                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-1718
                                  ___________

Vicki L. Ince, et al., on behalf of   *
themselves and all persons similarly  *
situated,                             *
                                      *
      Plaintiffs - Appellants,        *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Aetna Health Management, Inc.;        *
HealthPartners, Inc.; MedCenters      *
Health Care, Inc.,                    *
                                      *
      Defendants - Appellees.         *
                                 ___________

                            Submitted: November 20, 1998

                             Filed: April 9, 1999
                              ___________
Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, and HAND,* District Judge.
                              ___________

LOKEN, Circuit Judge.

       This dispute concerns the manner in which a health maintenance organization
asserted subrogation claims for health benefits provided to members who later
recovered from third-party tortfeasors. MedCenters Health Care, Inc., is a health


      *
       The HONORABLE WILLIAM BREVARD HAND, United States District
Judge for the Southern District of Alabama, sitting by designation.
maintenance organization (“HMO”) licensed by the Minnesota Commissioner of
Health. See Minn. Stat. § 62D.04. MedCenters contracts with Minnesota employers
to provide comprehensive medical care for their employees. In most cases, the result
is an employee welfare benefit plan governed by ERISA, 29 U.S.C. §§ 1001 et seq.
Aetna Health Management, Inc. (“Aetna”), administers these MedCenters Plans.

       MedCenters charges a fixed monthly fee for each employee enrolled in its Plan.
MedCenters contracts with a network of health care providers to provide Plan
benefits to enrolled members. At the time in question, MedCenters did not
compensate its primary care physicians under the traditional fee-for-service method,
but rather paid them fixed sums, called “capitated” payments, for each member who
enrolled in their clinics. MedCenters paid other providers, such as physician
specialists and hospitals, on a fee-for-service basis at negotiated, usually discounted
rates. The MedCenters Plans include “Subrogation” provisions declaring that, when
an enrolled member suffers injury at the hands of a third-party tortfeasor, the Plan has
a primary right to recover “the reasonable value of services and benefits provided.”
In asserting Plan rights under this provision, MedCenters and Aetna based Plan
claims on the providers’ published fee-for-service charges, without disclosing
whether MedCenters had paid the providers less because of capitated payments or
substantially discounted fee-for-service rates. (According to MedCenters, it passes
on to the medical providers any “extra” amounts recovered.)

       Plaintiffs are a purported class of MedCenters Plan members who sued
MedCenters, its parent company, and Aetna alleging violations of ERISA and state
law. Before commencing this action, each plaintiff suffered an injury, received health
benefits under the Plan, recovered medical expenses and other damages from a third-
party tortfeasor, and then settled a subrogation claim asserted by Aetna on behalf of




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MedCenters. In a series of orders, the district court1 granted summary judgment
dismissing all of plaintiffs’ claims prior to class certification. On appeal, plaintiffs
argue that Aetna and MedCenters breached ERISA fiduciary duties and the terms of
the MedCenters Plans by asserting secretly inflated subrogation claims that exceeded
the costs of the Plan benefits provided. Reviewing the grant of summary judgment
de novo, we affirm. See Crown v. Union Pacific R.R., 162 F.3d 984, 985 (8th Cir.
1998) (standard of review).

       1. Are Defendants ERISA Fiduciaries? To establish a breach of fiduciary
duty, plaintiffs must prove that MedCenters and Aetna are ERISA fiduciaries. ERISA
provides that each written plan should identify “one or more named fiduciaries.” 29
U.S.C. § 1102(a)(1). Beyond that, ERISA takes a functional approach to defining
fiduciaries. Any person is an ERISA plan fiduciary -

      to the extent (i) he exercises any discretionary authority or discretionary
      control respecting management of such plan or exercises any authority
      or control respecting management or disposition of its assets . . . or (iii)
      he has any discretionary authority or discretionary responsibility in the
      administration of such plan.

29 U.S.C. §1002(21)(A). The record includes a number of MedCenters Plans or
policies issued to individual employers. These documents do not appear to name any
ERISA fiduciaries. Presumptively the employer is the Plan sponsor. See 29 U.S.C.
§ 1002(16)(B). But MedCenters is given a great deal of discretionary authority to
manage and administer the Plans. Therefore, for summary judgment purposes, we
assume that MedCenters is an ERISA fiduciary when exercising such discretion, an
issue the district court did not reach.



      1
        The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.

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       The district court concluded that Aetna was not an ERISA fiduciary when
asserting, negotiating, and collecting subrogation claims on behalf of the MedCenters
Plans because “Aetna’s control remained at the level of administering subrogation
claims and did not rise to control or discretion over the plan’s terms or the procedures
outlined in the plan.” Plaintiffs argue summary judgment was improper on this issue
because there is evidence Aetna exercised discretionary authority over Plan assets --
the subrogation liens -- and over management of the Plans’ subrogation function.

       In general, we agree with the district court. Plaintiffs stipulated that Aetna
performed claim processing services for MedCenters, including “subrogation
recovery services.” The processing of claims is the kind of “purely ministerial
function” that does not give rise to fiduciary duties when performed by a third party
on a contract basis. See 29 C.F.R. § 2509.75-8 D-2. The contract between
MedCenters and Aetna expressly provides that Aetna’s broad administrative
responsibilities are subject to approval and control by the MedCenters Board of
Directors. In addition, we question plaintiffs’ contention that Aetna’s processing of
subrogation claims is control over “plan assets” as contemplated by ERISA. The
Plans provide that any subrogation moneys Aetna does collect must be deposited “in
accounts established in [MedCenters’s] name with banks . . . determined by
[MedCenters].” See Collins v. Pension & Ins. Committee, 144 F.3d 1279, 1282 (9th
Cir. 1998).

       We are nonetheless wary of affirming summary judgment in favor of Aetna on
this ground. ERISA imposes some fiduciary duties on those who implement a plan’s
claims procedures. See 29 C.F.R. § 2560.503-1; compare Prudential Ins. Co. v. Doe,
140 F.3d 785 (8th Cir. 1998), with Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214,
216 (8th Cir. 1993). Given the evidence of Aetna’s substantial control over the
administration of the MedCenters Plans, including evidence that MedCenters has a
Board of Directors but no operational employees, the bare contractual recitals that
Aetna acts only under the control of MedCenters may not be sufficient to refute, as

                                          -4-
a matter of law, a specific allegation that Aetna exercised discretionary authority with
respect to an aspect of the Plan. See Martin v. Feilen, 965 F.2d 660, 669 (8th Cir.
1992), cert. denied, 506 U.S. 1054 (1993). Therefore, we will examine plaintiffs’
breach of fiduciary claims without foreclosing the possibility that Aetna as well as
MedCenters may be responsible for any breaches.

        2. The Alleged Breaches of Fiduciary Duty. “Borrowing from trust law,
ERISA imposes high standards of fiduciary duty upon those responsible for
administering an ERISA plan and investing and disposing of its assets.” Martin v.
Feilen, 965 F.2d at 664; see 29 U.S.C. §§ 1104-06, 1109. Plaintiffs argue defendants
breached these fiduciary duties by failing to disclose that they were asserting
subrogation claims for greater amounts than the Plans in fact paid for the medical
services provided. Plaintiffs rely heavily on Shea v. Esensten, 107 F.3d 625 (8th
Cir.), cert. denied, 118 S. Ct. 297 (1997). In Shea, we held that an HMO breached its
ERISA fiduciary duty by failing to disclose that its provider agreements gave
physicians a financial incentive not to refer patients to specialists. Thus, Shea
involved a breach of the plan administrator’s duty to publish an accurate description
of plan benefits to participants and beneficiaries. See 29 C.F.R. § 2520.102-3(j)(2).

        There was no comparable failure to disclose in this case. The Plan’s right to
assert subrogation claims need not be disclosed in its summary plan description. See
29 U.S.C. § 1022(b); 29 C.F.R. § 2520.102-3. The provision in the MedCenters Plans
defining the subrogation interest as extending “to the extent of the reasonable value
of services and benefits provided” accurately described that the Plan was entitled to
recover the fair value of the services rendered and was not limited to a recovery for
cash expenditures. Minnesota law has long provided that an injured party may
recover from a tortfeasor the “reasonable value” of medical services received, even
if the injured party acquired the services for less. See Dahlin v. Kron, 45 N.W.2d.
833, 837-38 (Minn. 1950). MedCenters as subrogee may “step into the shoes” of the
injured party’s right to recover the reasonable value of medical services the Plan

                                          -5-
provided. See Hermeling v. Minnesota Fire & Cas. Co., 548 N.W.2d 270, 273 (Minn.
1996). Minnesota Department of Health regulations expressly permit an HMO to
require “an enrollee to reimburse it for the reasonable value of health maintenance
services provided . . . to the extent the enrollee collects damages . . . for the diagnosis,
care, and treatment of an injury.” Minn. R. 4685.0900 (emphasis added). Thus, the
MedCenters plan documents accurately described a lawful method of calculating and
asserting subrogation claims. Assuming defendants were the fiduciaries responsible
for these disclosures, there was no breach of fiduciary duty.

       Plaintiffs also argue that defendants breached ERISA fiduciary duties because
Aetna’s claims personnel occasionally sent subrogation notices describing the Plan’s
subrogation interest as being based upon “HMO paid” rather than the reasonable
value of provider services. Plaintiffs contend this misrepresentation led them to
believe MedCenters made cash expenditures of the listed amounts. This contention
is fatally flawed. First, plaintiffs have no authority for the proposition that ERISA
fiduciary duties apply to this kind of communication between the Plan and a
beneficiary who has a contractual obligation to reimburse the Plan for benefits
provided. The Department of Labor’s regulation prescribing claims procedures
imposes no such duty. See 29 C.F.R. § 2560.503-1. Second, even assuming that a
fraudulent misrepresentation by the Plan in pursuing its right to subrogation is
somehow actionable under ERISA, plaintiffs have no evidence of materiality,
detrimental reliance, or damage to support such a claim. Plaintiffs incorporated the
allegedly “inflated” subrogation claims into their settlement demands in the
underlying tort actions, which may well have increased their recovery from the
tortfeasors. With one exception, plaintiffs settled the Plans’ subrogation claims for
less than the amounts Aetna originally asserted, indeed, for less than plaintiffs’
calculation of MedCenters’s out-of-pocket payments to providers.

       3. Did Defendants Breach the Terms of the Plan? Plaintiffs further argue
the district court erred in dismissing their claims that MedCenters and Aetna breached

                                            -6-
the Plans by asserting and collecting subrogation claims for more than the Plans in
fact paid providers. As we have explained, defendants’ methodology in calculating
subrogation claims was consistent with the Plans because the well-established
meaning of the term “reasonable value” in the Plan subrogation provisions is the
medical providers’ normal charges for the services provided. Of course, there is
always a potential question whether the amount demanded in subrogation was in fact
the reasonable value of the medical services actually provided. If plaintiffs raised that
issue in the district court, which is not at all clear, they presented no evidence to
counter defendants’ evidence that every subrogation claim was based upon provider
billings at the providers’ normal fees for such services. In their reply brief, plaintiffs
point to a Wall Street Journal article to argue that “in Minnesota, discounts are the
norm.” But this falls far short of evidence that any of the subrogation claims in
question were based upon illegitimate provider billings. See Mansker v. TMG Life
Ins. Co., 54 F.3d 1322, 1328-29 (8th Cir. 1995). A party opposing summary
judgment who will bear the burden of proof at trial must come forward with evidence
substantiating his position to avoid summary judgment. See Celotex Corp. v. Catrett,
477 U.S. 317 (1986).

       4. The Non-ERISA Plaintiff. One plaintiff worked for a public high school,
and its MedCenters Plan was therefore not governed by ERISA. See 29 U.S.C.
§ 1003(b)(1). The district court granted summary judgment dismissing his state law
claims because “a factfinder cannot conclude, beyond mere speculation, that
Defendants impacted the settlement negotiation process in a way that harmed
Plaintiff.” After careful review of the record, we agree. In addition, on appeal
plaintiffs have not separately argued their state law claims, which leads us to
conclude that our analysis




                                           -7-
of their breach of fiduciary duty and breach of contract claims under ERISA applies
with equal force to their state law claims.

      The judgment of the district court is affirmed.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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