good morning to all of you and welcome to our court just two or three brief preliminary observations that i i wanted to make st judge branch and i wanted to welcome our visiting judge judge or salon garro who sits on the united states district court for the southern district of florida where she has sat for more than twenty years she was appointed by president bush forty one in one thousand nine hundred and ninety two we are delighted to have her join us and help her help us really with our work nd observation again for those of you who have not appeared before our court you will notice that we have a labrat lighting in time system which really just tells you how much time you've got left in the course of your argument there is a green light which means you can go of course and prosy that yellow warning light which is just a two minute warning and the red light means that your time is up when that light goes on we'd be much appreciative if you could bring your remarks to a conclusion it doesn't mean you've got to stop in the middle of a sentence but if you could bring it to a conclusion we would be much appreciative that i'm sort of commenting lately that we have had a colleague on our court who for many years used to remark every time that he presided over a sitting that the red light was not aspirational so if you could bring them to a head we'd much appreciative rd and last when you proceed with your argument you may safely assume we've had a chance to review not just the briefs the record excerpts but in many instances we've had a chance to review the record as well so feel free in the course of your argument to go right to the heart of your argument with that we'll proceed with the st of our cases which was dr griffin versus coca cola and united health care may please the court my name is chambers waller and this morning i have the honor of representing the appellant dr griffin and her two appeals this morning and before i get started with margan argument i quickly want to thank the court for pointing me to these cases and give me an opportunity to represent an outstanding client in two very important cases as i'm sure you know these are not dr griffin's st appeals in the th circuit so the question that has to get answered and what's different is this court has never considered the anti simon herman two you had similar facts what we have today you have a provider who receives an assignment of benefits from a participant or beneficiary about which excuse me but not so similar right because there is a lot of communication between administrator as herman as mrs herman is that i'm not sure i'm correct about that was being admitted into the hospital and there were repeated communications in this case dr griffin has no communication with united i guess that is until unless you count the fact that she files the appeal that's her communication is the appeal after the denial partial denial of benefits the st communication i think in both of the coca cola and delta cases today would have been when she submitted the claim original but in following the submission of the claim after it was denied or at least partially denied you have the st appeal and then you have a response from united health care and then you have a nd appeal in another response from united health care and that's the same in both the coca cola and delta case actually the record i think is a little inconsistent i'm not sure that they're exactly parallel in one case there is the communication the united communicates with the beneficiary both times and copies dr griffon and i think in the other case it's the record is not clear as to whether the plan communicates with the dr griffin and directly on the nd appeal yes your honor i think in the coca cola case you have both of those communications from united directly to the patient but as you said they both copied dr griffin on both of those communications in the delta case in the record we do have the st appeal and the response back from united health care with a which if i'm not mistaken was also directed to the patient copying dr griffin we don't have pleaded in her mini complaint but isn't it accurate that the communications going back to the patient in these appeals gave to the patient all the reasons why more monies were not being paid as far as the patient was concerned well in terms of the actual responses being directed to the patient and only copying dr griffin i think that's safe to say yes your honor but so how in the how is the insurance company of the insurance companies responding the patients saying this is what we've paid here's why we're not going to pay more why would an insurance company and communicating with a patient have an obligation to say and by the way we have an anti assignment provision that we're also basing this denial on that really wasn't why the insurance companies were were was not paying more money they were responding to the patient under the terms of the insurance contract this is the reason this is been paid in full right well your honor i think it raises i think your question raises two questions and that why would they copy dr griffin on the response in the st place but nd we can't forget that in both of the in both cases in both sets of appeals dr griffin specifically asked for the presence of an anti semite provision and whether or not they were they were going to assert that part of the problem there is what was their duty to respond to that what was her right to assert that and what was there and did they have a duty to respond well in the in the assignments in both cases themselves they were assignment of the patient's rights and benefits under the resupply and specifically those assignments included the right to receive plan documents that was one of one of the specific enumerate specifically enumerated boxes that the that the patient so as far as dr griffin knew she had a valid assignment that gave her the right to receive those plane documents and she was being copied on responses from united healthcare saying you know that we're denying her appeals but that warrant they weren't referencing responses never came where she paid in full as an out of network provider no your honor she was not paid in full in either case there were claims in both cases in count one our sensually that she was under paid but you understand that in an insurance contract situation there are certain the insurance has a contract with the patient to pay certain percentage for in network and certain percentage for out of network yes was she paid as in the full percentage that an out of network provider was untitled i think if if you asked the insurer if you ask united healthcare they would say yes your honor i think that's correct up i want to say that at least in one of in one of the plans it was i think sixty percent of the bill charges for an out and out of network provider but i have done the math to see exactly what it was to see what she was on the side so she was paid as an out of network provider but she's seeking additional funds  because that's just a percentage of what the bill was that's my understanding yes you still would like a little more clarification on the basis of the waiver and i stop all arguments is your contention that because the insurance companies entertained in the appeals that's the waiver you're on i think it's not necessarily just that they entertained the appeals i think vs stoppel and waiver arguments are supported factually by the fact that she specifically requested both of it requires the existence at the time of the waiver of a right privilege or advantage or benefit which may be waived it requires showing an actual construct of knowledge and perhaps for our purposes most importantly requires a showing of an intentional relinquishment of such right privilege or advantage well your honor that you could hardly suggest that simply because they considered the appeal that that constituted an intentional relinquishment could you well your honor i think i think there are two port there are two points to raise in response to that question the st is we have to we have to remember that these cases were dismissed on twelve b six months and so we haven't had any discovery in either of these cases as to as to what actually happened in the claims review process we don't know anything about what they what claims for to sherry's did in determining whether or not they were going to you know what their thought process was what they why does that what their reasoning was why does that matter it could matter in the context of whether or not they intentionally relinquished it if if dr griffin is granted an operator but you've got to  legend for specifically to plausibly stablish a known voluntary and intentional relinquishment of a right and simply because they've heard the peal i don't think again from a factual perspective the fact that it wasn't just that dr griffin submitted claims and what they considered it and they denied it what else is there in this record that you can point  that shows the intentional relinquishment of the known right dr griffin specific request for either the existence or potential application to which they were silent and said nothing not once but twice yes or no why does that show unknown relinquishment it may be there may be any number of reasons that they did that one of them may be the reason you suggest another reason might be they didn't want to waste any more time with her it's dolly possibly right i mean there are any number of plausible theories but i guess what i'm asking is how does their silence stablish the wa out because yes you've got a plausible ysaye enough i understand we're on twelve b six but you've got to put enough on the table to say this sort of a plausible theory and i'm not sure that you have simply by saying a they didn't respond and b they entertain the appeal is there anything else lurking in this record that you can point us to from which you could plausibly conclude away or nothing that i haven't already mentioned your honor i didn't mean to cut you off i think you anything else you want to say in this way reported i just do want to stress that this is again both of these cases were dismissed on twelve b six motions and so dr griffin hasn't had an opportunity to develop a complete record about about what intentional relinquishment there may have been but when you construe the facts in the light most favorable to her when you take all the allegations in the complaint it's true and when you consider the other federal district courts that have considered this issue in eight prior cases that dr griffin's claims are without merit that the anti assignment clauses with unplanned documents are an ambiguous and enforceable that the only thing that has changed now is herman two however area that is correct to physicians malta specialty that may be persuasive but there's no precedent that we're obliged to for that is correct your honor but physicians multis specialty group did establish the press hit precedent in the th circuit that subsequent cases have followed as binding press so here we have twenty two different plan documents one for coca cola one for delta both plans authorized direct payments to providers and both plans prohibit assignment of any other rights or benefits including dr griffin's right to bring this case and that's what the district court dismissed this case on starting with the delta plan feel look at provider yes your honor she was paid in full sixty percent is my understanding of what was allowed under the terms of the plan eleven thing that i do want to note is that because both plans allow direct  payments to the provider and also in both plans they allowed for the provider to submit the claim as well as appeal the claim that is why they accepted the appeals and the claims from dr griffin on behalf of the page so if we want to move into the estoppel argument or the waiver argument and appellant argument that you know by communicating with or by addressing the appeals and communicating with the patients about the appeal submitted by dr griffin that we somehow waived our right to start they had ties simon we actually did not have a need to assert the anti assignment until dr griffin filed the last prior to that she was still operating under the terms of the plan which allowed for providers to file claims as well as file appeals on behalf of their pain there's also there's no right that that dr griffin had to obtain the plan documents from the a pelleas in this case there are some case law that talks about whether  the medical provider had access to or was provided with copies of plan documents but here dr griffin has not alleged or played any reason why she could not have received those plan documents from her patients and there was no i'd also like to point out that and dr griffin's assignment she did not assign the right to receive plan documents in fact if you look at the assignment which is identical in both the coca cola and the delta cases the form is identical and both of those cases and that can be found at eighty three  is clear that assignment has to be direct and it has to be clear there she did not use any language to indicate that she was receiving the right to any plan document that the that the patient would have under arrest and that also relates to the argument that her assignment doesn't cover anything outside of the receipt to benefits because all she says is that it's a direct assignment of rights and benefits under this policy and the policy and the plan are completely separate from the rights that she would have under arrest  i think if dr griffin had not specifically asked for the existence until application of those provisions that that do you may not have raised but i think in the context of intentionally relinquishing that right or potentially being stopped from asserting th right i don't think they can take that position that they didn't need to assert it specifically in the context of several federal district courts that have found a stop and found waiver when the insurance companies plan administrators have it the favorably only a stoppel issue for the contention that course the problem with herman two was factually it's also very different beyond it not being binding there the court determined that i quote that it was unreasonable for the defendant to lie behind the og for three years without once asserting the anti simon cause while duplicity dragging out the ongoing negotiations in order to liquidate the claim you don't have anything like that here do what your honor we certainly don't have the temporal aspect you know the claims appeal process and both of these cases only lasted a few months so if you don't take into consideration the time between the nd was that that was at the hear drove the court to exercise its equitable power or something not necessarily i think it was certainly one aspect of it and when you when you look at the cases that have followed her to in context of a stop at least not all of those cases had the same three year three year limit and there was cases we were it's two years or even less than that so i think the temporal aspect is just is just one aspect of what they have to do to  either as we talked i simply quoted to you from what the th circuit said what drove them were lying in wait for three years while duplicity dragging out the ongoing negotiations to a problem here where according to the insurance company the claim has been paid in full there was no dragging out even for a short period to avoid paying a claim the insurance company would say we paid sixty percent for an out of network provider when dr griffin because she never had access to the plane documents there's never really any way for her to fully understand the reasoning for that claims and she certainly knows she's an out of network provider because she has no think you still have that in both the coca cola case and the delta case with dr griffin because she was repeatedly asking specifically for the existence and application of an anti semite and was repeatedly  d on that particular front and i do want to make sure that i'm clear that we're arguing both the stoppel and waiver in the we're in the waiver context it's intentional blink sion of a known right but there's still district of florida all in judge jordan's case the angel jet services case from two thousand and ten the court wouldn't grant twelve b six motion to dismiss in order to allow the claimant there to dekalb medical center case that cited i know on page twenty four footnote eight of our coca cola brief and that case that was a summary judgment and judge murphy still found a stoppel based on her mint so your honor we think took on this appointment at the request of the court we very much appreciate it thank you both and will proceed to the next case