                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1034
                              Filed March 11, 2015

PORSCHIA BUTTS, CRISTINA TREVINO,
STACEY RAMSEY, MARSHELLE WILIAMS,
and the Class of Others Similarly Situated,
      Plaintiffs-Appellants,

vs.

IOWA HEALTH SYSTEM and CENTRAL
IOWA HOSPITAL CORP.,
     Defendants-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.



      Plaintiffs appeal from the order denying class certification and granting

summary judgment in favor of defendants. AFFIRMED.



      Jeffrey M. Lipman of Lipman Law Firm, P.C., Clive, Mark Harding of

Harding Law Office, Des Moines, and Don M. Downing and Kaitlin A. Bridges of

Gray, Ritter & Graham, P.C., St. Louis, Missouri, for appellants.

      Stacie M. Codr and Steven Scharnberg of Finley, Alt, Smith, Scharnberg,

Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees.




      Heard by Doyle, P.J., and Bower and McDonald, JJ.
                                             2



MCDONALD, J.

         The four named plaintiffs filed this class action suit against Iowa Health

System and Central Iowa Hospital Corporation. The gravamen of the amended

class petition is the defendants allegedly implemented a “two-tier pricing scheme”

in which the defendants charged uninsured individuals unreasonable rates for

medical care when compared to insured individuals. The plaintiffs sought class

certification, which the district court denied. The defendants moved for summary

judgment on all claims, which the district court granted. The plaintiffs timely filed

this appeal.

                                             I.

         The following facts are supported by the class certification and summary

judgment records. Iowa Health System (hereinafter “IHS”)1 is a regional, non-

profit health care delivery system consisting of twelve hospitals in ten Iowa cities.

IHS is not an operating entity for direct delivery of health care services; health

care services are provided through IHS subsidiaries.             The subsidiaries that

operate hospitals are known as “Senior Affiliates.”             Central Iowa Hospital

Corporation is a Senior Affiliate that operates Iowa Methodist Medical Center

(hereinafter “IMMC”), Iowa Lutheran Hospital, and Methodist West Hospital, all in

the Des Moines metropolitan area.

         IHS provides centralized billing services for its Senior Affiliates, but it does

not set the rates for the services provided.          Each IHS hospital maintains a

hospital-specific computer file called a “Chargemaster.”           The Chargemaster


1
    IHS advises it now does business as UnityPoint Health.
                                        3



includes rate information for the specific hospital’s procedures, services,

supplies, and medications. The record reflects that rate information is available

to patients upon request and that many people call for rate information.         All

patients are billed based upon the hospital-specific Chargemaster rates.

      At the time of admission to one of the hospitals at issue, all patients sign a

contract agreeing to pay “in accordance with the Hospital’s regular rates and

terms.” The contract also provides:

      If I lack insurance coverage for these services, or if I am otherwise
      unable to pay for these services, I agree to immediately inform the
      Hospital so that I may be considered for financial assistance from
      the Hospital or for referral to other agencies to explore the
      availability of other medical and hospital benefits.

While all patients are charged based upon the hospital-specific Chargemaster

rates, not all patients pay the same amount for the same services. Government

programs, such as Medicare or Medicaid, set the amount they will pay for any

particular charge. Similarly, many health insurance carriers negotiate discounts

for the amount they will pay for any particular charge. In addition, patients who

apply and qualify for financial assistance may receive charity discounts up to

100% of the charge. From the years 2000 through 2010, the total charges to

self-pay, or uninsured patients, of IHS’s Des Moines area hospitals was $202

million dollars. Of this amount, uninsured patients actually paid only $17 million

of the $202 million charged for services due to charitable discounts and write-offs

of uncollectable debt.

      The named plaintiffs are four uninsured patients who presented at IMMC

years apart with different medical conditions for which they received different

treatment. All four signed the standard contract at admission and were charged
                                         4



based upon the Chargemaster rates in effect for services rendered at IMMC at

the time of treatment. Cristina Trevino came to the emergency room at IMMC on

December 20, 2006, because of injuries to her back, shoulder, and foot

sustained in a motor vehicle accident. She also received services on December

26. Her medical services included x-rays and intravenous therapy. She was

billed a total of $3808.08. Her bill was paid in full. Porschia Butts went to the

emergency room at IMMC on November 12, 2007, because of injuries to her

hand sustained in a motor vehicle accident. Her medical services included x-

rays. Her total charges were $1097.23. Her bill was paid in full. Marshelle

Williams was treated in the emergency room at IMMC for injures to her head,

neck, and back suffered in a fall on January 4, 2009. As a result of her injuries, a

head CAT scan was performed. She went to the emergency room at IMMC

again on October 16, 2009, complaining of chest pain after a motor vehicle

accident. The medical services she received during her second visit included an

EKG, lab work, and x-rays.      Her total charges amounted to $4627.04.          No

payments have been made on her account. Stacey Ramsey was hospitalized at

IMMC on September 4, 2009, for an appendectomy. She was billed a total of

$22,299.68 for services. Payments have been made and continue to be made

on her account.     Based on the contract provision for requesting financial

assistance, Ramsey applied for assistance, but did not provide all the information

necessary to process her request.

       The four named plaintiffs filed suit against the defendants.        Plaintiffs

asserted four counts against the defendants: (1) breach of contract; (2) unjust
                                           5



enrichment; (3) declaratory judgment and equitable relief; and (4) and violation of

Iowa’s Consumer Frauds Act, Iowa Code chapter 714H.                The nature of the

plaintiffs’ contract claim requires some explication.       The plaintiffs argue the

contract to pay the “Hospital’s regular rates and terms” is indefinite or ambiguous

because it contains an open price term. Because the contract has an open price

term, plaintiffs argue, they are required to pay only a reasonable rate for the

services provided. The plaintiffs further contend a single reasonable rate can be

judicially determined on a class basis. Plaintiffs sought to certify the following

putative class: “all Iowa residents from 2000 to the present who were: (1) billed

(or against whom collection efforts were made) for any form of Hospital Services

by, or on behalf of, any hospital or facility owned, operated or managed by

Defendants, and (2) uninsured at the time the Hospital Services were provided.”2

Plaintiffs defined Hospital Services as “all goods and services including all

charges for hospital rooms, equipment, drugs, devices, and all other goods and

services typically provided to patients in a hospital.” The defendants resisted the

motion for class certification and filed a motion for summary judgment as to all

counts.

       The district court denied the plaintiffs’ motion for class certification, holding

the plaintiffs failed to prove the prerequisites for class certification. The district

court concluded the plaintiffs failed to prove the putative class is so numerous



2
  At hearing on class certification, the plaintiffs’ attorneys limited the class in some
respects, e.g., excluding judges and court personnel in the Iowa District Court for Polk
County, the Iowa Court of Appeals, and the Iowa Supreme Court. The limitations do not
appear material to the resolution of the class certification issue. In their main appeal
brief, the plaintiffs define the class as defined in this opinion.
                                           6



that joinder of all members is impracticable. See Iowa R. Civ. P. 1.261(1). The

district court explained the putative class was overbroad because numerous

patients falling within the putative class would not be appropriate class members,

including those who discharged their obligations through bankruptcy, those

whose charges already had been adjudicated reasonable, and those who

received financial assistance.      The district court also concluded the plaintiffs

failed to prove questions of law or fact common to the class. See Iowa R. Civ. P.

1.261(2).      Specifically, the court held plaintiffs’ claim for breach of contract

involved individualized determinations of intent and individualized determinations

of what constituted a “reasonable price” as “[e]very plaintiff would have a different

claim, involving different services, at different medical facilities, at different points

in time.”       Plaintiffs simply failed to prove a common, and acceptable,

methodology to determine “reasonable price.” The district court also concluded

the plaintiffs failed to prove adjudication with respect to individual members of the

class would be dispositive of interests of other members. Finally, the district

court completed its class certification analysis by concluding that certifying a

class (1) presents a greater likelihood of inconsistency than adjudicating

individual cases, (2) poses unusual difficulties, and (3) is impractical and

inefficient.

       The district court granted summary judgment for defendants on the

plaintiffs’ claims for breach of contract, unjust enrichment, and consumer fraud.

In resolving the plaintiffs’ contract claim, the court concluded the contract

contained a definite price term and was not ambiguous.              The court granted
                                           7



summary judgment with respect to the plaintiffs’ unjust enrichment claim on the

ground the claim would not lie where, as here, there was a contract between the

parties.   Finally, with respect to the consumer fraud claim, the district court

concluded chapter 714H did not apply to the defendants and the claim otherwise

failed on the merits.

                                           II.

       We review a district court’s class certification ruling for an abuse of

discretion. See Kragnes v. City of Des Moines, 810 N.W.2d 492, 498 (Iowa

2012); see also Vos v. Farm Bur. Life Ins. Co., 667 N.W.2d 36, 44 (Iowa 2003);

Stone v. Pirelli Armstrong Tire Corp., 497 N.W.2d 843, 845 (Iowa 1993). The

district court abuses its discretion only where its grounds for deciding the class

certification issue are clearly unreasonable.        See Varner v. Schwan’s Sales

Enters., Inc., 433 N.W.2d 304, 305 (Iowa 1988).

       Iowa Rules of Civil Procedure 1.261 through 1.263 set forth the standards

governing the class certification process. These rules “closely resemble Federal

Rule of Civil Procedure 23,” and the court “may rely on federal authorities

construing similar provisions of Federal Rule of Civil Procedure 23.” Vos, 667

N.W.2d at 44. It is the plaintiffs’ obligation to define the class for which class

certification is sought. See Brownell v. State Farm Mut. Ins. Co., 757 F. Supp.

526, 544 (E.D. Pa. 1991) (stating the plaintiffs’ burden is “adequately and

accurately to define an appropriate class”); see also Vaszlavik v. Storage Tech.

Corp., 175 F.R.D. 672, 685 (D. Colo. 1997) (rejecting overbroad definition,

stating “it is not for me to revise the proposed class definition for plaintiffs”). It is
                                         8



also the plaintiffs’ burden to prove certification of the putative class is both

permissible and proper. Stone v. Pirelli Armstrong Tire Corp., 497 N.W.2d 843,

846 (Iowa 1993).

       Class certification is permissible only where: (1) “The class is so

numerous or so constituted that joinder of all members, whether or not otherwise

required or permitted, is impracticable”; and (2) “There is a question of law or fact

common to the class.” Iowa R. Civ. P. 1.261. Class certification is proper only if:

(1) the requirements of rule 1.261 have been satisfied, (2) a class action should

be permitted for the fair and efficient adjudication of the controversy, and (3) the

representative parties will fairly and adequately protect the interests of the class.

See Iowa R. Civ. P. 1.262(2). Rule 1.263(1) lists thirteen non-exclusive factors

for the court to consider “[i]n determining whether the class action should be

permitted for the fair and efficient adjudication of the controversy.” Iowa R. Civ.

P. 1.263(a)-(m). The court “need not assign weight to any of the factors listed”

and “need not make written findings as to each factor.” Luitenegger v. Conseco

Fin. Servicing Corp., 671 N.W.2d 425, 437 (Iowa 2003). “Rather, the district

court need only weigh and consider the factors and come to a reasoned

conclusion as to whether a class action should be permitted for a fair adjudication

of the controversy.” Id.

       In its thorough and well-reasoned order regarding class certification, the

district court identified numerous legal and evidentiary deficiencies in the

plaintiffs’ request for class certification. In reviewing the record and the parties’

arguments on appeal, we conclude the district court conducted the proper
                                           9



analysis under the rules of civil procedure and did not abuse its discretion in

denying the plaintiffs’ motion for class certification. We need not rehash each of

the district court’s findings and conclusions or the appellants’ arguments

regarding the same; a failure of proof on any one of the prerequisite elements in

rule 1.262(2) is fatal to the request for class certification. See Iowa R. Civ. P.

1.262(2); Stone, 497 N.W.2d at 846. We focus on the prerequisite element of

rule 1.261(2)—whether there is a question of law or fact common to the class—

and also on the secondary issue whether the putative class would be

manageable. See Iowa Rs. Civ. P. 1.261(2); 1.263(1)(f), (k).

         The plaintiffs contend there are several questions common to the class:

(1) whether defendants charged the plaintiffs “unreasonable charges . . . in

breach of the contracts,” (2) whether defendants have been unjustly enriched at

the expense of class members, (3) whether defendants should be enjoined from

their improper pricing practices, and (4) whether the defendants’ pricing practices

violate Iowa Code chapter 714H.           The plaintiffs’ framing of the common

questions does little to demonstrate the putative class should be certified. First,

the plaintiffs have framed the common questions at a level of abstraction so

general as to be of no value to the court, essentially arguing that the common

questions presented are whether the defendants are liable to the plaintiffs. If this

were sufficient to establish a common question of law or fact, then any putative

class would meet the requirement. Second, the plaintiffs focus on the wrong

issue.

         What matters to class certification . . . is not the raising of common
         questions—even in droves—but, rather the capacity of a classwide
                                          10



       proceeding to generate common answers apt to drive the resolution
       of the litigation. Dissimilarities within the proposed class are what
       have the potential to impede the generation of common answers.

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

       We conclude the dissimilarities within the putative class prevent framing

common questions of law or fact of sufficient specificity to generate answers apt

to drive the resolution of the litigation on a class basis. For example, the plaintiffs

contend that the contract each patient signs at admission is ambiguous because

it has an open price term. The plaintiffs contend the court will have to determine

a reasonable rate.     The plaintiffs further contend a reasonable rate can be

determined on a class basis by averaging the price actually paid for services by

insured patients. While this has some superficial appeal, the argument ultimately

fails because there is no legal basis for concluding the average amount paid for

all services establishes a reasonable price for the particular service provided to

any proposed class member. See Pexa v. Auto Owners Ins. Co., 686 N.W.2d

150, 156-57 (Iowa 2004) (noting the amount paid “is but one form of probative

evidence” on the reasonable value of medical services—another being expert

testimony). More important, the plaintiffs’ formula does not appear probative of

any question material to the resolution of any claim. For example, with respect to

the named plaintiffs, the plaintiffs cannot answer a simple question: why is a

judicial determination that the rate charged for Ramsey’s appendectomy was or

was not reasonable at all probative of whether the rate charged for Williams’s

CAT scan was or was not reasonable? We see no logical connection between

the two. Any legally sound determination of the reasonableness of a particular
                                          11



charge will necessarily depend on the individual facts and circumstances

regarding each plaintiff’s condition.

       Further precluding class certification is the recognition that the

reasonableness of the rates charged the putative class members is not only

dependent upon the medical condition of the plaintiff, the types of services

provided, the hospital at which the services were provided, and the point in time

at which the services were provided, but also dependent upon a host of other

variables, including, but not limited to, the hospital’s attendant internal costs, the

availability of medical care providers for the type of service rendered, the rates of

substitute or similar services, and the rates of competitor’s services.          The

defendants provided an affidavit from William Cleverley that discussed different

methods hospitals use to determine and set reasonable charges, including the

cost of the service to the hospital, the cost charged by competitors, the payor mix

(percentage of uninsured, insured, and government program patients), and the

profit needed to continue operating.      Any legally sound determination of the

reasonableness of a particular charge at a particular time will thus also depend

on these individualized considerations.

       Other courts have addressed the same class certification issue involving

the same or similar claims as those advanced here.            In Colomar v. Mercy

Hospital, Inc., 242 F.R.D. 671 (S.D. Fla. 2007), the court explained that

determining the reasonableness of the charges, as desired by the plaintiffs,

necessarily required an individualized determination of the value of the services

provided. The Colomar court reasoned the reasonableness of charges
                                          12



       can only be determined by looking at the specific bills in question
       and analyzing them against factors like the market rate for the
       same services at other hospitals, Mercy’s internal costs for those
       particular services, and the prices Mercy charged for those services
       to patients with health insurance or other benefits. None of the
       evidence underlying these factors will be the same for any two
       class members, unless they received the same services during a
       similar time frame. Therefore, at the level of specificity required to
       actually resolve the class claims, any commonality breaks down
       into an individualized inquiry.

Colomar, 242 F.R.D. at 677. The court then gave an example of attempting to

apply a reasonableness analysis to multiple class members:

       When all is said and done, even if Plaintiff’s evidence proves that
       the respiratory care charges are unreasonable, a class member
       claiming that Mercy’s cardiac services are unreasonable would be
       no further along in proving his case based on the proof used to
       satisfy Plaintiff’s burden of establishing her claim.       Further
       complicating matters, even a class plaintiff challenging Mercy’s
       respiratory services will not benefit from Plaintiff’s proof, if the
       respiratory services were rendered much earlier or much later in
       the class period, because the costs and other comparative data will
       change over time.

Id. at 680; accord Maldonado v. Oshner Clinic Found., 493 F.3d 521, 524-26 (5th

Cir. 2007) (affirming the district court’s denial of class certification, concluding in

part the plaintiffs failed to satisfy the requirement that common questions

predominate over questions affecting individual members); but see Quinn v. BJC

Health Sys., NO. 22052-0821A, 2007 WL 7308622, at *27-28 (Mo. Cir. Ct. March

2, 2007) (finding common questions predominated over individual questions).

       We hold the plaintiffs have failed to prove there is a question of law or fact

common to the class, that class certification is thus not permissible, and the

district court did not abuse its discretion in denying the plaintiffs’ motion.

According to the plaintiffs’ theory of the case, the determination of the

“reasonableness” of the charges lies at the heart of the four “common questions”
                                         13



identified by the plaintiffs. Although the individual claims “need not be carbon

copies of each other,” there must be “generalized evidence which proves or

disproves an element on a simultaneous, class-wide basis.” Vos, 667 N.W.2d at

45 (citations omitted). The district court correctly determined that ascertaining

the reasonableness of charges would have to be done on a case-by-case basis,

“considering the patient, financial resources, financial assistance available to the

patient, amount paid, internal costs of the services, the hospital rendering the

services, the comparative data between that hospital and other regional facilities,

and potentially many more unique individualized factors.”           No generalized

evidence exists that would prove or disprove the reasonableness of the charges

for the putative class members. The putative class members treated for different

conditions, at different hospitals, at different times, and received different medical

services for their respective individualized medical conditions. Class certification

is thus not permissible.

       We also conclude that even if class certification were permissible, it would

not be proper. The management of the proposed class suit would pose unusual

difficulties and would be impractical and inefficient, thereby rendering the class

vehicle inappropriate. Under the plaintiffs’ theory of the case, there is no logical

or fair way to determine the reasonableness of the rate charged without holding

an individualized hearing on the same. “Properly conducted, such an endeavor

would be herculean in scope.” Colomar, 242 F.R.D. at 682. The district court

would have to account for numerous individualized facts, including the nature of

the plaintiff’s medical condition, the treatment provided, the place at which the
                                             14



treatment was provided, the date of the treatment, whether the plaintiff applied

for financial assistance, whether the charge was paid, whether the debt, if any,

was discharged in bankruptcy, and whether there had been a judicial

determination the charge was reasonable. The district court would be required to

receive testimony, perhaps expert testimony, regarding the reasonableness of

the particular charges for the particular services provided at the particular

location at the particular time.      In addition, this does not account for the

counterclaims the defendants would be able to assert for unpaid claims. Any

proposed class is simply not manageable, and the district court did not abuse its

discretion in denying class certification.

                                             III.

       We review a district court’s grant of summary judgment for corrections of

errors at law. See Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 500

(Iowa 2013).     Summary judgment should be granted only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.

P. 1.981(3).

                                             A.

       Plaintiffs contend the district court erred in granting summary judgment on

their breach of contract claim. Under the contracts at issue, the plaintiffs agreed

to pay for medical care according to the “Hospital’s regular rates and terms.”

Plaintiffs argue the contract contains an open price term requiring the court to
                                       15



supply a reasonable price. The plaintiffs contend this is a disputed issue of fact

precluding summary judgment. In support of their position, the plaintiffs contend

Iowa should follow the ruling in Doe v. HCA Health Services of Tennessee, Inc.,

46 S.W.3d 191, 197 (Tenn. 2001) (holding contract term “charges” in sentence “I

am financially responsible to the hospital for charges not covered by this

authorization” was indefinite).   The plaintiffs also rely on Quinn, 2007 WL

7308622, at *18-19.

      We conclude neither Doe nor Quinn are persuasive. Most courts have

rejected the analysis or otherwise distinguished Doe. See e.g., DiCarlo v. St.

Mary Hosp., 530 F.3d 255 (3rd Cir. 2008) (declining to extend); Banner Health v.

Med. Sav. Ins. Co., 163 P.3d 1096 (Ariz. App. Div. 1 2007) (distinguishing); Allen

v. Clarian Health Partners, Inc., 980 N.E.2d 306 (Ind. 2012) (refusing to follow);

Holland v. Trinity Health Care Corp., 791 N.W.2d 724 (Mich. App. 2010)

(distinguishing); Atherton v. Tenet Healthcare Corp., No. 2005-UP-362, 2005 WL

7084013 (S.C. App. May 25, 2005) (same); Nygaard v. Sioux Valley Hosps. &

Health Sys., 731 N.W.2d 184 (S.D. 2007) (same). Quinn is a trial court order that

is difficult to reconcile with a published Missouri appellate decision, Freeman

Health System v. Wass, 124 S.W.3d 504 (Mo. App. S.D. 2004). Further, the

Quinn case was never resolved on appeal because the parties settled the claim.

      Like other courts, we also find Doe is readily distinguishable from this

case. The rationale underlying Doe was that the contract at issue did not contain

any reference to any other document or extrinsic fact. See Doe, 46 S.W.3d at

197 (acknowledging that while the charge master “could be used as a reference”
                                          16



the particular contract at issue did not actually “contain a reference to some

document, transaction or other extrinsic facts from which its meaning may be

made clear”).    In contrast, the contract at issue in this case makes explicit

reference to “the Hospital’s regular rates and terms.” The overwhelming weight

of authority holds this explicit reference to the hospital or facility’s rates and terms

sets a definite price term. See, e.g., DiCarlo, 530 F.3d at 264 (finding “the price

term was not in fact open, and that ‘all charges’ unambiguously can only refer to

St. Mary’s uniform charges set forth in its Chargemaster”); Harrison v. Christus

St. Patrick Hosp., 430 F. Supp. 2d. 591, 595 (W.D. La. 2006) (concluding

“regular rates and terms” did not create open-ended contract); Cox v. Athens

Reg. Med. Ctr., Inc., 631 S.E.2d 792. 796-97 (Ga. App. 2006) (finding “in

accordance with the rates and terms of the hospital” is unambiguous); Allen, 980

N.E.2d 306, 309-10 (Ind. 2012) (examining “guarantees payment of the account”

and concluding “an offer [that] appears to be indefinite may be given precision by

usage of trade or by course of dealing between the parties); Holland, 791 N.W.2d

at 730 (finding “usual and customary charges” unambiguously referred to the

Chargemaster charges); Shelton v. Duke Univ. Health Sys., Inc., 633 S.E.2d 113,

115-16 (N.C. App. 2006) (finding “regular rates and terms” was “sufficiently

definite” and implied the regular Chargemaster rates); Nygaard, 731 N.W.2d at

192 (recognizing “if the contract price is fixed and determinable from sources

outside the written agreement, the price term is not open in the sense that it

allows for some imputed, commercially reasonable price term”); Woodruff v. Ft.
                                         17



Sanders Sevier Med. Ctr., 2008 WL 14851 at *3 (Tenn. Ct. App. 2008)

(concluding “facility rates and terms” was not indefinite).

       The contract language at issue here, “regular rates and terms,” is identical

to that in Harrison and Shelton, and closely resembles the language in Cox,

Holland, and Woodruff. As a general rule, where there is an agreement to pay

for medical services in accord with the hospital’s regular rates and terms, the

contract is not indefinite. Because the contract language is not indefinite and the

price is contracted for, the court need not supply a “reasonable” rate.          See

Heninger & Heninger, P.C., v. Davenport Bank & Trust Co., 341 N.W.2d 43, 48

(Iowa 1983) (“In the absence of specification, a person who performs services

pursuant to request is entitled to the reasonable value of the services.”); Fashion

Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22, 27 (Iowa 1978)

(“Contractual obligations may arise from implication as well as from the express

writing of the parties. A contract includes not only what is expressly stated but

also what is necessarily to be implied from the language used; and terms which

may clearly be implied from a consideration of the entire contract are as much a

part thereof as though plainly written on its face.”). Accordingly, the district court

did not err in concluding that defendants were entitled to judgment as a matter of

law on the plaintiffs’ contract claim.

                                         B.

       On appeal, the plaintiffs do not advance any argument or cite any

authority regarding unjust enrichment. The issue is deemed waived. See Iowa

Rs. App. P. 6.903(2)(c) (requiring a statement of issues presented for review);
                                       18



6.903(2)(g)(3) (requiring argument and citation to authority on an issue).     In

addition, the plaintiffs’ claim for unjust enrichment fails because there is an

express contract between the parties. See Johnson v. Dodgen, 451 N.W.2d 168,

175 (Iowa 1982).

                                       C.

      On appeal, plaintiffs do not present any argument or cite any authority

regarding their third “claim” for equitable relief. The claim is deemed waived.

See Iowa Rs. App. P. 6.903(2)(c); 6.903(2)(g)(3).

                                       D.

      Plaintiffs’ consumer fraud claims fails because the Consumer Frauds Act

is inapplicable, by its own terms, to the defendants and the services provided.

See Iowa Code § 714H.4(1)(a) (excluding any merchandise offered or provided

by a facility licensed under chapters 135B (hospitals), 135C (health care

facilities), and 148 (physicians)). Although IHS is not a licensed facility under

chapter 135B or chapter 135C, it does not offer or sell consumer merchandise,

and is thus not subject to chapter 714.H. See Iowa Code § 714H.3 (covering

activities “in connection with advertisement, sale, or lease of consumer

merchandise”). The district court thus did not err in granting the defendants’

motion for summary judgment.

                                       IV.

      This case is just one of many similar cases across the country asserting

the same claim. As indicated above, the cases largely have been resolved the

same way.
                                         19



       This case, and other similar cases being brought throughout the
       country, arise out of the anomalies which exist in the American
       system of providing health care. A court could not possibly
       determine what a “reasonable charge” for hospital services would
       be without wading into the entire structure of providing hospital care
       and the means of dealing with hospital solvency. These are
       subjects with which state and federal executives, legislatures, and
       regulatory agencies are wrestling and which are governed by
       numerous legislative acts and regulatory bodies. For a court to
       presume to address these problems would be rushing in where
       angels fear to tread. What Plaintiff is asking the Court to do here is,
       put simply, to solve the problems of the American health care
       system, problems that the political branches of both the federal and
       state governments and the efforts of the private sector have, thus
       far, been unable to resolve. Like other similar suits filed in other
       federal courts, this action seeks judicial intervention in a political
       morass.

DiCarlo, 530 F.3d at 264. For the foregoing reasons, we affirm the judgment of

the district court.

       AFFIRMED.
