                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                  ________________

                        No. 17-1843


                U.S. RENAL CARE INC.
          d/b/a U.S. RENAL CARE CENTRAL
      YORK DIALYSIS individually and as ASSIGNEE
                   OF PATIENT, WW,

                                   Appellant
                              v.

     WELLSPAN HEALTH; WELLSPAN MEDICAL PLAN;
THE PLAN ADMINISTRATOR OF WELLSPAN MEDICAL PLAN;
          SOUTH CENTRAL PREFERRED, INC.

                    ________________

         Appeal from the United States District Court
           for the Middle District of Pennsylvania
           (D.C. Civil Action No. 1-14-cv-02257)
         District Judge: Honorable Sylvia H. Rambo


        Submitted Under Third Circuit L.A.R. 34.1(a)
                    January 16, 2018


  Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges


              (Opinion filed: January 24, 2018)
                                    ________________

                                        OPINION *
                                    ________________

AMBRO, Circuit Judge

       U.S. Renal Care, Inc. appeals the District Court’s grant of summary judgment in

favor of WellSpan Health, WellSpan Medical Plan, and South Central Preferred

(collectively “WellSpan”). 1 Renal Care argues the Court erroneously held WellSpan

established an equitable lien by agreement for the reimbursement of its mistaken

overpayment to Renal Care for dialysis services it provided to a plan beneficiary. It also

argues there is a material factual dispute over whether it received a May 2013 mailing

from WellSpan containing documents to support the latter’s refund request. 2

       We have jurisdiction over final orders of the District Court under 29 U.S.C.

§ 1291. We review its grant of summary judgment de novo and apply the same standard

it used. See Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002). Summary judgment

is proper if, viewing the record in the light most favorable to Renal Care, there is no




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  We do not address the issues Renal Care raises in its Statement of Issues or Argument
headings for which it does not present an argument in its opening brief; we consider those
issues abandoned and waived. See Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519,
545 (3d Cir. 2012).
2
  Renal Care also contends there is a factual dispute as to WellSpan’s demand for
reimbursement of overpayments due to a second set of clerical errors. However, its
assertion that WellSpan issued its demand before those errors occurred is contrary to the
record. J.A. at 340–43.
                                             2
genuine issue of material fact and WellSpan is entitled to judgment as a matter of law.

Id.; Fed. R. Civ. P. 56(a).

       We affirm the District Court’s holding that WellSpan established an equitable lien

by agreement. The Court correctly relied on Funk v. CIGNA, which held an agreement

that states the plaintiff was responsible for reimbursement of the full amount of any

overpayment was sufficient to create an equitable lien by agreement. Funk v. CIGNA

Grp. Ins., 648 F.3d 182, 194–95 (3d Cir. 2011). Though it was abrogated on other

grounds by Montanile v. Board of Trustees, this portion of Funk’s holding remains good

support. See Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 136 S.

Ct. 651 (2016). Even assuming the beneficiary’s assignment to Renal Care was valid, it

stands in the shoes of the beneficiary with respect to the agreement between him and

WellSpan regarding reimbursement. See CardioNet, Inc. v. CIGNA Health Corp., 751

F.3d 165, 178 (3d Cir. 2014). WellSpan’s equitable lien by agreement thus arose from its

contractual right to overpayment. See US Airways, Inc. v. McCutchen, 569 U.S. 88, 95–

96 (2013).

       Renal Care’s commingling of WellSpan’s overpayments with other moneys in its

operating account does not make the overpayments untraceable. See, e.g., Sereboff v.

Mid Atl. Med. Servs., Inc., 547 U.S. 356, 362–63 (2006) (holding portion of beneficiary’s

settlement constituted specifically identifiable funds subject to equitable lien). WellSpan

identified a specific fund in Renal Care’s possession (its operating account) and the

particular share of that fund to which it is entitled (the amount of the overpayments). See

Montanile, 136 S. Ct. at 660 (interpreting Sereboff, 547 U.S. at 364–65).

                                             3
       Finally, there is no material factual dispute over whether Renal Care received the

May 2013 mailing from WellSpan. The Court correctly applied the “mailbox rule” that a

document is presumed to have reached its destination at the regular time and been

received by the person to whom it was addressed if it was proved to have been properly

directed and put into the post office or delivered to the mail carrier. See Lupyan v.

Corinthian Colls. Inc., 761 F.3d 314, 319 (3d Cir. 2014). Renal Care failed to rebut the

presumption of receipt because it solely relied on a sworn statement by a Renal Care

employee who was not employed at the time the letters were mailed and had no personal

knowledge of the mailing or Renal Care’s intake procedures at the time.

       Thus we affirm.




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