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Fisher v. Government Employees Insurance Co.

November 16, 2000


Before Terry and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia Hon. Joan Zeldon, Trial Judge

Submitted March 4, 1999

Vanessa Fisher was injured in an automobile accident while insured by Government Employees Insurance Company ("GEICO") under an automobile insurance policy which included personal injury protection ("PIP") benefits. She sued GEICO for breach of contract, alleging that GEICO was liable to her under the policy for a particular medical expense associated with the accident even though her health insurance plan, an employee welfare benefit plan regulated under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. (1994), had already paid the bill in full without requiring Ms. Fisher to pay either a co-payment or a deductible amount. Ms. Fisher maintains that D.C. Code § 35-2106 (g) (1997), part of the District of Columbia no-fault insurance law, which prohibits an individual from claiming PIP benefits if he or she is eligible for compensation from another insurer, is pre-empted by section 514 (a) of ERISA, 29 U.S.C. § 1144 (a). We disagree and therefore affirm.


The facts of this case are simple and undisputed. *fn1 On August 10, 1995, Ms. Fisher was injured in an automobile accident. At that time GEICO insured Ms. Fisher under a District of Columbia automobile insurance policy with PIP benefits. At the same time, Ms. Fisher was also covered by a health and welfare plan ("Plan" or "ERISA Plan") established by her employer as an employee welfare benefit plan under ERISA.

For the injuries she received in the accident, Ms. Fisher sought treatment from various health care providers. Initially, all the medical expenses were paid by the Plan; Ms. Fisher herself was not required to pay a co-payment or deductible. She then applied to GEICO for District of Columbia PIP benefits, seeking reimbursement of medical expenses and lost wages. GEICO made payments for the lost wages and the majority of the medical expenses. *fn2 The only medical bill that GEICO did not pay, and the only one at issue here, is a bill for $2,120.00 from Dr. Harvey Mininberg ("the Mininberg bill").

Like all the other medical bills, the Mininberg bill was paid in full by Ms. Fisher's ERISA Plan, without a co-payment or deductible. Having made that payment, the Plan acquired a lien of $1,610.11, *fn3 which was satisfied by Ms. Fisher out of the proceeds of her recovery from a third-party tortfeasor. No medical bills are currently outstanding.

Ms. Fisher filed a civil complaint against GEICO, alleging that GEICO's failure to pay the Mininberg bill was a breach of its insurance contract and seeking reimbursement for the total amount of the bill, $2,120.00. *fn4 GEICO responded that D.C. Code § 35-2106 (g) prohibited Ms. Fisher from being reimbursed for the Mininberg bill because her Plan had already paid it. *fn5 Ms. Fisher argued that section 35-2106 (g) did not apply because it was pre-empted by section 514 (a) of ERISA, 29 U.S.C. § 1144 (a). The trial court held, however, that there was no pre-emption because the District of Columbia statute did not regulate ERISA plans in any way. It therefore granted GEICO's motion for summary judgment.


As a preliminary matter, GEICO maintains that this court should not entertain the instant appeal because Ms. Fisher does not have standing to bring a claim against it. *fn6 See Speyer v. Barry, 588 A.2d 1147, 1160 (D.C. 1991). GEICO asserts that the question of pre-emption is really an issue of priority between insurance carriers and that the ERISA Plan, not Ms. Fisher, would have to bring this claim under a subrogation theory. Since the ERISA Plan is not a party to this proceeding, GEICO asserts that the case should be dismissed. It also argues that Ms. Fisher does not have standing because she is seeking double recovery, contrary to both ERISA and the District of Columbia no-fault law.

Before we reach the merits of a case, both "the `constitutional' requirement of a `case or controversy' and the `prudential' prerequisites of standing" must be satisfied. Speyer, 588 A.2d at 1160 (citation omitted). In order to meet the minimum requirements of a "case or controversy," a plaintiff must show (1) "that [she] has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," (2) "that the injury fairly can be traced to the challenged action," and (3) "that [the injury] is likely to be redressed by a favorable decision." Community Credit Union Services, Inc. v. Federal Express Services Corp., 534 A.2d 331, 333 (D.C. 1987) (citations and internal quotation marks omitted); accord, Speyer, 588 A.2d at 1160. *fn7 "[U]nder prudential principles of standing, a plaintiff may assert only its own legal rights . . . and may assert only interests that fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Community Credit Union, 534 A.2d at 333.

As GEICO points out, the Plan is conspicuously absent from this lawsuit. While some courts have held that an ERISA plan need not be a party to a suit in order to protect the rights afforded by ERISA, the person bringing the suit must usually be asserting the rights of the ERISA plan in order to have standing. See Danowski v. United States, 924 F. Supp. 661, 672 (D.N.J. 1996). Unfortunately, in this case neither the employer's health plan nor the GEICO insurance policy is part of the record. Without them, we are unable to ascertain the subrogation rights of the ERISA Plan; hence we cannot determine whether the Plan has a right to reimbursement from GEICO and whether Ms. Fisher can assert that right. Because Ms. Fisher, as the appellant, bears the responsibility of presenting a record on appeal sufficient to support her claims of error, see Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982), she must suffer the consequences of any deficiencies in the record. We therefore conclude, in the absence of a contrary showing, that Ms. Fisher does not have standing to assert the ERISA Plan's possible right of subrogation.

Whether Ms. Fisher herself has standing as an individual is a closer question, but in the circumstances presented here, we need not decide it. Ms. Fisher claims that she has suffered an actual economic injury as a result of GEICO's alleged breach of contract because she was compelled to satisfy the Plan's lien with part of the proceeds from her tort recovery. Although it is undisputed that the Plan's lien was satisfied in that way, there is some question whether those proceeds ever really belonged to Ms. Fisher. There are also a few other unanswered questions lurking in the record - for example, why is there a $510 discrepancy between the Plan's lien and the Mininberg bill? Assuming that some of the proceeds Ms. Fisher recovered from the third-party tortfeasor were for medical expenses incurred as a result of the accident, *fn8 then that money arguably belongs to the Plan, at least to the extent that the Plan originally paid those expenses. On the other hand, even though Ms. Fisher did not pay the Mininberg bill, she is not necessarily barred from recovering the amount of that bill from GEICO. Putting aside for the moment any question of unjust enrichment, "[t]he law contains no rigid rule against overcompensation." McDermott, Inc. v. AmClyde, 511 U.S. 202, 219 (1994). Indeed, Ms. Fisher may arguably be prohibited from recovering damages from GEICO only if D.C. Code ยง 35-2106 (g) applies. See Austin v. ...

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