[Cite as Grey v. Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167.]




                     Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 96846



                                              GREY,

                                                         APPELLANT,

                                                    v.

                             WALGREEN COMPANY,
                                                         APPELLEE.




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-741895

        BEFORE: Stewart, P.J., Jones, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: December 1, 2011
       ATTORNEYS:

       Seaman Garson, L.L.C., James A. DeRoche, Stuart I. Garson, David L. Meyerson, and David
H. Krause; and Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli, for
appellant.

       Ulmer & Berne L.L.P., Marvin L. Karp, Michael N. Ungar, David D. Yeagley, and
Ashley A. Weaver, for appellee.
       MELODY J. STEWART, Presiding Judge.

       {¶ 1} Plaintiff-appellant, Evelyn Grey, appeals from a Civ.R. 12(B)(6) dismissal of her

class-action complaint for damages against defendant-appellee, Walgreen Company. Grey alleged

that Walgreen’s pharmacy engaged in a practice of charging workers’ compensation claimants for

prescription drugs in amounts that exceeded the express terms and conditions of regulations and

guidelines established by the Ohio Bureau of Workers’ Compensation. She alleged that Walgreen’s

practice violated R.C. 4121.44(K), which states: “No health care provider, whether certified or not,

shall charge, assess, or otherwise attempt to collect from an employee, employer, a managed care

organization, or the bureau any amount for covered services or supplies that is in excess of the

allowed amount paid by a managed care organization, the bureau, or a qualified health plan.”

Walgreen, citing Patterson v. Rite Aid Corp. Headquarters (N.D.Ohio E.D.2010), 752 F.Supp.2d

811, sought dismissal of the complaint on grounds that R.C. 4121.44(K) does not provide for a

private cause of action. The court agreed, and relying on Patterson for the conclusion that Grey

could not maintain a private action for any alleged overbilling by Walgreen, dismissed the entire

complaint.

                                                     I

       {¶ 2} Grey first argues that the court erred as a matter of law by finding that she had no

private right of action under R.C. 4121.44(K).

                                                    A

       {¶ 3} We employ a de novo standard of review for motions to dismiss filed pursuant to

Civ.R. 12(B)(6), Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551

N.E.2d 981, and accept all factual allegations of the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d

584. A motion to dismiss for failure to state a claim upon which relief can be granted can be granted

only when it appears beyond doubt from the complaint that the plaintiff can prove no set of facts

entitling her to relief. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872

N.E.2d 254, ¶14.

       {¶ 4} Grey’s complaint alleged that the bureau has an outpatient pharmacy-benefit program

that covers drugs used to treat conditions related to an injured worker’s occupational injury or

disease. Under this program, pharmacies are required to submit drug bills directly to the bureau’s

pharmacy-benefits manager for all claims, including bills for new claims that have not yet been

allowed by the bureau. In situations where a worker presents a prescription before a claim has been

allowed (or even filed), a pharmacy may either (1) accept an assignment of the claim, fill the

prescription, and seek reimbursement from the bureau at a later date or (2) fill the prescription and

charge the injured worker the scheduled amount established by the bureau, at which point the worker

will be reimbursed by the bureau if the claim is later allowed.

       {¶ 5} Grey alleged that she suffered a workplace injury and received medical treatment

although she had yet to file a claim for workers’ compensation. Her treating physician gave her a

prescription for medicine, which she took to a Walgreen pharmacy. Walgreen charged her the full

retail price for the prescription. Grey alleged that the bureau later allowed her claim for a workplace

injury and that the bureau reimbursed Grey only for the scheduled amount of her prescription — an

amount that was less than that charged by Walgreen.

                                                      B
        {¶ 6} When determining whether, in the absence of explicit language, a statute grants a

private right of action, Ohio courts have used the test set forth in Cort v. Ash (1975), 422 U.S. 66, 95

S.Ct. 2080, 45 L.Ed.2d 26:

        {¶ 7} “‘First, is the plaintiff “one of the class for whose especial benefit the statute was

enacted,” * * *—that is, does the statute create a federal right in favor of the plaintiff? Second, is

there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny

one? * * * Third, is it consistent with the underlying purposes of the legislative scheme to imply such

a remedy for the plaintiff?’” Strack v. Westfield Cos. (1986), 33 Ohio App.3d 336, 337, 515 N.E.2d

1005, quoting Cort at 78.

        {¶ 8} There is ample authority for the proposition that the Cort test is no longer valid. The

United States Supreme Court has gradually focused on the single factor of whether there was a

legislative intent to grant a private right of action. See Stabile, The Role of Congressional Intent in

Determining the Existence of Implied Private Rights of Action (1996), 71 Notre Dame L.R. 861,

868-869. For example, in Transamerica Mtge. Advisors, Inc. (TAMA) v. Lewis (1979), 444 U.S. 11,

100 S.Ct. 242, 62 L.Ed.2d 146, the Supreme Court stated that its analysis of whether a private right

of action existed under the Investment Advisers Act of 1940, Title 15, Section 80b-1 et seq., U.S.

Code, was “basically a matter of statutory construction.” Id. at 15. It found no evidence in the

legislative history of the act to suggest any intent by Congress to create a private cause of action. Id.

at 18. And in Touche Ross & Co. v. Redington (1979), 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82,

the Supreme Court established that congressional intent is the exclusive factor used in the

determination, declaring that the task of courts is “limited solely to determining whether Congress

intended to create the private right of action.” Id. at 568.
        {¶ 9} Most recently, in Alexander v. Sandoval (2001), 532 U.S. 275, 121 S.Ct. 1511, 149

L.Ed.2d 517, the Supreme Court appeared to put to rest any question concerning the continuing

validity of the Cort factors by reaffirming its focus on legislative intent, stating that “[h]aving sworn

off the habit of venturing beyond Congress’s intent, we will not accept respondents’ invitation to

have one last drink.” Id. at 287. The Supreme Court elaborated:

        {¶ 10} “Like substantive federal law itself, private rights of action to enforce federal law

must be created by Congress. The judicial task is to interpret the statute Congress has passed to

determine whether it displays an intent to create not just a private right but also a private remedy.

Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and

courts may not create one, no matter how desirable that might be as a policy matter, or how

compatible with the statute.” (Citations omitted.) Id. at 286-287.

        {¶ 11} In other words, “the relevant inquiry for determining whether a private right of action

exists appears to have two steps: (1) Did Congress intend to create a personal right?; and (2) Did

Congress intend to create a private remedy? Only if the answer to both of these questions is ‘yes’

may a court hold that an implied private right of action exists under a federal statute.” Wisniewski v.

Rodale, Inc. (C.A.3, 2007), 510 F.3d 294, 301. See also Fawcett v. G.C. Murphy & Co. (1976), 46

Ohio St.2d 245, 348 N.E.2d 144 (the courts will not infer the existence of a private cause of action

unless the Ohio General Assembly manifests a “clear implication” for private causes of action).

                                                       C

        {¶ 12} “[I]n cases of statutory construction, ‘our paramount concern is the legislative intent

in enacting the statute.’ ” State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, at

¶ 29, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d

1107, ¶ 21. The courts determine legislative intent by looking to the language of the statute and the
purpose that is to be accomplished by the statute. Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d

417, 419, 704 N.E.2d 1217. When the meaning of the statute is “clear and unambiguous,” the statute

must be applied “as written.” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493,

2008-Ohio-6323, 900 N.E.2d 601, ¶ 9.

       {¶ 13} As earlier noted, R.C. 4121.44(K) provides that no health-care provider shall charge

or attempt to collect from any employee any amount for covered services or supplies in excess of the

allowed amount paid by the bureau or its benefits manager. In the event a health care provider does

overcharge or attempt to collect an amount in excess of that allowed by the bureau, “[t]he attorney

general may bring an action on behalf of the state and a self-insuring employer may bring an action

on its own behalf to enforce this section in any court of competent jurisdiction. The attorney general

may settle or compromise any action brought under this section with the approval of the

administrator.” See R.C. 4121.444(D).

       {¶ 14} As the foregoing statutes make clear, the General Assembly not only failed to grant a

private right of action to individual workers’ compensation claimants for claims that they have been

overcharged, it specifically gave a right of action to the attorney general and affected self-insured

employers. R.C. Chapter 4121 could not be clearer in expressing the intent that enforcement of R.C.

4121.44(K) resides solely with the attorney general. The district court in Patterson reached this

same conclusion:

       {¶ 15} “While the Plaintiffs, as workers [sic] compensation claimants, are members of a

class for whose especial benefit the statute was enacted, there is no indication of any legislative

intent to create a private remedy under § 4121.44(K), however there is indication of intent to deny

such a remedy in that the statute provides for state governmental enforcement. See § 4121.444

generally providing penalties for obtaining or attempting to obtain payment by deception;
termination of agreement or reimbursement; and § 4121.444(D) empowering the attorney general to

bring an action on behalf of the state. * * * There is no indication that a private remedy is necessary

to enforce the statute. Based upon this analysis, this Court will not be the first to imply a private

right of action under § 4121.44(K).” Id., 752 F.Supp.2d at 816-817.

        {¶ 16} Grey argues that Patterson is distinguishable on its facts because the medications

prescribed in that case required preapproval from the benefits manager — preapprovals that had not

been obtained by either plaintiff in that case, thus resulting in rejection of the claims for

reimbursement of out-of-pocket prescription expenses. So Grey argues that the pharmacy in

Patterson had the right to collect the full cash price of the prescriptions at the time they were filled

and was being wrongfully asked to refund monies that it had the right to charge in the first place.

        {¶ 17} Grey’s argument that Patterson is factually distinguishable is irrelevant because the

distinguishing facts say nothing about the legislative intent behind R.C. 4121.44(K). R.C. Chapter

4121 is, at bottom, a statute that creates an administrative body and authorizes the promulgation of

rules and procedures to govern that body. The right of the state to enforce the rules and regulations

governing workers’ compensation is explicitly reposed with the attorney general. It is a rule of

statutory construction that “the General Assembly is presumed to have known that its designation of

a remedy would be construed to exclude other remedies, consistent with the statutory construction

maxim of expressio unius est exclusio alterius.” Hoops v. United Tel. Co. of Ohio (1990), 50 Ohio

St.3d 97, 101, 553 N.E.2d 252. We have no reason to conclude that the General Assembly intended,

in the absence of express language, to grant a private right of action to affected claimants when it

expressly granted that right to the attorney general.

       {¶ 18} The General Assembly did not create a personal right under R.C. 4121.44(K), nor did

it create a private remedy, because it plainly gave a right of action only to the attorney general or
self-insuring employers under the workers’ compensation statutes. We hold, therefore, that there is

no private right of action to seek redress for violations of R.C. 4121.44(K). With no right to bring a

private action, Grey cannot as a matter of law prevail on her claim for damages under R.C.

4121.44(K).1

                                                       II

       {¶ 19} In addition to her claim under R.C. 4121.44(K), Grey set forth a claim for unjust

enrichment. In its motion to dismiss, Walgreen argued that these claims were based upon an alleged

violation of the bureau’s billing manual, but that Grey failed to establish as a predicate for liability

that she submitted a claim for “covered services” under R.C. 4121.44(K). It argued that Walgreen is

not responsible for refunding the difference between the cash price for a prescription and the price

set by the bureau.

       {¶ 20} In the absence of a contractual relationship, a party may seek compensation when a

person “has and retains money or benefits which in justice and equity belong to another.” Hummel v.

Hummel (1938), 133 Ohio St. 520, 528, 14 N.E.2d 923. To establish a claim of unjust enrichment,

the plaintiff must establish the following elements: (1) a benefit conferred by a plaintiff upon a

defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the

defendant under circumstances where it would be unjust to do so without payment. L & H Leasing

Co. v. Dutton (1992), 82 Ohio App.3d 528, 534, 612 N.E.2d 787, citing Hambleton v. R.G. Barry

Corp. (1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298.




        Our conclusion that there is no private right to enforce claimed violations of R.C. 4121.44(K)
       1


necessarily moots consideration of Grey’s arguments relating to breach of contract, fraudulent
misrepresentation, and fraud.
        {¶ 21} Grey’s unjust-enrichment claim rests on the premise that Walgreen was bound by the

terms of the bureau’s pharmacy benefits program to either provide the prescription without payment

from the customer and await future reimbursement from the bureau or seek payment directly from

the customer but accept in payment no more than the amount allowed by the bureau. She argues that

Walgreen retained an unjust benefit by charging her more than the amount allowed by the bureau.

        {¶ 22} The same type of unjust enrichment claim was raised in Patterson:

        {¶ 23} “While the Member Pharmacy Agreement covers reimbursement, the Plaintiffs are

not a party, or at least in Defendant’s view, third party beneficiaries to that contract, thus that express

contract would not act to bar Plaintiffs’ equitable claims. However, Plaintiffs in this case purchased

prescription drugs from Rite Aid while they were not eligible injured workers under the Agreement.

At that point, Rite Aid was not required by the Agreement or § 4121.44(K) to sell the prescription

drugs to Plaintiffs at the amounts listed in the BWC fee schedule. Rather, Rite Aid and Plaintiffs

were free to enter into separate, express contracts between Rite Aid and Plaintiffs as cash customers

for the sale of the medications at the retail price and that is what they did. Thus, Plaintiffs’ unjust

enrichment and money had and received claims are dismissed because express contracts govern the

subject matter.” Patterson, 752 F.Supp.2d at 818.

        {¶ 24} The court, relying on Patterson, held that Grey purchased her prescription drugs

before her claim had been allowed by the bureau, at which point Walgreen was free to charge Grey

the full cash price and that Grey entered into a binding contract with Walgreen by paying that price.

We find no fault with the court’s analysis. Grey’s arguments that there are insufficient facts to

discern whether a contract arose for purposes of a Civ.R. 12(B)(6) are specious. Her complaint relies

entirely on the premise that she was overcharged by Walgreen at the point of sale, so she cannot now

argue that there were insufficient facts pleaded in the complaint to show that a transaction between
her and Walgreen occurred. While a plaintiff is entitled to plead alternative legal theories when the

facts are in doubt, Grey did not do so here. The complaint consistently alleges that she paid for and

received prescription medicine from Walgreen, a transaction that bears all the hallmarks of a

completed contract. Id. The court did not err by concluding that the facts, as stated, would not allow

Grey to assert a claim for unjust enrichment.

                                                                                 Judgment affirmed.

       Jones and E. Gallagher, JJ., concur.
