                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           May 19, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 WENDY MOON,

       Plaintiff - Appellant,

 v.                                                          No. 18-4034
                                                    (D.C. No. 1:16-CV-00125-CW)
 TALL TREE ADMINISTRATORS, LLC;                                (D. Utah)
 MOUNTAIN VIEW HOSPITAL, LLC;
 MOUNTAIN VIEW HOSPITAL
 EMPLOYEE BENEFIT PLAN,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and EID, Circuit Judges.
                  _________________________________

      Appellant Wendy Moon challenges a denial of health benefits under ERISA,

29 U.S.C. § 1001 et seq. Defendants are Mountain View Hospital, Moon’s employer;

the Mountain View Hospital Employee Benefit Plan (the “Plan”); and Tall Tree

Administrators, LLC, the claims administrator for the Plan (collectively,

“Defendants”). Moon acted as a surrogate in two pregnancies, one in 2013 and one

in 2015. She was denied health insurance coverage for the 2015 pregnancy based on

a policy provision excluding “[n]on-traditional medical services, treatments and


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
supplies which are not specified as covered under this Plan, including, but not limited

to pregnancy charges acting as a surrogate mother.” App. at 473.1 Defendants had

previously covered Moon’s expenses for the 2013 pregnancy, but at that time,

Defendants were unaware Moon was acting as a surrogate. Id. at 106. The district

court granted summary judgment to Defendants, holding that the Plan unambiguously

excludes all medical coverage related to surrogate pregnancy. Moon contends the

exclusion is ambiguous and argues that it should be interpreted to exclude only non-

traditional medical services related to surrogacy. We agree with the district court

and affirm.

                                          I.

      Moon is a participant in the Mountain View Hospital Employee Benefit Plan.

The Plan is a self-funded group health care benefit plan governed by ERISA. App. at

103. At all relevant times, the terms of the Plan were set forth in a summary plan

description. Id. at 104, 441–509. The Plan covers pregnancy. Id. at 456–57. But it

also contains an exclusions section, which excludes, among other things, services

“[n]ot specified as covered.” The pertinent exclusion (“Exclusion 31”) reads:

      31. Not specified as covered. Non-traditional medical services,
      treatments and supplies which are not specified as covered under this


      1
        Defendants’ assert, and Moon does not contest, that portions of the
Appellant’s Appendix contain material that was not part of the record below
(specifically, pages 157–355 and 359–73) in violation of Fed. R. App. P. 10(a). See
Aple. Br. at 4. Accordingly, we limit our reference, and citations herein, to only
those portions of the Appendix that comply with Rule 10(a): pages 1–156, the district
court record; and pages 356–58, and 374–784, of the joint stipulated administrative
record.
                                           2
       Plan, including, but not limited to pregnancy charges acting as a surrogate
       mother.

Id. at 473.

       In March 2011, Moon called Tall Tree Administrators (“TTA”) to ask whether

surrogate maternity was covered. She does not dispute that she was told her policy

did not cover such claims. Id. at 105, 783.

       Despite this clarification, Moon subsequently acted as a surrogate twice. The

first time, in 2013, Moon submitted claims to TTA for her pregnancy-related

expenses. Id. at 106. TTA authorized coverage under the Plan, but there is no

evidence that Defendants knew Moon was acting as a surrogate. See id. In 2015,

Moon again agreed to act as a surrogate.2 Id. This time, TTA denied coverage under

the Plan for Moon’s pregnancy-related claims because surrogate pregnancy expenses

were excluded from the Plan’s coverage. Id. at 107, 374–90, 728–82.

       Moon appealed the denial of benefits but received no response. Id. at 61.

Turning to federal court, Moon sought a judgment that Defendants were responsible

for her 2015 pregnancy-related medical expenses.3 Id. at 12–14. The parties cross-

moved for summary judgment. The district court held a hearing on the two motions,

after which the court ruled from the bench that Exclusion 31 unambiguously



       2
        It appears that Moon might have become pregnant in November 2014. See
Aple. Br. at 7 (referring to “the surrogacy performed between November 14, 2014
and July 14, 2015”). To avoid any confusion, however, we will follow the parties’
convention and refer to the second surrogate pregnancy as “the 2015 pregnancy.”
       3
           Moon does not pursue claims related to the 2013 pregnancy on appeal.
                                            3
excluded coverage for surrogate pregnancy. Id. at 153–54. At the hearing, the

district court explained at multiple points that it had thoroughly considered the

parties’ briefing and the administrative record. Id. at 128, 146, 152. The district

court later issued a short, written order granting Defendants’ motion “for the reasons

stated on the record.” Id. at 121.

                                            II.

      We review a district court’s grant or denial of summary judgment de novo,

applying the same standards as the district court. Pitman v. Blue Cross & Blue Shield

of Okla., 217 F.3d 1291, 1295 (10th Cir. 2000). The district court below also

reviewed Moon’s claimed denial of benefits de novo because the parties agreed the

de novo standard applied.4 See Aplt. Br. at 13; Aple. Br. at 10. On appeal, the

parties agree that review is de novo. Id.

      “In interpreting an ERISA plan, the court examines the plan documents as a

whole and, if unambiguous, construes them as a matter of law.” Admin. Comm. of

Wal-Mart Assoc. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir.

2004) (citation omitted). “Ambiguity exists when a plan provision is reasonably

susceptible to more than one meaning, or where there is uncertainty as to the meaning

of the term.” Id. (quotation marks and citation omitted). We give the plan language

“its common and ordinary meaning as a reasonable person in the position of the []

participant, not the actual participant, would have understood the words to mean.”


      4
       The “primary basis” for de novo review before the district court was that
TTA failed to respond to Moon’s appeal of the denial of benefits. Reply Br. at 12.
                                            4
Blair v. Metro. Life Ins. Co., 974 F.2d 1219, 1221 (10th Cir. 1992) (emphasis in

original) (citation omitted).

                                            A.

       Moon argues at length that the district court did not conduct a “full de novo

review” of her claim because it did not explicitly consider her proposed construction

of the exclusion. Aplt. Br. at 13–14. This argument can be quickly set aside. As

Defendants point out, the district court did indicate at the hearing that it had

considered Moon’s argument. See App. at 146, 152; see also id. at 128 (“I have

looked quite carefully at the language, I have looked carefully at your briefs . . . .”).

The district court ultimately determined that the policy exclusion was not ambiguous,

id. at 153–54, which was sufficient to grant Defendants’ motion, and necessarily a

rejection of Moon’s argument that the exclusion was ambiguous.

       The district court is not required to address, in-depth, every argument for and

against summary judgment. And further, Moon cites no authority for the proposition

that the district court’s alleged failure to undertake a detailed analysis itself merits

reversal. See Aplt. Br. at 13–14. The district court’s holding that the policy

exclusion was not ambiguous was sufficient to “disclose the district court’s reasons”

for its decision and create a record for appellate review. Couveau v. Am. Airlines,

Inc., 218 F.3d 1078, 1081 (9th Cir. 2000) (“A summary judgment order that fails to

disclose the district court’s reasons runs contrary to the interest of judicial efficiency

by compelling the appellate court to scour the record in order to find evidence in

support of the decision.” (internal quotations, brackets, and citation omitted)); see

                                             5
also Fed. R. Civ. P. 56(a) (“The court should state on the record the reasons for

granting or denying the motion [for summary judgment].”). We therefore conclude

Moon’s argument on this point is unavailing.

                                          B.

      Turning to the merits of the district court’s decision, we agree that the

language of Exclusion 31 is unambiguous.

      Moon argues that “[t]he ordinary reader could interpret the provision to mean

that during a surrogate pregnancy the plan will exclude coverage for non-traditional

medical services and treatments.” Aplt. Br. at 18 (emphasis added). “[T]raditional

medical services and treatments incurred during surrogate pregnancies,” on the other

hand, “would be covered by the Plan.” Id. at 18–19 (emphasis added). In other

words, Moon argues that the clause referring to “pregnancy charges acting as a

surrogate mother” merely clarifies that non-traditional medical services are not

covered even during surrogate pregnancy.

      Conversely, Defendants contend that surrogacy is a subtype of “non-traditional

medical services.” Aple. Br. at 11. They argue the phrase “pregnancy charges acting

as a surrogate mother” clarifies that medical expenses related to surrogacy are

classified as “non-traditional medical services.” Id. at 11–12. Under Defendants’

reading, all charges related to surrogate pregnancy are excluded by the Plan.

      Moon appears to concede that Defendants’ interpretation is a reasonable one,

but argues her interpretation is also reasonable, so therefore the plan is ambiguous.

We conclude, however, that Exclusion 31 is not susceptible to Moon’s proposed

                                           6
interpretation, and that the plan is therefore “not susceptible to more than one

meaning.” Admin. Comm. of Wal-Mart Assoc. Health & Welfare Plan, 393 F.3d at

1123. Accordingly, we agree with the district court that the provision is

unambiguous.

      The language of the exclusion does not support Moon’s reading. The phrase

“pregnancy charges” suggests that all “charges” related to pregnancy incurred while

“acting as a surrogate mother” are excluded from coverage, not just non-traditional

charges as she contends. Additionally, the structure of the exclusion supports

Defendants’ reading: it begins by stating what is not covered—non-traditional

medical expenses—and then clarifies that these “include[] but [are] not limited to”

“pregnancy charges acting as a surrogate mother.” The phrasing explains that

“pregnancy charges acting as a surrogate mother” are a group of excluded claims

housed within the larger category of excluded “non-traditional medical expenses.”

Consequently, a reasonable person in the position of the participant would view

“pregnancy charges acting as a surrogate mother” as an example of a non-traditional

medical expense.

      By contrast, Moon’s reading would require that words be read into the phrase

specifying that only non-traditional medical expenses related to surrogacy are

excluded, rather than all expenses related to surrogacy. More specifically, in order

not to read the language to refer to all expenses related to surrogacy, one would have

to read the phrase as excluding “[n]on-traditional medical services . . . including, but

not limited to, [non-traditional] pregnancy charges acting as a surrogate mother.”

                                           7
App. 473. In sum, language would have to be added to the provision to counteract its

natural reading in order to create the ambiguity Moon proposes. We do not, as a

matter of interpretation, add language to a provision. Feaster Trucking Serv. Inc. v.

Kindsvater, Inc., 460 F.2d 180, 182 (10th Cir. 1972) (“[A]dditional words cannot be

read into [an] agreement . . . .” (citation omitted)”). We decline to do so here.

      In sum, Moon’s interpretation of Exclusion 31 is not reasonable, and Moon has

not raised any other interpretation that would render the provision ambiguous.5 We

therefore hold that Exclusion 31 unambiguously excludes coverage for any medical

expenses related to surrogate pregnancy.

                                           III.

      For the foregoing reasons, we AFFIRM the district court.




                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




      5
        Because we hold the exclusion is unambiguous, we do not reach Moon’s
arguments related to the doctrine of contra proferentem and the parties’ prior
dealings, or Defendants’ alternative argument concerning the Plan’s exclusion of
coverage for “occupational activities.”
                                            8
