United States Court of Appeals

For the Eighth Circuit

___________________________

No. 20-3572

___________________________

Kris Crutcher; Tri-Lakes Diagnostic Imaging, LLC

lllllllllllllllllllllPlaintiffs - Appellants

v.

MultiPlan, Inc.; Private Healthcare Systems, Inc.

lllllllllllllllllllllDefendants - Appellees

 ____________

Appeal from United States District Court 

for the Western District of Missouri - Springfield

 ____________

 Submitted: September 23, 2021

Filed: January 5, 2022

____________

Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges. 

____________

SMITH, Chief Judge.

Kris Crutcher, owner of Tri-Lakes Diagnostic Imaging, LLC (TLDI), brought

suit against MultiPlan, Inc. (MultiPlan) and its subsidiary Private Healthcare Systems,

Inc. (PHCS), alleging numerous causes of action, including those relevant to this

appeal—breach of contract and a right to an award of attorneys’ fees. The district

court denied her claim of attorneys’ fees based on a finding that the indemnity clause
in the Network Agreement to which both parties succeeded did not provide for an

award of attorneys’ fees in litigation between parties to the contract. The court also

held that Crutcher’s conduct waived the contractual amendment-in-writing

requirement and that the revised fee schedule was therefore a valid modification to

the contract. We affirm the denial of attorneys’ fees but reverse as to waiver.

I. Background

A. The Parties

Crutcher and TLDI (collectively, appellants) operated a small medical

diagnostic imaging practice located in Branson, Missouri. MultiPlan and PHCS

(collectively, appellees) are two preferred provider organizations (PPOs) that operate

as intermediaries between providers and payors (i.e., health insurance agencies) in the

healthcare sector. As part of the PPO relationship, MultiPlan enters into agreements

with healthcare providers forming a network. Under these arrangements, providers

agree to charge payors a discounted rate in exchange for “steerage.” Steerage

represents the increase in business that results from being in-network. MultiPlan also

enters into agreements with third-party payors, such as insurance companies, for

access to MultiPlan’s PPO network discounted rates on behalf of their plan members.

Individuals on such plans receive healthcare services from PPO providers at

discounted rates. PHCS is MultiPlan’s nationwide primary PPO network. 

B. The Network Agreement

On April 1, 2000, Medical Investments of Branson, LLC, doing business as

Branson Imaging, entered into the Network Agreement with United Payors & United

Providers (UP&UP). Pursuant to this agreement, Branson Imaging, as “Provider,”

agreed to accept discounted rates for UP&UP clients in exchange for UP&UP’s

promise to use best efforts to require clients to create financial incentives or benefits

for their participants to seek out the services of Branson Imaging. 

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Section IV.A. of the Network Agreement provides as follows:

Provider shall render Services, subject to the availability of facilities and

services, as are available to Covered Persons in accordance with

Covered Person’s Health Benefit Program. Provider agrees to accept

payment in amounts not exceeding those specified in Attachment A,

attached hereto, as payment in full for all Charges for all Services

rendered to Covered Persons. All entities billing under Provider Tax

Identification Number will be subject to rates specified in Attachment

A.

R. Doc. 295-2, at 15. The original version of Attachment A to the Network

Agreement, titled “Percent of Charges,” states that providers would be paid at a

discounted rate of “75% of Charges for Services rendered.” Id. at 20. Additionally,

Section IV.Q. of the Network Agreement contains an indemnity clause, reading as

follows: 

UP&UP shall indemnify and hold Provider harmless from loss, damage

or defense costs (including reasonable attorneys’ and defense fees)

arising from actual or alleged wrongful acts or omissions of UP&UP, its

officers, employees, subcontractors or other agents, in performing

services contemplated under this Agreement.

Id. at 17. The Network Agreement also provided that it would “renew[] automatically

for successive one (1) year terms unless UP&UP or Provider, [gave] written notice

to the other party of its intention to terminate this Agreement no later than ninety (90)

days prior to the expiration of the then current term.” Id. The contract also noted that

“UP&UP [was] contracting for itself and for the benefit of its wholly-owned

subsidiaries or affiliates having common management and control with UP&UP,

including, but not limited to, UP&UP, Inc. d/b/a America’s Health Plan® and any

subsequently acquired subsidiary, company or affiliate.” Id. at 14.

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UP&UP was later acquired by BCE Emergis Corp. (BCE), which was then

acquired by MultiPlan in 2004. MultiPlan acquired PHCS in October 2006. MultiPlan

and PHCS thereby succeeded to the original Network Agreement between UP&UP

and Branson Imaging. 

C. TLDT

On April 2, 2001, “Branson Imaging, LLC” was canceled as a fictitious name

by Medical Investments of Branson, LLC, and MultiPlan changed the TIN associated

with the Network Agreement in its electronic systems.

On January 10, 2003, Articles of Incorporation were filed on behalf of TriLakes Diagnostic Technologies (TLDT). On or around February 8, 2003, Branson

Imaging wrote to Blue Cross Blue Shield of Missouri, advising that Branson Imaging

was operating under the new name of TLDT and that Branson Imaging’s TIN had

changed. MultiPlan accordingly changed the “provider name” and TIN associated

with the Network Agreement in its electronic systems.

D. The August 1, 2007 Letter

On August 1, 2007, appellees sent a letter addressed to Branson Imaging at the

premises then occupied by TLDT. The letter notified Branson Imaging that because

of the integration of MultiPlan and PHCS, reimbursement under the Network

Agreement would be changed from the 25-percent discount rate to an SSRIM1 fee

schedule. The correspondence included a written copy of the new fee schedule. No

one from Branson Imaging or TLDT responded to this letter. TLDT continued to

operate and accept discounts under the Network Agreement, as amended by the

SSRIM fee schedule following the August 1, 2007 letter.

1The SSRIM schedule followed a variable pricing scheme rather than a fixed

discount rate as the original contract specified.

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E. TLDI

In September 2007, Crutcher began providing office management services for

TLDT. On February 5, 2008, Crutcher filed Articles of Organization for TLDI. TLDI

occupied the office space formerly occupied by TLDT and Branson Imaging. On

February 22, 2008, Crutcher wrote to PHCS advising that the imaging facility had

again changed its ownership and name.

On or about May 5, 2008, Crutcher sent a fax to appellees, advising again of

the name change and requesting that TLDI be substituted for Branson Imaging under

the Network Agreement. The fax included a letter from Crutcher to “ATTN: Registrar

Fax 1-781-487-8273,” with the subject line “Name Change/TIN change,” dated April

16, 2008. R. Doc. 295-2, at 30. That letter reads: 

Dear Registrar, we have changed our name and EIN. The former name

for our company was Branson Imaging. The address remains the same

as well as the services and imaging capabilities we offer. Please make

the following changes to update your system. See accompanying W-9

form. 

Tri Lakes Diagnostic Imaging, LLC (formerly known as Branson

Imaging)

523 State Hwy 248, Suite 300

Branson, MO 65616

417-332-2152

Fax 417-332-0443

Id. Crutcher identified the “NEW EIN” and noted that “[t]he billing address is the

same as the business address above.” Id. She concluded the letter by stating: “We

look forward to continuing to provide imaging services for our clients.” Id. Crutcher

then provided a completed W-9 form with the same name (TLDI), address, and EIN

as indicated in the April 16, 2008 letter.

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Crutcher’s May 5, 2008 fax to appellees had a “Fax Cover Sheet,” with the

handwritten subject line, “Name change/EIN change.” It included a handwritten note

from Crutcher stating, “please make this change in your system.” Id. at 29.

On or about June 9, 2008, Crutcher sent another fax to MultiPlan and PHCS,

again asking for TLDI to be substituted for Branson Imaging under the Network

Agreement. In addition, Crutcher wrote the following: 

I have tried to update this information online and noticed that in your

system (find a provider) it is still showing as Branson Imaging. I would

greatly appreciate the assistance with this update and look forward to

continued patient services for your clients. Please let me know if there

is any additional information I need to provide you for this update.

Please see attached W-9 form.

Id. at 34–35. Following her June 9, 2008 fax, Crutcher repeatedly reached out to

PHCS to complain that appellees had not yet substituted TLDI for Branson Imaging

under the Network Agreement and that appellees’ clients were not treating TLDI as

a participating provider. She also appealed a number of claims on behalf of TLDI to

appellees’ clients, asking that they be reprocessed and paid at the in-network level

pursuant to the Network Agreement. 

MultiPlan’s records show that the provider name and TIN associated with the

Network Agreement were eventually changed in MultiPlan’s electronic systems to

TLDI and the pertinent TIN.

F. Subsequent Dealings Between the Parties

On or about February 20, 2009, MultiPlan replied in a letter to questions that

Crutcher had raised about TLDI’s reimbursement on a claim. It stated, “Multiplan has

received your request for pricing review of the above facility bill. Upon review it has

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been determined that no adjustment is required. The correct allowable amount for the

attached claim is $440.51.” R. Doc. 346-3, at 1 (emphasis omitted). In addition, the

letter noted that the claim had been priced according to the “PHCS Facility – SSRIM

fee schedule” and reflected “the correct allowable amount under [the] PHCS Facility

Agreement.” Id. (emphasis omitted). On July 16, 2009, Crutcher telephoned

MultiPlan regarding another claim, and MultiPlan advised her that the claim was

priced according to a “complex fee schedule” associated with the Network

Agreement. R. Doc. 315-16, at 21.

On or about July 17 and 20, 2009, Crutcher, on behalf of TLDI, sent a fax to

MultiPlan requesting a copy of the Network Agreement. MultiPlan responded on July

22, stating that it was having trouble finding a copy of the original Network

Agreement and representing that MultiPlan had been added to the Network

Agreement through integration with BCE effective September 1, 2004, and that

PHCS had been added through acquisition on or about December 1, 2007. MultiPlan

also represented that it had changed the entity name from Branson Imaging to TLDI

as well as the pertinent tax ID number per Crutcher’s request. A week later, on July

29, MultiPlan found a copy of the original Network Agreement and faxed it to

Crutcher. This document reflected a flat 25-percent discount rate rather than the

complex SSRIM fee schedule.

At the time, Crutcher and TLDI did not believe they were bound by a contract

with PHCS to accept the reimbursement rates. Rather than object to the agreement,

opt out of it, or seek its termination, TLDI continued to provide services to patients

covered by MultiPlan’s clients and continued to accept payment for those services

under the SSRIM fee schedule. Approximately six years later, Crutcher began to send

correspondence on behalf of TLDI requesting that they produce a separate written

contract between MultiPlan/PHCS and TLDI as well as the fee schedule applicable

to TLDI since 2008. Subsequently, in August 2015, counsel for Crutcher and TLDI

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sent MultiPlan a letter denying the existence of a valid contract between TLDI and

appellees. The letter asserted that all discounts taken by appellees’ clients were

improper.

MultiPlan responded that TLDI had been substituted for Branson Imaging

under the original Network Agreement in 2008 based on Crutcher’s request and that

neither TLDI nor its predecessors had ever requested to opt out or terminate the

Network Agreement. MultiPlan nonetheless agreed to disenroll TLDI, removing the

company from its systems and provider database and stopping all discounts as of

September 8, 2015. Appellants filed this action on November 6, 2015.

G. Litigation

Crutcher and TLDI filed suit against MultiPlan, alleging several causes of

action. Only two are present before this court—breach of contract and attorneys’ fees.

Crutcher and TLDI allege that MultiPlan breached the agreement (to which both

parties succeeded) by applying discounts to TLDI’s claims in excess of the agreedupon 25-percent discount rate. They seek damages as well as attorneys’ fees and costs

under the contractual indemnity clause. 

Crutcher and TLDI allege that MultiPlan, pursuant to the Network Agreement,

agreed upon a 25-percent discount rate. They assert that appellees breached the

contract by charging them under the SSRIM fee schedule. The use of the SSRIM

produced, in some cases, discounts exceeding the agreed-upon 25 percent. They

further allege that the Network Agreement provides that “[a]ll amendments or

modifications to this Agreement shall be mutually agreed to in writing” and that the

parties never mutually agreed in writing to any contractual modification, including

the SSRIM fee schedule. R. Doc. 295-2, at 18. Appellees argue in reply, and the

district court found, that appellants consented to the fee schedule change by their

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conduct. The court treated their consent as a waiver of their right to object to the

modification as not occurring by a mutually agreed-to writing. 

The parties filed cross-motions for summary judgment on the breach-ofcontract claim. The district court applied Missouri law to deny TLDI’s request for

attorneys’ fees based on a finding that the contractual indemnity clause does not

expressly refer to litigation between the parties. The court granted in part MultiPlan’s

motion based on a finding of contract modification by waiver through conduct on the

part of TLDI.

II. Discussion

Crutcher and TLDI appeal the district court’s grant of partial summary

judgment to MultiPlan, arguing that the court erred in finding that no genuine dispute

of material fact existed as to the issue of waiver. They also appeal the court’s denial

of attorneys’ fees.

A district court’s grant of summary judgment receives de novo review on

appeal. Cottrell v. Am. Fam. Mut. Ins. Co., S.I., 930 F.3d 969, 971 (8th Cir. 2019).

Summary judgment is appropriate where, viewing the evidence in the light most

favorable to the non-moving party, “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. Attorneys’ Fees

Appellants’ breach-of-contract claim included a request for an award of

attorneys’ fees based on Section IV.Q. of the Network Agreement. The question is

whether under Missouri law the contractual language includes costs incurred in

litigation between the parties to enforce the contract’s terms. We hold that the

contract does not include litigation between the contracting parties and that it

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therefore limits recovery for attorneys’ fees to costs incurred in defending third-party

lawsuits.

“Missouri follows the American Rule on attorneys’ fees, which provides that

each party to litigation must pay its own litigation expenses unless a statute

specifically authorizes recovery of attorneys’ fees or a contract provides for them.”

Monarch Fire Prot. Dist. of St. Louis Cnty. v. Freedom Consulting & Auditing Servs.,

Inc., 644 F.3d 633, 637 (8th Cir. 2011) (citing Lucas Stucco & EIFS Design, LLC v.

Landau, 324 S.W.3d 444, 445 (Mo. 2010) (en banc)). The issue before the court in

Monarch was whether a contractual indemnity clause entitled the plaintiff to

attorneys’ fees and costs incurred in a breach-of-contract action between the

contracting parties. The indemnity clause at issue provided that the defendant would

indemnify the plaintiff and hold him harmless “from and against any claim, cause of

action, liability, damage, cost or expense, including attorneys’ fees and court or

proceeding costs, arising out of or in connection with” the defendant’s wrongful acts,

including “breach of the terms of [the contract] by [the defendant] or any person or

entity under [the defendant’s] control.” Id. The court held this language insufficiently

definite to permit recovery of attorneys’ fees under Missouri law. The court relied on

the Missouri Supreme Court’s decision in Nusbaum v. City of Kansas City, 100

S.W.3d 101, 109 (Mo. 2003) (en banc) (per curiam), for the proposition “that in order

for a party to recover attorneys’ fees incurred in enforcing its right to indemnity under

a contract, the indemnity clause at issue must expressly refer to the enforcement of

the right to indemnity.” Monarch, 644 F.3d at 637. In addition, the court noted that

such a requirement “squares with the ‘cardinal principle’ of contract interpretation,

which ‘is to ascertain the intention of the parties and to give effect to that intent.’” Id.

at 638 (quoting Dunn Indus. Grp., Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428

(Mo. 2003) (en banc) (per curiam)). Given that an indemnity clause ordinarily

envisions third-party claims, express language referencing litigation between

contracting parties is needed to ensure that parties know their obligations under the

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contract. See id.; see also Jacobson Warehouse Co. v. Schnuck Mkts., Inc., 13 F.4th

659, 670 (8th Cir. 2021). Finally, the court reasoned that “an express language

requirement reflects the American Rule’s longstanding policy against substantive feeshifting as part of a merits award.” Id.

The indemnity clause in Section IV.Q. does not contain express language

referring to the recovery of attorneys’ fees relating to litigation between Crutcher and

TLDI and MultiPlan. This clause promises indemnity, including attorneys’ fees, in

the event of loss or damage to the provider through MultiPlan’s “wrongful acts or

omissions.” R. Doc. 295-2, at 17. It contains no explicit reference to litigation

between the contracting parties. Cf. Sheppard v. East, 192 S.W.3d 518, 523 (Mo. Ct.

App. 2006) (“In the event of litigation between the parties, the prevailing party shall

recover . . . the cost of litigation including reasonable attorney’s fees.” (alteration in

the original)); Jackson v. Christian Salvesen Holdings, Inc., 978 S.W.2d 377, 384

(Mo. Ct. App. 1998) (“In the event any dispute between the parties hereto concerning

this . . . Agreement should result in litigation, the prevailing party shall be reimbursed

by the other for all reasonable costs, including . . . reasonable attorney’s fees . . . .”).

Nor does it refer to the enforcement of contractual rights. Cf. Lee v. Invs. Title Co.,

241 S.W.3d 366, 368 (Mo. Ct. App. 2007) (awarding attorneys’ fees where contract

expressly provided for “attorneys’ fees . . . in connection with [plaintiff’s]

enforcement of its rights under this Agreement”); RJF Int’l Corp. v. B.F. Goodrich

Co., 880 S.W.2d 366, 369 (Mo. Ct. App. 1994) (awarding attorneys’ fees where

contract expressly provided for indemnity for “each and every failure or breach of any

representation, warranty, covenant and indemnification”).

Rather, the language of Section IV.Q. limits recovery of attorneys’ fees to

circumstances where liability to third parties is created through MultiPlan’s

“wrongful acts or omissions . . . in performing services contemplated under this

Agreement.” R. Doc. 295-2, at 17. That language is insufficient to meet the express

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language requirement that applies to litigation involving the contracting parties. And

even if the appellants could recover attorneys’ fees for litigation between the parties,

they could only recover “defense costs (including reasonable attorneys’ and defense

fees),” id., which would not include attorneys’ fees incurred in a suit they brought

against MultiPlan. See Stahlhuth v. SSM Healthcare of St. Louis, 289 S.W.3d 662,

670 (Mo. Ct. App. 2009) (“In determining the parties’ intent, the courts look to the

language of the contract, giving the terms their plain, ordinary, and usual meaning

and so construing the terms to avoid rendering other terms meaningless.”).

Since Monarch, Missouri courts have not departed from its logic. The

requirement for express language protects the intent of the contracting parties and

comports with the American Rule. Accordingly, we hold that the Network

Agreement’s indemnity clause does not permit recovery of attorneys’ fees in this

dispute between the contracting parties.

B. Modification of Contract by Waiver

Section VI.H. of the Network Agreement dictates that any amendment to the

contract must be mutually agreed to in writing. The implementation of the SSRIM fee

schedule changed the discount rate, which Attachment A to the original Agreement

originally set at 25 percent. The record contains no signed writing showing that

appellants consented to the change from a 25-percent discount to the SSRIM fee

schedule. Hence, without a signed writing, MultiPlan must show that appellants

waived the amendment-in-writing requirement. The district court found that Crutcher

and TLDI’s continuation of business under the SSRIM evinced an intent to waive this

requirement. Appellants claim that this conclusion was error on three distinct

grounds. First, they argue that appellees forfeited the affirmative defenses of waiver

and modification by failing to plead them in their answer. Second, they argue that

waiver is unsupported in the record. Finally, they argue that the proposed

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modification must fail for lack of consideration. We will consider each argument in

turn.

1. Adequacy of the Pleadings

Appellants contend that appellees failed to plead the affirmative defenses of

waiver and modification in their answer, such that they forfeited those defenses,

precluding the district court from raising them sua sponte. Appellants argue that these

defenses were not among the 29 affirmative defenses set forth in the answer.

Appellees only raised modification in MultiPlan’s motion for summary judgment.

Waiver was not raised by a party at all but was instead inserted by the court in its

decision.

“Waiver is an affirmative defense which must be affirmatively pleaded.”

Barnwell & Hays, Inc. v. Sloan, 564 F.2d 254, 255 (8th Cir. 1977) (per curiam); see

also Fed. R. Civ. P. 8(c). The failure to plead an affirmative defense results in its

forfeiture and exclusion from the case. Wood v. Milyard, 566 U.S. 463, 470 (2012). 

“[T]he Rule 8(c) pleading requirement is intended to give the opposing party

both notice of the affirmative defense and an opportunity to rebut it,” but we decline

to adhere to a construction of the Rule that would privilege “form over substance.”

First Union Nat’l Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir.

2007). As long as “an affirmative defense is raised in the trial court in a manner that

does not result in unfair surprise, technical failure to comply with Rule 8(c) is not

fatal.” Id. (alterations and internal quotation marks omitted). This includes the “bare

assertion” of a defense without being “articulated with any rigorous degree of

specificity.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 361 (8th Cir. 1997)

(emphasis and internal quotation marks omitted).

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Appellees argue that they in fact asserted the defenses of waiver and

modification in their answer to the second amended complaint, in which they averred

that “Plaintiffs’ claims are barred in whole or in part under principles of equitable

estoppel, waiver, notification, ratification, confirmation, acquiescence[,] and/or

consent.” R. Doc. 361, at 34. The explicit assertion of waiver in their the answer

constitutes an adequate pleading for Rule 8(c) under Zotos. Additionally, appellees

argue that these defenses were sufficiently pleaded because the answer expressly

“adopt[ed] and incorporat[ed] by reference . . . all allegations and averments” made

in previously-filed summary judgment pleadings, which discussed modification with

respect to the SSRIM fee schedule. Id. at 37. These instances were sufficient to put

appellants on notice of the defenses of waiver and modification. Accordingly, we

hold waiver and modification to have been pleaded adequately.

2. Record Evidence of Waiver

A valid waiver requires “intentional relinquishment of a known right.”

Carroll’s Warehouse Paint Stores, Inc. v. Rainbow Paint & Coatings, Inc., 824

S.W.2d 147, 151 (Mo. Ct. App. 1992) (quoting Bartleman v. Humphrey, 441 S.W.2d

335, 343 (Mo. 1969)); see also Horne v. Ebert, 108 S.W.3d 142, 147 (Mo. Ct. App.

2003). Absent an express declaration, waiver may be implied by conduct in “a clear,

unequivocal, and decisive act.” Star Dev. Corp. v. Urgent Care Assocs., Inc., 429

S.W.3d 487, 494 (Mo. Ct. App. 2014) (internal quotation marks omitted); see also

Robb v. Bond Purchase, L.L.C., 580 S.W.3d 70, 79–80 (Mo. Ct. App. 2019); Fritts

v. Cloud Oak Flooring, Co., 478 S.W.2d 8, 14 (Mo. Ct. App. 1972). “[T]he conduct

must be so manifestly consistent with and indicative of an intention to renounce a

particular right or benefit that no other reasonable explanation of [the] conduct is

possible.” Horne, 108 S.W.3d at 147 (second alteration in original) (internal

quotation marks omitted).

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Does the record support a finding of waiver? The district court thought so. The

court noted that the new fee schedule went into effect after Crutcher asked that

MultiPlan substitute TLDI for Branson Imaging. From this, the district court inferred

appellants’ intent to comply with whatever fee schedule was in effect at the time.

Crutcher and TLDI went on to accept payment and steerage from MultiPlan for six

years, from 2008 to 2014. The court concluded that the only reasonable explanation

for their lengthy compliance with the revised rates is that appellants intended to waive

their right to object to the introduction of the new fee schedule.

Appellants argue that the record does not support a finding of waiver. Their

argument focuses on the lack of evidence that either TLDI or its predecessor Branson

Imaging received an August 1, 2007 letter, sent by MultiPlan to Branson Imaging.

This letter advised Branson Imaging of MultiPlan’s acquisition of PHCS as well as

the institution of the SSRIM fee schedule. They argue that whether this letter was

received constitutes a material fact question affecting the issue of appellants’

knowledge of their right to object to the modification’s lack of a signed writing.

Missouri law presumes receipt of duly mailed materials. Am. Fam. Mut. Ins.

Co. v. Vein Ctrs. for Excellence, Inc., 912 F.3d 1076, 1083 (8th Cir. 2019). To raise

this presumption, evidence must be introduced that the letter was properly addressed,

stamped, and placed in the mail. Shelter Mut. Ins. Co. v. Flint, 837 S.W.2d 524, 528

(Mo. Ct. App. 1992). When direct proof that a particular letter was mailed is

infeasible because of the volume of mail, “evidence of the settled custom and usage

of the sender in the regular and systematic transaction of its business” will suffice to

give rise to this presumption. Id. (internal quotation marks omitted). However, even

if this presumption is established with evidence of custom and usage, it nevertheless

“may be rebutted by evidence it was not, in fact, received.” Ins. Placements, Inc. v.

Utica Mut. Ins. Co., 917 S.W.2d 592, 595 (Mo. Ct. App. 1996). “Evidence of

non-receipt, however, does not nullify the presumption but leaves the question for the

determination of the jury under all of the facts and circumstances of the case.” Id. 

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Even assuming arguendo that appellees have presented evidence sufficient to

establish the presumption of receipt, appellants have countered with evidence that it

was not received. The letter was sent prior to the formation of TLDI as a legal entity.

Moreover, it was addressed not to TLDT, the business that occupied the premises at

the time, but to Branson Imaging, its predecessor. The letter failed to turn up after a

subpoena request for the business records of Branson Imaging and TLDT. Testimony

from Crutcher’s husband, the sole employee of TLDT in October 2007, indicates that

he had not seen the letter prior to his deposition; Crutcher herself testified to the same

effect. These facts, among others, are sufficient to rebut the presumption of the

letter’s receipt.

MultiPlan allegedly sent this letter, addressed to Branson Imaging, to advise

of changes to its provider arrangements, including the revised fee schedule. Whether

it was ever received or seen by appellants or their predecessors is in dispute. The

receipt of the letter advising appellants of the new fee schedule, together with their

long-term practice of accepting payment and steerage may make for convincing

evidence of waiver. However, not having received the letter, appellants may not have

known of their right to object. Such ignorance is inconsistent with a knowing waiver.

Giving the nonmoving party the benefit of all reasonable inferences,

appellants’ knowledge of MultiPlan’s unilateral amendment of the contract should not

be presumed without proof of notice. Crutcher may have known what the fee schedule

was at a later date, but that does not necessarily mean she knew that the fee schedule

was a contractual change to which she, as the contracting party’s successor, could

have objected under the amendment-in-writing provision. That is to say, knowledge

of the fee schedule then in place should not be equated with knowledge that it

constituted an amendment to which she could have objected. Moreover, when

Crutcher requested a copy of the Network Agreement in July 2009, MultiPlan sent

her the original contract, which reflected the flat 25-percent discount, not the SSRIM

fee schedule. And MultiPlan failed to advise her of this key difference. This, along

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with the alleged non-receipt of the 2007 letter, makes it less likely that appellants

were on notice of the change and therefore would have had no reason to raise an

objection.

Appellants’ course of conduct, accepting payment and steerage over the course

of six years, certainly constitutes evidence of waiver. But it is also compatible with

ignorance of their contractual right to object to a contract modification to which they

never manifested consent in writing. Continuing with business as usual, absent proof

of knowledge of the contractual right was not, on these facts, “a clear, unequivocal,

and decisive act,” given multiple successive changes in ownership. Star Dev. Corp.,

429 S.W.3d at 494 (internal quotation marks omitted). Appellants had the right (as

successors to Branson Imaging) to object to the new fee schedule. Proof of their

awareness of the newness of the fee schedule is needed to establish whether their

contractual right to object was known, thus whether their conduct constituted

“intentional relinquishment of a known right,” i.e., waiver. Carroll’s Warehouse, 824

S.W.2d at 151 (internal quotation marks omitted). The 2007 letter’s receipt could aid

in establishing such knowledge. Whether the letter was received is a material fact

dispute. For this reason, we reverse the district court’s grant of partial summary

judgment to MultiPlan on the issue of waiver.

3. Consideration

Finally, appellants contend that the proposed change to the SSRIM fee

schedule failed as a modification to the contract for lack of consideration. Under

Missouri law, parties to a contract are free to modify it as they please, but a valid,

enforceable modification requires all the ingredients necessary to form a contract in

the first instance. Zumwinkel v. Leggett, 345 S.W.2d 89, 93–94 (Mo. 1961) (per

curiam). “The essential elements of a valid contract include offer, acceptance, and

bargained for consideration.” Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661,

662 (Mo. 1988) (en banc). The requirement for consideration calls for the exchange

of something of value as between the parties, which may include a promise. Baker v.

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Bristol Care, Inc., 450 S.W.3d 770, 774 (Mo. 2014) (en banc) (citing Morrow v.

Hallmark Cards, Inc., 273 S.W.3d 15, 25 (Mo. Ct. App. 2008)). The consideration

requirement is not met, however, “when one party merely agrees to do that which it

was already legally liable to do for a greater consideration, nor . . . when one party

agrees to do less than it is already obligated to do for the same or greater

consideration.” Medicare Glaser Corp. v. Guardian Photo, Inc., 936 F.2d 1016, 1020

(8th Cir. 1991) (quoting Twin River Constr. Co. v. Public Water Dist. No. 6, 653

S.W.2d 682, 690 (Mo. Ct. App. 1983)). Simply put, a valid modification is one that

actually changes both party’s obligations.

Appellants rely on one case in particular for their contention that the

modification fails for lack of consideration. In Medicare Glaser Corp., Medicare

agreed to provide Guardian with its photofinishing business for at least two years in

return for payment of certain advertising allowances. Id. at 1017. The court found that

an attempted modification failed for lack of consideration, reasoning as follows:

We find that no consideration existed in the February 1986 attempt to

modify the contract. Guardian was already legally liable for the 6%

advertising accrual payment; Guardian simply agreed to make this same

payment on a monthly rather than quarterly basis. Similarly, no

consideration is evidenced by Guardian’s May 1986 agreement to

increase the 6% advertising accrual payment to 13% since this increase

was entirely offset by the 7% increase in charges to Medicare. In both

cases, Guardian merely agreed to do that which it was already obligated

to do, while Medicare received less than what it had contracted for under

the original agreement.

Id. at 1020. 

In Medicare Glaser Corp., changing the schedule of payments did not

constitute consideration, as it did not change the obligation itself, but only how

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regularly the balance had to be paid. Nor did the payment increase add up to valuable

consideration, being completely offset by an increase in charges. Neither change

altered the card game, but merely shuffled the deck. The clear lack of consideration

in Medicare Glaser Corp. contrasts sharply with the present facts. When the new fee

schedule went into effect, MultiPlan opened up the PHCS network to providers,

allowing for additional patient steerage sources. The revised fee schedule together

with the increased potential patient pool changed the obligations of both parties.

TLDI, as a provider, would be subject to different rates accompanied by new and

different steerage sources, and MultiPlan would be obligated to honor its new

discount rates as to those new sources. These alterations in position suffice as

consideration.

III. Conclusion

Accordingly, we affirm the district court’s denial of appellants’ request for an

award of attorneys’ fees and reverse the court’s grant of partial summary judgment

on the matter of waiver.

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