                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS             March 6, 2007
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                   Clerk

                              No. 06-10151

                       ))))))))))))))))))))))))))

ABILENE REGIONAL MEDICAL CENTER,

                Plaintiff-Appellant,

     versus

UNITED INDUSTRIAL WORKERS HEALTH AND BENEFITS PLAN,

                Defendant-Appellee.


           Appeal from the United States District Court
                for the Northern District of Texas
                          No. 1:04-CV-232



Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant ARMC, L.P., d/b/a Abilene Regional Medical

Center   (“ARMC”)   appeals   the   district   court’s   order   granting

Defendant-Appellee United Industrial Workers Health and Benefits

Plan’s (“UIW”) motion for summary judgment.         Specifically, ARMC

contends that the district court erred (1) in finding that the

Employee Retirement Income and Security Act of 1974(“ERISA”), 29

U.S.C. §§ 1001-1462 (2000), preempted its state law breach of


     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT RULE
47.5.4.
contract claim, and (2) in determining that UIW was entitled to

summary judgment on ARMC’s negligent misrepresentation claim because

ARMC failed to produce evidence of pecuniary loss.               Because no

genuine issues of material fact exist with respect to either of

ARMC’s claims, we AFFIRM the district court’s grant of summary

judgment.

                  I. FACTUAL AND PROCEDURAL HISTORY

     ARMC,   a   medical    center   located   in   Taylor   County,   Texas,

administered medical care to patient B.L. from September 23, 2003,

to October 21, 2003.       B.L. stayed in ARMC’s acute care section from

September 23 through September 30, 2003.            On September 30, 2003,

B.L. was transferred to ARMC’s skilled nursing unit where he

remained until October 21, 2003.          Upon admission to the acute care

section and then again upon transfer to the skilled nursing unit,

B.L. signed a “Condition of Admissions Form” in which he agreed to

assign any health benefits due to him under his health care plan to

ARMC.   UIW had an anti-assignment clause at the time of B.L.’s

admission to ARMC.

     The bill for the acute care portion of the hospitalization was

$46,039.84, and the bill for the skilled nursing unit stay was

$63,746.71, for a total amount of $109,786.55.           In November 2003,

ARMC sent its bills to UIW because B.L., as the dependent of a

covered employee, was a beneficiary under UIW’s benefits plan.           UIW

then contacted ARMC to negotiate a settlement regarding payment.



                                      2
UIW sent ARMC two proposed settlement agreements, one for each bill.

On April 12, 2004, ARMC accepted UIW’s settlement terms.                   ARMC

agreed to accept a 15% reduction on the charges for each bill1 as

payment in full and to give up any right to recover the balance from

the patient or UIW in exchange for payment by April 29, 2004.

     UIW began processing the claim only after ARMC had signed the

forms and returned the negotiated settlement forms to UIW.            During

processing, UIW discovered that B.L. had almost exhausted his

lifetime    benefits   cap   of   $500,000   and   was   only   eligible    for

$20,562.25 in benefits.      UIW informed ARMC that it would only pay

$20,562.25 of the $93,318.58 owed because B.L. had reached his

lifetime benefits cap. On April 23, 2005, UIW sent ARMC a check for

$20,562.25, which ARMC did not cash.

     ARMC appealed to UIW’s Board of Trustees requesting additional

payment.     The Board of Trustees denied the claim, citing the

$500,000 lifetime benefits cap.

     On September 13, 2004, ARMC filed suit against UIW for breach

of contract in the 350th District Court of Taylor County, Texas.

UIW removed the case to the Northern District of Texas, Abilene

Division.    ARMC then amended its complaint to include a negligent

misrepresentation claim.          The parties filed cross-motions for

summary judgment.

     1
       In other words, ARMC agreed to accept $39,133.87 as payment
for the acute care hospitalization and $54,184.71 as payment for
the skilled nursing stay. The total for the negotiated bills was
$93,318.58.

                                      3
     The district court, on December 23, 2005, granted UIW’s motion

for summary judgment holding that (1) ERISA preempted ARMC’s breach

of contract claim, and (2) though ERISA did not preempt ARMC’s

negligent misrepresentation claim,2 ARMC could not prove negligent

misrepresentation as a matter of law.         The district court also

denied ARMC’s motion for partial summary judgment.            ARMC now

appeals.

              II. JURISDICTION AND STANDARD OF REVIEW

     ARMC appeals a final judgment of the district court, so this

court has jurisdiction over the appeal under 28 U.S.C. § 1291.

     This court reviews a summary judgment de novo.      Dallas County

Hosp. Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th

Cir. 2002). Summary judgment is proper when the pleadings, discovery

responses, and affidavits show that there is no genuine issue of

material fact and that the moving party is entitled to a judgment as

a matter of law.   FED. R. CIV. P. 56(c).   A dispute about a material

fact is genuine if the evidence is such that a reasonable jury could

return a verdict for the non-moving party.         Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).      When deciding whether there

is a genuine issue of material fact, this court must view all

evidence in the light most favorable to the non-moving party.

Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).


     2
       UIW does not contest the district court’s holding that there
is no ERISA preemption for ARMC’s negligent misrepresentation
claim.

                                  4
                          III. DISCUSSION

     ARMC appeals the district court’s grant of summary judgment

because it argues that the district court erred in two respects.

First, according to ARMC, the district court erred in holding that

ERISA preempted its breach of contract claim.        Second, ARMC argues

that the district court erred in finding that it failed to produce

evidence of pecuniary loss, an element necessary for ARMC to prevail

on its negligent misrepresentation claim.

     A. ERISA Preemption of the Breach of Contract Claim

     Section 514(a) of ERISA, in pertinent part, provides that ERISA

preempts “any and all State laws insofar as they now or hereafter

relate to any employee benefit plan.”         29 U.S.C. § 1144(a).   The

Supreme Court has interpreted ERISA preemption liberally, stating

that “[a] law ‘relates to’ an employee benefit plan, in the normal

sense of the phrase, if it has a connection with or reference to

such a plan.”   Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904

F.2d 236, 244 (5th Cir. 1990) (quoting Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 96-97 (1983)).       Though the Supreme Court counsels

a liberal construction of section 514(a), it has also warned “[s]ome

state actions may affect employee benefit plans in too tenuous,

remote, or peripheral a manner to warrant a finding that the law

‘relates to’ the plan.”   Id.   We have previously held that state

laws subject to ERISA preemption include state law causes of action

that relate to an employee benefit plan, even if the claim arises

under a general law that has no connection to employee benefit

                                    5
plans.   Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218-19 (5th

Cir. 1992).    Therefore, ERISA may preempt a general state law breach

of contract claim such as ARMC’s.

      In Memorial Hospital, this circuit developed a two-pronged test

to determine when a state law “relates to” an ERISA plan.                         ERISA

preempts a state law when: “(1) the state law claims address areas

of exclusive federal concern, such as the right to receive benefits

under the terms of an ERISA plan; and (2) the claims directly affect

the relationship among the traditional ERISA entities--the employer,

the   plan    and      its   fiduciaries,         and     the    participants       and

beneficiaries.”     Mem’l Hosp., 904 F.2d at 245.

      Subsequent cases have elaborated on the Memorial Hospital test.

In Transitional Hospitals Corp. v. Blue Cross & Blue Shield of

Texas, Inc., 164 F.3d 952, 955 (5th Cir. 1999), we determined that

a threshold question before applying Memorial Hospital was whether

there was coverage under the plan.           If there was no coverage, then,

clearly, the health care provider acts as an independent third-party

not subject to ERISA preemption.            Id.    If there was coverage, then

the court must apply Memorial Hospital.             In this case, neither party

disputes that B.L. was covered under UIW’s benefits plan; therefore,

we must apply the Memorial Hospital framework.

      The    Memorial    Hospital     framework          requires    the    court    to

“determine whether the claim in question is dependent on, and

derived from     the    rights   of   the   plan        beneficiaries      to   recover

benefits under the terms of the plan.”                     Id.      In other words,

                                        6
Memorial Hospital demands a fact-sensitive inquiry into whether a

medical   services   provider   is       properly    characterized   as   an

independent third-party provider or as an assignee asserting a

derivative claim for ERISA benefits.          See Cypress Fairbanks Med.

Ctr., Inc. v. Pan-Am. Life Ins. Co., 110 F.3d 280, 284 (5th Cir.

1997).

     ARMC argues that ERISA does not preempt its breach of contract

claim because it is suing as an independent third-party provider,

and not as an assignee asserting a derivative claim for benefits.

ARMC points to cases such as Pasack Valley Hospital, Inc. v. Local

464A UFCW Welfare Reimbursement Plan, 388 F.3d 393 (3d Cir. 2004),

and Rogers v. CIGNA Healthcare of Texas, 227 F. Supp. 2d 652 (W.D.

Tex. 2001), to support the proposition that ERISA does not preempt

breach of contract claims by third-party health care providers. The

present case is distinguishable from those cited by ARMC.                 In

essence, all of the cases cited by ARMC involved health care

providers suing ERISA plans for breaching pre-existing fee-for-

service contracts.   Unlike ARMC’s contracts with UIW, those cases

did not address contracts that arose from settlements after a

specific claim for benefits had been made.          ARMC also points to the

facts that the settlement contracts are outside of the scope of

UIW’s benefits plan and that ARMC’s rights and obligations under the

contracts differ from the rights it could have as an assignee.

These arguments are unavailing.

     We agree with the district court that “[w]hen an ERISA plan

                                     7
[such as UIW] contracts with a third-party health care provider

[such as ARMC] to settle a payment of services already rendered to

a patient, a claim for breach of that settlement is invariably

dependent upon and derived from the patient’s original assignment of

benefits to the hospital.”          ARMC, L.P. v. United Indus. Workers and

Health Benefits Plan, No. 1:04-CV-232-C, slip op. at 11 (N.D. Tex.

Dec. 23, 2005).       ARMC has attempted to avoid ERISA preemption by

suing on the basis of           “independent” contracts and not suing as an

assignee, but it cannot escape the fact that those contracts arose

from settlement negotiations about B.L.’s claim for benefits. These

contracts    are   not    truly    independent      from   ARMC’s     status   as   an

assignee.    The contracts have a significant “nexus” with the ERISA

plan and its benefit system.               See Hermann Hosp. v. MEBA Med. &

Benefits Plan, 959 F.2d 569, 578 (5th Cir. 1992) (finding ERISA

preemption    where      state     law     claims    of    fraud    and     negligent

misrepresentation had a nexus with an ERISA plan and its benefit

system)   (Hermann       II).      Given   this     “nexus,”   ARMC    is    properly

characterized as an assignee asserting a derivative claim for

benefits, and not as an independent third-party provider.                           Cf.

Cypress Fairbanks, 110 F.3d at 284.

     However, ARMC contends that it cannot act as an assignee due to

an anti-assignment provision in UIW’s benefits plan.                      Unlike with

ERISA pension benefits, ERISA allows for the assignment of health

care benefits because they facilitate the beneficiary receiving

health care services.           Hermann Hosp. v. MEBA Med. & Benefits Plan,

                                           8
845 F.2d 1286, 1289 (5th Cir. 1988) (Hermann I).              In Hermann II, we

held that an anti-assignment clause was unenforceable against a

hospital because the clause applied “only to unrelated, third-party

assignees--other than the health care provider of assigned benefits-

-such as creditors who might attempt to obtain voluntary assignments

to cover debts having no nexus with the Plan or its benefits, or

even involuntary alienations such as attempting to garnish payments

for plan benefits.”       959 F.2d at 575.      The Hermann II court found

that   the   language     in   the   clause   was   similar    to    spendthrift

provisions in trusts. We have, however, enforced an anti-assignment

clause in which the clause did not resemble a spendthrift provision

and unambiguously stated that the plan would not be “liable to any

third-party to whom a participant may be liable for medical care,

treatment,    or   services.”          LeTourneau    Lifelike       Orthotics    &

Prosthetics, Inc. v. Wal-Mart Stores, Inc., 298 F.3d 348, 351 (5th

Cir. 2002).

       In this case, the anti-assignment provision is unenforceable

against   health   care    providers    because     it   contains    spendthrift

language similar to the anti-assignment clause in Hermann II.                   The

Herman II clause stated:

       No employee, dependent or beneficiary shall have the right to
       assign, alienate, transfer, sell, hypothecate, mortgage,
       encumber, pledge, commute, or anticipate any benefit payment
       hereunder, and any such payment shall not be subject to any
       legal process to levy execution upon or attachment or
       garnishment proceedings against for the payment of any claims.

Herman II, 959 F.2d at 574 (emphasis added).             UIW’s anti-assignment
provision reads:

                                        9
     No employee, or designated beneficiary, or estate of an
     Employee shall have the right to assign any benefits to which
     he, she or it may be entitled hereunder and any such assignment
     shall be void as to the Plan; no benefit shall be subject to
     attachment or other legal process for or against an employee,
     designated beneficiary or estate.

R. at 598 (emphasis added).    The UIW anti-assignment clause does not

specifically   mention   health   care    providers     and   demonstrates    a

similar concern with preventing assignment for legal process and

attachment.    Given its similarity to the clause in Hermannn II,

UIW’s anti-assignment provision is unenforceable against health care

providers.     Therefore, UIW’s anti-assignment provision does not

prevent ARMC from acting as an assignee of B.L.

     Having determined that ARMC is acting as an assignee of B.L.,

we must also address Memorial Hospital’s second prong, namely,

whether   ARMC’s   claims   directly     affect   the   relationship       among

traditional    ERISA   entities--the      employer,     the   plan   and     its

fiduciaries, and the participants and beneficiaries.3 ARMC’s breach

of contract claim satisfies the second prong because (1) ARMC was a

traditional ERISA entity by being an assignee of beneficiary B.L.,4

     3
       ARMC’s sole argument for why its breach of contract claim
would not affect the relationship among traditional ERISA entities
is that it is suing on an independent contract claim, and not as an
assignee. It is true that ERISA does not preempt a state law claim
simply because a hospital could sue as an assignee. See Blue
Cross of Cal. v. Anesthesia Care Assocs. Med. Group, Inc., 187 F.3d
1045, 1050 (9th Cir. 1999). However, we have already determined
that ARMC is, in fact, suing as an assignee, and not on the basis
of an independent contract.
     4
       Under Memorial Hospial, an assignee is considered as an
ERISA entity because the assignee stands in the same shoes as an
ERISA beneficiary. See Mem’l Hosp., 904 F.2d at 250.

                                   10
and (2) the contract would affect the relationship among UIW and its

beneficiaries because ARMC is seeking a benefit that UIW does not

provide to its participants.     In other words, ARMC is acting as an

assignee that is seeking to recover amounts in excess of the

$500,000 lifetime benefits cap, a benefit that UIW does not afford

other beneficiaries.

       Though ARMC asserts that it is acting as an independent third-

party provider, after engaging in a fact-sensitive inquiry, we

conclude that a significant nexus exists between ARMC’s breach of

contract claim and UIW’s benefits plan.        Rather than bringing a

truly independent contract claim, ARMC is actually suing as an

assignee of B.L.    Furthermore, ARMC’s breach of contract claim would

directly affect the relationship among traditional ERISA entities.

Accordingly, we hold that ERISA preempts ARMC’s breach of contract

claim.     We must next address whether ARMC has presented sufficient

evidence     to    survive   summary    judgment   on   its   negligent

misrepresentation claim.

B. Negligent Misrepresentation

       In Texas, the elements for a negligent misrepresentation claim

are:

            (1) the representation is made by a defendant in the
            course of his business, or in a transaction in which
            he has a pecuniary interest; (2) the defendant
            supplies “false information” for the guidance of
            others in their business; (3) the defendant did not
            exercise reasonable care or competence in obtaining
            or communicating the information; and (4) the
            plaintiff suffers pecuniary loss by justifiably
            relying on the representation.

                                   11
Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442-43

(Tex. 1991).    We affirm the district court’s grant of summary

judgment on ARMC’s negligent misrepresentation claim because we

agree with the district court that ARMC has failed to provide any

evidence of pecuniary loss.5      The district court found that ARMC

“failed to provide this Court with competent            summary judgment

evidence that ARMC has in fact lost its right to recover unpaid

amounts from patient B.L.”   ARMC, L.P., No. 1:04-CV-232-C at 14. The

court cited to the “Condition of Admission Form” signed by B.L. in

which he declared that he was “personally responsible to this

hospital   and/or    physician   for    charges   not   covered   by   this

assignment.”   Id.   The district court concluded that “[s]ince only

$20,562.25 of the $109,786.55 in hospital charges is covered by

ARMC’s assignment of benefits, B.L. still remains liable for the

unpaid balance of hospital expenses.”       Id.

     ARMC counters that it gave up the right to recover unpaid

amounts from B.L. in both of its settlement agreements with UIW.

The settlement agreements state, “Provider [ARMC] accepts this

adjusted billing amount as full payment without further recourse to

either the member/patient or Plan.”         Admittedly, this provision

could mean that ARMC gave up its right to sue B.L., the patient, for

     5
       Because ARMC has provided no evidence of pecuniary loss, an
element necessary to prevail on a negligent misrepresentation
claim, we express no opinion regarding whether ARMC has provided
evidence for any of the other negligent misrepresentation elements.


                                   12
any unpaid amounts from UIW.      However, the Texas Supreme Court has

made clear that “[a] fundamental principle of contract law is that

when one party to a contract commits a material breach of that

contract,   the   other   party   is   discharged    or   excused   from   any

obligation to perform.”     Hernandez v. Gulf Group Lloyds, 875 S.W.2d

691, 692 (Tex. 1994); see also Mead v. Johnson Group, Inc., 615

S.W.2d 685, 689 (Tex. 1981) (stating “[d]efault by one party excuses

performance by the other party”).           Once UIW refused to comply with

the settlement agreements by not paying the full amounts, ARMC was

no longer bound by those agreements and was free to seek recovery

from B.L.   Because ARMC may still seek recovery from B.L. for any

unpaid amounts, we hold that ARMC cannot, as a matter of law, prove

that it has suffered a pecuniary loss.           We therefore conclude that

ARMC has failed to create a genuine issue of material fact with

respect to its negligent misrepresentation claim.

                             IV. CONCLUSION

     For the reasons stated above, we AFFIRM the judgment of the

district court.

     AFFIRMED.




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