                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 12 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAMON SAMANO,                                    No. 10-55696

              Plaintiff - Appellant,             D.C. No. 2:07-cv-05512-GAF-CW

  v.
                                                 MEMORANDUM *
KAISER FOUNDATION HEALTH
PLAN, INC.; et al.,

              Defendants - Appellees,

  v.

COLLECTION CONSULTANTS OF
CALIFORNIA INC.; et al.,

              Movants.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                     Argued and Submitted December 9, 2011
                              Pasadena, California

Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        Ramon Samano appeals the district court’s grant of summary judgment in

favor of Kaiser Foundation Health Plan, Inc., Southern California Permanente

Medical Group, and Kaiser Foundation Hospitals (collectively, “Kaiser”). We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and vacate in

part.

        1. The district court properly awarded summary judgment in favor of Kaiser

on Samano’s claims for ERISA benefits. It is undisputed that Kaiser paid

Samano’s $31,000 discounted bill and reimbursed Samano for related out of

pocket expenses he was charged for emergency medical services provided by

Providence Holy Cross Medical Center (“Providence”). It is also undisputed that

once Providence applies the discounted rate to a patient’s bill, that sum is the

maximum amount the patient owes Providence. Thus, the district court correctly

concluded that Samano has received all the benefits owed under his ERISA plan

and is not entitled to reimbursement for the original, nonbilled, amount of benefits

that Kaiser might have owed Providence had it originally recognized that Samano

was entitled to coverage. Under the circumstances, such an award of benefits to

Samano would be a windfall, not permitted under ERISA, 29 U.S.C.

§ 1132(a)(1)(B). Under ERISA, a beneficiary may not recover “extracontractual,



                                           2
compensatory [or] punitive damages.” Bast v. Prudential Ins. Co. of Am., 150 F.3d

1003, 1009 (9th Cir. 1998). Moreover, the district court properly ordered that if

Providence makes any further claim arising from the emergency medical services

rendered in August and September, 2006, Kaiser will be required to reimburse

Samano for such a claim.

      2. It is not clear, however, that Samano had the opportunity to move for

attorney’s fees before judgment was entered against him on April 1, 2010. In the

judgment, the court ordered each party to bear its own attorney’s fees and costs,

without explanation. The court’s order granting summary judgment states that

Kaiser originally erroneously denied Samano plan benefits, but during the

pendency of the litigation, changed its coverage position and paid the discounted

sum to Providence. Samano “need not be a ‘prevailing party’ to be eligible for an

attorney’s fees award under § 1132(g)(1),” Hardt v. Reliance Standard Life Ins.

Co., 130 S. Ct. 2149, 2156 (2010), but “must show ‘some degree of success on the

merits’ before a court may award attorney’s fees,” id. at 2158. Because he did not

have the opportunity to timely move for fees, Samano did not waive his right to

them and he may be entitled to a fees award. See San Diego Police Officers’ Ass’n

v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 742-43 (9th Cir. 2009). We

therefore vacate the order splitting fees and costs and remand to the district court to


                                           3
address Samano’s claim to them. We express no opinion on the merits of the

request for attorney’s fees. Each party shall bear its own costs on appeal.

      AFFIRMED in part; VACATED in part; REMANDED.




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