                                                               [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________              FILED
                                                          U.S. COURT OF APPEALS
                                 Nos. 10-12942 ; 10-13222   ELEVENTH CIRCUIT
                                  Non-Argument Calendar          FEB 4, 2011
                                ________________________         JOHN LEY
                                                                   CLERK
                           D.C. Docket No. 9:09-cv-81050-KAM

ANDREA LIEBERMAN,
individually and on behalf of all others similarly situated,

lllllllllllllllllllllPlaintiff - Appellant,

versus

UNITED HEALTHCARE INSURANCE CO.,

lllllllllllllllllllllDefendant - Appellee.

                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                             ________________________

                                      (February 4, 2011)

Before TJOFLAT, CARNES, and WILSON, Circuit Judges.

PER CURIAM:

         This is an ERISA case. Andrea Lieberman’s complaint alleges that United
Healthcare Insurance Company (“United”) inappropriately denied her claim for

out-of-network benefits under her employer’s group health insurance plan. The

district court disagreed and granted United’s motion to dismiss Lieberman’s

complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief

may be granted.1 See Fed. R. Civ. P. 12(b)(6). Lieberman now appeals.

       Lieberman challenges the method United used to calculate a non-network

benefit for a medical procedure received by her daughter from a doctor who had

not agreed to join United’s provider network or to accept the discounted rates

United pays network providers. Although the Plan permits Lieberman to obtain

reimbursement for healthcare services she and her family receives from a non-

participating provider, the Certificate of Coverage specifically confers on United

the discretion to choose from among four specified methodologies for calculating

the eligible expenses. In Lieberman’s view, United improperly and arbitrarily

picked a reimbursement methodology that operated to minimize its financial

responsibility, and as a result, she was left financially responsible for $9,763.16 of

a $10,000 service. However, we agree with the district court that the Certificate

expressly affords United the discretion to calculate reimbursement based on a



       1
      The court denied Lieberman’s motion to alter or amend judgment, or for leave to file an
amended complaint. We find no error in the court’s ruling.

                                              2
percentage of the relevant Medicare rate and that United had no obligation to

select an alternative reimbursement methodology that would have yielded a higher

reimbursement to Lieberman. As the district court correctly stated, Lieberman “is

asking the Court to rewrite the Certificate and prevent [United] from exercising

the discretion granted to it under the Plan.”

      Therefore, after carefully reviewing the briefs and the record, we find

meritless Lieberman’s challenge to the dismissal with prejudice of Counts I and IV

of her complaint, and we dismiss as moot United’s cross-claim that Lieberman

failed to exhaust her administrative remedies.

      AFFIRMED AND DISMISSED.




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