NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No . 18

- 2224

________________ KRISTINE GUARIGLIA ,

Appellant

v. UNITED FOOD & COMMERICAL WORKERS LOCAL 464A UNION

WELFARE SERVICE BENEFIT FUND

________________ Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2

- 18

- cv - 00002) District Judge: Honorable Susan D. Wigenton

________________ Argued January 1 5 , 2019 Before: AMBRO, HARDIMAN , and FUENTES , Circuit Judges

(Opinion filed : August 6 , 2019 )

________________ OPINION *

________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Steve L. Kessel, Esquire (Argued) Drazin & Warshaw 25 Reckless Place P.O. Box 8909 Red Bank, NJ 07701 Counsel for Appellant Mark Hanna, Esquire (Argued) Murphy Anderson 1401 K Street, N.W. Suite 300 Washington, DC 20005 Counsel for Appellee

AMBRO, Circuit Judge We review the District Court’s dismissal of a claim under the Employee Retirement Income Security Act of 1974 (“ERISA”) , 29 U.S.C. § 1001 et seq. , seeking to compel a n employer

- sponsored healthcare plan to pay medical expenses. Th e Court held the claim wa s barred by res judicata stemming from its dismissal of a similar claim in a prior case with the same parties . We need not assess whether that application of res judicata was correct because, on a separate ground , we conclude the District Court was

correc t to dismiss the complaint. We thus affirm.
I. Background Kristine Guariglia is a participant in an employer

- sponsored healthcare plan (the “Plan”) administered by defendant

- appellee Local 464A United Food and Commercial Workers Union Welfare Se rvice Benefit Fund (the “ Fund”). The Plan is an empl oyee welfare benefit plan under ERISA

. It is “not a primary plan or a secondary plan but3

rather a tertiary plan and payer of last resort.” (App. 025a.) In other words, the Fund will pay benefits only when payments from other sources are unavailable. ( See, e.g. , App. 025a .) It extends this payer

- of

- last

- resort concept to medical expenses in particular, reiterating that it “ does not cover healthcare expenses for which a third party is responsible to pay.” (App. 02 6a.) In April 2012 Guariglia was injured when she tripped due to a pothole. S he filed that year a lawsuit in New Jersey state court (the “Liability Action”) alleging that

numerous third parties were liable for her injuries. She also filed a claim for reimbursement of medical expenses under the Plan, but the Fund denied that claim

. Dissatisfied with the Fund’s decision , Guariglia filed in 2013 an action in the District Court (“ Guariglia I

”) seeking to compel the Fund to pay her medical expenses. She

a rgued, among other things, that it must pay them irrespective whether she signed a reimbursement agreement or did not pursue medical expenses as a form of damages in the Liability Action. The District Court disposed of Guariglia I by granting a motion to d ismiss filed by the Fund. Guariglia v. Local 464A United Food & Commercial Workers Union Welfare Serv. Ben. Fund , 2013 WL 6188510 (D.N.J. Nov. 25, 2013)

. The Court held that (1) the Fund’s demand for a reimbursement agreement as a condition for advancing medical expenses did not violate ERISA, and (2) under the Plan the Fund was not required to advance or reimburse Guariglia’s medical expenses at that time

. Id. at *5. In the wake of Guariglia I , Guariglia continued to pursue her claims against third
par ties in the Liability Action, but she did not amend that action to include medical4

expenses , apparently because of a tactical decision made by her counsel based on a belief that to seek medical expenses would create a conflict of interest

. See Guariglia I , 2013 WL 6188510, at *4. Moreover, s he did not include those expenses notwithstanding having signed a reimbursement agreement with the Fund in which she promised to do so. (App. 037a

– 038a.) In May 2017 a jury entered a verdict in favor of the defendants in the Liability Action. Within a few weeks after the verdict, Guariglia’s attorney sent a letter to the Fund asserting that “[s]ince Ms. Guariglia’s medical expenses are not recoverable from a
third

- party, by virtue of the jury’s verdict, those bills should now properly be paid under the terms of your plan.” (App. 061a.) The Fund denied that claim (App. 063a

– 065a), so Guariglia filed this second action in the District Court. It granted the Fund’s motion to dismiss the complaint, holding her claim was barred by res judicata based on the Court’s
order dismis sing the complaint in Guariglia I

. Guariglia appeals to us

. II. Discussion 1 The District Court dismissed Guariglia’s claim as barred by res judicata , and the parties devote d most of their briefing to that issue. However, we may affirm dismissal of a complaint on any ground presented by the record. See Munroe v. Central Bucks Sch.
Dist. , 805 F.3d 454, 469 (3d Cir. 2015). We perceive one such ground here . I ndeed, it
almost jumps from the record : a s a condition to receiving a reimbursement of medical

1 The District Court had jurisdiction under 29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have juris diction under 28 U.S.C. § 1291 and review de novo dismissal of the Complaint

. Vorchheimer v. Phila. Owners Ass’n , 90 3 F.3d 100, 105 (3d Cir. 2018)

.5

expenses from the Fund, Guariglia signed an agreement promising first to seek those expenses from third parties who may be liable for them. (App. 037a

– 038a.) But then, notwith standing that agreement, she chose not to expand the Liability Action to seek those medical expenses at any point in the ensuing five years. ( See Transcript of Oral Argument at 14.) In other words, by her own admission, she did not fulfill her promises under the reimbursement agreement and, accordingly, was not entitled to receive payer

of

- last

- resort benefits under the Plan. In these circumstances, the Fund was clearly within its discretion to deny her claim. See Fleisher v. Standard Ins. Co. , 679 F.3d 116,
120

– 21 (3d Cir. 2012 ).

* * * * * We affirm the District Court’s dismissal of the complaint.