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West v. Health Net of the Northeast

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


August 7, 2003

CAROLE WEST, PLAINTIFF,
v.
HEALTH NET OF THE NORTHEAST, DEFENDANT.
DAVID COLLINS, PLAINTIFF,
v.
OXFORD HEALTH PLANS, DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge

OPINION

Presently before the Court are two motions for summary judgment filed by defendants Health Net of the Northeast ("Health Net") and Oxford Health Plans ("Oxford Health") in these related putative class actions arising under the Employee Retirement Income Security Act of 1974 ("ERISA"). After almost two years of motion practice in these cases, defendants seek summary judgment arguing that plaintiffs never had standing to bring their claims for compensatory relief and that plaintiffs' claims for injunctive relief became moot no later than November 2001.

The plaintiffs filed these actions after the New Jersey Supreme Court, in Perreira v. Rediger, 169 N.J. 399 (2001), held that health insurers who expended funds on behalf of an insured cannot seek to recover the funds from an insured's tort recovery through subrogation or reimbursement liens. Plaintiffs filed the present actions seeking compensation for the amounts that their health insurers had collected from their tort recoveries, injunctive relief declaring the subrogation and reimbursement liens void and enjoining all further collection efforts, and class relief for New Jersey insureds who were also subjected to subrogation and reimbursement liens.

This motion requires the Court to determine whether and when plaintiffs' compensatory and injunctive relief claims became moot, and whether mootness of their claims requires this Court to dismiss the entire action, including its asserted class-based relief claims. For the reasons explained herein, the Court finds (1) that neither plaintiff had standing to sue for compensatory relief because the defendants never collected any subrogation monies from them, (2) that plaintiff Collins did not have standing to sue for declaratory relief because he was not subject to a subrogation lien when he filed suit on October 4, 2001 because the lien had been abandoned on July 18, 2001, (3) that plaintiff West had standing to sue for declaratory relief when she filed suit on October 4, 2001 because she was subject to a subrogation lien, but that her claim for declaratory relief became moot on November 9, 2001 when the lien was abandoned, and (4) that the mootness of plaintiffs' claims prior to the filing of class certification motions in September, 2002, requires this Court to dismiss all claims of the uncertified putative class without prejudice to their reassertion by proper class representatives. Therefore, this Court will grant defendants' motions for summary judgment and will dismiss plaintiffs' complaints.

I. BACKGROUND

A. Procedural History

In January 2002, this Court consolidated, for the limited purpose of considering motions to remand and motions to dismiss, the present two actions and four other actions under the docket of the earliest-filed action, Carducci v. Aetna U.S. Healthcare, Civil No. 01-4675. *fn1 This Court has previously detailed the procedural history of these consolidated cases, which has involved the addition of three more cases. *fn2 See Carducci v. Aetna U.S. Healthcare, 247 F. Supp. 2d 596 (D.N.J. 2003); Carducci v. Aetna U.S. Healthcare, Civ. No. 01-4675, 2002 WL 31262100 (D.N.J. Jul. 24, 2002); Carducci v. Aetna U.S. Healthcare, 204 F. Supp. 2d 796 (D.N.J. 2002).

The cases were consolidated for the limited purposes of deciding their motions to remand and motions to dismiss because the motions dealt with similar issues arising under ERISA. Each case was originally filed as a class action complaint in New Jersey Superior Court based on Perreira v. Rediger, 169 N.J. 399 (2001), where the New Jersey Supreme Court held that, under New Jersey's collateral source statute N.J.S.A. 2A:15-97, a health insurer who expended funds on behalf of an insured may not recoup the funds through subrogation or reimbursement liens if the insured recovers from a third-party tortfeasor. In each case, the plaintiff was insured under an employee benefit health plan which paid health benefits for plaintiff's personal injuries, but which included a subrogation and reimbursement provision allowing the plan to recoup the benefits should the plaintiff recover from a third party tortfeasor. *fn3

The plaintiffs involved in the present motions filed identically-worded complaints in state court. In Count I of the West and Collins complaints, each alleges that his or her health insurance company was unjustly enriched because "Defendant required Plaintiff and the Class to reimburse Defendant for those funds expended on behalf of Plaintiff and Class members when Plaintiff and Class members recovered a judgment or settled any personal injury action against a tortfeasor." *fn4 In Count II, plaintiffs allege that "Defendant has taken, reserved, received, collected and converted thousands of dollars in subrogation and reimbursement payments from Plaintiff and the Class based on a false and illegal claim of right." *fn5 In Count III, plaintiffs seek an amendment of the terms of their health plans to comply with the Perreira decision. *fn6 In Count IV, plaintiffs seek a declaratory judgment that defendants be ordered to cease all collection efforts on reimbursement and subrogation liens.

Plaintiffs, thus, seek three types of relief: (1) compensatory relief "for damages in the amount of the reimbursements paid by Plaintiff to Defendant for payments made by Defendant to third parties on behalf of Plaintiff, together with interest thereon," (2) injunctive relief declaring all asserted reimbursement and subrogation liens void and enjoining further collection efforts by Defendants, and (3) class relief in the form of compensatory and injunctive relief. (See Complaints, Prayer for Relief.)

After hearing oral argument on the remand motions of the plaintiffs in January and April 2002, the Court denied the motions in a May 28, 2002 decision, finding that the monies that plaintiffs alleged were taken by the defendant insurers pursuant to the subrogation clauses in their employee benefit healthcare contracts were "benefits due" under ERISA section 502(a)(1)(B), meaning that the state law unjust enrichment claims were completely preempted by federal law and were properly removed to federal court. See Carducci, et al. v. Aetna U.S. Healthcare, 204 F. Supp. 2d 796 (D.N.J. 2002). *fn7 The Court explained that the relief was for "benefits due" because the "classification of the monies sought by plaintiff was addressed at length in oral argument," id. at 801, and that "[e]ssentially plaintiffs seek to regain the whole benefit provided to them by defendants, including those amounts paid in subrogation pursuant to the terms of the plans," id. at 803.

In September, 2002, the consolidated defendants, including Health Net and Oxford Health, filed a joint motion to dismiss the Complaint, asserting that plaintiffs' complaints should be dismissed because the claims were completely preempted by ERISA § 502(a)(1)(B), were conflict preempted by ERISA § 514(a), and were barred by the voluntary payment doctrine, the law regarding the retrospective application of court decisions, the standing doctrine or the mootness doctrine. The Court denied the motion to dismiss in a March 4, 2003 Opinion and Order. *fn8

In the motion to dismiss papers, the present defendants, Health Net and Oxford Health, argued that "Collins and West lack standing to pursue their compensatory claims (Counts I through III of their Complaints) because they have not suffered an `injury in fact' . . . neither alleges that he or she ever made a payment pursuant to those clauses." (Defs.' Mtn. to Dismiss Br. at 3.) Defendants then invited plaintiffs to show that they were "deprived of money by defendants related to subrogation and/or reimbursement clauses," (id. at 2 n. 1), but plaintiffs Collins and West did not respond to the standing argument in their submissions. The Court, therefore, "accept[ing] as true all material allegations of the complaint," Pennell v. City of San Jose, 485 U.S. 1, 7 (1988), accepted as true plaintiffs' allegations in their Complaints that the defendants had "taken, reserved, received, collected and converted thousands of dollars in subrogation and reimbursement payments from Plaintiff and the Class based on a false and illegal claim of right," (Complaints ¶ 19), and denied the motion to dismiss. *fn9

Defendants Health Net and Oxford Health then filed the present motions for summary judgment on May 14, 2003, arguing that there is no question that plaintiffs West and Collins are not owed "benefits due" under their plans because they never paid any monies pursuant to the reimbursement and subrogation liens and that there is no question that they do not need injunctive relief because defendants Health Net and Oxford Health have abandoned the liens. *fn10 The Court will consider these standing and mootness arguments herein and will grant the motions for summary judgment. *fn11

B. Facts Specific to West v. Health Net

As will be seen, and contrary to the allegations of her own Complaint, plaintiff Carole West never had any money taken by Health Net or its agent by way of subrogation upon her personal injury recovery or otherwise. Plaintiff Carole West was injured on August 1, 1998, (Pirtle Decl. ¶2), and, as a beneficiary of Health Net's Guardian & Physician Health Services Healthcare Solutions Plan, her covered medical services were paid by Health Net, (Stmt. of Undisputed Facts ¶1). Her Health Net plan included a "right to recovery" clause which provided Health Net with subrogation and reimbursement rights. *fn12 Health Net did not pursue these claims directly, but contracted with collection agent, Primax Recoveries, Inc. *fn13 (Moffa Aff., Ex. A, Pirtle Dep. at 15:3-17:11.) Prior to the Perreira decision on June 26, 2001, Health Net's "general policy regarding the assertion of subrogation rights and liens" was to send "anything relating to subrogation" to Primax with directions to "pursue the right for recoveries." (Moffa Aff., Ex. A, Pirtle Dep. at 15:3-17:11.)

After the Perreira decision, Health Net had "continuing discussions" with Primax about the Perreira decision and its effect on their collection efforts. *fn14 (Moffa Aff., Ex. C, Romano Dep. at 42:8-43:18.) Initially Health Net "needed time to discuss it and confer with their outside counsel," (id. at 44:25-45:11), and instructed Primax "to continue pursuit of active cases until such time as they reached a decision on how to handle the matter," (id. at 45:7-11). *fn15

Ms. West's attorney was sent a "Notice of Lien" on April 17, 2001, before the Perreira decision was issued. *fn16 (Id. at 24:1-6.) There is no record that she corresponded with Primax or Health Net about the Notice. Then, following Perreira, on October 4, 2001, plaintiff Carole West filed the present action. *fn17 On October 18, 2001, Leean Pirtle, Supervisor of Claims Recovery at Health Net, requested that Primax copy the West file and send Health Net the original file documents. (Moffa Aff., Ex. D at 43.) She also instructed Primax to "[p]ut this file on hold until further direction from [Health Net]." (Id.; Moffa Aff., Ex. C, Romano Dep. at 35:23-36:25.) On November 9, 2001, Ms. West's file at Primax was closed "at the client's request due to New Jersey laws." (Id. at 26:10-11; 39:2-13; Moffa Aff., Ex. D at 45.) The lien was abandoned when the file was closed on November 9th, (Moffa Aff., Romano Dep. at 40:19-21), with no payments ever made by West, (id. at 26:4-11).

Plaintiff was likely not given notice in November 2001 that the lien had been abandoned, (id. at 40:22-41:4), because the file was closed in Primax's Client Services Department where the employees are not required to write lien-withdrawal letters, (id. at 41:5-22). On April 28, 2003, however, Leean Pirtle of Health Net made clear that "HNNJ [Health Net New Jersey] will not pursue any reimbursement/subrogation claim against Ms. West." (Pirtle Decl. ¶5.)

C. Facts Specific to Collins v. Oxford Health

Like Carole West above, plaintiff David Collins never actually lost any health care benefits, nor did he ever repay defendant for these benefits, contrary to his own allegations, as plaintiff now admits. Mr. Collins was injured in an automobile accident on May 20, 1998, (Carr Decl. ¶2), and, as a beneficiary of Oxford Health's New Jersey Small Group Freedom Plan, his medical expenses were paid by Oxford Health, (Stmt of Facts ¶1; Solomon Aff., Ex. B.) His Oxford Health plan included the subrogation and reimbursement rights, which Oxford Health pursued through collection agent, Healthcare Recoveries, Inc. ("HRI"). *fn18 (Carr Decl. ¶3; Id., Ex. A.)

Prior to the June 26, 2001 Perreira decision, Oxford Health allowed HRI to pursue subrogation claims as it wished. (Solomon Aff., Ex. A, Widomski Dep. at 14:15-25.) Plaintiff Collins, as a result, received letters from HRI on October 16, 2000, December 12, 2000, February 2, 2001, April 17, 2001, and May 4, 2001, requesting information about his injuries and his lawsuit. (Carr Decl., Ex. B; Moffa Decl., Ex. 2.)

By June 28, 2001, Oxford Health and HRI began to discuss the effects of the June 26, 2001 Perreira decision on their collection efforts. (Solomon Aff., Ex. A, Widomski Dep. at 15:21-25; id., Ex. A at Oxford 0001.) Oxford Health initially "needed to digest the decision and how to proceed," (Solomon Aff., Ex. A, Widomski Dep. at 27:9-13,) but by July 17, 2001, it had "determined that we were unable to pursue, you know, subrogation or most subrogation for the State of New Jersey," (id. at 26:19-27:2). As a result, Gail Kahl, Director Oxford Health's corporate compliance department authored a July 17, 2001 internal memorandum explaining that Perreira and a July 5, 2001 Bulletin issued by the New Jersey Department of Insurance *fn19 required that all subrogation collection activities cease. (Widomski Decl., Ex. A at 1.) *fn20 On July 24, 2001, Mr. Widomski, Project Manager for healthcare-related projects at Oxford Health, sent an email to Bart Thompson at HRI to confirm that HRI had stopped its collection efforts. *fn21 (Widomski Decl., Ex. A at 4; Solomon Aff., Ex. A, Widomski Dep. at 24:20-27:14.) Bart Thompson replied that HRI had stopped collection efforts on all cases except for those it believed were exempt from the Perreira decision. *fn22 (Widomski Decl., Ex. A at 3.) In July, 2001, HRI closed its files and sent letters to active Oxford files to notify the insureds that HRI would no longer be pursuing subrogation rights for Oxford. (Zoeller Decl. ¶3, Id., Ex. A.) *fn23

Plaintiff Collins' file was not closed as a direct result of Perreira, but was closed on July 18, 2001 because "neither Mr. Collins nor his counsel had supplied HRI with sufficient information." (Zoeller Decl. ¶3.) *fn24 Mr. Collins was not sent a letter notifying him of the closing because he had never provided sufficient information to have his case considered active, *fn25 (Id.), but the lien was in fact abandoned against Collins on July 18, 2001.

On October 4, 2001, Mr. Collins filed his Class Action Complaint in state court. *fn26 On November 1, 2001, Mr. Widomski sent an email to Antonia Mudd at HRI inquiring about Mr. Collins' file. (Solomon Aff., Ex. A at Oxford 00012.) Antonia Mudd assured him that the file had been closed on July 18, 2001 with no monies recovered. *fn27 (Id.) It is undisputed that HRI and Oxford Health never collected any subrogation monies from Mr. Collins before or after Perreira. (Stmt of Facts ¶5.)

II. DISCUSSION

Defendants Health Net and Oxford Health argue that this Court should grant summary judgment on all claims in plaintiffs' complaints because (1) plaintiffs' individual claims fail on standing and mootness grounds, and (2) plaintiffs' class claims fail because the putative class action lacks a named representative plaintiff with a justiciable claim.

This Court finds, for the following reasons, that summary judgment is appropriate on all of plaintiffs' claims. First, the Court finds that summary judgment must be granted on plaintiffs' individual claims because plaintiffs Collins and West never had a claim for compensatory relief because they never were denied benefits due since subrogation monies were never collected from their recoveries and because their claims for declaratory relief were mooted in July 2001 and November 2001, respectively, when the defendants abandoned the liens. Second, the Court finds that plaintiffs' class-based relief claims must be dismissed because plaintiffs' claims became moot before they filed a class certification motion. Thus, this Court will dismiss plaintiffs' individual claims with prejudice and will dismiss the claims of the putative class without prejudice to their reassertion by a named plaintiff who has a justiciable claim.

A. Summary Judgment Standard

Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). *fn28

B. Individual Claims of Plaintiffs West and Collins

With this action, plaintiffs West and Collins have sought individual compensatory damages "including, but not limited to restitution and disgorgement of Defendant's ill-gotten gains," (Complaints ¶ 17), "in the amount of the reimbursements paid by Plaintiff to Defendant for payments made by Defendant to third parties on behalf of Plaintiff," (id., Prayer for Relief), and individual declaratory relief finding that the asserted reimbursement and subrogation liens are void and enjoining further collection efforts by Defendants, (id.). Plaintiffs' claims for individual compensatory and declaratory relief fail on grounds of standing and mootness because plaintiffs never paid amounts as reimbursement to defendants and because defendants have abandoned all further collection efforts on the liens, acknowledging that they are void under Perreira.

1. Standing

Defendants Health Net and Oxford Health first argue that plaintiffs West and Collins did not have standing to pursue the present lawsuit. A plaintiff must establish constitutional standing to pursue an action by showing (1) that he suffered an injury in fact, (2) that the injury was caused by the named defendant or at least "fairly traceable to the challenged action of the defendant," and (3) that a favorable decision by the court would likely redress his injury. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 561 (3d Cir. 2002) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). An injury in fact is an "invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A "redressable" injury is one which is "likely to be redressed by the requested relief." Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663 (1993).

A "plaintiff must demonstrate standing separately for each form of relief sought." Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167, 185 (2000); see also Lewis v. Casey, 518 U.S. 343, 358 (1996) (explaining that "standing is not dispensed in gross"); Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (finding plaintiff had standing to pursue damages, but lacked standing to pursue injunctive relief). The Supreme Court explained that "nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject." Lewis, 518 U.S. at 358 n. 6 (citing Blum v. Yaretsky, 457 U.S. 991, 999 (1982)). Thus, when a plaintiff asserts claims for both compensatory damages and for injunctive relief, as plaintiffs have done here, the plaintiff must have been subject to injury redressable by both compensatory and injunctive relief. *fn29

a. Compensatory relief

Here, there is no question that plaintiffs West and Collins do not have standing, and never did have standing, to assert claims for compensatory relief "in the amount of the reimbursements paid by Plaintiff to Defendant for payments made by Defendant to third parties on behalf of Plaintiff." This is so because plaintiffs West and Collins never paid anything to defendants Health Net and Oxford Health pursuant to the reimbursement and subrogation provisions in their health plans. Plaintiffs admit that "[i]t is undisputed that Ms. West never reimbursed Health Net for any monies for benefits paid by Health Net on his [sic] behalf," (West Stmt of Facts ¶3) (emphasis in original), and that "[i]t is undisputed that Collins never reimbursed Oxford for any monies for benefits paid by Oxford on his behalf," (Collins Stmt of Facts ¶3) (emphasis in original). Plaintiffs argue, though, that they still should be found to have standing to pursue compensatory claims because they were subject to liens in October 2001 when they filed their suits. This Court will consider whether plaintiffs actually were subject to liens when suit was filed infra. It need not do so here because it is immaterial to the determination of whether plaintiffs have standing to assert compensatory claims. Plaintiffs never paid monies to defendants, so plaintiffs never had a claim for compensation for benefits due from defendants. This Court will dismiss the compensatory relief claims asserted by the individual plaintiffs West and Collins for lack of standing. *fn30

b. Injunctive claims of plaintiff Collins

There is also no question that plaintiff Collins lacked standing, at the time his Complaint was filed on October 4, 2001, to pursue claims for injunctive relief. By July 18, 2001, any claim by defendant Oxford Health on plaintiff Collins' recovery was released and all collection efforts were abandoned. (See Solomon Aff., Ex. A at Oxford 00012.)

The record shows that by June 28, 2001, Oxford Health had begun to determine the impact that the June 26, 2001 Perreira decision had on its pending accounts. (Solomon Aff., Ex. A, Widomski Dep. at 15:21-24; id., Ex. A at Oxford 0001.) Initially, the company needed time to "digest the decision and how to proceed," (id., Ex. A, Widomski Dep. at 27:9-13), but by July 17, 2001, the Oxford Health "legal team . . . determined that we were unable to pursue . . . most subrogation for the State of New Jersey," (id. at 26:19-27:2), and Gail Kahl, Oxford Health's Director of Corporate Compliance, issued a memorandum "warning . . . all carriers that they must immediately cease all subrogation and recovery activity." (Widomski Decl., Ex. A at 1.) A week later, on July 24, 2001, Oxford Health's subrogation project manager, Richard Widomski, followed up with Oxford Health's collection agent HRI to "confirm that all subrogation issues have been stopped in New Jersey," (id. at 4), and was told on July 25, 2001 that HRI had stopped all subrogation efforts, except for those cases exempted from the Perreira decision, (id. at 3). By July 12, 2001 and September 6, 2001, HRI had notified some Oxford members "that we have closed our file in lite (sic) of the recent Supreme Court ruling in New Jersey only allowing liens to be asserted by Self-Funded ERISA plans. . . . [We] have withdrawn our subrogation lien in regards to the above captioned insured." (See Zoeller Decl. ¶3, Ex. A).

It is undisputed that plaintiff Collins was not sent a letter to inform him that his file had been closed and that the lien had been withdrawn. However, it is also undisputed that his file was closed on July 18, 2001 "for lack of cooperation." (Solomon Aff., Ex. A at Oxford 00012.) Charlene Zoeller, then Vice-President of HRI, certified that plaintiff Collins did not receive a letter to inform him that the lien was withdrawn because neither he, nor his counsel, had provided the information needed for his file to be considered an "active" case for which notification of the case closing was necessary. (Zoeller Decl. ¶5.)

Plaintiff argues that he first learned that the lien was withdrawn in an April 4, 2003 affidavit filed with this Court, (Carr Decl. ¶5), so that this Court should find that the lien was active until April 2003. All evidence, however, shows that the lien was in fact withdrawn in July 2001 before plaintiff filed this action. Plaintiff may have thought that the lien was still pending in October 2001, or even in April 2003, but it was not. Plaintiff's file, and the files of other New Jersey Oxford Health members were closed in July 2001 and the void subrogation liens were withdrawn. Had plaintiff's counsel written to Oxford Health or HRI at that time and inquired about the status of the lien, he likely would have learned that it had been withdrawn. Counsel for another member requested such information and was told in July, 2001, that "[s]ince our last conversation, we have been instructed by counsel not to pursue recovery on this file on behalf of Oxford. Accordingly, our file is now closed." (Zoeller Decl., Ex. A.) Instead, plaintiff filed this suit without standing to do so. There was no injunctive relief that this Court could offer Mr. Collins; he was under no lien that needed to be withdrawn. Thus, this Court will dismiss plaintiff Collins' individual claims for injunctive relief for lack of standing.

c. Injunctive claims of plaintiff West

Plaintiff West, on the other hand, had standing on October 4, 2001, the date that her Complaint was filed, to pursue claims for injunctive relief. The record indicates that Health Net's collection agent, Primax, did not place plaintiff West's file on hold until October 18, 2001, (Moffa Aff., Ex. D at 43), and did not close the file and abandon the lien "due to New Jersey laws" until November 9, 2001, (id. at 45; Moffa Aff. Ex. C, Romano Dep. at 40:19-21). Thus, the lien was active on October 4, 2001 and plaintiff West had standing on that date to file her complaint seeking a injunctive relief declaring that the lien was void.

2. Mootness of West's injunctive claims

Although plaintiff West had standing on October 4, 2001 to file claims for injunctive relief, this Court finds that her claims became moot on November 9, 2001 when Health Net withdrew its subrogation and reimbursement liens. This Court will thus dismiss plaintiff West's injunctive claims for mootness.

A district court only has authority to consider actual, ongoing "cases and controversies," Khodara Env'l, Inc. v. Beckman, 237 F.3d 186, 192-93 (3d Cir. 2001), so that when "developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001). Voluntary cessation of challenged conduct only moots a case, though, if "(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Laidlaw, 528 U.S. at 189; Phillips v. Pa. Higher Educ. Assis. Agency, 657 F.2d 554, 569 (3d Cir. 1981).Defendant Health Net argues that West no longer has a stake in a suit which seeks a judgment:

enjoining Defendant from taking actions to collect reimbursement of benefits paid from recoveries obtained from third party tortfeasors pursuant to the reimbursement and subrogation provisions contained in its contracts of insurance and requiring it to conform its contracts to New Jersey law,

and a declaration:

that all liens asserted against proceeds received from third party tortfeasors in settlements or judgments pursuant to the reimbursement and subrogation provisions in Defendant's contracts are void and unenforceable,

(see Complaint), because Health Net has irrevocably released any reimbursement and subrogation claims against plaintiff West's recoveries, acknowledging they are void "due to New Jersey laws," (see Moffa Aff., Ex. D at 45). *fn31

Here, the record is clear that the lien against plaintiff West, which she sought injunctive relief to remove, was removed by defendant Health Net in November 2001. Health Net had engaged in "continuing discussions" with Primax about the Perreira decision, and had allowed Primax to continue pursuing active cases until November 2001, (Moffa Aff., Ex. C, Romano Dep. at 42:8-43:18, 45:7-11), but by November 9, 2001, it closed its file on plaintiff West and withdrew the lien, (id. at 40:19-21; Moffa Aff., Ex. D at 45). It has since withdrawn all liens as required by New Jersey Administrative Code section 11:4-42.10, which provides:

(a) No policy or certificate providing group health insurance shall limit or exclude health benefits as the result of the covered person's sustaining a loss attributable to the actions of a third party.

(a) Insurers shall file with the Commissioner no later than December 31, 2002, endorsements that remove any subrogation and third party recovery provisions contained in previously filed contract, policy or certificate forms.

Health Net has also unequivocally represented to this Court that it has withdrawn any claims against plaintiff West's recovery and will never pursue claims against her tort recovery for the August 1, 1998 accident. (Pirtle Decl. ¶5.)

The Court finds that, with these facts, it can be "said with assurance" that there is no reasonable expectation that Health Net will reassert a subrogation or reimbursement claim against plaintiff West's recovery from her August 1, 1998 accident. Health Net withdrew the lien on November 9, 2001 and has consistently represented to this Court that its withdrawal was unequivocal and complete. Plaintiff was never required to pay any amounts because of the lien, and while she asserts that she bore "incidental costs" associated with the lien, she has not presented any proof or explanation of these costs. Instead, the record shows that on November 9, 2001, Health Net completely and irrevocably withdrew its lien against plaintiff's tort recovery and eradicated her need to seek injunctive relief ordering such a withdrawal. As a result, this Court finds that plaintiff West's individual claims for injunctive relief became moot on November 9, 2001, and this Court will dismiss such claims for mootness.

C. Class Claims

Plaintiffs West and Collins have also asserted claims on behalf of a putative class including:

all persons throughout New Jersey who are or were insureds of Defendant from approximately 1993 to the date of certification of the Class and who, pursuant to the reimbursement and/or subrogation provisions in their health insurance contract, have paid, or are obligated to pay, reimbursement to Defendant for healthcare payments made for injury and illness caused by a third party, from monies recovered from that third party.

(Complaints ¶6.) Defendants also seek dismissal of these class claims on mootness grounds.

The Third Circuit has explained three separate mootness rules which apply depending on the stage of a class action that the named plaintiffs claims become moot. Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir. 1992). First, if the claims of the named plaintiffs become moot when the class certification motion has not yet been filed in a putative class action, the Court must dismiss the entire action, including its class claims, because "there is no plaintiff (either named or unnamed) who can assert a justiciable claim against any defendant and consequently there is no longer a `case or controversy' within the meaning of Article III of the Constitution." Id. at 974-75. Second, if the claims of the named plaintiffs become moot after a class certification motion has been filed, but before the class has been certified or while the certification is on appeal, the Court should not dismiss the action until the certification issues are decided because the named plaintiffs retain an interest in the certification issues and may represent the class during the pendency of the motion. Id. at 975. If the class certification motion is denied, then the entire class action "on the merits must be dismissed as moot." Id. at 976. Third, if the claims of the named plaintiffs become moot after the class is certified, the Court must not dismiss the action because at that time, the "class [has] acquire[d] a legal status separate from the interest asserted by its named plaintiff," as "the stake of other class members is attributed to the class representative." Id. at 974.

Here, the Court has found, infra, that the individual claims of named plaintiff Collins became moot on July 18, 2001 and the individual claims of named plaintiff West became moot on November 9, 2001. Plaintiffs Collins and West did not file class certification motions until at least ten months later, on September 6, 2002 and September 9, 2002, respectively. *fn32 The facts of this case, thus, fall squarely within the first scenario explained above where the claims of the named plaintiffs become moot before a class certification motion has been filed, and accordingly, the Third Circuit has instructed the court to dismiss the entire action including its class claims. See Lusardi, 975 F.2d at 974-75. The Third Circuit explained that:

We are not aware of a single case holding that a district court has subject matter jurisdiction to hear a motion to certify filed by named plaintiffs whose personal claims have expired. Without a rule that plaintiff have a live claim at least when the motion to certify is filed, the "case or controversy" requirement would be almost completely eviscerated in the class action context, since almost anybody might be deemed to have standing to move to certify a class.

Id. at 983.

Here, therefore, the Court must dismiss all class claims. In so doing, the Court does not make any finding as to the viability of the claims of those in the putative class. There may be an individual in the putative class who has been deprived of benefits due under his plan because of monies taken pursuant to a subrogation or reimbursement clause. There may also be an individual in the putative class who may eventually be re-subjected to a subrogation or reimbursement lien should the law of New Jersey change and allow defendants to again reassert such liens. *fn33 Here, this Court is simply dismissing the claims of the putative class in this case; the dismissal is without prejudice to their reassertion by an appropriate named plaintiff. *fn34 In these actions, there is no named plaintiff with a justiciable claim who is able to represent their interests. Where the claims of the named plaintiffs become moot prior to the filing of a motion for class certification, the named plaintiff cannot serve as a representative of the class and the claims of the putative class cannot proceed. Thus, this Court will dismiss the class-based relief claims along with the claims of plaintiffs West and Collins.

The accompanying Order is entered.

ORDER

This matter having come before the Court on the motion of defendant Health Net of the Northeast for summary judgment on the claims of plaintiff Carole West in West v. Health Net of the Northeast, Civil No. 01-5217 (JBS), [Docket Item 23-1], and on the motion of defendant Oxford Health Plans for summary judgment on the claims of plaintiff David Collins in Collins v. Oxford Health Plans, Civil No. 01-5237 (JBS), [Docket Item 20-1]; this Court having reviewed the original and supplemental submissions of the parties and having heard the arguments of the parties on July 17, 2003; and for the reasons in the Opinion of this date;

IT IS this 7th day of August, 2003, hereby

ORDERED that the motion of defendant Health Net of the Northeast for summary judgment on the claims of plaintiff Carole West in West v. Health Net of the Northeast, Civil No. 01-5217 (JBS), [Docket Item 23-1] be, and hereby is, GRANTED; and

IT IS FURTHER ORDERED that all individual claims of plaintiff West in West v. Health Net of the Northeast, Civil No. 01-5217 (JBS), be, and hereby are, DISMISSED WITH PREJUDICE; and

IT IS FURTHER ORDERED that all claims of the putative class sought to be represented by plaintiff West in West v. Health Net of the Northeast, Civil No. 01-5217 (JBS), be, and hereby are, DISMISSED WITHOUT PREJUDICE; and

IT IS FURTHER ORDERED that the motion of defendant Oxford Health Plans for summary judgment on the claims of plaintiff David Collins in Collins v. Oxford Health Plans, Civil No. 01-5237 (JBS), [Docket Item 20-1], be, and hereby is, GRANTED; and

IT IS FURTHER ORDERED that all individual claims of plaintiff Collins in Collins v. Oxford Health Plans, Civil No. 01-5237 (JBS), be, and hereby are, DISMISSED WITH PREJUDICE; and

IT IS FURTHER ORDERED that all claims of the putative class sought to be represented by plaintiff Collins in Collins v. Oxford Health Plans, Civil No. 01-5237 (JBS), be, and hereby are, DISMISSED WITHOUT PREJUDICE.

JEROME B. SIMANDLE UNITED STATES DISTRICT JUDGE


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