Opinion
CIVIL ACTION NO. 99-1400, SECTION "C"
October 20, 2000.
ORDER AND REASONS
This matter is before the Court on Motion for Summary Judgment filed by defendant, Louisiana Health Service and Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana (Blue Cross). Having considered the parties' memoranda, the record, and the law, the Court GRANTS the Motion for Summary Judgment finding no genuine issues of material fact under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et. seq.
BACKGROUND FACTS
Templet is an employee of Harmony Corporation, a subsidiary of Turner Industries, Ltd. (Turner). To provide health care benefits to its employees, Turner contracted with Blue Cross to provide coverage and Turner paid approximately fifty percent of the total cost of those plans.
In the spring of 1998, David Templet (Templet) consulted a physician for various weight related health problems, including breathing difficulties, fatigue, sleep disturbances, back and leg pain, peripheral edema, severe reflux esophagitis, hiatal hernia, high blood pressure, tension headaches, anxiety and chest pain. His treating physician, Dr. Ruray O'Connell, informed Templet that his condition was life threatening and recommended a gastric stapling with Roux-Y-Gastrojejunostomy to rectify Templet's problems. On March 19, 1998 Dr. O'Connell submitted a request for pre-certification of this procedure to Blue Cross. Pre-certification was denied. The denial of coverage was based on an exclusion in the policy which provided:
A. Benefits will not be provided for any of the following. . . .
34. Weight reduction programs or treatment for obesity including any Surgery for morbid obesity or for removal of excess fat or skin following weight loss or pregnancy, regardless of Medical necessity, or services at a health spa or similar facility.
Due to the urgency of the situation. however, Templet obtained a loan and paid medical expenses up to $25,000.00. Templet then brought suit alleging that Blue Cross' denial of coverage is in violation of the Americans with Disabilities Act. 42 U.S.C. § 12101 et. seq.
DISCUSSION
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of setting forth the basis for its motion and identifying the pleadings, depositions, answers to interrogatories, admissions of file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a proper motion has been made, the non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing the existence of a genuine issue of fact for trial. Id. at 322-23. Factual questions and inferences are viewed in the light most favorable to the nonmovant. See Rogers v. International Marine Terminals. Inc., 87 F.3d 755, 758 (5th Cir. 1996). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case on which it bears the burden of proof at trial. See Celotex, 477 U.S. at 322.
The ADA prohibits employment discrimination against persons with a disability. Specifically, it provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regards to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112 (a) (West 2000). Blue Cross stipulated. without admitting, that for the purposes of the Motion for Summary Judgment, Templet is a qualified individual with a disability under the ADA.
Whether the Exclusion at Issue Discriminates in the Basis of Disability
Under the ADA, no "covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112 (a). Blue Cross urges the Court to read this provision to exclude blanket application of clauses that would be discriminatory if applied to a single individual.
In McNeil v. Time Ins. Co., 205 F.3d 179, 183-84 (5th Cir. 2000), reh'g denied 224 F.3d 766 (5th Cir. 2000), the Fifth Circuit determined that an insurance policy limiting the amount of coverage for AIDS to $10.000 over the first two years did not violate a Texas statute providing that an "insurer may not limit the amount or extent of coverage to an individual solely because of handicap." When McNeil purchased the policy he either did not have AIDS, or the insurer was unaware of any such handicap. Id. at 184. Accordingly the Fifth Circuit determined that the limitation in the policy based on AIDS could not have been "because of handicap" as required by the statute. Id. at 184-85. The court further elaborated that because the insurer offered this general policy without distinguishing between individual applicants, the insurer could not violate the statute even if it knew that McNeil had AIDS. Id. While the court in McNeil was interpreting a Texas statute, the language of the statute is analogous to the ADA language.
Blue Cross also urges this Court to follow Mullen v. Boyd Gaming Corp. CA No. 96-3038 (E.D. La. 1998)(unpub.), aff'd without opinion, 182 F.3d 914 (5th Cir. 1999), where after reviewing much of the same arguments, Judge Porteous found that a similar obesity exclusion, that affected the allegedly disabled and the non-disabled equally, was not a disability based distinction. This Court notes that neither McNeil, since it did not deal directly with the ADA language, nor the opinion in Mullen are binding authority. See Fed.R.App.P. with Fifth Circuit Rules IOPs Rule 47.5.4 (West 2000) (stating that unpublished opinions issued after January 1, 1996 are not precedent except under doctrines of res judicata, collateral estoppel, or law of the case).
Other jurisdictions have also determined that a blanket application of an insurance exclusion does not violate the ADA's prohibition on discrimination because of a disability of an individual. See Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3rd Cir. 1998) (stating that so long as every employee is offered the same plan regardless of that employee's contemporary or future disability status, then no discrimination has occurred even it the plan offers different coverage for various disabilities), cert. denied, 525 U.S. 1093, 119 S.Ct. 850, 142 L.Ed.2d 704 (1999); EEOC v. CNA Ins., Co., 96 F.3d 1039, 1044 (7th Cir. 1996) (finding that the insurer did not discriminate because all the employees — the perfectly healthy, the physically disabled, and the mentally disabled had the same plan providing coverage, even though there was a two year cap on mental disabilities); EEOC v. Staten Island Savings Bank, 207 F.3d 144, 150 (2nd Cir. 2000) (stating that so long as every employee is offered the same plan then no discrimination occurs even if the plan offers different coverage for various disabilities); Lenox v. Healthwise of Ky. Ltd., 149 F.3d 453, 457-58 (6th Cir. 1998) (finding insurance plan that did not cover heart transplants but provided for other transplants did not violate the ADA); Krauel v. Iowa Methodist Medical Center, 95 F.3d 674, 678 (8th Cir. 1996) (finding that insurance distinctions that apply to all do not discriminate on the basis of disability); Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1999) (holding that a disability plan does not discriminate by distinguishing between mental and physical disabilities).
Templet argues that a blanket exclusion is discriminatory and any distinction between blanket and non-blanket discrimination is illusory. In the case of Lewis v. Aetna Life insurance Co., 982 F. Supp. 1158. 1168 — 69 (E.D. Va. 1997) the court, broadly held that discrimination prohibited by the ADA occurs whenever an employee, whether or not he or she is currently disabled, is offered a long-term disability plan that limits mental disability benefits. The court stated:
[T]he ADA prohibits discrimination on the basis of an individual's particular disability. Thus, whether a disabled person is treated differently than a non-disabled person or another disabled person, the same wrong has occurred. That is, the person has been discriminated against because of his particular disability.Id. at 1168.
The court continued: "[T]he ADA must be construed to prohibit discrimination against individuals based on their specific disability, and not merely to prohibit discrimination that negatively affects the disabled as a class." Id. at 1169. The Lewis court noted that a two year limitation on benefits for certain mental disabilities, offered to all employees, was discriminatory in nature targeting the mentally disabled for inferior treatment. Id. at 1168. This position, however, has since been rejected by the Fourth Circuit. See Lewis v. Kmart Corp., 180 F.3d 166, 170 (4th Cir. 1999) (holding that Title I, § 102(a) of the ADA does not require a long-term disability plan that is sponsored by a private employer to provide the same level of benefits for mental and physical disabilities), cert. denied ___ U.S. ___, 120 S.Ct. 978, 145 L.Ed.2d 929 (2000).
Templet also relies on World Insurance Co. v. Branch, 966 F. Supp. 1203, 1208 (N.D. Ga. 1997), which held that the anti-discrimination principles of the ADA extend to long-term disability plan distinctions. This finding in World Insurance Co., however, was vacated as moot by the Eleventh Circuit because that court found other grounds on which to support the denial of summary judgment. World Insurance Co. v. Branch, 156 F.3d 1142 (11 Cir. 1998).
Therefore, viewing all inferences in a light most favorable to the nonmovant, and given the vast authority that a blanket insurance exclusion does not violate the ADA prohibition of discrimination when distinctions in coverage apply to all regardless of disability, demonstrates to this Court that there is no genuine issue of material fact showing that Blue Cross discriminated against Templet. Finding summary judgment proper on the issue of discrimination, the court foregoes discussion of other issues raised by the parties.
Accordingly.
IT IS ORDERED that the motion for summary judgment under Fed.R.Civ.P. 56(c) filed by BLUE CROSS is GRANTED.