United States Court of Appeals

For the Eighth Circuit

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No. 16-1557

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Raleigh Spizman; Robert Spizman

lllllllllllllllllllll Plaintiffs - Appellants

v.

BCBSM, Inc., doing business as Blue Cross Blue Shield of Minnesota

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: December 13, 2016

 Filed: May 4, 2017

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Before LOKEN, MURPHY, and KELLY, Circuit Judges.

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LOKEN, Circuit Judge.

Raleigh Spizman was hospitalized in November 2012 and returned home in

February 2013, where a home health care provider and personal care assistants began

providing 24-hour care. Blue Cross Blue Shield of Minnesota provided Raleigh’s

health care insurance coverage under a group policy sponsored by her husband

Robert’s employer. When Blue Cross denied the Spizmans “round-the-clock” inhome health care coverage, they brought thisfederal action, asserting claims for relief
in six counts. The district court granted Blue Cross’s motion to dismiss four counts,

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the parties stipulated to dismiss the remaining two counts with prejudice, and the

court entered final judgment in favor of Blue Cross. The Spizmans appeal the

dismissal of Counts I, II, and VI, claims governed by the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. We take the facts alleged

in their First Amended Complaint as true and also consider insurance policy

documents placed in the district court record. See Enervations, Inc. v. Minn. Min. &

Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004). Reviewing the grant of a motion to

dismiss de novo, we affirm. Harris v. The Epoch Grp., L.C., 357 F.3d 822, 824-25

(8th Cir. 2004) (standard of review).

I. Background.

On November 18, 2012, Raleigh Spizman was hospitalized and placed on a

ventilator after developing acute aspiration pneumonia. Before she returned home,

the Spizmans decided to hire a home health agency to manage her pulmonary

rehabilitation and weaning off the ventilator. The Blue Cross group health care

policy issued to Robert’s employer was renewed each calendar year. The Complaint

alleged that a Blue Cross agent assuredRobert that the 2013 policy would provide the

same coverage asthe 2012 policy and would cover Raleigh’s home health care needs. 

In early 2013, a BlueCross claims representative toldRobert there would be coverage

and benefits for Raleigh’s care. Despite these assurances, Blue Cross denied

coverage of the Spizmans’ claim for 24-hour in-home health care.

After Blue Cross denied their internal appeals, the Spizmans brought this

federal court action. Blue Cross moved to dismiss five of the six counts. Magistrate

The Honorable Michael J. Davis, United States District Judge for the District 1

of Minnesota, adopting the Report and Recommendation of the Honorable Tony N.

Leung, United States Magistrate Judge for the District of Minnesota.

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Judge Leung issued a Report and Recommendation recommending dismissal of four

counts, which the district court adopted after de novo review. Spizman v. BCBSM,

Inc., 2015 WL 4569249, at *11 (D. Minn. July 27, 2015). Not dismissed were Count

III, a claim under 29 U.S.C. § 1132(a)(1)(b) to recover benefits due under the ERISA

plan, and Count IV, a claim under 29 U.S.C. § 1132(a)(3) for “other appropriate

equitable relief” fromBlue Cross’s alleged breach of fiduciary duty in refusing to pay

plan benefits. The district court subsequently dismissed Counts III and IV with

prejudice pursuant to the parties’ stipulation. The issues before us are the Spizmans’

appeal of the dismissal of Counts I, II, and VI.

II. Count I and Count II.

In Counts I and II, the Spizmans sought a declaratory judgment that they are

entitled to health care coverage for “Raleigh Spizman’s home health care needs and

requirements,” which, the Complaint alleged, included “intermittent skilled nursing

care beyond one visit per day.” The Blue Cross 2012 Certificate of Coverage

provided home health care coverage for “[s]killed care ordered in writing by a

physician and provided by [approved] home health agency employees,” including

“[s]ervices that are medically necessary and provided by a licensed nurse.” But the

policy excluded “services for or related to private-duty nursing.” The policy did not

define “private-duty nursing.” The 2013 Certificate of Coverage likewise covered

skilled home health care services including “intermittent skilled nursing care in your

home.” But the policy excluded “extended hours skilled nursing care, also referred

to as private-duty nursing care.” The policy defined “intermittent skilled nursing

care” as “a visit by a registered nurse or licensed practical nurse of up to four (4)

consecutive hours in duration.” 

A. In Count I, the Spizmans alleged that the 2013 policy Certificate

substantially reduced the coverage provided by the 2012 policy by limiting the

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coverage of “intermittentskilled nursing care” to one four-hour visit; that Blue Cross

violated its affirmative duty to notify the Spizmans of this reduction in coverage,

rendering the exclusion in the 2013 policy void under Minnesota law; and that the

2012 policy covered Raleigh’s “round-the-clock 24-hour care” because its “privateduty nursing care” exclusion was ambiguous and therefore must be construed against

the insurer under Minnesota law. 

In dismissing Count I, Magistrate Judge Leung concluded that interpreting

“private-duty nursing” as excluding Raleigh’s round-the-clock in-home nursing care

“is consonant with the term’s commonly understood meaning and dictionary

definition.” Spizman, 2015 WL 4569249, at *5. We agree. WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY defines “private-duty,” when used as an adjective

describing a nurse, as “caring for a single patient either in the home or in a hospital.” 

(unabridged ed. 1986). Similarly, Medicaid regulations provide that “[p]rivate duty

nursing servicesmeans nursing servicesfor beneficiaries who requiremore individual

and continuous care than is available from a visiting nurse.” 42 C.F.R. § 440.80. 

Providing Raleigh round-the-clock in-home nursing care is nursing “for a single

patient . . . in the home,” and is “more individual and continuous care than is

available from a visiting nurse.” Thus, the Spizmans’ claim for round-the-clock inhome nursing care fell within the plain meaning and common understanding of the

“private-duty nursing” exclusion in the 2012 policy. 

On appeal, the Spizmans argue that, under Minnesota law, “private-duty

nursing” is an ambiguous term that must be construed in their favor. This contention

is contrary to well-settled federal law. In construing ambiguities in an ERISA plan,

we apply federal law, not Minnesota law, construing disputed language “without

deferring to either party’s interpretation.” Brewer v. Lincoln Nat’l Life Ins. Co., 921

F.2d 150, 154 (8thCir. 1990) (quotation omitted), cert. denied, 501 U.S. 1238 (1991). 

We do not apply “the contra insurer or reasonable expectation doctrines, both of

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which are general rules of contract construction not specific to the insurance

industry.” Meester v. IASD Health Servs. Corp., 963 F.2d 194, 197 (8th Cir. 1992). 

Because an ERISA plan must be “written in a manner calculated to be understood by

the average plan participant,” 29 U.S.C. § 1022(a), we accord policy terms their

ordinary, plain meaning. See Knowlton v. Anheuser-Busch Cos. Pension Plan, 849

F.3d 422, 429 (8th Cir. 2017); Kitterman v. Coventry Health Care of Iowa, Inc., 632

F.3d 445, 448 (8th Cir. 2011). “Recourse to the ordinary, dictionary definition of

words is not only reasonable, but may be necessary.” Khoury v. Grp. Health Plan,

Inc., 615 F.3d 946, 955 (8th Cir. 2010) (quotation omitted).

We review a plan administrator’s decision under the same standard of review

as the district court. See Jessup v. Alcoa, Inc., 481 F.3d 1004, 1006 (8th Cir. 2007). 

Assuming without deciding that the appropriate standard is de novo review of the

2012 policy’s “private-duty nursing” exclusion, we agree with the district court that

the Spizmans’ claim for round-the-clock in-home nursing care, the only claim

asserted in Count I, fell within the plain language of the “private-duty nursing”

exclusion. Accord Krauss v. Oxford Health Plans, Inc., 418 F. Supp. 2d 416, 433

(S.D.N.Y. 2005) (“private or special duty” nursing exclusion barred reimbursement

for “constant care solely” to insured), aff’d, 517 F.3d 614, 629 (2d Cir. 2008). Thus,

the district court properly dismissed Count I for failure to state a claim, whether or

not the 2013 policy reduced this coverage.2

B. In Count II, the Spizmans alleged that the 2013 policy, if applicable, also

covered their claim for round-the-clock in-home nursing services. Blue Cross ruled

The Spizmans’ alternative argument that they are entitled to coverage under 2

the 2012 policy’s benefitsubstitution provision is without merit. The policy provides

that “benefit substitution cannot be used to allow coverage for services or supplies

excluded by the Plan.” The policy excluded their claim for round-the-clock in-home

nursing care, so benefit substitution did not apply.

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that this claim was barred by the exclusion of “extended hours skilled nursing care,

also referred to as private-duty nursing care.” The Spizmans assert their claim was

within the coverage for “intermittent skilled nursing care.” They argue that the

definition of that term -- a visit by a registered or licensed practical nurse of up to

four hours duration -- did not include the words “per day,” and therefore they were

allowed to stack multiple four-hour visitsin a single day to meet Raleigh’s round-theclock in-home nursing needs. The district court rejected this contention, concluding

that Blue Cross did not abuse its discretion in interpreting the 2013 policy provisions

covering “intermittent skilled nursing care” and excluding “extended hours skilled

nursing care.” 

When an ERISA plan grants discretionary authority to make benefit

determinations, the administrator’s interpretation of the plan is subject to abuse-ofdiscretion review. Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for

Nonschedule Emps., 812 F.3d 628, 630-31 (8th Cir. 2016). The Spizmans concede

that the 2013 policy expressly granted Blue Cross discretionary authority. But they

argue the district court erred in reviewing Blue Cross’s adverse decision for abuse of

discretion because “a palpable conflict of interest or a serious procedural irregularity

existed, which . . . caused a serious breach of the [claim] administrator’s fiduciary

duty.” Id. at 631 (quotation omitted). While Blue Cross did have a financial conflict

of interest as both payor and plan administrator, the Supreme Court clarified in

Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), that this conflict does not

change the abuse-of-discretion standard of review. Rather, “reviewing judge[s] . . .

take account of the conflict when determining whether the [claims administrator],

substantively or procedurally, has abused [its] discretion.” Id. at 115. The district

court properly gave “some weight” to this conflict of interest in reviewing Blue

Cross’s decision. Spizman, 2015 WL 4569249, at *6. As in Johnson v. United of

Omaha Life Ins. Co., the procedural irregularities alleged by the Spizmans do not

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“trigger [de novo review based on] a total lack of faith in the integrity of the decision

making process.” 775 F.3d 983, 988 (8th Cir. 2014) (quotation omitted).

When a plan administrator’s decision is reviewed for abuse of discretion, “the

administrator’s interpretation of uncertain terms in a plan will not be disturbed if

reasonable.” King v. Hartford Life & Acc. Ins. Co., 414 F.3d 994, 999 (8th Cir.

2005) (en banc) (quotation omitted). “Where a plan fiduciary offered a reasonable

interpretation of a disputed plan provision, courts may not replace it with an

interpretation of their own -- and therefore cannot disturb as an ‘abuse of discretion’

the challenged benefits determination.” Ingram, 812 F.3d at 634 (quotation omitted). 

The Spizmans assert that the 2013 policy should be construed as covering

multiple nursing care visits each day because the policy did not define intermittent

care as limited to one four-hour visit. But this interpretation would be unreasonable

because, as the district court noted, stacking multiple four-hour nursing visits would

nullify the policy exclusion of “extended hours skilled nursing care,” which the

policy defined as care that is “continuous.” Spizman, 2015 WL 4569249, at *7; see

King, 414 F.3d at 1004-05. Thus, even if Blue Cross’s decision is reviewed de novo,

rather than for abuse of discretion, we agree with the district court that denial of the

Count II claim for round-the-clock in-home nursing care must be upheld. 

For these reasons, we affirm the dismissal of Count I and Count II of the First

Amended Complaint. The Spizmans argue that the district court acted prematurely

in dismissing these claims without factual development oftheir allegations that a Blue

Cross claims representative told the Spizmans that the 2013 policy would cover

Raleigh’s home health care; that Blue Cross granted some claims, denied some

claims, and held othersin process as part of a ploy to fraudulently bar external review

of its claims decisions; and that Blue Cross unreasonably delayed deciding their

internal appeals. These allegations might have been relevant to the claim in Count

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III to recover benefits due under the ERISA plan, or the claim in Count IV for breach

of fiduciary duty. But the Spizmans elected to dismiss those claims with prejudice. 

As the claims in Count I and Count II for round-the-clock in-home nursing services

were contrary to the plain meaning of the private-duty nursing exclusionsin the 2012

and 2013 policies, those Counts were properly dismissed.

III. Count VI.

In Count VI, a claim for equitable estoppel, the Spizmans alleged that they

were entitled to equitable relief under 29 U.S.C. § 1132(a)(3) that grants the home

health care benefits Blue Cross’s agents promised would be paid under ambiguous

policy terms. The district court dismissed Count VI because the policy plainly

excluded “extended hours skilled nursing care,” and the Spizmans “may not use an

estoppel theory to enlarge benefits under a written plan.” Spizman, 2015 WL

4569249, at *11. The principle is sound. See Neumann v. AT&T Commnc’ns, Inc.,

376 F.3d 773, 784 (8th Cir. 2004); Fink v. Union Cent. Life Ins. Co., 94 F.3d 489,

492 (8th Cir. 1996). We conclude it was correctly applied.

As pleaded in Count I and Count II, the Spizmans claimed coverage for roundthe-clock in-home skilled nursing care that the policy excluded. Nothing in Count

VI suggested that any other level of benefits was being claimed in their estoppel

theory. Thus, the district court soundly reasoned that Count VI sought an improper

enlargement of plan benefits. The court declined to dismiss Count IV, a broad claim

for equitable relief under § 1132(a)(3) for Blue Cross’s alleged breaches of fiduciary

duty, because “the instant dispute is still at the motion to dismiss stage.” Spizman,

2015 WL 4569249, at *10. Thus, the only § 1132(a)(3) claim the court dismissed on

the pleadings was one for benefits excluded by the plain meaning of the terms of the

plan. To the extent the Spizmans intended to assert an equitable estoppel claim for

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some lesser level of benefits, they voluntarily relinquished that claim by dismissing

Count IV with prejudice. 

For these reasons, the judgment of the district court is affirmed. 

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