throbber
Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 1 of 15 PageID #: 1895
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
`
`
`
`JEFFREY SCHWARTZ and CARI
`SCHWARTZ, Individually and as the
`Parents and Natural Guardians of
`J.S., a Minor,
`
`
` Plaintiffs
`
`
`
`
`ANTHEM INSURANCE COMPANIES,
`INC., D/B/A ANTHEM BLUE CROSS
`AND BLUE SHIELD, ACCREDO
`HEALTH GROUP, INC., EXPRESS
`SCRIPTS, INC., and KROGER
`SPECIALTY PHARMACY, INC.,
`
`
`
`
`v.
`
` Defendants
`
`
`
`
`
`Cause No. 1:20-cv-00069 RLM-MPB
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`Plaintiffs Jeffrey and Cari Schwartz, individually and as the parents and
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`ORDER
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`natural guardians of J.S., a minor, sued defendants Anthem Insurance
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`Companies, Express Scripts, Inc. (the specialty pharmacy of Anthem’s pharmacy
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`network), Accredo Health Group, Inc. (a subsidiary of Express Scripts), Kroger
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`Prescription Plans, and Kroger Specialty Pharmacy over events that led to J.S.
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`contracting respiratory syncytial virus because she didn’t receive a prescribed
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`vaccine. The Schwartzes have since amended their complaint and voluntarily
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`dismissed Kroger Prescription Plans. The Anthem defendants—Anthem, Express
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`Scripts, and Accredo—collectively have filed motions to dismiss the Schwartzes’s
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`complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 2 of 15 PageID #: 1896
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`claim upon which relief can be granted. For the following reasons, the court
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`DENIES the Anthem defendants’ motions to dismiss [Doc. Nos. 67 and 72].
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`
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`The amended complaint alleges the following facts. J.S. was born on
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`February 14, 2017, at 23 weeks gestation and weighing only 1.5 pounds. As an
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`extremely preterm baby, J.S. needed several specialty physicians. In August
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`2017, J.S.’s doctors recommended that she be prescribed Synagis, an antibody
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`used to immunize children against respiratory syncytical virus, because her
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`premature birth had resulted in a compromised immune system. Respiratory
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`syncytical virus season is from November to April, and Synagis is highly effective
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`at preventing sickness if given once a month. Synagis requires prior
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`authorization for use. Prior authorization is a health plan requirement that the
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`health plan (insurer) authorize a particular prescription drug for payment by
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`before the drug is provided to a particular covered individual. Ind. Code § 27-1-
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`37.4-3. A health plan (insurer) must accept and respond to a request for “prior
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`authorization” delivered to the health plan (insurer) by a covered individual’s: (1)
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`prescribing health care provider; or (2) dispensing pharmacist…” Ind. Code § 27-
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`1-37.4-4. A single monthly dose of Synagis costs more than $3,000 without
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`insurance.
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`Jeff Schwartz is employed by, and has primary health insurance for J.S.
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`through, Kroger Prescription Plans, Inc. (“Kroger Plans”). Kroger Plans uses
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`Kroger Specialty Pharmacy, Inc. (“Kroger Pharmacy”) as its specialty pharmacy.
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`The Schwartzes’ health insurance through Kroger Plans doesn’t start to cover
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`medical expenses until the Schwartzes meet their annual deductible for the
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`2
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`

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`calendar year, and the annual deductible restarts every January. Given J.S.’s
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`needs as an extremely preterm baby, Jeff and Cari acquired secondary health
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`insurance for J.S. through a Medicaid program administered by Anthem to cover
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`J.S.’s medical expenses at the beginning of the year before the Schwartzes met
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`the annual deductible on the Kroger Plans policy. Anthem uses Express Scripts,
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`Inc. as its pharmacy benefit manager, and Express Scripts uses Accredo Health
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`Group, Inc. (“Accredo”) as its specialty pharmacy.
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`
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`In November and December 2017, J.S. received her first two doses of
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`Synagis that were covered by the Kroger Plans policy and fulfilled by Kroger
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`Pharmacy. When January rolled around, Anthem received a prior authorization
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`request for J.S.’s third dose of Synagis from Kroger Pharmacy because the
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`Schwartzes hadn’t yet met their annual deductibles on the Kroger Plans policy
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`for 2018. Anthem said it approved the prior authorization request on January
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`25, 2018, but Kroger Pharmacy called the Schwartzes after it sent Anthem the
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`prior authorization request to inform them that Anthem and Express Scripts
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`wouldn’t allow Kroger Pharmacy to fill the prescription because Anthem required
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`the prescription to be filled by their own specialty pharmacy, Accredo.
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`The Schwartzes called Anthem several times over the next few weeks and
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`were assured that Kroger Pharmacy would be allowed to dispense J.S.’s third
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`dose of Synagis very soon. However, each time Kroger Pharmacy followed up with
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`Anthem, Anthem said that Accredo would have to fill J.S.’s prescription. The
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`administrative confusion persisted through the middle of February. Kroger
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`Pharmacy maintains that Anthem refused to allow it to fill the prescription for
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`3
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 4 of 15 PageID #: 1898
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`J.S.’s third dose of Synagis because it wanted Accredo to act as the specialty
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`pharmacy to fill and profit from the prescription. Anthem, on the other hand,
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`maintains that Kroger Pharmacy couldn’t fill the prescription for J.S.’s third dose
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`of Synagis because it didn’t submit the request for prior authorization to Anthem
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`with all the required information. The back-and-forth continued until the
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`effective window for J.S. to take her third dose of Synagis had passed, and J.S.
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`ultimately ended up contracting respiratory syncytical virus and spent 20 days
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`in the hospital, 17 of those on life support.
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`
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`The Schwartzes sued the defendants alleging that J.S. contracted
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`respiratory syncytial virus and the Schwartzes incurred damages because of the
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`defendants’ negligence in failing to exercise reasonable care to properly submit
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`and promptly fill J.S.’s prescription. The Anthem defendants have moved to
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`dismiss the Schwartzes complaint under Rule 12(b)(6) for failure to state a claim
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`upon which relief can be granted.
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`When considering a defendant’s motion to dismiss, the court “take[s] as
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`true all well-pleaded facts and allegations in the plaintiff's complaint, . . . and
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`the plaintiff is entitled to all reasonable inferences that can be drawn from the
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`complaint.” Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir.
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`1993). “To survive a motion to dismiss, a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Factual allegations must give
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`the defendant fair notice of the claims being asserted and the grounds upon
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`which they rest and “be enough to raise a right to relief above the speculative
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`4
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 5 of 15 PageID #: 1899
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`level on the assumption that all of the complaint's allegations are true.” Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to
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`draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. In other words, a complaint must
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`give “enough details about the subject-matter of the case to present a story that
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`holds together.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
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`A pleading that merely offers “labels and conclusions” or “a formulaic recitation
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`of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. at
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`678.
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`
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`The Anthem defendants argue that the Schwartzes’ complaint should be
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`dismissed for three reasons. First, the Kroger plan is an ERISA plan, and that
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`ERISA’s preemption provision displaces all state law claims that fall within its
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`sphere. The Anthem plan isn’t an ERISA plan by itself, but Anthem says it falls
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`within ERISA’s preemption sphere because it relates to an ERISA plan: coverage
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`under the Anthem plan depends on whether the Schwartzes had coverage under
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`the Kroger ERISA plan. Because the Schwartzes didn’t plead facts which would
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`entitle them to any relief under ERISA and their negligence claim is preempted,
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`their complaint must be dismissed. Second, the Anthem defendants argue that
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`the Schwartzes failed to plead that they exhausted their administrative remedies
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`under either the Kroger ERISA plan or the Anthem Medicaid plan as a condition
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`precedent to filing suit required by law. Finally, the Anthem defendants argue
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`that the complaint should be dismissed because, as a matter of law, they didn’t
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`5
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 6 of 15 PageID #: 1900
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`owe a duty of care to the Schwartzes. All parties agree that Indiana law applies
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`to any cognizable state law claim.
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`
`
`I.
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`ERISA Preemption
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`ERISA section 514(a) expressly preempts “any and all State laws insofar
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`as they may now or hereafter relate to any employee benefit plan described in
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`section 1003(a) of this title.” 29 U.S.C. § 1144(a). The employee benefit plans in
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`section 1003(a) are those that are “established or maintained . . . by any
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`employer engaged in commerce or in any industry or activity affecting commerce
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`. . . .” 29 U.S.C. § 1003(a)(1). The only remedy available to a plaintiff suing an
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`ERISA plan for plan benefits is found in ERISA section 502(a)(1)(B): “A civil action
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`may be brought by a participant or beneficiary . . . to recover benefits due to him
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`under the terms of his plan, to enforce his rights under the terms of the plan, or
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`to clarify his rights to future benefits under the terms of the plan . . . .” 29 U.S.C.
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`§ 1132(a)(1)(B).
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`“The structure and legislative history indicate that the words ‘relate to’ [in
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`ERISA section 514(a)] are intended to apply in their broadest sense. ERISA
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`preemption is, therefore, not limited to displacement of state laws affecting
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`employee benefit plans, but rather extends to any state cause of action that has
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`a ‘connection or reference to’ an ERISA plan.” Cent. States, Se. & Sw. Areas
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`Health & Welfare Fund v. Neurobehavioral Assocs., P.A., 53 F.3d 172, 174 (7th
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`Cir. 1995) (citations omitted); see also FMC Corp v. Holliday, 498 U.S. 52, 58
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`(1990) (“The pre-emption clause is conspicuous for its breadth. It establishes as
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`6
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 7 of 15 PageID #: 1901
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`an area of exclusive federal concern the subject of every state law that ‘relates
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`to’ an employee benefit plan governed by ERISA.”).
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`However, “pre-emption does not occur . . . if the state law has only a
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`tenuous, remote, or peripheral connection with [ERISA] plans, as is the case with
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`many laws of general applicability.” E.g., New York State Conf. of Blue Cross &
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`Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661 (1995). “[T]o determine
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`whether a state law has the forbidden connection, [courts] look both to ‘the
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`objectives of the ERISA statute as a guide to the scope of the state law that
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`Congress understood would survive,’ as well as to the nature of the effect of the
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`state law on ERISA plans . . . .” Cal. Div. of Labor Standards Enforcement v.
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`Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997) (citations omitted).
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`“[W]here ‘federal law is said to bar state action in fields of traditional state
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`regulation, . . . [courts] worked on the assumption that the historic police powers
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`of the States were not to be superseded by the Federal Act unless that was the
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`clear and manifest purpose of Congress.” Id.; see also New York State Conf. of
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`Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. at 656 (“We simply
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`must go beyond the unhelpful text and the frustrating difficulty of defining
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`[“relate to”], and look instead to the objectives of the ERISA statute as a guide to
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`the scope of the state law that Congress understood would survive.”).
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`ERISA section 514(a) “indicates Congress's intent to establish the
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`regulation of employee welfare benefit plans ‘as exclusively a federal concern.’”
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`New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
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`514 U.S. at 656. “Congress intended ‘to ensure that plans and plan sponsors
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`7
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 8 of 15 PageID #: 1902
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`would be subject to a uniform body of benefits law; the goal was to minimize the
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`administrative and financial burden of complying with conflicting directives
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`among States or between States and the Federal Government . . ., [and to
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`prevent] the potential for conflict in substantive law . . . requiring the tailoring of
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`plans and employer conduct to the peculiarities of the law of each jurisdiction.’”
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`Id. at 656-657 (citing Ingersoll–Rand Co. v. McClendon, 498 U.S. 133, 141
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`(1990)). “The basic thrust of the pre-emption clause, then, was to avoid a
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`multiplicity of regulation
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`in order to permit the nationally uniform
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`administration of employee benefit plans.” Id. at 657; see also 29 U.S.C. § 1001.
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`
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`This circuit hasn’t defined the precise sweep of ERISA’s preemption
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`provision regarding claims against a non-ERISA-regulated secondary insurer
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`whose policy acts as gap coverage for insurance provided by an ERISA plan. The
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`Anthem defendants argue that the Schwartzes’s claim against Anthem “relates
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`to” an ERISA plan and so is preempted because the out-of-pocket maximums
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`and deductibles of the Kroger plan had to be assessed in order to activate the
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`secondary coverage under the Anthem plan.
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`The types of cases that have been considered “too tenuous, remote, or
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`peripheral” to be ERISA preempted “include: a state garnishment of a spouse's
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`pension income to enforce alimony and support orders; a defamation lawsuit
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`against a plan by a doctor; a suit against an ERISA plan for unpaid rent; or a
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`suit against an ERISA plan for unpaid attorneys' fees. . . . These cases are all
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`‘run-of-the-mill’ tort claims. None involved a suit by a plan participant against a
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`plan. Nor did they concern allegations of negligence based on a failure to treat
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`8
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 9 of 15 PageID #: 1903
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`where the plan denied benefits for the proposed treatment. They also involve
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`relationships arising from something other than a benefit plan . . . .” Jass v.
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`Prudential Health Care Plan, Inc, 88 F.3d 1482, 1494-1495 (7th Cir. 1996). The
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`circuit court speculated in Pohl v. National Benefits Consult, Inc. that ERISA
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`section 514(a) wouldn’t pre-empt the claim of a plan participant who slipped on
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`a banana peel in a plan administrator’s office even though “that slip-and-fall
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`liability would increase [the plan administrator’s] costs and perhaps therefore
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`the fee it charged for administering the employee welfare plan, and the added fee
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`might hurt the participants.” 956 F.2d 126, 128 (7th Cir. 1992).
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`
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`The line of cases that is perhaps the closest to the Schwartzes’s claim
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`involve suits for medical malpractice against in-network healthcare providers of
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`ERISA plans because these defendants’ services are administered based on the
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`existence of an ERISA plan. ERISA doesn’t preempt cases of this sort.1 E.g.,
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`Lehmann v. Brown, 230 F.3d 916, 920 (7th Cir. 2000) (“When the complaint
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`alleges that a welfare-benefit plan has committed a tort—for example, when a
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`physician employed by a HMO that has been offered as a benefit to employees
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`commits medical malpractice—the claim must arise under state law, because
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`ERISA does not attempt to specify standards of medical care.”); Wigdahl v. Fox
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`Valley Family Physicians, 2018 WL 4520380, at *1 (N.D. Ill. Sept. 21, 2018)
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`(citing Clevenger v. Eastman Chem. Co., 2007 WL 2458474, at *3 (S.D. Ill. Aug.
`
`
`1 These cases contrast from a situation in which an in-network healthcare provider
`negligently concludes that a particular course of treatment is unnecessary, amounting
`to a denial of benefits. These types of cases are preempted by Section 514(a). E.g., Jass
`v. Prudential Health Care Plan, Inc, 88 F.3d 1482 (7th Cir. 1996).
`
`9
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 10 of 15 PageID #: 1904
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`24, 2007) (to find that ERISA requires preemption of claims concerning the
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`quality of benefits received “would be to effectively federalize the area of medical
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`malpractice law”)).
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`
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`The court concludes that ERISA section 514(a) doesn’t preempt state law
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`negligence claims against a secondary insurer whose only relation to an ERISA
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`plan is that its coverage kicks in when coverage under an ERISA plan isn’t
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`available. Anthem wasn’t in privity with Kroger; the only “relation” between the
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`Anthem and Kroger plans is that the Schwartzes sought out additional insurance
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`to supplement the Kroger plan. It stretches credulity to say that this relationship
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`arose out of the terms of the Kroger plan. See Jass v. Prudential Health Care
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`Plan, Inc, 88 F.3d at 1495. If this circuit’s caselaw refrains from imposing ERISA
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`preemption on claims for medical malpractice against in-network providers who
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`are in privity with an ERISA plan, then imposing ERISA preemption on claims
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`for negligence against even more tangential defendants is (without more)
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`inappropriate. Were this connection enough to require preemption, then the
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`limiting language of section 514(a) would have no effect. That is clearly not what
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`Congress intended. See e.g., Creel v. Fortis Benefits Ins. Co., 2000 U.S. Dist.
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`LEXIS 20008, at *8 (S.D. Ind. Dec. 27, 2000). Imposing ERISA preemption on
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`this type of state law claim would do little (if anything at all) to further Congress’s
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`goal of minimizing the administrative and financial burden on ERISA plans of
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`complying with conflicting directives among states or between states and the
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`Federal Government. But it would constitute an intrusion on the historic police
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`10
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 11 of 15 PageID #: 1905
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`powers of the states. Accordingly, ERISA section 514(a) doesn’t preempt the
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`Schwartzes’s negligence claim against the Anthem defendants.
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`
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`II.
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`Failure to Exhaust Administrative Remedies
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`Next, the Anthem defendants note that Indiana’s Administrative Orders
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`and Procedures Act provides the exclusive means for judicial review of a Medicaid
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`agency action and states that “[a] person may file a petition for judicial review
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`under this chapter only after exhausting all administrative remedies available
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`within the agency whose action is being challenged and within any other agency
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`authorized to exercise administrative review.” Ind. Code § 4-21.5-5-4(a). The
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`Anthem defendants argue that complaint doesn’t allege that the Schwartzes
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`exhausted their administrative remedies even though they were required to
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`before seeking judicial process, so their complaint must be dismissed.
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`“Failure to exhaust administrative remedies is an affirmative defense . . .
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`.” Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002) (citing Massey v.
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`Helman, 196 F.3d 727, 735 (7th Cir. 1999)); see also Mosely v. Board of Educ.,
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`434 F.3d 527, 533 (7th Cir. 2006). “[C]ourts should usually refrain from granting
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`Rule 12(b)(6) motions on affirmative defenses. Rule 12(b)(6) tests whether the
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`complaint states a claim for relief, and a plaintiff may state a claim even though
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`there is a defense to that claim.” Brownmark Films, LLC v. Comedy Partners,
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`682 F.3d 687, 690 (7th Cir. 2012) (citing United States v. Lewis, 411 F.3d 838,
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`842 (7th Cir. 2005)); see also King v. Indiana Harbor Belt Railroad, 2017 WL
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`9565363, at *15 (N.D. Ind., Feb. 1, 2017) (“[A] plaintiff has no obligation to allege
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`11
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`

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`facts negating an affirmative defense.”). However, “when the existence of a valid
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`affirmative defense is so plain from the face of the complaint that the suit can be
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`regarded as frivolous, the district judge need not wait for an answer before
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`dismissing the suit.” Walker v. Thompson, 288 F.3d at 1009; see also
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`Brownmark Films, LLC v. Comedy Partners, 682 F.3d at 690 (“[W]hen all relevant
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`facts are presented, the court may properly dismiss a case before discovery . . .
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`on the basis of an affirmative defense.”); Mosely v. Board of Educ., 434 F.3d at
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`533 (“Parties and courts occasionally take short-cuts and present certain
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`arguments through a motion to dismiss for failure to state a claim upon which
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`relief can be granted under Rule 12(b)(6), if the allegations of the complaint in
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`the light most favorable to the plaintiff show that there is no way that any
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`amendment could salvage the claim.”).
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`The Schwartzes complaint isn’t a candidate for this type of dismissal
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`because they had no obligation to allege facts negating an affirmative defense,
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`and nothing on the face of their complaint compels a conclusion that they failed
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`to exhaust.” Mosely v. Board of Educ., 434 F.3d at 533. The Anthem defendants’
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`motion for dismissal on this ground is premature.
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`
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`III. Negligence Claim
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`Finally, the Anthem defendants argue that the Schwartzes can’t recover
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`under a negligence theory because the Schwartzes’s complaint doesn’t allege
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`sufficient facts to show that the Anthem defendants could owe the Schwartzes a
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`duty of reasonable care under Indiana law.
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`12
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`
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`To premise a recovery on a theory of negligence under Indiana law, a
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`plaintiff must establish in part “a duty on the part of the defendant to conform
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`his conduct to a standard of care arising from his relationship with the plaintiff
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`. . . .” Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), overruled on other
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`grounds, Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 392 (Ind.
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`2016). “Whether the law recognizes any obligation on the part of a particular
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`defendant to conform his conduct to a certain standard for the benefit of the
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`plaintiff is a question of law.” Id. “At the motion to dismiss stage, the court's duty
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`‘is to consider whether a plaintiff's allegations could provide relief under any
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`available legal theory.’” Sawyer v. Matthews, 2016 U.S. Dist. LEXIS 181679, at
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`*7 (S.D. Ind. Dec. 15, 2016) (citing Sidney S. Arst Co. v. Pipefitters Welfare Educ.
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`Fund, 25 F.3d 417, 421 (7th Cir. 1994)). “[T]he complaint need not identify a
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`legal theory, and specifying an incorrect legal theory is not fatal.” Bartholet v.
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`Reishauer, 953 F.2d 1073, 1078 (7th Cir. 1992).
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`“Under Indiana law, it is well-established that there exists only one
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`independent tort action that arises from an insurance contract: tortious breach
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`of an insurer's duty to deal with his insured in good faith.” Shree Hari Hotels,
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`LLC v. Soc’y Ins. Co., 2013 U.S. Dist. LEXIS 52190, at *6 (S.D. Ind. Apr. 11,
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`2013) (citing Erie Insurance Company v. Hickman by Smith, 622 N.E.2d 515,
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`518-519 (Ind. 1993)). “The duty to deal in good faith ‘includes the obligation to
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`refrain from (1) making an unfounded refusal to pay policy proceeds; (2) causing
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`an unfounded delay in making payment; (3) deceiving the insured; and (4)
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`exercising any unfair advantage to pressure an insured into a settlement of his
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`13
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`

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`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 14 of 15 PageID #: 1908
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`claim.’” Inman v. State Farm Mut. Auto. Ins. Co., 981 N.E.2d 1202, 1207 (Ind.
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`2012) (quoting Erie Insurance Company v. Hickman by Smith, 622 N.E.2d at
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`519)).
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`
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`The Schwartzes’s complaint alleges that the Schwartzes “made numerous
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`phone calls to Anthem, [Express Scripts], and/or Accredo. Each time,
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`representatives of Anthem, [Express Scripts], and/or Accredo assured Jeff, Cari,
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`and [Kroger Pharmacy] that [Kroger Pharmacy] would be allowed to dispense
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`J.S.’s third dose of Synagis very soon. However, each time [Kroger Pharmacy]
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`followed up with representatives of Anthem, [Express Scripts], and/or Accredo,
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`they were informed the prescription for J.S.’s third dose of Synagis had to be
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`filled by Anthem and [Express Scripts’s] own specialty pharmacy, Accredo.”
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`Compl. ¶ 30. The Schwartzes also allege that “[f]rom January 25, 2018 through
`
`the middle of February of 2018, [Kroger Pharmacy] and Accredo continued to
`
`transfer the prescription request for J.S.’s third dose of Synagis back and forth,
`
`with each telling the other it could not fill the prescription. During this time, the
`
`effective window for J.S. to take her third dose of Synagis passed.” Compl. ¶ 35.
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`These allegations are sufficient to state a negligence claim upon which relief
`
`could be granted at the motion to dismiss stage against the Anthem defendants.
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`
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`IV. Conclusion
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`For the foregoing reasons, the court DENIES the Anthem defendants’
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`motions to dismiss for failure to state a claim upon which relief can be granted
`
`[Doc. Nos. 67 and 72].
`
`14
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`

`

`Case 1:20-cv-00069-RLM-MPB Document 106 Filed 03/09/21 Page 15 of 15 PageID #: 1909
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`
`
`SO ORDERED.
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`ENTERED: March 9, 2021
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`
`
`
`
`Distribution: All electronically registered counsel of record
`
`
`
`
`
`
`
`
`
`
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`
`
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`
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`
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`
`
` /s/ Robert L. Miller, Jr.
`Judge, United States District Court
`
`15
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`

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