                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 18-2264
                       ___________________________

                                Air Evac EMS, Inc.

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

USAble Mutual Insurance Company, doing business as Arkansas Blue Cross and
                              Blue Shield

                      lllllllllllllllllllllDefendant - Appellee
                                     ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                          Submitted: January 16, 2019
                             Filed: July 23, 2019
                                ____________

Before BENTON, MELLOY, and KELLY, Circuit Judges.
                          ____________

MELLOY, Circuit Judge.

      Air Evac EMS, Inc. (“Air Evac”) asserts numerous claims against USAble
Mutual Insurance Company, d/b/a Arkansas Blue Cross and Blue Shield (“Arkansas
Blue”), regarding Arkansas Blue’s allegedly inadequate reimbursement for air
ambulance services that Air Evac provided to Arkansas Blue plan members. The
district court1 dismissed all of Air Evac’s claims for failure to state a claim under Fed.
R. Civ. P. 12(b)(6). We affirm.

                                    I. Background

       Emergency air transport is expensive. Air Evac’s base rate for a single
transport in 2014 was $19,250. With a per mile charge of between $115 and $205,
Air Evac’s average actual charge for air ambulance transportation in 2014 was over
$30,000. Federal law requires Air Evac to provide its services without regard to a
patient’s ability to pay, which means Air Evac relies heavily on government and
private insurers for reimbursement. But most government and private insurers
provide only limited reimbursement for air ambulance services. For instance,
Arkansas Blue, as a matter of policy, does not contract with air ambulance providers,
and therefore has no in-network providers of air ambulance services. Moreover,
Arkansas Blue’s insurance plans typically limit reimbursement for air ambulance
services to $5,000 per trip, though in some cases reimbursement is limited to $1,000
or less. Thus, when Air Evac provides air ambulance services to Arkansas Blue plan
members, it is regularly compensated less than it charges. According to the Amended
Complaint, Air Evac has two options for making up such shortfalls: balance-bill the
remaining cost to the plan member or appeal to Arkansas Blue. (To effectuate
appeals, Air Evac obtains assignments from patients of their right to appeal coverage
decisions.) Neither option has proved very successful.

       Air Evac argues that Arkansas Blue’s limited reimbursement for air ambulance
services violates a number of federal and state laws, including laws that prohibit
annual limits on “essential health benefits,” laws that mandate minimum payments
for certain emergency services, and laws that require adequate provider networks.
These laws do not provide a private cause of action, however, so Air Evac has chosen

      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.

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to seek relief under the Employee Retirement Income Security Act of 1974
(“ERISA”), the Arkansas Deceptive Trade Practices Act (“ADTPA”), and contract
law. We address each set of claims in turn.

                                    II. Discussion

                               A. Standard of Review

        We review a district court’s grant of a motion to dismiss under Fed. R. Civ. P.
12(b)(6) de novo, “accept[ing] the well-pled allegations in the complaint as true and
draw[ing] all reasonable inferences in the plaintiff’s favor.” Meiners v. Wells Fargo
& Co., 898 F.3d 820, 821 (8th Cir. 2018). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (citation omitted).

                                      B. ERISA

       Under ERISA, Air Evac seeks equitable relief, namely an injunction and
reformation of Arkansas Blue’s insurance plan terms “so that they do not include
limits on benefits for emergency air ambulance transportation.” The district court
concluded that Air Evac did not have the right to seek equitable relief under ERISA.

      The primary remedy for challenging plan terms under ERISA is found in 29
U.S.C. § 1132(a)(1)(B). That section permits suit by a participant or beneficiary “to
recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the
plan.” Id. § 1132(a)(1)(B). In addition to allowing suit for recovery of benefits,
ERISA allows suit for breach of fiduciary duty under § 1132(a)(2) and equitable relief
under § 1132(a)(3). Section 1132(a)(3) provides for suit “by a participant,
beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision

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of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable
relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter
or the terms of the plan.”

       Thus, to have the right to seek equitable relief under ERISA, a party must
either be a participant, beneficiary, or fiduciary, or the assignee of a participant,
beneficiary, or fiduciary. Air Evac concedes that it is not a participant, beneficiary,
or fiduciary. Air Evac argues, however, that it still has the right to sue Arkansas Blue
for equitable relief under ERISA because Arkansas Blue plan members with ERISA-
governed plans have assigned it that right. Accordingly, we must determine whether
Air Evac’s assignment actually conveys the right to sue for equitable relief.

       The relevant language from the assignment2 reads:

       [Patient] completely assigns to [Air Evac] all rights to (and related or
       associated with) any benefit claims and/or payments due from any third-
       party payor as reimbursement or payment for the Services, including but
       not limited to the rights to pursue administrative claims, request
       documents, receive payment and pursue litigation in order to obtain
       payment.

The district court concluded that the assignment “only convey[ed] patients’ benefits
and rights to bring related litigation in order to obtain payment” and that “[n]othing
. . . appear[ed] to convey the right to sue for clarification or reformation of plan terms,
which are extraordinary equitable remedies that extend far beyond litigation for
payment on claims.”




      2
        Air Evac’s assignment language has changed over the years. Before the
district court, Air Evac cited six versions of its assignment. On appeal, Air Evac only
cites three versions, all of which are essentially identical.

                                           -4-
        On appeal, Air Evac argues that ERISA assignments should be liberally
construed and, accordingly, the language regarding rights “related or associated with
. . . benefit claims” should be interpreted to include the right to pursue equitable
remedies. Arkansas Blue counters that ERISA assignments should be construed
narrowly and, accordingly, the assignment should be interpreted to convey only the
right to sue for “payment of benefits.” See Restatement (Second) of Contracts § 324
(Am. Law. Inst. 1981) (“It is essential to an assignment of a right that the obligee
manifest an intention to transfer the right to another person without further action or
manifestation of intention by the obligee.”); see also Sanctuary Surgical Ctr., Inc. v.
Aetna Inc., 546 F. App’x 846, 851 (11th Cir. 2013) (per curiam) (“Assignment
agreements are generally interpreted narrowly. For that reason, the right to bring suit
under 29 U.S.C. § 1132 cannot be assigned by ‘implication or by operation of law.’”
(citation omitted)).

       More important than general statements as to liberal or narrow constructions,
however, is the fact that our job is to interpret the express language of the assignment
in the context in which it was made. When Arkansas Blue plan members assigned
their rights to Air Evac, they did so in the context of facilitating payment for Air
Evac’s past provision of services. Thus, when Arkansas Blue plan members assigned
“all rights to (and related or associated with) any benefit claims” to Air Evac, its
seems clear, at a minimum, that they assigned Air Evac the right to recover benefits
under § 1132(a)(1)(B). Given the context of the assignment, however, it does not
automatically follow that such language also conveyed the right to sue for
reformation of plan terms and other equitable relief under § 1132(a)(3). Indeed, the
assignment does not specifically mention the right to sue for equitable relief; rather
it limits the rights conveyed to those “related or associated with . . . benefit claims
and/or payments due from any third-party payor.” (Emphasis added). Moreover, the
rights that are specifically mentioned—“the rights to pursue administrative claims,
request documents, receive payment and pursue litigation in order to obtain payment”
(emphasis added)—all suggest that Air Evac sought assignment of ERISA rights

                                          -5-
related to obtaining payment, not equitable relief. Accordingly, we conclude that Air
Evac’s assignment does not convey the right to sue for equitable relief under
§ 1132(a)(3).

      The limited case law supports our conclusion. For example, in Spinedex
Physical Therapy USA Inc. v. United Healthcare of Arizona, Inc., the Ninth Circuit
considered whether an assignment conveyed the right to sue for breach of fiduciary
duty under § 1132(a)(2). 770 F.3d 1282, 1292 (9th Cir. 2014). According to the
Ninth Circuit, the assignment “provided that the Plans would make payments directly
to Spinedex for services rendered.” Id. The assignment read that such payments
would be considered

      payment toward the total charges for the professional services rendered.
      THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND
      BENEFITS UNDER THIS POLICY. This payment, will not exceed my
      indebtedness to the above mentioned assignee, and I have agreed to pay,
      in a current manner, any balance of said professional service charges
      over and above this insurance payment.

Id. The plaintiff argued that the word “benefits” referred to the right to payment and
that the word “rights” referred to “rights to bring claims for breach of fiduciary duty.”
Id. The Ninth Circuit disagreed, holding that the plaintiff’s argument was “divorced
from context” and that “[t]he entire focus of the Assignment [was] payment for
medical services.” Id. The Ninth Circuit also noted that “[t]he Assignment nowhere
indicate[d] that . . . patients were assigning to [plaintiff] rights to bring claims for
breach of fiduciary duty.” Id. Similarly, in the present case, context suggests that the
focus of the assignment is payment, and there is no indication that Arkansas Blue
plan members were assigning their right to bring claims for equitable relief.

       Air Evac points to several cases involving assignments that conveyed the right
to sue for equitable relief under § 1132(a)(3). But in all of those cases, the breadth

                                          -6-
of the assignments was not at issue and the courts’ analyses were largely conclusory.
Moreover, the assignments in those cases appear to have been broader than the
assignment in this case. See Grasso Entrs., LLC v. Express Scripts, Inc., 809 F.3d
1033, 1037, 1041 (8th Cir. 2016) (finding assignment “authorizing the pharmacy ‘to
pursue any and all remedies to which [the beneficiaries] may be entitled, including
the use of legal action in any court’” conveyed the right to sue under § 1132(a)(3))
(alteration in original) (emphasis added)); Podiatric OR of Midtown Manhattan, P.C.
v. UnitedHealth Grp., Inc., No. 15-3234(DSD/HB), 2016 WL 126362, at *1, *3–4 (D.
Minn. Jan. 11, 2016) (finding assignment of “all of [beneficiary’s] rights, claims, and
other interests—including the right to file an ERISA suit” conveyed the right to sue
under § 1132(a)(3) (emphasis added)); Riverview Health Inst. v. UnitedHealth Grp.
Inc., 153 F. Supp. 3d 1032, 1034, 1036 (D. Minn. 2015) (finding assignment of “any
causes of action against the Health Insurer or Insurers arising from [the beneficiary’s]
contractual rights arising out of the procedure” conveyed the right to sue under
§ 1132(a)(3) (emphasis added)), aff’d on another ground, Peterson ex rel. E v.
UnitedHealth Grp. Inc., 913 F.3d 769 (8th Cir. 2019), petition for cert. filed, (U.S.
May, 30, 2019) (No. 18-1498). The assignment in this case is simply not as broad as
the assignments in the cases cited by Air Evac.

                     C. Arkansas Deceptive Trade Practices Act

       The ADTPA makes it unlawful to, among other things, “[k]nowingly mak[e]
a false representation as to the characteristics, ingredients, uses, benefits, alterations,
source, sponsorship, approval, or certification of goods or services.” Ark. Code Ann.
§ 4-88-107(a)(1). The ADTPA also makes it unlawful to “[e]ngag[e] in any other
unconscionable, false, or deceptive act or practice in business, commerce, or trade.”
Id. § 4-88-107(a)(10). Air Evac alleges that Arkansas Blue violated the ADTPA in
two ways. First, as an assignee of Arkansas Blue plan members with plans not
governed by ERISA, Air Evac alleges that Arkansas Blue misled those plan members.
Specifically, Air Evac argues that while Arkansas Blue did not provide any in-

                                           -7-
network coverage of air ambulance services, its plans indicated “Emergency or
Imperative Care Services” provided by an out-of-network provider would always be
reimbursed as if they were provided by an in-network provider. According to Air
Evac, Arkansas Blue’s plans therefore led plan members to believe “they c[ould]
avoid substantial out-of-pocket expense for emergency air ambulance transportation
when it [was], in fact, . . . impossible for them to do so.” Second, Air Evac alleges
on its own behalf that Arkansas Blue engaged in the unconscionable practice of
refusing to provide in-network coverage of air ambulance transportation. This
practice, Air Evac argues, allowed Arkansas Blue to accept Air Evac’s “valuable
services,” while paying only “a small fraction of the value of those services,” thereby
creating a windfall.

       The district court concluded Arkansas Blue’s conduct was not actionable
because it fell within the ADTPA’s safe harbor for “[a]ctions or transactions
permitted under laws administered by the Insurance Commissioner.” Ark. Code Ann.
§ 4-88-101(3) (2016) (amended 2017). In Arkansas, there are two approaches to
applying statutory safe harbors: the specific-conduct rule and the general-activity
rule. The specific-conduct rule “looks to whether state law permits or prohibits the
conduct at issue,” whereas the general-activity rule “looks to whether a state agency
regulates the conduct.” Air Evac EMS, Inc. v. USAble Mut. Ins. Co., 533 S.W.3d
572, 574 (Ark. 2017). Prior to determining that Arkansas Blue qualified for the
ADTPA’s safe harbor, the district court certified the following question to the
Arkansas Supreme Court: “Should the ADTPA’s safe-harbor provision be applied
according to the specific-conduct rule or the general-activity rule?” Id. at 573
(citation omitted). The Arkansas Supreme Court adopted the specific-conduct rule,
holding that the ADTPA’s safe harbor protects only actions or transactions that “have
been specifically permitted or authorized under laws administered by a state or federal
regulatory body or officer.” Id. at 575–76. In light of that ruling from the Arkansas
Supreme Court, the district court determined that Arkansas Blue qualified for the
ADTPA safe harbor because Air Evac’s claims were based on the terms and rates of

                                         -8-
Arkansas Blue’s insurance plans, which pursuant to Arkansas law, are “filed with and
approved by the Insurance Commissioner.” Ark. Code Ann. § 23-79-109(a)(1)(A)(i).

       On appeal, Air Evac does not suggest that the Insurance Commissioner failed
to approve the terms and rates of Arkansas Blue’s insurance plans. Rather, Air Evac
argues that the safe harbor does not apply because its claims are based on Arkansas
Blue’s “unfair and unconscionable” actions, which “have never been approved by the
Insurance Commissioner.” We reject Air Evac’s characterization of the basis for its
ADTPA claims. The overall driving force behind Air Evac’s claims is the allegation
that Arkansas Blue inadequately reimbursed air ambulance services and misled its
plan members about the nature of that reimbursement. But, the limits that Arkansas
Blue imposes on reimbursement for air ambulance services are expressly stated in
Arkansas Blue’s insurance plans. Indeed, as Air Evac notes in its Amended
Complaint, “[a] typical limit is $5,000, but some plans include limits of $1,000 or
possibly less.”3 Consequently, Air Evac’s ADTPA claims are, in fact, based on the
terms and rates of Arkansas Blue’s plans. Thus, for the reasons discussed by the
district court, Air Evac’s ADTPA claims are precluded by the ADTPA’s safe harbor
for “[a]ctions or transactions permitted under laws administered by the Insurance
Commissioner.”4 Ark. Code Ann. § 4-88-101(3) (2016) (amended 2017).

      3
       For example, Arkansas Blue’s “Gold Plan” specifically states under “Benefits
and Specific Limitations In Your Plan,” that reimbursement for air ambulance
services “may not exceed $5,000 per trip.”
      4
        Air Evac also argues that the Supreme Court’s decision in Advocate Health
Care Network v. Stapleton, 137 S. Ct. 1652 (2017) at least requires remand to
determine whether its “ADPTA claims on behalf of church-affiliated hospital self-
funded plans can proceed.” According to Air Evac, such plans are now neither
governed by ERISA, see Stapleton, 137 S. Ct. at 1656, nor subject to the Insurance
Commissioner’s approval, which means Air Evac’s ADTPA claims on behalf of
patients with such plans are not precluded by the ADTPA’s safe harbor. We do not
consider this argument, however, because Air Evac failed to alert the district court to
the significance of Stapleton, which was decided well before the district court issued
                                         -9-
                                  D. Contract Law

       Air Evac seeks damages under contract law for breach of implied contract or,
in the alternative, unjust enrichment. The district court concluded that Air Evac did
not plausibly allege either the existence of an implied contract or unjust enrichment.

                                 i. Implied Contract

       Under Arkansas law, implied contracts are “inferred from the acts of the
parties.” Steed v. Busby, 593 S.W.2d 34, 38 (Ark. 1980). Thus, they can be “proven
by circumstances showing the parties intended to contract or by circumstances
showing the general course of dealing between the parties.” Id. The elements of an
implied contract, however, are the same as an express contract. K.C. Props. of N.W.
Ark., Inc. v. Lowell Inv. Partners, LLC, 280 S.W.3d 1, 13 (Ark. 2008). “[T]here must
be: (a) competent parties; (b) subject matter; (c) legal consideration; (d) mutual
agreement; (e) mutual obligations.” Berry v. Cherokee Village Sewer, Inc., 155
S.W.3d 35, 38 (Ark. Ct. App. 2004). The difference, therefore, between an express
contract and an implied contract “is merely in the mode of manifesting assent and in
the mode of proof.” K.C. Props., 280 S.W.3d at 13 (citation omitted).

       Air Evac alleges that its general course of dealing with Arkansas Blue
established an implied contract. Specifically, Air Evac argues that: (1) it routinely
provides air ambulance services to Arkansas Blue plan members; (2) Arkansas Blue
“routinely receives and pays claims for [those services]”; and (3) “[a]t all relevant

its decision in 2018, and additional factual development would be required. See
United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016) (“Ordinarily, we will not
consider an argument raised for the first time on appeal. However, we may consider
a newly raised argument ‘if it is purely legal and requires no additional factual
development, or if a manifest injustice would otherwise result.’” (citations omitted)).


                                         -10-
times, Arkansas Blue was fully aware of the rates charged by Air Evac.” Air Evac
further alleges that the implied contract is for “payment in full” because “Arkansas
Blue was fully aware that Air Evac expected to be paid its set rates when patients
covered by Arkansas Blue’s plans required emergency air ambulance transport.”

        Even assuming that an implied contract existed, Air Evac alleges no facts to
support its assertion that such a contract was for payment in full. As Air Evac notes
in its Amended Complaint, Arkansas Blue has consistently refused to contract with
providers of air ambulance services, meaning it does not provide the favorable
reimbursement associated with in-network coverage. Instead, Arkansas Blue’s
insurance plans expressly limit reimbursement for air ambulance services, typically
to $5,000 per trip, though in some cases to $1,000 or less. Thus, Air Evac knew that
it was an out-of-network provider and that reimbursement for its services would be
limited accordingly. See Cmty. Hosp. of the Monterey Peninsula v. Aetna Life Ins.
Co., 119 F. Supp. 3d 1042, 1049 (N.D. Cal. 2015) (finding “it would have been
unreasonable for [a health care provider] to expect that [an insurer’s] authorization
constituted a promise to pay 100 percent of billed charges” in light of the “standard
practice in the industry” and the fact that the provider knew it “would be paid at an
out-of-network” level). Consequently, Air Evac’s implied contract claim for payment
in full is not plausible on its face because any implied contract between Air Evac and
Arkansas Blue would only be for the amount paid in their course of dealings—the
amount stated in Arkansas Blue’s insurance plans.

                               ii. Unjust Enrichment

             To find unjust enrichment, a party must have received something
      of value, to which he or she is not entitled and which he or she must
      restore. There must also be some operative act, intent, or situation to
      make the enrichment unjust and compensable. One who is free from
      fault cannot be held to be unjustly enriched merely because he or she has
      chosen to exercise a legal or contractual right. In short, an action based
                                            -11-
      on unjust enrichment is maintainable where a person has received
      money or its equivalent under such circumstances that, in equity and
      good conscience, he or she ought not to retain.

Campbell v. Asbury Auto., Inc., 381 S.W.3d 21, 36 (Ark. 2011) (citations omitted).

       Air Evac alleges that Arkansas Blue has been unjustly enriched because it has
“willingly accepted Air Evac’s valuable services,” yet “has paid Air Evac a small
fraction of the value of those services.” The unjust enrichment, according to Air
Evac, is the “windfall” that Arkansas Blue received “[b]y wrongfully withholding
payments to Air Evac . . . while at the same time retaining the amounts its members
paid for air ambulance services (through premium payments).” Air Evac alleges
unjust enrichment in the alternative to breach of implied contract because “[t]here can
be no ‘unjust enrichment’ in contract cases.” Campbell, 381 S.W.3d at 36 (citation
omitted).

       Arkansas Blue was not unjustly enriched because it was acting in accordance
with its “contractual right[s].” Id. In return for their premium payments, Arkansas
Blue provided its plan members with health insurance, including the expressly limited
reimbursement for air ambulance services. Thus, as long as Arkansas Blue provided
that limited reimbursement (and Air Evac does not allege otherwise), the premium
payments Arkansas Blue received in exchange did not constitute money that it “ought
not to retain.” Id.; cf. 32nd Street Surgery Ctr., LLC v. Right Choice Managed Care,
820 F.3d 950, 957 (8th Cir. 2016) (rejecting a health care provider’s claim of unjust
enrichment against health insurance companies because the insurers’ policies
“‘clearly intend[ed] to govern’ the amounts the insurers were obligated to pay on
behalf of their insureds”). Consequently, Air Evac fails to state a claim of unjust
enrichment.




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                             IV. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.
                 ______________________________




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