Kelly Yox v. Providence Health Plan

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 9 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELLY J. YOX, No. 14-35127

Plaintiff-Appellee, D.C. No. 3:12-cv-01348-HZ

v.

MEMORANDUM*

PROVIDENCE HEALTH PLAN,

Defendant-Appellant.

KELLY J. YOX, No. 14-35144

Plaintiff-Appellant, D.C. No. 3:12-cv-01348-HZ

v.

PROVIDENCE HEALTH PLAN,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Argued and Submitted July 5, 2016 Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: PREGERSON, BEA, and OWENS, Circuit Judges.

Providence Health Plan (Providence) appeals from the district court’s

summary judgment in favor of Kelly Yox. After a seizure-induced fall fractured

her jaw, Yox’s group health plan (the Plan) covered the costs for initial surgeries.

The Plan was funded and administered by Providence under the…

MEMORANDUM *

Providence Health Plan (Providence) appeals from the district court’s summary judgment in favor of Kelly Yox. After a seizure-induced fall fractured .her jaw, Yox’s group health plan (the Plan) covered the costs for initial surgeries. The Plan was funded and administered by Providence under the Employee Retirement Income Security Act of 1974 (ERISA), Yox sought, but was denied, preauthorization for additional trauma-related dental' services under the Plan, The district court held that Providence had abused its discretion in denying this preauthorization request and that Yox’s agreement to have her denial reviewed by an Independent Review Organization (IRO) did not constitute an agreement to arbitrate. On cross-appeal, Yox argues that the district court erred in finding that the scope of her claim was limited to Yox’s initial preauthorization request. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

1. We review de novo whether a party has waived the right to sue by agreeing to arbitration under the Federal Arbitration Act (FAA). See Nagrampa v. MailCoups, Inc., 469 F.3d 1267, 1267 (9th Cir. 2006). We look to state law to supply the meaning of the…

dissenting:

I agree with the majority that the district court did not err in finding that the IRO at issue here was not an arbitration enforceable under the FAA. In addition, I agree that the district court properly held that the scope of Yox’s claim does not include the expanded services she requested after starting her internal appeal. Unlike the majority, however, I would hold that the district court erred in holding that Providence had abused its discretion in denying Yox’s claim.

First, the majority asserts that Providence did not follow various procedural requirements. According to the majority, Providence failed adequately to notify Yox of her right to bring a civil action under ERISA § 502(a). Although Providence’s benefits determination letters did not include a statement of her right to bring an action under ERISA § 502, I would hold that Providence nonetheless adequately complied with its procedural obligations. Yox’s Plan documents stated that the Plan was governed by ERISA, the claim denials stated that Yox had the right to internal appeal and independent review of her claim, and the Plan documents stated that she was entitled to file suit in state or federal court…