on top of [her] credit” and

track whether the Lifeguard reported the debt. (Id. at 22, 37). And she testified that

she “had to hire an attorney to stop the collection process.” (Id. at 50). But she did

not say how much she paid.

The Court held a summary-judgment hearing in July 2021. (Doc. 72). During

that hearing, the parties disputed whether Loper suffered a cognizable financial

injury. Loper’s counsel asserted that her monetary injuries were unlawful billing, the

$20–$30 per-month cost of credit monitoring, and a $600 cost of hiring an attorney

to challenge Lifeguard’s collection effort in December 2017. The next week, Loper

served supplemental Rule 26 disclosures. (Doc. 74-1). Those disclosures explained

that her damages now include:

11

1. Credit Monitoring. Loper has incurred costs of at least $20.00 per

month for credit monitoring from December 2017 until present. This

damage is a total of at least $860.00.

2. Attorneys’ Fees. When Lifeguard referred its unlawful, putative

debt to a collections agency, United Collections, Loper was

compelled to retain counsel to stop that unlawful practice. As a

result, Loper incurred $650.00 in charges.

3. Unlawful billing. According to Lifeguard, Loper owes a total of

$4,276.15 that was not paid by Blue Cross and Blue Shield of

Alabama. Blue Cross and Blue Shield paid a reasonable sum for

Loper’s transport. The excess charges billed by Lifeguard are

unreasonable, and represent a putative debt that is due to be

extinguished in this matter.

(Id. at 3).

Lifeguard moved to strike Loper’s supplemental disclosures and to “disregard

the additional damages information.” (Doc. 74). In that motion, Lifeguard contends

that the Court should strike the supplemental filings and disregard the new “damages

information” because Loper violated Rule 26(a) and Rule 26(e). (Id. at 19).

The Court enjoys “broad discretion” over discovery matters. Baker v. Welker,

438 F. App’x 852, 855 (11th Cir. 2011). As a result, the Court’s decision on

Lifeguard’s motion “is entitled to great deference.” Id. For the reasons below, the

Court grants Lifeguard’s motion as to the attorney expenses but denies it as to

unlawful billing and credit monitoring.

12

For starters, Loper did not timely file her supplemental disclosures as Rule

26(e) requires. The Court-imposed deadline for filing “Initial Disclosures” passed

on February 12, 2020. (Doc. 35). Although Rule 26(e) often imposes a duty to

supplement those disclosures, Loper’s doing so was too late. By the time she filed

her supplemental disclosures, the discovery deadline had passed (id.), the parties had

briefed summary judgment, and the Court had held a summary-judgment hearing.

Despite the untimeliness of her post-discovery filing, however, Loper did not

violate Rule 26(a) or Rule 26(e) as to unlawful billing and credit monitoring. Rule

26(e) requires the disclosing party to “supplement or correct its disclosure or

response” only if both: (1) “the party learns that in some material respect the

disclosure or response is incomplete or incorrect”; and (2) “the additional or

corrective information has not otherwise been made known to the parties during the

discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A). As the advisory

committee’s notes make clear, there is “no obligation to provide supplemental or

corrective information that has been otherwise made known to the parties in writing

or during the discovery process.” FED. R. CIV. P. 26 advisory committee’s notes to

the 1993 amendment; see also Chadwick v. Bank of Am., N.A., 616 F. App’x 944,

948 (11th Cir. 2015) (relying in part on the advisory committee’s note).

13

Unlawful billing. The parties have known that Loper would rely on her

$4,276.15 debt throughout this case. In Loper’s initial disclosures, she explained that

she sought “compensatory damages for charges wrongfully billed.” (Doc. 74-3 at 4).

In her amended complaint, she referenced the charge and alleged that she was

“damages by being charged and/or paying excessive rates.” (Doc. 43-1 at 7, 18). The

discovery process also revealed evidence to support the amount of the outstanding

debt. (See, e.g., Doc. 67-3 at 88–89, 91). And the parties’ statements of undisputed

fact agree that the outstanding amount is $4,276.15. (Docs. 55 ¶ 19, 61 ¶ 19).

Accordingly, and at the very least, Loper’s total bill, her outstanding debt, and her

intention to rely on those forms of harm was “made known to the parties during the

discovery process.” FED. R. CIV. P. 26(e)(1)(A). And Loper therefore had no Rule

26(e) duty to supplement her Initial Disclosures.

Credit-monitoring service. Loper testified in her deposition that she had

been paying “about $20 or $30 a month” for over three years “to keep on top of [her]

credit” and track whether Lifeguard reported the debt. (Doc. 67-4 at 22, 37). Her

deposition testimony about the existence and cost of this injury satisfies Rule 26(e)

because it made the information “known to the parties during the discovery process.”

FED. R. CIV. P. 26(e)(1)(A). So she had no Rule 26(e) obligation to supplement.

14

Attorney expenses. Loper did not testify in enough detail to satisfy Rule 26(e)

for this injury. In her deposition, Loper claimed that she “had to hire an attorney to

stop the collection process.” (Doc. 67-4 at 50). But she did not say how much she

paid. That information—that she paid about $600—came out for the first time during

the summary-judgment hearing when her attorney said it. And Loper has identified

no other source of a damage calculation for this injury that satisfies Rule 26(a) or

Rule 26(e). True enough, she listed “legal costs” as an injury in her amended

complaint (Doc. 43-1 at 7, 19), and listed “Attorneys’ Fees and Costs” (without an

amount) as an injury in a discovery response (Doc. 74-4 at 16). But she never

disclosed any “computation . . . of damages” for this injury, as required by Rule

26(a)(1)(A)(ii), and that information never became “known to the parties during the

discovery process,” which would satisfy Rule 26(e). So her later reliance on this

information, without evidentiary support, violates Rule 26. Moreover, the failure to

disclose this figure until now—after summary-judgment briefing and discovery

deadlines passed—is not “substantially justified” or “harmless” because it

prejudiced Lifeguard’s summary-judgment arguments. FED. R. CIV. P. 37(c)(1). So

the Court strikes the filings in part and disregards the attorney-expenses information.

15

* * *

In sum, the Court grants Lifeguard’s motion to strike in part and disregard’s

Loper’s reliance on her attorney expenses. She cannot rely on that information to

oppose summary judgment. As for the unlawful billing and credit monitoring, Loper

complied with Rule 26(a) and Rule 26(e) because that information came out during

discovery, which put Lifeguard on notice that Loper might rely on it to support her

claims. So even though Loper’s supplemental filings that identified those alleged

damages were untimely, the Court will not strike them as to that information because

the filings were unnecessary and any violation was therefore harmless.

II. Lifeguard’s Motion for Summary Judgment

The Court analyzes Lifeguard’s motion proceeds in two parts. First, it

analyzes whether Loper presents a justiciable controversy. Second, it discusses the

merits of Loper’s claims. For the reasons below, the Court grants Lifeguard’s motion

in part and denies it in part.

A. Does Loper present a justiciable controversy?

The Court has a continuing and independent obligation to assure itself of

jurisdiction before reaching the merits. Jacobson v. Fla. Sec’y of State, 974 F.3d

1236, 1245 (11th Cir. 2020). This case involves two jurisdictional questions:

standing and mootness.

16

1. Standing

Article III of the Constitution limits the subject-matter jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. CONST. art. III, § 2. And “an essential

and unchanging part of the case-or-controversy requirement of Article III” is that the

plaintiff have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To

establish standing, a plaintiff must show “(1) that he or she suffered an injury in fact

that is concrete, particularized, and actual or imminent, (2) that the injury was caused

by the defendant, and (3) that the injury would likely be redressed by the requested

judicial relief.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020).

As the party invoking jurisdiction, Loper bears the burden of proving that she

has standing. Lujan, 504 U.S. at 561. She cannot do so “in gross,” which means that

she must “demonstrate standing for each claim [s]he seeks to press and for each form

of relief that is sought.” Davis v. Fed. Elec. Comm’n, 554 U.S. 724, 734 (2008)

(quotation marks omitted). This inquiry turns on whether Loper “had the requisite

stake in the outcome when the suit was filed.” Id.

One more rule. “[W]hen plaintiffs seek prospective relief to prevent future

injuries, they must prove that their threatened injuries are ‘certainly impending.’”

Jacobson, 974 F.3d at 1245 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,

401 (2013)). Although plaintiffs do not have to show “that it is literally certain that

17

the harms they identify will come about,” they must do more than make mere

“allegations of possible future injury.” Clapper, 568 U.S. at 414 & n.5 (quotation

marks and alteration omitted). Thus, they must establish a “material risk,” Muransky

v. Godiva Chocolatier, Inc., 979 F.3d 917, 928 (11th Cir. 2020) (en banc), or a

“substantial likelihood” of continuing or future injury, A&M Gerber Chiropractic

LLC v. Geico Gen. Ins. Co., 925 F.3d 1205, 1210–11 (11th Cir. 2019).1 So “a person

exposed to a risk of future harm may pursue forward-looking, injunctive relief to

prevent the harm from occurring, at least so long as the risk of harm is sufficiently

imminent and substantial.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210

(2021).

With this framework, the Court explains why Loper has Article III standing

for her retrospective claims and some prospective claims against Lifeguard.

a. Injury in fact

1. An injury in fact is a “physical, monetary, or cognizable intangible harm

traditionally recognized as providing a basis for lawsuit in American courts.” Id. at

2206. For her retrospective breach-of-contract claim, Loper suffered a cognizable

injury when she was denied the benefits of her bargain with Lifeguard. That injury

1 As the en banc Eleventh Circuit explained, there is not a meaningful difference between these terms. Muransky, 979

F.3d at 927–28 (“We do not see, we should add, a ‘material’ or ‘substantial’ difference among these terms, and the

Supreme Court has not suggested one.”).

18

materialized when Lifeguard billed Loper (through BlueCross) for $8,166.11 (Docs.

55 ¶ 16, 61 ¶ 16), an amount Loper claims violated the parties’ agreement. See Katz

v. Pershing, LLC, 672 F.3d 64, 72 (1st Cir. 2012) (“[W]hen a plaintiff generally

alleges the existence of a contract, express or implied, and a concomitant breach of

that contract, her pleading adequately shows an injury to her rights.”).

Lifeguard contends that Loper lacks standing because she never paid any out-

of-pocket money for Lifeguard’s services. (Docs. 51 at 4, 55 at 12). But case law

suggests that Loper’s liability for the charge is an injury in fact, no matter if she paid

it. Most on point is DiCarlo v. Saint Mary Hospital, a class-action challenge to a

hospital’s rate system, in which the Third Circuit explained:

At the outset the Court must reject Defendants’ argument that

Plaintiff’s breach of contract claim fails because, not having paid the

hospital charges, Plaintiff has suffered no damages. To have standing

to assert a breach of contract claim, plaintiffs need not “wait until

lawsuits against them were filed or collection agents began harassing

them or their credit files were red-flagged.” Puritt v. Allstate Ins. Co.,

284 Ill. App. 3d 442, 219 Ill. Dec. 845, 672 N.E.2d 353, 356 (1996).

The expense is incurred, whether paid or not, at the time the patient

enters a hospital with the understanding that he or she is liable for all or

part of the charges for the services to be rendered. Dillione v. Deborah

Hosp., 113 N.J. Super. 548, 555–56, 274 A.2d 597 (App. Div. 1971).

530 F.3d 255, 263 (3d Cir. 2008). And here, that Lifeguard billed Loper and pursued

collection efforts is all the more supporting of Article III standing.

19

More generally, other circuits have held that “a party to a breached contract

has a judicially cognizable injury for standing purposes because the other party’s

breach devalues the services for which the plaintiff contracted and deprives them of

the benefit of their bargain.” Mitchell v. Blue Cross Blue Shield of N.D., 953 F.3d

529, 536 (8th Cir. 2020) (quotation marks omitted); Springer v. Cleveland Clinic

Emp. Health Plan Total Care, 900 F.3d 284, 287 (6th Cir. 2018) (“[The plaintiff]

suffered an injury within the meaning of Article III because he was denied health

benefits he was allegedly owed under the plan. Like any private contract claim, his

injury does not depend on allegation of financial loss. His injury is that he was denied

the benefit of his bargain.”). Here, too, Lifeguard’s alleged breach—overcharging

for its services—denied Loper an anticipated benefit of the contract and supports

standing. That breach qualifies as an “intangible harm traditionally recognized as

providing a basis for a lawsuit in American courts.” TransUnion, 141 S. Ct. at 2206;

see Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1120 (Ala. 2003) (“It is

well settled that an action will lie for breach of contract, even where the plaintiff has

suffered no actual damage.”).

Loper’s liability for the charge is also a monetary injury that is sufficient for

Article III standing. See TransUnion, 141 S. Ct. at 2206. Lifeguard’s charging Loper

for the ambulance transport “placed on [Loper] a definite obligation to pay.” Globe

20

Life Inc. Co. v. Howard, 147 So. 2d 853, 857 (Ala. Civ. App. 1962). That means

Loper incurred the expense when Lifeguard charged her, rather than upon payment.

And so, Loper has established an Article III injury as to her retrospective state-

law claim for breach of contract.

2. For the prospective claims for declaratory and injunctive relief, the Court

finds that Loper has established “a substantial likelihood” of future injury. A&M

Gerber, 925 F.3d 1210–11. And she therefore presents a cognizable injury for

prospective relief. Jacobson, 974 F.3d at 1245.

To begin, Lifeguard argues that Loper lacks prospective standing “because

there is no reasonably foreseeable possibility that [Loper] will require or receive

some future ambulance transport by Lifeguard or incur any future charge by

Lifeguard.” (Doc. 55 at 16). Those statements are true, but they are not the end of

the inquiry. Also relevant is whether the facts reveal a “substantial likelihood” that

Loper will face future efforts to collect on the existing debt. See Strickland v.

Alexander, 772 F.3d 876, 883 (11th Cir. 2014); Malowney v. Fed. Collection Deposit

Grp., 193 F.3d 1342, 1348 (11th Cir. 1999). It’s a close call, but Loper can show a

“substantial likelihood” that she will face future collection efforts.

Three reasons support this decision. First, when she filed her complaint, Loper

remained subject to Lifeguard’s charge and was at risk of facing more collection

21

efforts. See Strickland, 772 F.3d at 885 (explaining that being “essentially a sitting

duck” supported prospective standing). Second, there is no evidence to suggest that

Loper is likely, on her own, to “satisfy the[] outstanding debt[].” Id. And third,

Lifeguard’s previous efforts to collect the debt from Loper suggested that, without

judicial intervention, Lifeguard would try to collect from Loper again.

On the third point, the Supreme Court has made clear that “past wrongs are

evidence bearing on whether there is a real and immediate threat of repeated injury.”

O’Shea v. Littleton, 414 U.S. 488, 496 (1974). From April to December 2017,

Lifeguard tried to collect on its own and through a collection agency. It is true that

Lifeguard did not pursue collection after December 2017, but Lifeguard’s attorney

conceded during the summary-judgment hearing that Lifeguard “discontinued its

collection efforts” because it “decided it wanted to avoid litigation.” Given that fact,

plus Lifeguard’s consistent denial of wrongdoing and resolve that its rates are

reasonable, the Court finds that the only thing that might insulate Loper from future

collection efforts was filing this lawsuit. Further, any contingencies that exist here

are far less speculative and attenuated than those that existed in O’Shea, 414 U.S. at

496–97, or City of Los Angeles v. Lyons, 461 U.S. 95, 106–07 (1983). And so, Loper

has established a “substantial likelihood” of future injury sufficient for prospective

standing. A&M Gerber, 925 F.3d 1210–11.

22

The Court recognizes that the “voluntary cessation” doctrine—which the

Court discusses later when judging mootness—doesn’t apply to standing. See Sheely

v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189 n.16 (11th Cir. 2007). Even

so, the 15-month hiatus between Lifeguard’s most recent collection effort and the

filing of this lawsuit does not preclude prospective standing. Lifeguard pursued

collection efforts on its own and then hired a collection agency to pursue the debt.

Lifeguard stopped coming after Loper in December 2017, but only after she

threatened a class-action lawsuit. And Lifeguard’s counsel admitted at the hearing

that Lifeguard stopped collection efforts only because it wanted to avoid litigation.

Lifeguard then conceded in a later filing that it has not ceased charging its

commercial rates (Doc. 73 at 8), which implies that it generally has not ceased

pursuing its debts, either. From Loper’s perspective, Lifeguard was lying in wait—

waiting for the chance to pursue its debt. And at some point, she had to make good

on her threat to sue, or otherwise face the non-speculative “substantial likelihood”

that she would face Lifeguard’s collection efforts once again. See Strickland, 772

F.3d at 883. That’s enough for prospective standing.

b. Causation and Redressability

Loper satisfies the causation and redressability components of standing for

her breach-of-contract claim. For her prospective claims, Loper satisfies causation

23

and redressability for part of declaration request (e) and for her second injunction

request. For the other prospective claims, she cannot satisfy redressability.

1. For causation, Loper must establish “that the injury was caused by the

defendant.” Thole, 140 S. Ct. at 1618. She alleges that Lifeguard breached their

agreement by excessively billing her. That injury—deprivation of the benefit of her

bargain—is traceable to Lifeguard.

2. For redressability, Loper must show that her “injury would likely be

redressed by the requested judicial relief.” Id. And Loper must show standing “for

each form of relief that is sought.” Davis, 554 U.S. at 734 (quotation marks omitted).

So, as for her breach of contract claim, a favorable judgment would redress

her charge-liability injury because it would answer whether Lifeguard’s decision to

charge Loper $8,166.11 violated their agreement. (Docs. 55 ¶ 16, 61 ¶ 16).

For Loper’s prospective claims, the Court must determine which of her

prospective remedies would redress her charge-liability injury; that is, her future

injury of Lifeguard trying to collect on her unpaid debt. Loper asks for six

declarations and two injunctions. (Doc. 43-1 at 14–15). The Court finds that only

part of declaration request (e)2 and her second injunction request3 would redress her

2 Declaration (e) provides: “that Defendant ha[s] no legally enforceable right to charge and/or collect the prices

charges in any court proceeding or other collection effort, and Plaintiff and the Class have no legal obligation to pay

Defendant the prices charged by Defendant for the transportation of patients.” (Doc. 43-1 at 14).

3 Her second injunction request would order Lifeguard to quit its “attempts to collect outstanding bills representative

24

feared future injury. Loper can pursue prospective remedies that would confront

Lifeguard’s right to collect on her already-imposed charge. But she cannot pursue a

remedy that would challenge the amounts that Lifeguard may charge because there

is no indication that Loper will incur another charge or require another ambulance

transport. Thus, she can pursue declaration request (e) to the extent that it would

define Lifeguard’s “right to . . . collect the prices charged” and Loper’s obligation

to pay that amount, and she can pursue her second injunction, but no more. The other

part of declaration request (e) and the first injunction request would redress an injury

that Loper will not suffer. And the other declarations requests—(a), (b), (c), (d), and

(f)—would redress nothing at all. So she lacks standing to pursue those remedies.

Finally, Loper also asks for “disgorgement . . . of all excessive sums

collected.” (Doc. 43-1 at 15). In her prayer for relief, she requests for a “constructive

trust” for these amount. (Id. at 19). “Disgorgement in an equitable remedy intended

to prevent unjust enrichment.” SEC v. Levin, 849 F.3d 995, 1006 (11th Cir. 2017)

(quotation marks and citation omitted). But the undisputed facts show that Loper

paid nothing out-of-pocket for Lifeguard’s charges. So there is no collection to

recover, and she lacks standing to pursue these equitable remedies.

of excessive rates for which no express agreement as to price exists.” (Doc. 43-1 at 15).

25

In sum, Loper has Article III standing to pursue retrospective relief for breach

of contract, and the prospective relief of the part of declaration (e) pertaining to

Lifeguard’s right to collect charged amounts and her second injunction request.

2. Mootness

Standing is not perpetual. A case becomes moot—meaning that it is no longer

a “Case” or “Controversy” under Article III—if intervening circumstances have

“irrevocably eradicated the effects of the alleged violation.” City of Los Angeles, 461

U.S. at 101. At that point, the case “no longer presents a live controversy with respect

to which the court can give meaningful relief.” United States v. Askins & Miller

Orthopaedics, P.A., 924 F.3d 1348, 1355 (11th Cir. 2019). And if a case becomes

moot “at any point during litigation, the action can no longer proceed and must be

dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013)

(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477–78 (1990)).

Lifeguard argues that three things moot this case. First, that a 3-year statute

of limitations bars Lifegaurd from pursuing Loper’s debt. (Doc. 71 at 16–17).

Second, that its failure to assert a compulsory counterclaim bars it from trying to

collect now and later. (Id. at 17–18). And third, that it has not contacted Loper or

otherwise tried to collect since December 2017 (id. at 15) and has no intention to

pursue future collection (id. at 16 n.7). But none of these moots this case.

26

a. The statute of limitations

According to Lifeguard, its claim to Loper’s debt is an “open account” claim

subject to a 3-year statute of limitations under Section 6-2-37 of the Alabama Code.

Lifeguard argues that its claim accrued in April 2017 at the latest, that the 3-year

limitations period has run, and that it is now legally barred from pursuing the unpaid

balance of its charge. The Court disagrees.

This issue boils down to whether a 3-year or 6-year limitation applies. The

Alabama Legislature enacted a 6-year statute of limitations for “[a]ctions upon any

simple contract.” ALA. CODE § 6-2-34(9). By contrast, the Legislature created a 3-

year statute of limitations for “[a]ctions to recover money due by open or

unliquidated account.” Id. § 6-2-37(1). In a few cases, Alabama courts have applied

the open-account statute of limitations in actions that involved implied contracts. See

Norton v. Liddell, 194 So. 2d 514, 518 (Ala. 1967); White v. Sikes, Kelly, Edwards

and Bryant, P.C., 410 So. 2d 66, 69 (Ala. Civ. App. 1982) (“It is established that

damages for the reasonable value of services rendered under an implied contract, the

terms of which were not fixed by the parties, is merely an open account. Suit thereon

is subject to be barred after three years under the provisions of § 6-2-37, Code

(1975).”). From these cases, Lifeguard argues that it cannot pursue Loper’s debt

because the 3-year period has run and that this case is moot.

27

Lifeguard is correct that it cannot sue Loper for an open-account claim. ALA.

CODE 6-2-37. But “a claim to collect on an open account is not mutually exclusive

of other claims such as breach of contract.” Brown v. Encore Capital Grp., Inc., No.

2:14-cv-1152, 2015 WL 1778380, at *7 (N.D. Ala. Apr. 20, 2015) (citing Stacey v.

Peed, 142 So. 3d 529, 530 (Ala. 2013)). Lifeguard can still sue Loper for breach of

contract. And because the 6-year statute of limitations for that claim has not run,

ALA. CODE § 6-2-34(9), this case is not moot because of a statute of limitation.

b. Compulsory counterclaims

Next, Lifeguard argues that its failure to assert a compulsory counterclaim in

its first responsive pleading bars it from pursuing Loper’s debt and moots this case.

True enough, Lifeguard’s claim for the unpaid balance of the ambulance-transport

charge is a compulsory counterclaim. See FED. R. CIV. P. 13(a). But Lifeguard could

ask for leave to amend its answer and add a counterclaim for breach of contract. See

FED. R. CIV. P. 15(a). So Lifeguard’s failure to assert a counterclaim does not moot

this case, either.4

4 Lifeguard might complain that the Court would not grant leave to amend its answer after the close of discovery and

briefing on summary judgment, so Lifeguard’s ability to seek leave is illusory. But even if that’s true, invoking the

compulsory-counterclaim rule to rule that this case is moot would not bar Lifeguard from bringing a breach-of-contract

claim because there would be no final judgment on the merits or actual litigation of these issues. Alabama law controls

our claim-preclusion and issue-preclusion analyses. Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508

(2001); CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1338 (11th Cir. 2017). And under Alabama law, if the

Court terminated this suit for a non-merits reasons or before adjudication of the contract issues, then neither form of

preclusion would bar Lifeguard from suing Loper for breach of contract. See Dupree v. PeoplesSouth Bank, 308 So.

3d 484, 489 (Ala. 2020) (explaining that claim preclusion requires “a prior judgment on the merits”); Aliant Bank v.

Four Star Investments, Inc., 244 So. 3d 896, 911 (Ala. 2017) (explaining that issue preclusion bars “relitigation of

28

c. Voluntary cessation of the offensive conduct

Lifeguard’s final argument is that this case is moot because it is no longer

pursuing Loper’s debt and has no intention to pursue collection going forward. (Doc.

71 at 16, 73 at 6–10). Lifeguard explains that it has not pursued collection since

December 2017 (Doc. 73 at 5), and that it is even “willing to give [Loper] a release

to evidence that [Lifeguard] has no intention to pursue any future collection action

against her,” (Doc. 71 at 16 n.7). But these circumstances do not moot this case.

One initial matter—Lifeguard argues that these facts reflect a lack of standing

because Lifeguard ceased the offensive conduct before Loper sued. (Doc. 73 at 6).

As the Court explained above, though, Loper has standing because there remains a

“substantial likelihood” that, without this suit, she will again face collection efforts.

See Strickland, 772 F.3d at 883. Another initial matter—Lifeguard’s offer to give

Loper a release does not moot this case, either. Campbell-Ewald Co. v. Gomez, 577

U.S. 153, 165 (2016) (“In sum, an unaccepted settlement offer or offer of judgment

does not moot a plaintiff’s case . . . .”).

And now to the heart of the matter: Lifeguard’s promise not to pursue

collection against Loper going forward does not moot this case because of the

“voluntary cessation” doctrine. The Supreme Court has explained “that a defendant

issues actually litigated”). So application of Rule 13(a) cannot eliminate Lifeguard’s ability to seek collection.

29

cannot automatically moot a case simply by ending its unlawful conduct once sued.”

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). “Otherwise, a defendant could

engage in unlawful conduct, stop when sued to have the case declared moot, then

pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

Id. As a result, “a defendant claiming that its voluntary compliance moots a case

bears the formidable burden of showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to recur.” Id. (quoting Friends

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).

In Sheely v. MRI Radiology Network, P.A., the Eleventh Circuit set out three

relevant factors for voluntary-cessation analysis. 505 F.3d 1173, 1184 (11th Cir.

2005). First, courts should ask “whether the challenged conduct was isolated or

unintentional, as opposed to a continuing and deliberate practice.” Id. Second, courts

should consider “whether the defendant’s cessation of the offending conduct was

motivated by a genuine change of heart or timed to anticipate suit.” Id. And third,

courts should look at “whether, in ceasing the conduct, the defendant has

acknowledged liability.” Id. Balancing these factors, Lifeguard cannot show “that it

is absolutely clear the allegedly wrongful behavior could not reasonably be expected

to recur.” Friends of the Earth, Inc., 528 U.S. at 190.

30

For the first factor, courts “are more likely to find a reasonable expectation of

recurrence when the challenged behavior constituted a ‘continuing practice’ or was

otherwise deliberate.” Sheely, 505 F.3d at 1184–85. Lifeguard acknowledges that it

has not ceased applying its commercial rates for ambulance transports. (Doc. 73 at

8). And it agreed that its charge system is “neither isolated nor unintentional.” (Id.

at 7). Thus, this factor weighs against mootness.

For the second factor, courts “are more likely to find that cessation moots a

case when cessation is motivated by a defendant’s genuine change of heart rather

than his desire to avoid liability.” Sheely, 505 F.3d at 1186. At the summary-

judgment hearing, Lifeguard’s counsel admitted that Lifeguard, “in discontinuing its

collection efforts” against Loper in December 2017, was “concerned [and] decided

it wanted to avoid litigation.” So Lifeguard’s timed its cessation of collection efforts

to avoid litigation. This factor therefore goes against mootness, too.

And for the third factor, “a defendant’s failure to acknowledge wrongdoing

similarly suggests that cessation is motivated merely by a desire to avoid liability,

and furthermore ensures that a live dispute between the parties remains.” Id. at 1187.

Lifeguard’s position is that there is no “impropriety related to the rates [it] charges”

and no “basis for Lifeguard to acknowledge liability.” (Doc. 73 at 8). Once again,

this factor invariably weighs against mootness. And, on balance, the voluntary-

31

cessation doctrine prevents mootness.

Lifeguard has not pursued collection against Loper since December 2017. But

Lifeguard’s counsel admitted that it ceased doing so to avoid litigation, shortly after

Loper hired an attorney. And Lifeguard has confidently acknowledged that it

continues to apply the commercial rates that are the subject of this lawsuit for other

ambulance passengers. For those reasons, this case is not moot. The Court will now

proceed to the merits.

B. Are there questions of fact for the jury to decide?

Loper brought claims for breach of contract, declaratory judgment (and

injunctive relief), fraudulent suppression, and negligent misrepresentation. (Doc. 43-

1 at 12–19). The Court will address her claims in that order.

1. Breach of Contract

To prevail on a claim for breach of contract, Loper must prove: (1) the

existence of a valid and enforceable contract binding the parties; (2) her own

performance; (3) Lifeguard’s nonperformance; and (4) resulting damages. State

Farm Fire & Cas. Co. v. Williams, 926 So. 2d 1008, 1013 (Ala. 2005).

There are three kinds of contracts in Alabama. The first is an express contract,

such as a written agreement, which requires “an offer and an acceptance,

consideration, and mutual assent to terms essential to the formation of a contract.”

32

Ex parte Jackson Cnty. Bd. of Educ., 4 So. 3d 1099, 1103 (Ala. 2008) (quoting Ex

parte Grant, 711 So. 2d 464, 465 (Ala. 1997)). The second is an implied-in-fact

contract, which “requires the same elements as an express contract, and differs only

in the ‘method of expressing mutual assent.’” Id. at 1104 (quoting Ellis v. City of

Birmingham, 576 So. 2d 156, 157 (Ala. 1991)). Contracts implied in fact “normally

arise in situations where there is a bargained-for exchange contemplated by the

parties, but no overt expression of agreement.” Id. (quoting Ellis, 576 So. 2d at 157);

see also Radiology Assocs., P.A. v. St. Clair Timber Co., 563 So. 2d 1020, 1021 (Ala.

1990) (“An implied-in-fact contract may be found from circumstances showing that

a mutual agreement had been reached.”). And the third are implied-in-law contracts,

which “are more properly described as quasi or constructive contracts where the law

fictitiously supplies the promise to prevent a manifest injustice or unjust enrichment,

etc.” Green v. Hosp. Bldg. Auth., 318 So. 2d 701, 704 (Ala. 1975). Implied-in-law

contract are legal fictions “created by the law for reasons of justice.” 1 CORBIN ON

CONTRACTS § 1:20 (2021).

Lifeguard contends that the parties entered an express agreement that

committed Loper to pay Lifeguard’s standard commercial rates. (Doc. 55 at 25). In

the alternative, Lifeguard says that Loper agreed to pay Lifeguard’s standard rates

under any implied-in-fact agreement. (Doc. 71 at 21–22). And Lifeguard argues that

33

Loper’s claim fails because Loper didn’t suffer any actual damages. (Doc. 55 at 29).

Loper, by contrast, argues that the price term in the Acknowledgment Form is

too indefinite to enforce. (Doc. 61 at 29–30). Her view is that the parties entered an

implied-in-fact contract without a price term. (Id. at 20–21). This means that the

contract contained an open, undefined, or missing price term, and the law therefore

implies a promise to pay the reasonable value of the service. (Id. at 17, 22–23). And

Lifeguard breached that contract by charging more than the reasonable value.

a. The terms of the agreement

The parties agree that an enforceable contract exists between Loper and

Lifeguard. But they dispute whether the express price term in the Acknowledgment

Form is enforceable and, in the alternative, what term the Court should enforce under

an implied-in-fact contract.

1. The Court begins with the Acknowledgment Form. The question is whether

the price term is void for indefiniteness. If it is, then the term is a legal nullity. If it’s

not, Loper must pay Lifeguard’s full charge. Whether the price term fails for

indefiniteness is a question of law. White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.

2d 1042, 1052 (Ala. 2008).

“To be enforceable, the essential terms of a contract must be sufficiently

definite and certain, and a contract that leaves material portions open for future

34

agreement is nugatory and void for indefiniteness.” Id. at 1051 (cleaned up). A

contract can lack definiteness in “the time of performance, the price to be paid, work

to be done, property to be transferred, or miscellaneous stipulations in the

agreement.” Id. (emphasis added). “In particular, a reservation in either party of a

future unbridled right to determine the nature of performance . . . has often caused

a promise to be too indefinite for enforcement.” Id.

“The terms of a contract are reasonably certain if they provide a basis for

determining the existence of a breach and for giving an appropriate remedy.” Id.

(emphasis omitted). “Additionally, in order for an alleged contract to be considered

void based on the indefiniteness of its terms, the indefiniteness must reach the point

where construction becomes futile.” Poole v. Prince, 61 So. 3d 258, 275 (Ala. 2010)

(cleaned up). “A court will, if possible, interpret doubtful agreements by attaching a

sufficiently definite meaning to a bargain if the parties evidently intended to enter

into a binding contract.” Id.

And when interpreting a contract, “[w]here there is no indication that the

terms of the contract are used in a special or technical sense, they will be given their

ordinary, plain, and natural meaning.” Once Upon a Time, LLC v. Chappelle

Properties, LLC, 209 So. 3d 1094, 1097 (Ala. 2016) (quoting Homes of Legend, Inc.

v. McCollough, 776 So. 2d 741, 746 (Ala. 2000)).

35

The price term in the Acknowledgment Form says that Loper “is financially

responsible for, and obligated to pay, the amount charged by [Lifeguard] for the

medical services, including any amount that is not paid by any third-party payor.”

(Docs. 55 ¶ 15, 61 ¶ 15, 67-2 at 242). The form did not set out any amount that

Lifeguard would charge or that Loper would pay. Nor did it reference Lifeguard’s

rate structure. Rather, by its “plain, ordinary, and natural meaning,” Once Upon a

Time, LLC, 209 So. 3d at 1097, the price term would require Loper to pay any

amount that Lifeguard decided to charge. That term is too indefinite to enforce

because it gives Lifeguard “a future unbridled right to determine the nature of the

performance.” White Sands Grp., L.L.C., 998 So. 2d at 1051.

In arguing otherwise, Lifeguard relies only on cases involving hospital-

admission contracts. But “the peculiar circumstances of hospitals” distinguish those

cases. DiCarlo, 530 F.3d at 263; see also Allen v. Clarian Health Partners, Inc., 980

N.E.2d 306, 311 (Ind. 2012) (“We align ourselves with those courts that have

recognized the uniqueness of the market for health care services delivered by

hospitals . . . .”).

As an example, consider the Third Circuit’s decision in DiCarlo. In that case,

an uninsured plaintiff brought a class action against a hospital (and other healthcare

providers) after the hospital charged the plaintiff “in accordance with a hospital

36

index of prices.” DiCarlo, 530 F.3d at 262. At the time of his admission to the

hospital, the plaintiff signed a document that “guarantee[d] payment of all charges

and collection expenses for services rendered.” Id. at 261. For his breach-of-contract

claim, the plaintiff argued that the admission contract “contained an open price term

and that, therefore, the law implies an agreement to pay only a reasonable price.” Id.

at 263. But the district court and Third Circuit rejected that argument. Id. at 263–64.

And “the peculiar circumstances of hospitals” formed the foundation of the court’s

decision. Id. at 263.

The DiCarlo court held that the term “all charges” was definite enough to

enforce because it “unambiguously can only refer to St. Mary’s uniform charges set

forth in its Chargemaster.” Id. at 264. As the court explained:

The price term “all charges” is certainly less precise than price term of

the ordinary contract for goods or services in that it does not specify an

exact amount to be paid. It is, however, the only practical way in

which the obligations of the patient to pay can be set forth, given the

fact that nobody yet knows just what condition the patient has, and what

treatments will be necessary to remedy what ails him or her. Besides

handing the patient an inches-high stack of papers detailing the

hospital’s charges for each and every conceivable service, which he or

she could not possibly read and understand before agreeing to

treatment, the form contract employed by St. Mary’s is the only way

to communicate to a patient the nature of his or her financial obligations

to the hospital. Furthermore, “it is incongruous to assert that [a hospital]

breached the contract by fully performing its obligation to provide

medical treatment to the plaintiff[] and then sending [him] [an]

invoice[] for charges not covered by insurance.” Burton v. William

37

Beaumont Hosp., 373 F. Supp. 2d 707, 719 (E.D. Mich. 2005).

Id. (emphasis added) (footnote omitted). And so, the court held that the promise to

pay “all charges” was enforceable and upheld the dismissal of the plaintiff’s contract

claim. Id. at 264, 267.

Other courts have similarly recognized that the special circumstances of

hospital healthcare support the enforcement of less-than-precise price terms in

admissions contracts. See, e.g., Centura Health Corp. v. French, 490 P.3d 780, 786

(Colo. Ct. App. 2020) (“[H]ospitals cannot always accurately predict what services

a patient will ultimately require.”); Allen, 980 N.E.2d at 311 (“We align ourselves

with those courts that have recognized the uniqueness of the market for health care

services delivered by hospitals . . . .”); Shelton v. Duke Univ. Health Sys., Inc., 633

S.E.2d 113, 124 (N.C. Ct. App. 2006) (“[I]t would be impossible for a hospital to

fully and accurately estimate all of the treatments and costs for every patient before

treatment has begun.”). And in the Court’s view, those cases suggest that such vague

contract terms would be unenforceable outside the special context of hospitals.

Lifeguard contends that this ambulance-transport case is identical to the

hospital-admission cases. (Doc. 55 at 27–29). And according to Lifeguard, “it would

be extremely difficult to precisely define and set out the specific rate terms in the

agreement Lifeguard clients, like [Loper], are asked to sign because of the variance

38

in circumstances between transports which cannot be known pre-transport.” (Id. at

29). But this argument ignores the fact that, when the “Out-of-Town Transport

Policy” applies, Lifeguard estimates the cost and discloses that cost to the passenger

before transport. (Docs. 55 ¶ 7, 61 ¶ 7). Counsel told the Court at the hearing that

Lifeguard would have given Loper a pre-transport disclosure of the cost if her

transport happened on a weekday, rather than over the weekend. So at least some

disclosure of the cost was possible. And Lifeguard’s argument that its cost variations

parallel those that existed in the hospital cases does not persuade the Court.

As a result, the Court finds that the hospital-admission-contract cases are not

persuasive. Unlike DiCarlo, Lifeguard’s use of the contract term “the amount

charged” (Doc. 55 ¶ 15) is not “the only practical way” to inform the passenger of

her obligations. 530 F.3d at 264. Rather, consistent with the Alabama Supreme

Court’s guidance, the Court finds that the price term signed by Loper was indefinite

and unenforceable because it gives Lifeguard an “unbridled right to determine the

nature of the performance.” White Sands Grp., L.L.C., 998 So. 2d at 1051. The Court

will not inject an interpretation that contradicts the plain and ordinary meaning of

the price term. So there is no enforceable express contract term over the price Loper

must pay for Lifeguard’s services.

39

2. The Court turns now to the terms of the parties’ implied-in-fact agreement.

An implied-in-fact contract “requires the same elements as an express contract, and

differs only in the ‘method of expressing mutual assent.’” Ex Parte Jackson Cnty.,

4 So. 3d at 1104 (quoting Ellis, 576 So. 2d at 157). That form of contract “arises

where there are circumstances which, according to the ordinary course of dealing

and common understanding, show a mutual intent to contract.” Util. Bd. v. Shuler

Bros., Inc., 138 So. 3d 287, 294 (Ala. 2013). And it usually results from situations

when “there is a bargained-for exchange contemplated by the parties, but no overt

expression of agreement.” Ex Parte Jackson Cnty., 4 So. 3d at 1104 (quoting Ellis,

576 So. 2d at 157).

The parties agree that an implied-in-fact contract existed between Loper and

Lifeguard. (Docs. 78-1 at 4, 79 at 3). And there is a genuine dispute of material fact

as to the agreed-upon price. For example, a reasonable jury could find that Loper

intended only to pay the amount BlueCross was willing to cover (Doc. 78 at 3), or

that she intended to pay Lifeguard’s standard rates (Doc. 71 at 21–22). It is for a jury

to determine whether Loper impliedly acquiesced to pay Lifeguard’s standard rates.

But under Loper’s view of the facts, the parties never reached an implied agreement

as to the price for Lifeguard’s services.

40

In an implied-in-fact contract, a lack of agreement as to price is not fatal to

the agreement. Autauga Creek Craft House, LLC v. Brust, 315 So. 3d 614, 629 (Ala.

Civ. App. 2020). Rather, in such cases, “the law implies a promise on the part of the

one accepting with knowledge the services rendered by another to pay the reasonable

value of such services rendered.” Mantiply v. Mantiply, 951 So. 2d 638, 656 (Ala.

2006) (citation omitted). That is recovery on a quantum-meruit basis. Id.

Contract-formation questions, such as whether the parties agreed on an

essential term, are fact questions for a jury. See Kennedy v. Polar, 682 So. 2d 443,

447 (Ala. 1996). Likewise, whether the price Lifeguard charged represented the

“reasonable value” of its services is a question of fact for the jury. See Autauga, 315

So. 3d at 629 (construing question of whether the plaintiff was “fully compensated”

as a fact question). And a reasonable jury could find that Lifeguard’s charged price

was excessive based on, as examples, Loper’s and Murray’s testimonies (Docs. 67-

3 at 61, 67-4 at 38–39) and the percentage of transactions for which Lifeguard

receives the amount it bills (see, e.g., Docs. 67-2 at 139–40, 150–51). See Ex parte

Univ. of S. Ala., 737 So. 2d 1049, 1053 (Ala. 1999) (explaining that a hospital

employee’s testimony that charges were reasonable was enough to support a fact

finding). Of course, other factors might influence a jury to conclude that the charged

41

price was reasonable. But the Court will not grant summary judgment on this basis.5

b. Contract Damages

Lifeguard next contends that Loper’s claim must fail for a lack of damages

because Loper has “paid nothing out-of-pocket for her Lifeguard transport” (Doc.

55 at 29–30). Only BlueCross has paid Lifeguard any money for Loper’s transport.

(Id.).

One element of a breach-of-contract claim is “resulting damages.” State Farm

Fire & Cas. Co., 926 So. 2d at 1013. The Alabama Supreme Court has upheld

judgment against a plaintiff where there was enough evidence for the trial court to

conclude that the plaintiff “suffered no damage.” Dupree, 308 So. 3d at 491. It has

also reversed a damage judgment for plaintiffs who presented no competent

evidence of their damages. State Farm Fire & Cas. Co., 926 So. 2d at 1016–18. By

contrast, the Alabama Supreme Court has also explained that “an action based on a

breach of contract will lie even where the plaintiff has suffered no actual damage.”

RLI Ins. Co. v. MLK Ave. Redevelopment Corp., 925 So. 2d 914, 918 (Ala. 2005). In

5 Throughout this litigation, Loper’s contract theory has been that, in the absence of mutual assent as to price, the law

implies a promise to pay the reasonable value of the service. (See Doc. 55 at 17 (“The undisputed record reflects that

the parties never agreed on a price for Defendant’s ambulance services.”); id. at 19 (“[T]here was admittedly no mutual

assent regarding the cost of Defendant’s transport services.”); id. at 23 (“[T]here was no agreement as to the price of

Defendant’s services.”). Then, in response to a follow up question from the Court, Loper suggested that the parties

impliedly agreed that the price would be the amount BlueCross was willing to cover. (Doc. 78 at 3–4). But not only

does this supplemental argument contradict Loper’s earlier statements that there was never a meeting of the minds as

to price, there is also no evidentiary support that Lifeguard impliedly agreed to accept less than its commercial rate.

Indeed, Lifeguard even hired a collection agency to pursue the full amount of the charge up until December 2017. For

those two reasons, the Court will not consider Loper’s alternative (and late-pressed) argument any further.

42

such cases, the plaintiff “is entitled to at least nominal damages.” Id. (quoting Avis

Rent A Car, 876 So. 2d at 1120).

BlueCross paid $3,889.96 of the charge on Loper’s behalf, and the rest

remains unpaid. (Doc. 67-3 at 88). And there is no record evidence that Loper made

an out-of-pocket payment or that her insurance rates went up as a result. But she did

present evidence that she has paid “around $20 or $30 a month” for a credit-

monitoring service (Doc. 67-4 at 22, 37), which her counsel says reaches a total cost

“of at least $860.00,” (Doc. 74-1 at 3). And although there is a colorable argument

that this injury is not recoverable because it is not “the natural and proximate

consequence[] of the breach,” Deupree v. Butner, 522 So. 2d 242, 248 (Ala. 1988),

that argument is not before the Court.

The question is whether Loper has a viable breach-of-contract claim despite

having paid money to Lifeguard. Under Alabama law, the answer is ‘yes’ because,

even if Loper suffered no damage, she can proceed for nominal damages. RLI Ins.

Co., 925 So. 2d at 918.6 So the Court will not grant summary judgment on this basis.

6 In her amended complaint, Loper asked for compensatory and punitive damages in her amended complaint but did

not request nominal damages. (Doc. 43-1 at 19). She did, however, ask for “such further relief as the Court deems

just.” (Id.). The Court finds that this language is enough to encompass an alternative request for nominal damages.

43

* * *

In sum, questions of fact exist about the parties’ implied-in-fact agreement

and the reasonableness of Lifeguard’s charge. So Loper’s failure to pay that amount

(to date) does not preclude that question from going to the jury. The Court thus

denies summary judgment on breach of contract.

2. Declaratory and injunctive relief

Lifeguard presses several arguments against prospective relief. In its initial

brief, Lifeguard focused its arguments on the improbability of Loper and Lifeguard

interacting in the future. (Doc. 55 at 14–17). In its reply brief, Lifeguard added that

the Court cannot issue a declaratory judgment that adjudicates past behavior (Doc.

71 at 11–15) and that declarations that are “merely duplicative of a breach of contract

claim” must also be dismissed. (Doc. 71 at 14).7

“It is well established that district courts have exceptionally broad discretion

in deciding whether to issue a declaratory judgment, and the remedy is not

obligatory.” Otwell v. Ala. Power Co., 747 F.3d 1275, 1280 (11th Cir. 2014) (citing

Wilton v. Seven Falls Co., 515 U.S. 277, 286–88 (1995)). And in deciding whether

7 “[I]t is improper for a litigant to raise new arguments in a reply brief.” Sellers v. Nationwide Mut. Fire Ins. Co., No.

2:15-cv-957, 2016 WL 5390564, at *6 (N.D. Ala. Sept. 27, 2016). But these arguments simply build on Lifeguard’s

initial argument that declaratory judgments and injunctions regulate future conduct, not past conduct. (Doc. 55 at 11–

17). Given that, plus the Court’s broad discretion in the context of prospective relief, the Court will consider

Lifeguard’s reply-brief arguments here.

44

to issue a declaratory judgment, courts must “yield[] to considerations of practicality

and wise judicial administration.” Wilton, 515 U.S. at 288.

There are several reasons not to issue a declaratory judgment. One is that “[a]

declaratory judgment is inappropriate solely to adjudicate past conduct.” Del. State

Univ. Student Hous. Found. v. Ambling Mgmt. Co., 556 F. Supp. 2d 367, 374 (D.

Del. 2008); Beazer Homes Corp. v. VMIF/Anden Southbridge Venture, 235 F. Supp.

2d 485, 494 (E.D. Va. 2002). Another is that declaratory judgments are improper

where the issue falls within the scope of another claim in the case. See, e.g., Organo

Gold Int’l Inc. v. Aussie Rules Marine Servs., Ltd., 416 F. Supp. 3d 1369, 1375–76

(S.D. Fla. 2019); HM Peachtree Corners I, LLC v. Panolam Indus. Int’l, Inc., No.

1:17-cv-1000, 2017 WL 3700304, at *3 (N.D. Ga. Aug. 28, 2017) (“It is common in

our Circuit for District Courts to dismiss requests for declaratory judgment when a

plaintiff asserts a corresponding claim for breach of contract.”).

Of Loper’s six declaratory-judgment requests, she only has standing to pursue

the part of request (e) related to Lifeguard’s right to collect and Loper’s obligation

to pay previously charged amounts. (Doc. 43-1 at 14). The Court will allow request

(e) to continue because it would adjudicate Lifeguard’s right to pursue collection

from Loper in the future. And it neither adjudicates past conduct nor is duplicative

of her breach-of-claim. The Court will issue such a declaration—in sufficiently

45

specific form—if Loper prevails at trial.

Loper also seeks two injunctions. The first would require Lifeguard to “cease

charging excessive rates for the transporting of patients without an express

agreement.” (Id. at 15).8 The second would order Lifeguard to “cease [its] attempts

to collect outstanding bills representative of excessive rates for which no express

agreement as to price exists.” (Id.). Lifeguard’s only argument against injunctive

relief is that Loper lacks prospective standing. But because the Court has already

rejected that argument, the second injunctive-relief request survives summary

judgment.

3. Loper’s tort claims

Finally, Loper brought claims for fraudulent suppression and negligent

misrepresentation. (Doc. 43-1 at 16–17). Lifeguard asks for summary judgment on

those claims. (Doc. 51 at 6–10). And Loper did not oppose summary judgment in

her briefing. So the Court grants Lifeguard’s motion as to those claims.

8 But Loper lacks standing to pursue this injunction.

46

kok ok

For the reasons above, the Court GRANTS IN PART and DENIES IN

PART Lifeguard’s motion to strike and disregard. (Doc. 74).

The Court GRANTS IN PART and DENIES IN PART Lifeguard’s motion

for summary judgment. (Doc. 51). The Court will enter a separate order that

dismisses the claims for which the Court grants Lifeguard’s motion.

DONE and ORDERED on September 29, 2021.

Lives. lay

COREY LE. MAZE

UNITED STATES DISTRICT JUDGE

4]