     Case: 17-10736    Document: 00514879053      Page: 1   Date Filed: 03/19/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                   No. 17-10736                    March 19, 2019
                                                                    Lyle W. Cayce
ENCOMPASS OFFICE SOLUTIONS, INCORPORATED.,                               Clerk


             Plaintiff–Appellee,

v.

LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY., doing
business as BlueCross BlueShield of Louisiana.

             Defendant–Appellant.


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      Encompass Office Solutions, Inc. provided equipment and staffing for
doctors to perform surgery in their own offices. Doctors and patients took to
this service; insurers did not. Blue Cross and Blue Shield of Louisiana
(BCBSLA) began denying Encompass’s claims for in-office surgery support.
BCBSLA instead paid a “Global Fee” to the doctor who performed the surgery,
as compensation for all related services.
      Encompass sued BCBSLA for ERISA violations, breach of contract,
defamation, and tortious interference with business relations. BCBSLA largely
prevailed at trial. But the district court granted a new trial because of error in
the jury charge. At the second trial, Encompass won on all claims and obtained
a judgment in its favor. On appeal BCBSLA says that the new trial should
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                                    No. 17-10736

never have been granted, that no reasonable jury could have answered the
contra non valentem (discovery rule) issue in favor of Encompass, and that
BCBSLA did not abuse its discretion in denying Encompass’s claims.
      We AFFIRM the judgment of the district court.

                                   I. BACKGROUND
A.    Factual
      Encompass provided the equipment, drugs, supplies, and nursing staff
necessary for a doctor to perform outpatient surgery in his own office, rather
than in a hospital or ambulatory surgical center (ASC). This was a novel
arrangement—at the time, neither Texas nor Louisiana licensed such mobile
providers of ambulatory surgical care.
      Generally, when a doctor performs surgery at a hospital or ASC, an
insurer like BCBSLA receives three claims: one from the doctor for doing the
actual surgery; one from the anesthesiologist, if used; and one from the hospital
or ASC for services provided to assist the doctor. When a doctor performs
surgery in his office, however, there is no facility claim because there is no
separate facility. Instead, BCBSLA pays doctors a Global Fee for these in-office
surgeries. The Global Fee is greater than the fee paid to doctors for performing
surgery at a hospital or ASC and is intended to compensate for all overhead
costs of an in-office procedure.
      When Encompass entered the market, it expanded doctors’ ability to
perform in-office surgeries. Encompass sought compensation from insurers by
filing separate claims for its services. At all relevant times, Encompass was an
out-of-network service provider for BCBSLA members. Because of this,
Encompass obtained an assignment of benefits from each of its BCBSLA-
insured patients. BCBSLA paid Encompass’s claims for several months after
Encompass entered the Louisiana market.


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      But in June 2010, BCBSLA received a tip that Encompass was
submitting claims for services it had not provided. On investigation, BCBSLA
found that Encompass was submitting claims, and being paid, for the same in-
office surgeries as the performing doctors. BCBSLA’s billing system would
normally reject “duplicate” claims for surgery at a doctor’s office. But it had
been processing Encompass’s claims because they used a code modifier.
Encompass was using the “TC Modifier,” which stands for “technical
component” and covers the equipment, staff, and services necessary for
surgery.
      BCBSLA began denying Encompass’s claims. BCBSLA also learned that
other insurance companies were doing the same. In August 2010, BCBSLA
Vice President Dawn Cantrell sent a letter to in-network providers directing
them not to use Encompass’s services. Because this letter is the basis for
Encompass’s defamation and tortious interference claims, we quote it at
length:
      Encompass is not eligible to participate in the BlueCross networks
      and is considered an out-of-network provider. Please do not use
      Encompass for services provided to BlueCross or [HMO Louisiana,
      Inc.] members since the facility fees charged by Encompass are not
      covered, even when they are billed by a network physician.
      Encompass would have to be a Louisiana licensed [Department of
      Health and Hospitals]-approved ambulatory surgery facility in
      order to be eligible for payment of these facility charges.

      You should also accept your contracted allowable charge for any
      eligible in-office surgeries you normally perform to be counted as
      payment in full and not allow Encompass to submit claims to Blue
      Cross. Please ensure your Blue Cross patients are able to
      receive network benefits for the services they receive from
      you by using participating providers.

      If we find that any network physician is repeatedly using
      Encompass to deliver facility and procedure services that
      are not eligible for benefits and our members are being

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                                    No. 17-10736

      billed for these facility charges, the network physician will
      be subject to termination from the Blue Cross networks.
Encompass obtained a copy of the Cantrell Letter and gave it to counsel.
Encompass sought clarification from BCBSLA by calling Cantrell three times
and leaving voicemail messages. It received no response. In October 2010,
BCBSLA Audit Consultant Alan Lofton sent Encompass a separate letter
demanding repayment of nearly $110,000 in paid claims. A few months later,
Encompass sued.
B.    Procedural
      Encompass initially sued BCBSLA for payment on services provided to
BCBSLA insureds. 1 Encompass alleged that BCBSLA had abused its
discretion in denying Encompass’s claims on ERISA-covered plans and
breached its insurance contracts under state law by denying claims on non-
ERISA plans.
      In response, BCBSLA pleaded that under its policy a non-facility
provider must seek payment from the site-of-service owner, usually the doctor
who orders the services, and that Encompass knew this. BCBSLA explained
that for surgeries in a “non-facility setting,” the doctor’s (and any other
professional’s) reimbursement is all-inclusive. In other words, BCBSLA
pleaded its Global Fee policy.
      In February 2013, Encompass deposed Cantrell and Lofton. Cantrell and
Lofton testified they were not aware of a BCBSLA policy or benefit plan that
said Encompass’s services were not covered. And they were similarly unaware
of a policy or plan permitting BCBSLA to terminate a physician for partnering
with Encompass. This led Encompass to believe that the Cantrell Letter
contained false statements. Because the Cantrell Letter damaged Encompass’s


      1 Encompass’s original complaint named only BlueCross BlueShield of Texas. The
second amended complaint added BCBSLA and a host of BlueCross entities from other states.
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Louisiana business, Encompass in April 2013 amended its complaint to add
claims for defamation and tortious interference with business relations.
       Both parties moved for summary judgment. The district court at first
granted summary judgment to BCBSLA on Encompass’s defamation and
tortious interference claims because it held they were barred by Louisiana’s
one-year prescriptive period. 2 But on a motion for reconsideration it reversed
this decision. It held instead that a genuine dispute of material fact existed as
to whether Encompass was entitled to the benefit of a discovery rule—contra
non valentem—that would suspend the prescriptive period. 3
       Trial arrived. Encompass tried its tort claims and non-ERISA contract
claims to a jury, and its ERISA claims to the district court. The jury found no
liability on the contract claims, and found that Encompass was not entitled to
the benefit of contra non valentem on the tort claims. Because it resolved the
prescription issue in BCBSLA’s favor, the jury did not reach the merits of
Encompass’s tort claims.
       Encompass moved for a new trial based on error in the jury charge, and
the district court granted the motion. It held that the jury charge had imposed
an incorrect liability standard for the non-ERISA contract claims. The original
charge for these claims required the jury to find that BCBSLA “capriciously
and arbitrarily” denied Encompass’s claims for benefits. But it should only
have required them to find the elements for Louisiana breach of contract. And,
citing the potential for confusion, the court held that Encompass’s tort claims
must also be retried: “A finding that no breach occurred would reasonably


       2   As the district court explained, “[t]he Louisiana Civil Code uses the term . . .
‘liberative prescription’ for statutes of limitation.” Encompass Office Sols., Inc. v. La. Health
Serv. & Indem. Co., No. 3:11-CV-1471-P, 2013 WL 12310676, at *20 n.21 (N.D. Tex. Sept. 17,
2013) (citing Prescription, BLACK’S LAW DICTIONARY (9th ed. 2009)).
        3 “Contra non valentem non currit praescriptio means that prescription does not run

against a person who could not bring his suit.” Wells v. Zadeck, 89 So. 3d 1145, 1150 (La.
2012) (citing Harvey v. Dixie Graphics, Inc., 593 So. 2d 351, 354 (La. 1992)).
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cause the jury to find that no tort liability existed because the breach of
contract claim underpins the basis for the tort claims.” The district court did
not rule on Encompass’s ERISA claims at this stage.
       At the second trial the jury found for Encompass on both its contract and
tort claims, including finding that contra non valentem suspended prescription.
The district court also found for Encompass on its ERISA claims. BCBSLA
renewed its motion for judgment as a matter of law, moved for reconsideration,
and moved for a new trial—all of which the district court denied. The district
court entered judgment for Encompass, and BCBSLA appealed.

                  II. JURISDICTION AND STANDARDS OF REVIEW
A.     Jurisdiction
       The district court had jurisdiction based on complete diversity, 28 U.S.C.
§ 1332; and under ERISA, 29 U.S.C. §§ 1001 et seq. This court has jurisdiction
under 28 U.S.C. § 1291.
B.     Standards of Review
       1. Grant of a New Trial
       “We review the district court’s grant or denial of a new trial for abuse of
discretion.” 4 “A greater degree of scrutiny, however, is given to the grant of a
new trial.” 5 “[W]e exercise broad review of a court’s grant of a new trial because
of our respect for the jury as an institution and our concern that the party who
persuaded the jury should not be stripped unfairly of a favorable decision.” 6




       4 Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997) (citing Allied Bank–W.,
N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993)).
       5 Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989) (citing Conway v. Chem.

Leaman Tank Lines, Inc., 610 F.2d 360, 362–63 (5th Cir. 1980) (per curiam)).
       6 Gutierrez, 106 F.3d at 687 (alteration in original) (quoting Stein, 996 F.2d at 115).

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       2. Judgment as a Matter of Law
       “We review de novo the district court’s denial of a motion for judgment
as a matter of law, applying the same standards as the district court.” 7
Judgment as a matter of law is proper if “a party has been fully heard on an
issue during a jury trial and . . . a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” 8
       “We review all the evidence in the record in the light most favorable to
the nonmoving party and draw all reasonable inferences in favor of the
nonmoving party; we do not make credibility determinations or weigh the
evidence.” 9 We “cannot reverse a denial of a motion for judgment as a matter
of law unless the jury’s factual findings are not supported by substantial
evidence, or if the legal conclusions implied from the jury’s verdict cannot in
law be supported by those findings.” 10 In other words, the party moving for
judgment as a matter of law can prevail only “if the facts and inferences point
so strongly and overwhelmingly in favor of the moving party that reasonable
jurors could not have arrived at a contrary verdict.” 11 Although our review is
de novo, “[a]fter a jury trial, [the] standard of review is especially deferential.” 12
       3. ERISA § 502(a)(1)(B) Claims
       “On appeal from a bench trial, this court review[s] the factual findings of
the trial court for clear error and conclusions of law de novo,” applying the




       7  Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013) (citing Ill. Cent.
R.R. Co. v. Guy, 682 F.3d 381, 392–93 (5th Cir. 2012)).
        8 FED R. CIV. P. 50(a).
        9 Homoki v. Conversion Servs., Inc., 717 F.3d 388, 395 (5th Cir. 2013) (citing Poliner

v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir. 2008)).
        10 OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir. 2016)

(quoting Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 488 (5th Cir.
2004)).
        11 Homoki, 717 F.3d at 395 (citing Poliner, 537 F.3d at 376).
        12 Abraham, 708 F.3d at 620 (second alteration in original) (quoting Brown v.

Sudduth, 675 F.3d 472, 477 (5th Cir. 2012)).
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same standard as the district court. 13 Because the plans at issue grant
BCBSLA discretion to determine eligibility for plan benefits and construe the
terms of the plans, we apply the abuse of discretion standard. 14 Thus, if
BCBSLA’s “decision is supported by substantial evidence and is not arbitrary
and capricious, it must prevail.” 15

                                      III. DISCUSSION
A.     District Court’s Grant of a New Trial
       In the first trial, the court instructed the jury that BCBSLA was liable
on Encompass’s non-ERISA claims if it had arbitrarily and capriciously denied
claims for benefits:
       The burden is on Encompass to prove that BCBS Louisiana had
       sufficient proof that payment on a claim was due and that the
       claim was capriciously and arbitrarily denied by BCBS Louisiana.
       An insurer is arbitrary and capricious when it does not act in a
       reasonable manner based on the facts known at the time of the
       decision.
In its motion for a new trial, Encompass successfully argued that this charge
had erroneously imported the arbitrary-and-capricious standard and should,
instead, have simply stated the Louisiana elements of contract.
       1. New Trial on the Contract Claims
       BCBSLA contends that the original charge was correct, and the second
trial should never have happened. It says that the Louisiana Prompt Payment
Statute, 16 not the general contract statute, governs an insurer’s breach of a



       13 Conn. Gen. Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d 478, 483 (5th
Cir. 2017) (alteration in original) (quoting George v. Reliance Standard Life Ins. Co., 776 F.3d
349, 352 (5th Cir. 2015)).
       14 Id. (citing Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999) (en

banc), overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115–19
(2008)).
       15 Singletary v. United Parcel Serv., Inc., 828 F.3d 342, 347 (5th Cir. 2016) (quoting

Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397 (5th Cir. 2007)).
       16 LA. STAT. ANN. § 22:1821.

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health insurance contract. The Prompt Payment Statute imposes penalties on
insurers who do not, within 30 days, pay any claim that does not present
reasonable grounds for denial:
       All claims arising under the terms of health and accident contracts
       issued in this state, except as provided in Subsection B of this
       Section, shall be paid not more than thirty days from the date upon
       which written notice and proof of claim, in the form required by
       the terms of the policy, are furnished to the insurer unless just and
       reasonable grounds, such as would put a reasonable and prudent
       businessman on his guard, exist. . . . Failure to comply with the
       provisions of this Section shall subject the insurer to a penalty . . .
       together with attorney fees to be determined by the court. 17
Although the words “arbitrary and capricious” do not appear in this section,
Louisiana courts have adopted that standard for insurer liability. 18 This is
because the statute is “penal in nature” and must be “strictly construed.” 19
BCBSLA says that because the statute governs “[a]ll claims arising under the
terms of health and accident contracts issued in this state,” 20 and specific
statutes trump general ones, 21 this section provides the appropriate standard
of liability for Encompass’s contract claims.
       BCBSLA also contends that Encompass itself invoked the Prompt
Payment Statute for its non-ERISA contract claims. Besides contract damages,
Encompass’s operative complaint demanded attorney’s fees, costs, and
“statutory penalties under Texas and Louisiana law requiring the prompt
payment of claims by insurance carriers.” And in its submission for the joint




       17 Id. § 22:1821(A).
       18  Stewart v. Calcasieu Par. Sch. Bd., 933 So. 2d 797, 801 (La. Ct. App. 2006)
(interpreting predecessor LA. STAT. ANN. § 22:657).
       19 Id. (quoting Marien v. Gen. Ins. Co. of Am., 836 So. 2d 239, 249 (La. Ct. App. 2002)).
       20 LA. STAT. ANN. § 22:1821.
       21 Cf., e.g., Pumphrey v. City of New Orleans, 925 So. 2d 1202, 1210 (La. 2006) (“[T]he

statute specifically directed to the matter at issue must prevail as an exception to the statute
more general in character.” (citing Kennedy v. Kennedy, 699 So. 2d 351, 358 (La. 1996))).
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pretrial order, Encompass listed “[w]hether BCBSLA abused its discretion by
denying Encompass’s claims” as a contested legal issue.
       Neither of these theories can rehabilitate the first jury charge. Louisiana
contract law governs Encompass’s claims for benefits under non-ERISA plans
because, although it is true that the Prompt Payment Statute applies to all
Louisiana health insurance contracts, “[u]nder Louisiana law, the cause of
action under [§ 22:1821] is separate and distinct from the cause of action for
the breach of the insurance contract.” 22 Encompass alleged a Louisiana
contract claim. So even if it also alleged a Prompt Payment Statute claim, it
had the right to a correct jury instruction on the contract claim. 23 This is
particularly true where, as here, it is easier to prove that the defendant
breached a contract than that it did so arbitrarily and capriciously.
       BCBSLA has another independent argument. It contends that the first
jury charge was correct because the insurance plans, by their terms, granted
BCBSLA discretion in choosing whether to allow or deny a claim. And in
analogous contexts, “abuse of discretion” and “arbitrary and capricious” are
legally equivalent. 24 Thus, BCBSLA says that the jury was properly instructed
to find contract liability only if BCBSLA had arbitrarily and capriciously
denied a claim.


       22  Hymel v. HMO of La., Inc., 951 So. 2d 187, 199 (La. Ct. App. 2006) (citing Cramer
v. Ass’n Life Ins. Co., Inc., 563 So. 2d 267, 275 (La. Ct. App.), rev’d on other grounds, 569 So.
2d 533 (La. 1990)) (interpreting predecessor LA. STAT. ANN. § 22:657); see Cantrelle Fence &
Supply Co., Inc. v. Allstate Ins. Co., 515 So. 2d 1074, 1079 (La. 1987) (holding that cause of
action under analogous insurance penalty statute was “separate and distinct from the
obligation arising out of the contractual relationship under the insurance policy”).
        23 See Aero Int’l, Inc. v. U.S. Fire Ins. Co., 713 F.2d 1106, 1113 (5th Cir. 1983) (“[The

party] was entitled to have the critical issues bearing upon its liability ‘submitted to and
answered by the jury upon a clear and proper charge.’” (quoting NMS Indus., Inc. v. Premium
Corp. of Am., 451 F.2d 542, 545 (5th Cir. 1971))).
        24 See Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512 (5th Cir. 2010) (“[T]here is only

a semantic, not a substantive, difference between the arbitrary and capricious and the abuse
of discretion standards in the ERISA benefits review context.” (quoting Meditrust Fin. Servs.
Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999))).
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       This theory is not quite correct. BCBSLA argues that the first jury
charge properly included an interpretation of the contracts. But the district
court rejected this argument when it granted a new trial, holding in effect that
the interpretation was not supported by Louisiana law. 25 We agree. No cited
Louisiana authority supports an arbitrary and capricious standard for breach
of health insurance contracts—even those that grant discretion to the insurer.
And the district court has discretion of its own to either interpret contract
terms as a matter of law or leave them to the factfinder. 26 “Although the
interpretation of a contract is normally a question of law for the Court, that
interpretation frequently depends heavily on the resolution of factual disputes.
And it is the function of the trier of fact to resolve such factual disputes.” 27
       In short, charging the jury with an incorrect standard of liability
supports granting a new trial. 28 And the jury indicated confusion from the
improper instruction. 29 Its note to the court shows that the erroneous legal
standard was front and center in deliberations: “Can you clearly define
Arbitrary and Capricious in the eyes of the court[?]” 30 The district court did not
abuse its discretion when it granted a new trial on Encompass’s contract
claims.



       25  See Hymel, 951 So. 2d at 199 (affirming general contract law jury instruction for
contract claim and separate instruction for Prompt Payment Statute claim).
        26 See Cook Indus., Inc. v. Cmty. Grain, Inc., 614 F.2d 978, 980 (5th Cir. 1980)

(affirming district court’s decision not to interpret contract as matter of law).
        27 Id. (citing Gen. Wholesale Beer Co. v. Theodore Hamm Co., 567 F.2d 311, 313 (5th

Cir. 1978)).
        28 See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (granting new trial

because jury instruction wrongly imposed elevated standard for liability); Aero, 713 F.2d at
1113 (“A new trial is the appropriate remedy for prejudicial errors in jury instructions.”
(citing NMS Indus., Inc. v. Premium Corp. of Am., Inc., 451 F.2d 542, 545 (5th Cir. 1971);
Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971))).
        29 See, e.g., Aero, 713 F.2d at 1113 n.6 (citing jury note as indication of jury confusion).
        30 The court responded by identifying this sentence in the jury charge: “An insurer is

arbitrary and capricious when it does not act in a reasonable manner based on the facts
known at the time of the decision.”
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       2. New Trial on the Tort Claims
       The district court held that Encompass’s tort claims should also be
retried because they were related to the mischarged contract claims. In the
district court’s view, breach of the contracts was a basis of the tort claims.
BCBSLA disputes this. It contends that the jury could not possibly have been
confused by overlap of tort and contract issues because it never reached the
merits of the tort claims. Indeed, the jury answered “no” to whether Encompass
could invoke contra non valentem to toll prescription for the tort claims,
preventing it from reaching the tort merits questions on the verdict form.
       Under Federal Rule of Civil Procedure 59(a), the district court may
“grant a new trial on all or some of the issues.” “[P]artial new trials should not
be resorted to unless it appears that the issue to be retried is so distinct and
separable from the others that a trial of it alone may be had without
injustice.” 31 “Therefore, when the issues subject to retrial are so interwoven
with other issues in the case that they ‘cannot be submitted to the jury
independently . . . without confusion and uncertainty, which would amount to
a denial of a fair trial,’ then it is proper to grant a new trial on all of the issues
raised.” 32 In addition to considering “interdependence of [the] issues,” we also
consider “an overlapping of proof” relevant to those issues. 33
       Under this standard, the district court did not abuse its discretion by
granting a new trial on the tort claims. Whether Encompass’s claims for
benefits should have been paid was a common issue between the contract and
tort claims—it affects the tort claims because it affects the truth or falsity of




       31Anderson v. Siemens Corp., 335 F.3d 466, 475 (5th Cir. 2003) (quoting Colonial
Leasing of New England, Inc. v. Logistics Control Int’l, 770 F.2d 479, 481 (5th Cir. 1985)).
      32 Colonial Leasing, 770 F.2d at 481 (ellipsis in original) (quoting Gasoline Prods. Co.

v. Champlin Ref. Co., 283 U.S. 494, 500 (1931)).
      33 Id.

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the Cantrell letter. 34 And proof of BCBSLA’s internal decision making may be
relevant to both whether it performed its contractual duties and whether it
defamed or tortiously interfered with Encompass. 35
B.     Judgment as a Matter of Law on Encompass’s Tort Claims—
       Prescription and Contra Non Valentem
       BCBSLA says that the district court should have granted its renewed
motion for judgment as a matter of law based on prescription. It is undisputed
that the applicable prescriptive period for Encompass’s tort claims is one year,
and that over a year passed between Encompass receiving the Cantrell letter
and first claiming defamation and tortious interference. But the jury in the
second trial found that prescription was suspended under the doctrine of contra
non valentem.
       Under Louisiana law, “[t]he defendant has the initial burden of proving
that a tort claim has prescribed, but if the defendant shows that one year has
passed between the tortious acts and the filing of the lawsuit, then the burden
shifts to the plaintiff to prove an exception to prescription.” 36 “[C]ontra non
valentem prevents the running of liberative prescription . . . where the cause
of action is neither known nor reasonably knowable by the plaintiff even
though plaintiff’s ignorance is not induced by the defendant.” 37 Under this
standard, “[c]onstructive knowledge is whatever notice is enough to excite
attention and put the injured party on guard and call for inquiry.” 38 “[T]his
principle will not exempt the plaintiff’s claim from the running of prescription



       34 See Anderson, 335 F.3d at 475.
       35 See Colonial Leasing, 770 F.2d at 481.
       36 Terrebonne Par. Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 320

(5th Cir. 2002) (citing Miley v. Consol. Gravity Drainage Dist. No. 1, 642 So. 2d 693, 696 (La.
Ct. App. 1994); Dixon v. Houck, 466 So. 2d 57, 59 (La. Ct. App. 1985)).
       37 Marin v. Exxon Mobil Corp., 48 So. 3d 234, 245 (La. 2010) (citing Plaquemines Par.

Comm’n Council v. Delta Dev. Co., 502 So. 2d 1034 (La. 1987)).
       38 Id. at 246 n.12 (quoting Campo v. Correa, 828 So.2d 502, 510–11 (La. 2002)).

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if his ignorance is attributable to his own wilfulness or neglect; that is, a
plaintiff will be deemed to know what he could by reasonable diligence have
learned.” 39
       The Supreme Court of Louisiana has not evaluated contra non valentem
for a defamation or false-statement claim. So “we must make an ‘Erie guess’
and determine as best we can what the highest court of the state would be most
likely to decide.” 40 We may look to the decisions of intermediate state courts
for guidance. “Indeed, ‘a decision by an intermediate appellate state court is a
datum for ascertaining state law which is not to be disregarded by a federal
court unless it is convinced by other persuasive data that the highest court of
the state would decide otherwise.’” 41
       BCBSLA maintains that contra non valentem does not apply as a matter
of law. Encompass had a copy of the Cantrell Letter in 2010. The letter
immediately caused Encompass to confer with counsel and seek clarification
from BCBSLA. But Encompass waited until 2013 to allege tort claims. And in
BCBSLA’s view, Encompass is in a dilemma: Encompass’s contract theory,
which it was pursuing around the same time it received the Cantrell Letter,
requires the letter to be wrong about coverage. But Encompass’s contra non
valentem theory only works if Encompass was ignorant of the letter’s falsity.
       Encompass contends that the Cantrell Letter falsified BCBSLA internal
policies, which it could not discover until 2013 despite diligent inquiry.
Although some statements in the letter were independently verifiable,
Encompass says others were simultaneously false, damaging, and opaque to



       39 Id. at 246 (quoting Renfroe v. State ex rel. Dep’t of Transp. & Dev., 809 So. 2d 947,
953 (La. 2002)).
       40 Terrebonne Par., 290 F.3d at 317 (citing Barfield v. Madison County, 212 F.3d 269,

271–72 (5th Cir. 2000)).
       41 Id. (quoting First Nat’l Bank of Durant v. Trans Terra Corp., 142 F.3d 802, 809 (5th

Cir. 1998)).
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                                      No. 17-10736

outsiders. Encompass argued that the letter misrepresented Encompass’s
“eligib[ility] to participate in the Blue Cross networks” and “eligib[ility] for
benefit payment.” Eligibility to be in the network, as distinct from present
network status or plan coverage for a service, was a matter of BCBSLA policy.
And according to Encompass, “eligib[ility]” for payment was too. Encompass
says these statements damaged its business by discouraging doctors from
working with it. Encompass also says its diligence to investigate the letter—
calling Cantrell three times in 2010 and leaving messages without response—
was reasonable under the circumstances.
       We believe the Supreme Court of Louisiana would hold that contra non
valentem was supported by the evidence here. The issue is close and we are
mindful of the “especially deferential” standard of review for the jury verdict. 42
BCBSLA challenges only the sufficiency of the evidence, not the jury
instruction. The district court rejected BCBSLA’s argument when it denied
judgment as a matter of law. We do so as well. Our dissenting colleague takes
a broader view of constructive notice and a stricter one of the required
diligence. But, in this instance, we find no Louisiana case standing directly
against contra non valentem and some cases that support it, especially given
our standard of review.
       Louisiana intermediate appellate court decisions show that contra non
valentem suspends prescription for defamation and other false-statement
claims if a reasonably diligent plaintiff knows about the adverse statement but
has not discovered it is false. In Quixx, for example, the insurer plaintiff
received applications containing false statements, but prescription did not
begin to run until it discovered facts inconsistent with those statements. 43 (The



       42Abraham, 708 F.3d at 620 (quoting Brown, 675 F.3d at 477).
       43Nat’l Council on Comp. Ins. v. Quixx Temp. Servs., Inc., 665 So. 2d 120, 123–24 (La.
Ct. App. 1995).
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                                       No. 17-10736

claims were prescribed anyway because the insurer waited more than a year
to file suit. 44) In another case, Simmons, the plaintiffs argued that contra non
valentem suspended prescription of a tortious interference claim until they
discovered that the defendant’s financial statements were falsified. 45 The court
agreed. The plaintiffs did not have constructive knowledge of falsity until
receiving disclosures during litigation, even though their dispute with the
defendants began over a year earlier. 46 These cases show that a plaintiff can
be aware of a statement without having constructive knowledge of its falsity.
They also show that a plaintiff need not file suit just because an adverse party
publicizes unfavorable statements that are not immediately verifiable.
         Cases setting a stricter diligence bar are distinguishable. In Rozas the
plaintiff, a doctor, argued that contra non valentem suspended prescription as
long as his former employer withheld a personnel file that defamed him as
clinically incompetent. 47 The court disagreed, because the plaintiff’s own lack
of diligence kept him from getting the file. The court said he should have taken
measures “beyond making one telephone call to a secretary.” 48 This initially
seems comparable to Encompass’s diligence. But Rozas was in a different
position. He already knew the defamatory statements’ general content and
falsity: The defendant had rated him clinically incompetent. 49 This weighed
heavily in the court’s analysis that he had constructive knowledge of a cause
of action. “[P]laintiff had sufficient facts to make him aware that he potentially
had a claim against L.S.U. in 1980 when he learned that L.S.U. had given him




         44 Id.
         45 Simmons v. Templeton, 723 So. 2d 1009, 1012 (La. Ct. App. 1998).
         46 Id. at 1011–12.
         47 Rozas v. Dep’t of Health & Human Res., 522 So. 2d 1195, 1196–97 (La. Ct. App.

1988).
         48   Id. at 1197.
         49   Id.
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                                       No. 17-10736

a poor clinical evaluation.” 50 But here the falsity concerned BCBSLA’s internal
policies, and Encompass did not discover it until 2013.
       And the appellate cases Greenblatt and Neyrey are distinguishable
because the plaintiffs exercised no diligence at all. 51 These are easier cases
where the plaintiffs would have known about a cause of action if they took any
timely action to obtain the defendants’ adverse statements. The federal district
court case Safford is similar. 52 Here, in contrast, Encompass sought
clarification about the Cantrell Letter multiple times.
       Cases stating that consulting with counsel shows constructive
knowledge of a claim are also distinguishable. These cases generally involved
personal injuries where consulting counsel logically showed awareness of the
cause of action. 53 But here the parties were in a business dispute with many
potential legal theories. Consulting counsel about one legal injury does not
show that a party knew or should have known about other legal injuries that
are based on different facts. 54 This is especially so given Encompass’s position
that the falsity was known only to BCBSLA.
       Encompass can escape the posited tort-contract dilemma without
contradiction. Encompass says that BCBSLA breached contracts by refusing
to pay covered benefits and committed torts by spreading related statements


       50  Id.
       51  Greenblatt v. Payne, 929 So. 2d 193, 196 (La. Ct. App. 2006); Neyrey v. Lebrun, 309
So. 2d 722, 723 (La. Ct. App. 1975).
        52 Safford v. PaineWebber, Inc., 730 F. Supp. 15, 18 (E.D. La. 1990) (holding contra

non valentem inapplicable because defamatory statements were available at plaintiff’s
request).
        53 See Med. Review Panel Proceeding of Williams v. Lewis, 17 So. 3d 26, 30 (La. Ct.

App. 2009) (medical malpractice for surgery complication); Derrick v. Yamaha Power Sports
of New Orleans, 850 So. 2d 829, 833 (La. Ct. App. 2003) (workers compensation for gunshot
wound to hand); Clofer v. Celotex Corp., 528 So. 2d 1074, 1076 (La. Ct. App. 1988) (suit against
former employer for lung damage).
        54 See, e.g., Simmons, 723 So. 2d at 1011–12 (explaining that transaction was in 1986,

litigation began in November 1987, falsity was discovered in March 1989, and prescription
did not begin to run until March 1989).
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                                      No. 17-10736

that were false. 55 It is not implausible that Encompass immediately considered
the Cantrell Letter a breach of contract but only later knew the other
statements might be false. Not every anticipatory breach of contract is tortious.
Consider: In a garden-variety defamation case, the truth or falsity of the
statement is readily knowable to the plaintiff—because it is about the
plaintiff. 56 Here, in contrast, Encompass says that BCBSLA defamed it by
making false statements about Encompass’s status under BCBSLA’s own
policies. These policies were opaque to Encompass when it received the letter.
And Encompass’s inquiries to BCBSLA do not show constructive knowledge
either. There is no inconsistency in investigating the letter for the ongoing
coverage dispute but not knowing it contained false statements.
       Encompass’s status as a sophisticated corporation does not change this.
The Supreme Court of Louisiana teaches that the proper “blueprint” to
evaluate reasonable delay for contra non valentem is “looking to the record for
evidence of facts within plaintiff’s knowledge and then examining the
reasonableness of plaintiff’s inaction in light of those facts, considering
plaintiff’s education, intelligence and the nature of defendant’s conduct.” 57 The
circumstances of each case determine the applicability of the doctrine. 58 Here
the jury heard evidence of each blueprint factor.
       Some evidence showed that in 2010 Encompass knew the Cantrell Letter
stated unfavorable BCBSLA policies but not that those statements were false.
Some evidence also showed that BCBSLA’s conduct included misstating its



       55 Cf. Marshall Invs. Corp. v. R.P. Carbone Co., No. 05-6486, 2006 WL 2644959, at *5
(E.D. La. Sept. 13, 2006) (malicious statement as element of tortious interference with
business relations); Costello v. Hardy, 864 So. 2d 129, 139 (La. 2004) (false statement as
element of defamation).
       56 See, e.g., Safford, 730 F. Supp. at 16–17 (evaluating alleged defamatory statement

that plaintiff engaged in sexual misconduct).
       57 Wells, 89 So. 3d at 1151.
       58 Id. at 1154.

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                                      No. 17-10736

policies and refusing to clarify things. And some evidence showed that
Encompass was a corporation advised by counsel. So the jury had sufficient
evidence to assess all the factors that Louisiana law considers. 59 It reached a
“Yes” verdict on whether contra non valentem applied. In reviewing denial of
judgment as a matter of law, we may not reweigh the evidence. 60 Drawing all
inferences in favor of Encompass, as we must, the application of contra non
valentem was not wrong as a matter of law. 61
C.     Encompass’s ERISA Claims
       ERISA aims to promote the interests of plan participants and their
beneficiaries and to “protect contractually defined benefits.” 62 ERISA
enshrines a patient’s right to the “full and fair review” of her claim. 63 As a
result, § 502(a)(1)(B) permits a plan participant to sue to “recover benefits due
to him under the terms of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the terms of the plan.” 64
Here, Encompass contends that it is an assignee entitled to enforce patients’
rights to benefits under BCBSLA plans. BCBSLA challenges Encompass’s
right to advance claims for benefits, as well as the district court’s ultimate
conclusion that BCBSLA abused its discretion in administering the plans.
       1. Anti-Assignment Provisions
       BCBSLA says that, under the plans’ anti-assignment provisions,
Encompass lacked derivative standing to sue for benefits. The district court
found that BCBSLA waived the anti-assignment provisions because it made



       59 Id. at 1151.
       60 See Homoki, 717 F.3d at 395.
       61 See id.
       62 N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna Healthcare (NCMC), 781 F.3d

182, 194 (5th Cir. 2015) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113–14
(1989)).
       63 29 U.S.C. § 1133(2).
       64 Id. § 1132(a)(1)(B).

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                                        No. 17-10736

payments to, and communicated with, Encompass on at least some claims.
BCBSLA’s only direct challenge to this conclusion is that Encompass did not
offer a jury charge on waiver. To the extent BCBSLA argues that waiver could
only have been found by the jury, we disagree. It is well known that ERISA
claims are the statutory cousins of equitable actions and so are tried to the
court. 65 Waiver of the anti-assignment clauses—a related issue that is itself
equitable—was here also properly decided by the district court. 66 So the anti-
assignment clauses do not frustrate Encompass’s recovery on ERISA claims.
       2. Contractual Limitations Periods
       BCBSLA also contends that the plans’ 15-month limitations provisions
bar some of Encompass’s claims. 67 ERISA § 502(a)(1)(B) contains no statute of
limitations, but the parties are free to agree to a reasonable limitations
period. 68 The district court held that the contractual limitations provisions
here were unenforceable across the board because BCBSLA never gave notice
of them to Encompass. It cited decisions from other circuits holding that, based
on ERISA’s implementing regulations, notice is required for similar provisions
to be enforceable. 69 BCBSLA does not appear to dispute this notice theory. As


       65  Calamia v. Spivey, 632 F.2d 1235, 1237 (5th Cir. Unit A 1980) (“[S]imilar claims
were previously considered equitable and . . . the kind of determination required—whether
the pension fund acted arbitrarily and capriciously—was one traditionally performed by
judges.” (citing Wardle v. Cent. States, Se. & Sw. Areas Pension Fund, 627 F.2d 820, 829–30
(7th Cir. 1980))).
        66 See FED. R. CIV. P. 39(a) (“The trial on all issues so demanded must be by jury

unless: . . . the court, on motion or on its own, finds that on some or all of those issues there
is no federal right to a jury trial.”); Austin v. Shalala, 994 F.2d 1170, 1177 n.7 (5th Cir. 1993)
(explaining that an equitable defense—even to a legal claim—is tried to the court); Reg’l
Props., Inc. v. Fin. & Real Estate Consulting Co., 752 F.2d 178, 182–83 (5th Cir. 1985)
(holding under Texas law that waiver is equitable defense).
        67 BCBSLA maintains that its October 4, 2010 demand letter placed Encompass on

notice that its claims would be denied. Encompass waited over 15 months from this date to
file suit. So BCBSLA contends that all Encompass claims submitted before October 4, 2010
are barred by limitations.
        68 Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 105–06 (2013).
        69 See Santana-Diaz v. Metro. Life Ins. Co., 816 F.3d 172, 179–82 (1st Cir. 2016) (citing

29 C.F.R. § 2560.503–1(g)(1)(iv) for proposition that administrator must provide notice of
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                                       No. 17-10736

a result, we do not disturb the district court’s conclusion that the contractual
limitations provisions are unenforceable.
       3. Abuse of Discretion
       We now review the merits of Encompass’s ERISA claims. To determine
whether an administrator abused its discretion in construing a plan’s terms,
we analyze its plan interpretation in two steps. 70 First, was BCBSLA’s reading
“legally correct”? 71 ERISA plans must be written “to be understood by the
average plan participant,” 72 so plans “are interpreted in their ordinary and
popular sense as would a person of average intelligence and experience.” 73 The
“most important factor to consider” is whether BCBSLA’s “interpretation is
consistent with a fair reading of the plan[s].” 74 If so, the inquiry ends, and there
was no abuse of discretion. 75 Otherwise, the court “must then determine
whether [BCBSLA’s] decision was an abuse of discretion.” 76 “[T]his court may
bypass, without deciding, the issue whether the Plan Administrator’s denial
was legally correct, reviewing only whether the Plan Administrator abused its
discretion in denying the claim if that can be more readily determined.” 77
       In the second step—deciding whether BCBSLA abused its discretion—
the court considers “(1) the internal consistency of the plan under the
administrator’s interpretation, (2) any relevant regulations formulated by the


limitations period when denying benefits); Mirza v. Ins. Adm’r of Am., Inc., 800 F.3d 129,
137–38 (3d Cir. 2015) (same); Moyer v. Metro. Life Ins. Co., 762 F.3d 503, 507 (6th Cir. 2014)
(same).
       70 Humble Surgical Hosp., 878 F.3d at 483; NCMC, 781 F.3d at 195 (citing Stone v.

UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir. 2009)).
       71 Humble Surgical Hosp., 878 F.3d at 483 (quoting NCMC, 781 F.3d at 195).
       72 29 U.S.C. § 1022(a).
       73 NCMC, 781 F.3d at 195 (quoting Stone, 570 F.3d at 260).
       74 Id. at 195 (alteration in original) (quoting Crowell v. Shell Oil Co., 541 F.3d 295,

313 (5th Cir. 2008)).
       75 Humble Surgical Hosp., 878 F.3d at 483.
       76 Id. (quoting Stone, 570 F.3d at 257).
       77 McCorkle v. Metro. Life Ins. Co., 757 F.3d 452, 457 n.10 (5th Cir. 2014) (alterations

and internal quotation marks omitted).
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appropriate administrative agencies, and (3) the factual background of the
determination and any inferences of lack of good faith.” 78 “In applying the
abuse of discretion standard, we analyze whether the plan administrator acted
arbitrarily or capriciously.” 79
       Here, the district court only addressed the second step—whether
BCBSLA abused its discretion. We take the same approach. 80 This is
appropriate because all agree that Encompass’s services were covered under
the plans, and the only dispute is whether Encompass’s claims are
“duplicative” of other providers.
       BCBSLA paid doctors a Global Fee for all services related to surgeries
performed at their offices. The Global Fee compensated a doctor for both his
professional services and the use of his facility. But when surgery was done at
a hospital or ASC, BCBSLA made separate payments to those providers to
compensate for use of their facilities and services. In BCBSLA’s view,
Encompass is distinguishable from hospitals and ASCs because it is only a
service provider, not a physical facility. And for surgery at a doctor’s office,
BCBSLA’s fee already included compensation for both his professional services
and a facility. Thus, according to BCBSLA, any other payment would be
duplicative.
       This approach is not internally consistent. BCBSLA admits that the
plans cover services like Encompass’s, but cites no plan language authorizing
it to limit payment based on who provided the service. 81 Nor does BCBSLA


       78  Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992) (citing Batchelor v.
Int’l Bhd. of Elec. Workers Local 861 Pension & Ret. Fund, 877 F.2d 441, 445–48 (5th Cir.
1989)).
        79 Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 829 (5th Cir.

1996) (citing Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994)).
        80 See, e.g., McCorkle, 757 F.3d at 457 n.10; Bellaire, 97 F.3d at 829 (finding abuse of

discretion without deciding legal correctness).
        81 See Vega, 188 F.3d at 302 (“[W]e will not countenance a denial of a claim solely

because an administrator suspects something may be awry. Although we owe deference to an
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                                      No. 17-10736

explain—in terms of the plan—why it may insist on a Global Fee when surgery
is done at a doctor’s office, but make separate payments when it is done at a
hospital or ASC. 82 And when BCBSLA denied Encompass’s claims, this
arrangement was not set out in any written internal policy.
       As for the other two abuse-of-discretion factors, we first note that the
factual background of BCBSLA’s decision shows equivocation over whether to
do business with Encompass, rather than a clear understanding that its claims
were improper. 83 As one BCBSLA executive emailed internally, “Quite
honestly, I’m not one hundred percent sure why we are not contracting with
them, because I don’t believe we have a concrete policy on this provider type or
maybe I missed that somewhere.” Finally, neither party cites regulations that
materially affect whether Encompass’s claims should have been paid. 84
       In sum, BCBSLA abused its discretion by arbitrarily denying
Encompass’s claims for covered services, as shown by its inconsistent
treatment of similar providers.

                                   IV. CONCLUSION
       We AFFIRM the judgment of the district court.




administrator’s reasoned decision, we owe no deference to the administrator’s unsupported
suspicions.”).
       82 See Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 347 (5th Cir. 2002) (“lack of

objectivity” suggests abuse of discretion), overruled on other grounds by Glenn, 554 U.S. at
115–19.
       83 See Wildbur, 974 F.2d at 638.
       84 See id.

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                                 No. 17-10736
EDITH H. JONES, Circuit Judge, dissenting:
      I respectfully dissent from the majority’s conclusion upholding the contra
non valentem exception to prescription for this sophisticated medical services
company that was fully represented by counsel from virtually the moment it
reviewed the Cantrell letter. This is not an issue on which deference to the
jury verdict is required. The facts are plain and undisputed. Encompass and
its counsel were on more than “inquiry notice” from the terms of the letter—
they had actual knowledge of the alleged false and defamatory statements in
that letter. Encompass’s counsel explained the company’s position succinctly
in closing argument.    According to him, the letter contained three “false
statements”: Encompass was not “eligible to participate” in the Blue Cross
networks; facility fees charged by Encompass “are not covered” even when
billed by the network physician; and Encompass had to be state-licensed to be
“eligible” for reimbursement.
      Encompass sued BlueCross BlueShield of Louisiana (“BCBSLA”) not
long thereafter, following its related suit against Texas Blue Cross, on a theory
of breach of contract arising from this letter and BCBSLA’s failure to pay
Encompass for its services on behalf of insureds. Encompass knew from the
outset it was “eligible,” and it knew there was no “state license” requirement.
As for the third falsehood, it knew quite enough, that BCBSLA was not
reimbursing it for in-office surgical assistance because of the claimed scope of
insurance coverage.    Whether coverage denial was because of the policy
language or internal company policies, or both, or neither, is precisely the kind
of nuance a lawyer should investigate. But it took Encompass three years after
filing suit to add this intimately related claim for falsehood and defamation.



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                                  No. 17-10736
      “Louisiana courts have held in regard to contra non valentem that a
cause of action becomes reasonably knowable to a plaintiff at the time legal
counsel is sought.” Derrick v. Yamaha Power Sports of New Orleans, 850 So.2d
829, 833 (La. Ct. App. 2003). Moreover, a defendant’s refusal to provide a
document that a plaintiff believes to contain information adverse to his
interests does not excuse the plaintiff’s lack of diligence in obtaining the
document. Rozas v. Dep’t Health & Human Res., 522 So.2d 1195, 1197 (La. Ct.
App. 1988). See also Greenblatt v. Payne, 929 So.2d 193, 195 (La. Ct. App. 2006)
(“[Plaintiff] does not allege any facts indicating the reason for the passage of
time between April of 2000, when she learned of the adverse nature of the
letter, and July 2003 when her discovery request was granted by [Defendant’s]
counsel.”); Safford v. PaineWebber, Inc., 730 F. Supp. 15, 17 (E.D. La. 1990)
(“[P]rescription in this case commenced to run when plaintiff received notice
that documents had been filed by defendant.”).
         Importantly, misleading conduct by a defendant does not lift the burden
of diligence from a sophisticated plaintiff who knows or reasonably should
know that further inquiry would reveal a cause of action. Marin v. Exxon Mobil
Corp., 48 So.3d 234, 252 (La. 2010). Add to this the insurer’s refusal to respond
to three telephoned requests by Encompass for an explanation of coverage
denial.    Such stonewalling should have heightened Encompass’s and its
lawyers’ diligence rather than provide an excuse for non-discovery of a new
claim.
      Although my colleagues have diligently reviewed Louisiana law on
contra non valentem, I respectfully disagree with their application of those
cases to these facts. I would reverse the judgment for extracontractual and
punitive damages.



                                           25
