First Amended Complaint

1 2 3 4 5 6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

7 8 9

LYDIA ZOU, individually; BLAIR FLEMING, individually,

v.

11 12 13

MULTIPLAN INC., a foreign corporation; REGENCE BLUESHIELD, a Washington corporation.

Defendants.

14 15

Plaintiffs allege:

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT

Plaintiffs,

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No. 23-2-18847-1 KNT

I. 1.1

Parties

Plaintiff Lydia Zou is a licensed pharmacist employed by Valley Medical Center in Renton,

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Washington, a public hospital district. Dr. Zou is a resident and citizen of King County,

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State of Washington. Dr. Zou brings claims on behalf of herself and all others similarly

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situated.

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1.2

Plaintiff Blair Fleming was a cardiac cath-lab technologist at Valley Medical Center in

22

Renton, Washington, a public hospital district. Ms. Fleming is a resident and citizen of

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King County, State of Washington. She brings claims on behalf of herself and all others

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 1

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1 2

similarly situated.

1.3

Defendant MultiPlan, Inc. (“MultiPlan”) is a corporation organized under the laws of the

3

State of New York, with its principal place of business in the State of Illinois. MultiPlan

4

conducts regular business in the State of Washington, including the subject matter of this

5

lawsuit, is licensed to conduct business in this State, and has a registered agent within the

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State.

7

1.4

King County Public Hospital District #1 is a local governmental entity that does business

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as Valley Medical Center (“Valley Medical”) in King County, Washington. Valley

9

Medical is the Plan Sponsor of the health plans at issue for the named Plaintiffs, meaning

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Valley Medical pays for the healthcare policy for which MultiPlan attempts to collect

11

reimbursement. Though not a party at this point, Valley Medical may be a necessary party

12

to the extent health plan members are entitled to reimbursement of amounts wrongfully

13

collected by MultiPlan.

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1.5

Defendant Regence BlueShield (“Regence”) is a corporation organized under the laws of

15

the State of Washington, with its principal place of business in Seattle, Washington.

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Regence is a corporate citizen of the State of Washington.

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1.5.1.1 Regence is the Claims Administrator of the health plans at issue for the named

18

Plaintiffs, meaning Regence provides “administrative claims payment services”

19

(processes claims for healthcare benefits).

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1.5.1.2 The Valley Medical health plan expressly “delegates [to Regence] discretion for

21

the purpose of paying benefits under this coverage only if it is determined that [the

22

covered persons] are entitled to them and of interpreting the terms and conditions

23

of the Plan,” as well as “the sole authority and discretion to resolve all disputes

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 2

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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regarding the interpretation of [its subrogation and reimbursement] provision.”

2

1.5.1.3 Regence controls health plan assets and makes decisions about when and how to

3

claim, negotiate, and/or waive subrogation reimbursement.

4

1.5.1.4 In addition, part of Regence’s claims processing relates to potential or anticipated

5

subrogation reimbursement. Regence delays processing payment on claims that

6

may be subject to subrogation reimbursement, and instructs policyholders to not

7

obtain settlement funds until subrogation is resolved.

8

1.5.1.5 Regence is a necessary party to be bound by any judgment in this action pertaining

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to the Valley Medical plan specifically, and likely many other local government

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plans for which MultiPlan collects subrogation reimbursement.

II.

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2.1

13 14

Jurisdiction and Venue

The Superior Court of King County, State of Washington, has subject matter jurisdiction over this action pursuant to RCW 2.08.010.

2.2

Jurisdiction and venue are proper in and for the Superior Court of Washington, King

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County because the tortious acts and omissions giving rise to Plaintiffs’ claims occurred in

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King County, Washington.

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2.3

The amount in controversy on Plaintiffs’ damages claims does not exceed $75,000,

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exclusive of costs, including attorney’s fees, pursuant to RCW 19.86 et seq. and other

19

applicable law.

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2.4

The amount in controversy of the Class is believed to not exceed $5,000,000.

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2.4.1.1 To the extent the amount in controversy of class members exceeds $5,000,000, it

22

is most likely because the healthcare plans or administrators for which MultiPlan

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 3

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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collected subrogation will be required to reimburse class members for amounts

2

MultiPlan wrongfully collected.

3

2.4.1.2 Those healthcare plans are administered and insured or otherwise funded by State

4

and local governmental entities or local companies (such as Regence), which will

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be necessary parties to such a claim lawsuit.

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2.4.1.3 Thus, there is not and will not be complete diversity.

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2.5

8

The Washington State Attorney General has been served with this pleading pursuant to RCW 19.86.095.

III.

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Washington’s “Made Whole” Rule

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3.1

Facts

For decades the Washington Legislature has enacted laws to protect innocent motorists

12

injured by the negligent driving of others. This includes Washington’s longstanding

13

financial responsibility laws, RCW 46.29 and 46.30, which require that drivers in the State

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have a minimum level of liability insurance or other coverage to compensate drivers injured

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by negligence.

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3.2

Often these minimum coverage levels are insufficient to compensate the victims of

17

negligent driving.

18

companies provide underinsured motorist (UIM) coverage unless the insured driver rejects

19

it in writing. RCW 48.22.030(3)-(4). See also RCW 48.22.030(12) “The purpose of this

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section [UIM coverage] is to protect innocent victims of motorists of underinsured motor

21

vehicles.”

22 23 24

3.3

Consequently, Washington law also requires that auto insurance

Drivers pay additional insurance premiums for UIM coverage, to have the peace of mind and financial assistance available to them in the event they are injured by someone else’s

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 4

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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negligent driving.

3.4

The purpose of healthcare coverage is to pay medical bills, particularly when something

3

unexpected happens, like a car crash.

4

reimbursement for medical bills from negligent parties’ liability insurance, and from UIM

5

coverage—often paid for out-of-pocket by the injury victim. This asserted right of

6

reimbursement is called subrogation.

7

3.5

Even so, healthcare plans attempt to collect

To avoid subrogation claims diminishing victim’s rights to limited insurance amounts, for

8

over 45 years, Washington has protected victims of negligence with the “made whole” rule.

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The made whole rule states that a health plan is only entitled to collect reimbursement from

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the auto collision victim if the victim has been “made whole,” i.e. fully compensated, by a

11

settlement.

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3.6

The Supreme Court in 1978 explained, the made whole rule “embodies a policy deemed

13

socially desirable in this state, in that it fosters the adequate indemnification of innocent

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automobile accident victims.” Thiringer v. Am. Motors Ins. Co., 91 Wn.2d 215, 220, 588

15

P.2d 191 (1978).

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3.7

That public policy is reinforced further when the negligent drivers lack sufficient (or any)

17

insurance, and the injured victim recovers from their own auto policy underinsured

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motorist (UIM) benefits. See Brown v. Snohomish County Physicians Corp., 120 Wn.2d

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747, 756, 845 P.2d 334 (1993) (citing Blackburn v. Safeco Ins. Co., 115 Wn.2d 82, 87, 794

20

P.2d 1259 (1990)).

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3.8

In Group Health Cooperative v. Coon, 193 Wn.2d 841, 849, 447 P.3d 139 (2019), the

22

Supreme Court reaffirmed the public policy of full compensation to injured victims and

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held that they are not presumed to be made whole even if they accept less in a settlement

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 5

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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than is available (policy limits).

3.9

This was because injury victims should not be forced to undertake undue expense, delay,

3

and risk of litigation just to prove to their insurer they have not been made whole: “The

4

Coons’ situation is analogous to that of every injured party who makes a calculated

5

decision based on the risks of litigation to accept a settlement. We decline the invitation to

6

upset almost four decades of insurance law in Washington State recognizing the wisdom

7

and fairness of the ‘made whole’ principle.” Id. at 856.

8

3.10

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The made whole rule applies absent a specific exception in statute, such as for Washington State Labor & Industries, Medicare, and ERISA plans established by federal law.

3.11

ERISA refers to the Employee Retirement Income Security Act, 29 U.S.C. Ch. 18. Self-

11

funded ERISA plans often preempt (override) state law. This means ERISA plans may be

12

entitled to reimbursement from the auto collision victim even if they are not fully

13

compensated for their injuries. As a result, ERISA plans often collect most or all insurance

14

available to victims, even from UIM policies they paid for.

15

3.12

For this reason, companies that collect reimbursement for health plans advise the injury

16

victim when the plan is an ERISA plan. These collection companies use the fact that a

17

plan is an ERISA plan typically to demand full payment for healthcare expenses from the

18

victim or negotiate a larger payment from the victim.

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3.13

Collection companies also use the fact that a plan is an ERISA plan to refuse to pay the

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healthcare plan’s fair share of attorney’s fees and costs in pursuing the injury victim’s

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settlement, which non-ERISA health plans are obligated to do under Washington law. See

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Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632 (1998).

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3.14

In many cases, based on a plan being an ERISA plan, these collection companies demand

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 6

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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payment when the injury victim would not owe any obligation to pay the healthcare plan,

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or would owe substantially less.

3

Background on MultiPlan

4

3.15

One of those collection companies is MultiPlan.

5

3.16

In attempting to collect subrogation reimbursement, MultiPlan acts as an agent of or in

6

concert with the Claims Administrator—in this plan Regence. As the controller of policy

7

assets, Regence determines when to inquire about subrogation, attempt collection,

8

negotiate, and/or resolve claims for subrogation reimbursement.

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3.17

MultiPlan serves approximately 700 healthcare plans across the country.

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3.18

Per its website, “We help our clients manage their health plans through a number of

11

different and innovative healthcare cost management solutions that emphasize fairness, a

12

legacy of strong provider relationships, efficiency and affordability” (emphasis added). 1

13

3.19

payment accuracy services.” 2

14 15

MutliPlan boasts “technology-enabled provider network, negotiation, claim pricing and

3.20

Despite proclamations of “fairness” and “technology-enabled” practices, MultiPlan

16

systematically collects reimbursement from injured victims through deception, delay, and

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outright legal falsehoods.

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Background – Lydia Zou Injuries

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3.21

Dr. Lydia Zou is a clinical pharmacist at Valley Medical Center (“Valley Medical”) in

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Renton, Washington. Valley Medical Center is the business name for King County Public

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Hospital District #1, a local government entity.

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https://www.multiplan.us/company/ https://www.multiplan.us/ FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 7

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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3.22

2 3

Dr. Zou is covered by Valley Medical’s health plan, which is administered by Regence BlueShield.

3.23

4

On January 27, 2022, Dr. Zou was crossing the street in a marked crosswalk with her infant son in a stroller. An uninsured driver failed to stop and collided with Dr. Zou forcefully.

5

3.24

That driver was fully at fault for causing the collision.

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3.25

Dr. Zou was admitted to Harborview Medical Center—the northwest’s regional trauma

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center—and diagnosed with left superior and inferior rami fractures and left zone 2 sacral

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fracture, scalp lacerations, a left corona mortis artery bleed, and a left internal pudendal

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artery bleed. This means the car crash fractured Dr. Zou’s sacrum and pubis, just two

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months after giving birth.

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3.26

Dr. Zou underwent a percutaneous fixation of her posterior pelvic ring. This involves

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drilling large screws through the skin and through the sacrum (back of the pelvis), with

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clips to secure the pubis (front of the pelvis). Doctors applied an external fixator over Dr.

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Zou’s surgical site.

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3.27

Harborview would not discharge Dr. Zou until a week later on February 3, 2022.

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3.28

Doctors prescribed physical therapy and home health care, which would last for months.

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Dr. Zou was too disabled to return to work until August 2022. She would lose more than

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$71,000 in earning capacity and benefits during that time.

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3.29

Most painful for Dr. Zou, however, was the fact that her injuries robbed her of precious

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maternity leave and infant bonding time with her newborn son. There is no “do over” for

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this experience.

22 23 24

3.30

Though it would never make up for what she lost, fortunately Dr. Zou paid premiums to have auto insurance coverage with Safeco.

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 8

One of the benefits she paid for was STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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underinsured motorist (“UIM”) coverage, in the event she was injured by an underinsured

2

driver. She paid premiums for about 10 years without making a UIM claim. Dr. Zou paid

3

for UIM policy limits of $250,000.

4

3.31

Around March 2022, less than two months after the collision, Safeco did the right thing

5

and offered Dr. Zou the $250,000 policy limits, without her having to hire an attorney to

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negotiate the value of the claim. Safeco knew that the $250,000 policy limit would not

7

make Dr. Zou whole for her injuries, before even determining the amount of wage loss and

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other special damages.

9

3.32

However, Dr. Zou’s health plan claims administrator—Regence—repeatedly delayed

10

payment of her bills and requested that she contact MultiPlan before accepting her own

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UIM benefits.

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settlements with victims not represented by an attorney until asserted subrogation is

13

resolved.

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3.33

It is a common practice for liability and UIM insurers to withhold

After healing and raising her newborn son as well as she could, Dr. Zou emailed MultiPlan

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on February 2, 2023, asking that MultiPlan agree that she could accept and retain her UIM

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benefits, because “I have not been made whole by this settlement.”

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Timeline of Misconduct

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3.34

On February 3, 2023 Subrogation Negotiator Lindsay Schekhtayan indicates a need “to do

19

a complete verification on claims paid before I can consider any reduction and/or waiver.”

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She was acting for and at the direction of Regence.

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3.35

This meant that Dr. Zou could not obtain the Safeco insurance benefits she had paid for—

22

and that Safeco had offered to tender—until MultiPlan and Regence completed the

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“verification.”

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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3.36

In her email, Ms. Schekhtayan requested information from Dr. Zou: her last date of

2

treatment; confirmation that she was not represented by an attorney; her out-of-pocket

3

costs; her wage loss; and her future medical care.

4

3.37

5

Ms. Schekhtayan requested this information, as subrogation collection companies often do, to assess whether the injured victim has been made whole.

6

3.38

On February 12, 2023, Dr. Zou responds to all of MultiPlan and Regence’s questions.

7

3.39

Given that Safeco offered its full policy limit soon after the collision and without knowing

8

the full extent of Dr. Zou’s damages, there should have been little question that Dr. Zou

9

was not made whole.

10

3.40

MultiPlan, on behalf and at the direction of Regence, does not respond.

11

3.41

On April 4, 2023, Dr. Zou emails Ms. Schekhtayan asking if she has completed her

12 13

subrogation review.

3.42

On April 10, 2023, another MultiPlan “Recovery Manager” Mary Wagner indicates, “I

14

have reached out to Regence for their approval for a lien reduction. They responded

15

requesting additional information which was provided and the request is back out to the

16

health plan for review. I anticipate a response by the end of the week.”

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3.43

MultiPlan and Regence do not respond by the end of the week.

18

3.44

On April 19, 2023, Dr. Zou requests an update after the time indicated by Ms. Wagner

19 20

elapses.

3.45

The same day, Ms. Wagner indicates, on behalf and at the direction of Regence, “The plan

21

has requested a 50/50 split of the total settlement funds available resulting in

22

reimbursement to the plan in the amount of $125,000.00.”

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3.46

At no point had MultiPlan or Regence provided any documentation or even a summary of

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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medical payments for which MultiPlan and Regence claimed a right of reimbursement. In

2

other words, MultiPlan and Regence provided no proof or specifics of any kind to collect

3

an alleged $125,000 debt from an unrepresented victim of an uninsured driver.

4

3.47

5

On April 24, 2023, Dr. Zou emails MultiPlan and again requests that it waive reimbursement. She cites Thiringer and the made whole rule.

6

3.48

MultiPlan and Regence do not respond.

7

3.49

On May 9, 2023, Dr. Zou requests an update. She still cannot access the UIM benefits she

8 9

paid for, due to MultiPlan and Regence’s delay.

3.50

On May 11, 2023, Mary Wagner emails, on behalf and at the direction of Regence, “Your

10

health insurance plan is a self‐funded ERISA plan and governed by Federal law. Thiringer

11

[the made whole rule] does not apply in this matter.”

12

3.51

Ms. Wagner’s statement was false. Dr. Zou’s health plan was not an ERISA plan.

13

3.52

Dr. Zou’s health plan does not state it is an ERISA plan.

14

3.53

On top of that, Dr. Zou’s health plan legally could never be an ERISA plan because the

15

public hospital’s plan is expressly excluded from ERISA under 29 U.S.C. § 1002-1003.

16

See also https://www.dol.gov/general/topic/retirement/erisa.

17

3.54

18 19

Ms. Wagner’s statement also directly contradicts Ms. Schekhtayan’s initial inquiry and the months’ long “verification” assessing whether Dr. Zou was made whole.

3.55

20

Dr. Zou discussed the issue with a coworker at Valley Medical, who told her the plan was not an ERISA plan. She explains this to MultiPlan on May 11.

21

3.56

MultiPlan and Regence do not respond.

22

3.57

On May 19, Dr. Zou emails explaining that MultiPlan’s false statements about ERISA are

23 24

unfair and predatory, and that its deception and delay is prohibiting her from obtaining the FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 11

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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$250,000 in UIM benefits she paid for. She requests that MultiPlan and Regence close the

2

subrogation claim by May 26.

3

3.58

4

On May 22, 2023, Ms. Wagner indicates, “I have reached out to our legal counsel and we should be in touch shortly.”

5

3.59

Ms. Wagner does not follow up.

6

3.60

On May 30, Dr. Zou again stresses the importance of being able to access her UIM benefits,

7

and requests closure of the subrogation claim by June 2, 2023, or she will be forced to

8

retain an attorney.

9

3.61

MultiPlan and Regence do not respond.

10

3.62

On June 30, 2023, MultiPlan and Regence have still not responded to Dr. Zou. Dr. Zou’s

11

attorney sends a letter to MultiPlan demanding that MultiPlan and Regence waive

12

reimbursement and close its file. The letter cites federal law as to why this Valley Medical

13

plan was not and could not be an ERISA plan.

14

3.63

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On July 10, MultiPlan’s corporate counsel calls to waive reimbursement, and confirms by letter the following day.

3.64

By this point, Dr. Zou had lost access to her UIM funds for several months, and incurred

17

fees and expenses in fighting for and obtaining confirmation of what MultiPlan and

18

Regence should have done immediately.

19

3.65

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As a direct and proximate result of Defendant’s conduct, Plaintiff suffered general and special damages.

3.66

Dr. Zou is one of three known Valley Medical employees where MultiPlan and Regence

22

have alleged a right of reimbursement based on the false statement that the Valley Medical

23

plan is an ERISA plan, in addition to a pattern of ignoring communications and lengthy

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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delays.

2

Pattern and Practice of Deception

3

3.67

One of those is Plaintiff Blair Fleming. On July 7, 2022, Ms. Fleming was a front passenger

4

in a vehicle driven by her friend, when the vehicle turned into an approaching bus. Through

5

no fault of her own, Ms. Fleming sustained serious head injuries.

6

3.68

On January 16, 2023, MultiPlan “Recovery Analyst” Laura Landgrave, on behalf and at

7

the direction of Regence, sent Ms. Fleming a letter through her counsel’s office entitled

8

“Notice of ERISA Lien.” The letter states that “Regence BlueShield of Washington is a

9

self-funded plan under the protection of [ERISA].”

10

3.69

11 12

legally could never be an ERISA plan.

3.70

13 14

Ms. Fleming’s plan is not an ERISA plan. The plan does not state it is an ERISA plan, and

On August 31, 2023, Kathleen Montiel of MultiPlan reiterated, on behalf of Regence, “Yes, Valley Medical Center is an Erisa [sic] policy.”

3.71

This was two months after MultiPlan’s corporate office was advised in writing that the

15

specific Valley Medical plan at issue was not and could not be an ERISA plan, and that

16

deceptive subrogation practices would constitute Consumer Protection Act violations.

17

3.72

18 19

It was also more than a year after MultiPlan and Regence had been advised the same thing in another case.

3.73

On July 25, 2022 MultiPlan “3rd Party Recovery (Paralegal)” Jennifer Bell sent an

20

emergency department nurse employed at Valley Medical who had been hit by an

21

uninsured driver, the same “Notice of ERISA Lien” “under the protection of [ERISA],” on

22

behalf of Regence.

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3.74

Ms. Bell was advised that the injured victim “works for a public hospital, and ‘government

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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plans’ are expressly excluded and exempt from ERISA under 29 U.S.C. § 1003(b), by

2

reference to Section 1002(32).”

3

3.75

MultiPlan and Regence have a duty to know the law upon which it attempts to collect funds

4

from injury victims. Defendants knowingly and intentionally misrepresent material facts

5

to injury victims, with the intent that injury victims act upon these misrepresentations—

6

paying more money to MultiPlan and Regence.

7

3.76

MultiPlan and Regence have a pattern and practice of attempting to collect thousands of

8

dollars from injured victims based on deception, delays intended to coerce injured victims

9

who need access to settlement funds, falsehoods, and legal impossibilities.

10

3.77

MultiPlan and Regence’s misconduct is also coercive when the injury victims are

11

represented by attorneys. RPC 1.15A(g) has been found to prohibit attorneys from

12

disbursing client settlements, which constitute client money, when a subrogated interest

13

claims a right to those funds. For example, both of the above-referenced fraudulent “Notice

14

of ERISA Lien” demand that victim settlement funds “be held in trust pending resolution

15

of the captioned claim.”

16

3.78

Thus, even if the injury victim is represented by an attorney and settlement funds are paid,

17

the injury victim’s lawyer risks disciplinary action by disbursing client money, regardless

18

of whether the subrogation claim is frivolous, unfairly delayed, or deceptive. This allows

19

collection companies like MultiPlan and administrators like Regence to leverage delay and

20

the litigation cost of obtaining declaratory judgment to prove an injury victim does not owe

21

money, and undermines public policy established by the Supreme Court in Group Health

22

v. Coon and prior cases.

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 14

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

IV.

1 2

4.1

Liability – Consumer Protection Act

The above-described conduct by Defendants constitutes unfair and deceptive practices in

3

trade or commerce, affecting the public interest, and causing injury to Plaintiffs’ business

4

and property.

5

4.2

Washington’s Supreme Court has held that deceptive subrogation collection practices are

6

subject to the Consumer Protection Act (“CPA”), RCW 19.86 et seq. “We conclude the

7

CPA is applicable to deceptive insurance subrogation collection activities, considering the

8

broad legislative mandate that the business of insurance is vital to the public interest, the

9

public policies favoring honest debt collection, and the statutory mandate to liberally

10

construe the CPA in order to protect the public from inventive attempts to engage in unfair

11

and deceptive business practices.” Panag v. Farmers Ins. Co. of Washington, 166 Wn.2d

12

27, 204 P.3d 885 (2009). See also RCW 19.86.093.

13

4.3

Defendants’ conduct directly undermines decades of public policy established by the

14

Supreme Court, and reinforced in Group Health v. Coon, supra, that injury victims should

15

not be forced into undue litigation and expense to prove they are not made whole and do

16

not owe a debt to a health plan, even when the victim settles for less than policy limits.

17

4.4

18 19

people, and has/had the capacity to injure many others.

4.5

5.1

24

Tortious Interference with Contractual Relations and Expectancy

Plaintiff Lydia Zou had a contractual relationship with Safeco in which she paid premiums in exchange for UIM benefits.

22 23

Plaintiffs request treble damages as authorized by RCW 19.86 et seq.

V.

20 21

Defendants’ conduct is also injurious to the public interest because it has injured multiple

5.2

Defendants were aware of this contractual relationship, Plaintiff’s offered and expected

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 15

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1 2

UIM benefits, and intentionally interfered with Plaintiff’s expected UIM benefits.

5.3

3 4

Safeco to not pay the UIM benefits Plaintiff paid premiums for and expected.

5.4

Defendants’ conduct caused damages to Plaintiff.

VI.

5 6

Defendants’ unlawful and deceptive collection efforts and months-long delays caused

6.1

Damages

As a direct and proximate result of the above-described conduct by Defendants, Plaintiff

7

Lydia Zou suffered special damages including but not limited to loss of access to and use

8

of her UIM benefits, lost earning capacity, lost opportunity, loss of the benefits of

9

contractual relations with Safeco, attorney’s fees, costs and expenses, interest, and other

10

special damages to be proven at the time of trial.

11

6.2

As a direct and proximate result of the above-described conduct by Defendants, Plaintiff

12

Lydia Zou suffered general damages including but not limited to mental distress,

13

discomfort, inconvenience, and other general damages to be proven at the time of trial.

14

6.3

Plaintiffs suffered attorney’s fees, costs, investigatory expenses, other general and special

15

damages in amounts to be proven at the time of trial.

16

VII.

17

7.1

18

Pursuant to RCW 7.24 et seq. Plaintiffs request an order establishing that their health plan and other “government plans” are not subject to ERISA. VIII.

19 20

Declaratory Relief

8.1

Injunctive Relief

Pursuant to RCW 9A.82 et seq. and RCW 19.86 et seq., MultiPlan and Regence should

21

be enjoined from further violations of those statutes, including but not limited to the

22

following practices in collecting subrogation reimbursement:

23

8.1.1.1 Stating or implying that a “government plan” as defined by 29 U.S. Code § 1002

24

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 16

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

is an ERISA plan or subject to ERISA;

2

8.1.1.2 Otherwise stating or implying the health plan at issue is an ERISA plan or subject

3

to ERISA, when it is not;

4

8.1.1.3 Stating or implying the health plan at issue is not subject to Washington State law,

5

when it is;

6

8.1.1.4 Stating or implying the health plan at issue is not subject to the made whole rule,

7 8

when it is.

8.2

Pursuant to RCW 9A.82 et seq. and RCW 19.86 et seq., MultiPlan and Regence should

9

be required to notify all individuals from whom it attempts to collect subrogation

10

reimbursement that the health plan may be entitled to reimbursement only if the

11

individual has been made whole from the settlement, in every instance in which the made

12

whole rule does or could apply.

13

8.3

14

public and prevent MultiPlan and Regence’s unlawful collection practices.

IX.

15 16

Plaintiffs request all other relief available under these chapters necessary to protect the

9.1

Application of Illinois or New York Punitive Damages

MultiPlan’s principal place of business is in Illinois, and much of its subrogation

17

collection operation is based there. This includes employees involved in collection

18

efforts with Plaintiffs.

19

9.2

MultiPlan is organized under the laws of the State of New York.

20

9.3

Washington State has the most significant relationship to Plaintiffs and the Class, and ensuring compliance with Washington law.

21 22 23 24

9.4

However, MultiPlan’s practice of collecting funds based on false assertions about federal law has a nationwide impact.

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 17

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

9.5

Illinois and New York have the most significant relationship to punishment and

2

deterrence of MultiPlan’s fraudulent, intentional, willful and wanton, and grossly

3

negligent conduct and practices occurring in those states and impacting injured victims

4

nationwide.

5

9.6

Based on the conduct described herein, Plaintiffs and the Class are entitled to an award of

6

punitive damages under Illinois and/or New York law.

7

X.

8

10.1

Issue Class Action

Plaintiffs bring this Class action pursuant to CR 23(b)(2) and (b)(3) on behalf of the Class

9

defined as follows: All individuals covered by a “government plan,” as defined by 29

10

U.S. Code § 1002, established or maintained within Washington State, from whom

11

MultiPlan and/or Regence collected or attempted to collect subrogation reimbursement,

12

and stated verbally or in writing that the health plan was an ERISA plan or subject to

13

ERISA.

14

10.2

Pursuant to CR 23(c)(4)(A), Plaintiffs bring claims on behalf of themselves and the Class

15

for declaratory relief pursuant to RCW 7.24 et seq. that ERISA does not apply to

16

“government plans,” i.e. health plans of local governmental entities, within Washington

17

State.

18

10.3

Pursuant to CR 23(c)(4)(A), Plaintiffs bring claims on behalf of themselves and the Class

19

on the issue of Consumer Protection Act liability, to establish that MultiPlan and/or

20

Regence engaged in unfair and deceptive practices, in trade or commerce, affecting the

21

public interest.

22 23 24

10.4

Pursuant to CR 23(c)(4)(A), Plaintiffs bring claims on behalf of themselves and the Class to enjoin further violations pursuant to RCW 19.86 et seq., including all relief requested

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 18

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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in this Complaint.

10.5

Pursuant to CR 23(c)(4)(A), Plaintiffs bring claims on behalf of themselves and the Class

3

to establish the following elements of fraud applicable to the Class:

4

10.5.1.1

MultiPlan and/or Regence made a representation of existing fact;

5

10.5.1.2

The representation was material;

6

10.5.1.3

The representation was false;

7

10.5.1.4

MultiPlan and/or Regence knew the representation was false;

8

10.5.1.5

MultiPlan and/or Regence intended that it be acted upon by members of

9

the Class; and

10 11

10.5.1.6 10.6

MultiPlan was acting as an agent of Regence.

Plaintiffs request a Class Notice advising the Class that MultiPlan and/or Regence

12

collected or attempted to collect subrogation reimbursement based on material false

13

statements, and that the Class may be entitled to a monetary award, including but not

14

limited to reimbursement, Consumer Protection Act damages, and damages for other tort

15

causes of action such as fraud, negligent misrepresentation, tortious interference with

16

business expectancy or contractual relations, and any other applicable claims.

17

10.7

Numerosity. The Class is believed to include dozens if not hundreds of individuals in

18

Washington State. The Class is so numerous that joinder of all members is impracticable.

19

The disposition of the claims of the Class in a single action will provide substantial

20

benefits to all parties and the Court.

21

10.8

Commonality. There are questions of law and fact in common including but not limited

22

to:

23

10.8.1.1

24

Whether Defendants engaged in unfair or deceptive practices;

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 19

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

10.8.1.2

2

Whether Defendants engaged in a pattern or practice of misleading and misstating facts and law in collection of alleged subrogation debt;

3

10.8.1.3

4

Whether Defendants knew or should have known that its practices and statements were deceptive, unlawful, or fraudulent;

5

10.8.1.4

6

Whether Defendants intended for the Class to act upon the false statements;

7

10.8.1.5

Whether those practices occurred in trade or commerce;

8

10.8.1.6

Whether those practices affect the public interest;

9

10.8.1.7

The number of individuals impacted or potentially impacted by

10

Defendants’ conduct; and

11

10.8.1.8

12

Defendants’ conduct.

13

10.8.1.9

14 15

The number of individuals that will or could be impacted in the future by

Whether punitive damages or penalties should be awarded under Washington law, Illinois law, or New York Law.

10.9

Typicality.

Plaintiffs’ claims are typical of the claims of other members of the Class

16

and are not subject to any atypical claims or defenses. The Class issues are identical to

17

the entire Class.

18

10.10 Adequacy. Plaintiffs will fairly and adequately represent the Class, and are committed to

19

prosecuting this action, have no conflicts of interests, and have retained competent

20

counsel who are experienced civil trial lawyers with recent significant experience in

21

complex and class action litigation and trial. Plaintiffs and their counsel are committed to

22

prosecuting this action vigorously on behalf of the Class and have the financial resources

23

to do so. Neither Plaintiffs nor their counsel have interests that are contrary to or that

24

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 20

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1 2

conflict with those of the proposed Class.

10.11 Predominance. The common issues identified above predominate over any

3

individualized issues. Adjudication of these common issues in a single action has

4

important and desirable advantages of judicial economy.

5

10.12 Superiority. Plaintiffs, Class members, and other Washington workers have suffered and

6

will continue to suffer harm and damages as a result of Defendants’ misconduct. Absent

7

a Class action, most Class members would likely find litigation of their claims cost-

8

prohibitive.

9

10.12.1.1

Class treatment is superior to multiple individual suits or piecemeal

10

litigation because it conserves judicial resources, promotes consistency

11

and efficiency of adjudication, and provides a forum for all claims.

12

10.12.1.2

Class members will be identified by MultiPlan’s and Regence’s claim

13

number records, and simple electronic searches of letters, emails, and

14

claims handling notes.

15

10.12.1.3

There will be no significant difficulty in the management of this case as a

16

Class action. Once relief is granted on Class issues, the Class will be

17

notified of the opportunity to come forward and assert individual claims

18

for relief. Those claims can be grouped or sorted into subclasses as

19

needed if they do not resolve.

XI.

20 21 22 23 24

Prayer for Relief

WHEREFORE, Plaintiffs pray for judgment against Defendants, jointly and severally, as follows: 1. For special and general damages in amounts to be proven at trial; FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 21

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1

2. For costs and disbursements;

2

3. For attorney fees;

3

4. If Defendants bring any frivolous or unfounded defenses, for attorneys’ fees and costs

4

pursuant to RCW 4.84.185 and/or Rule 11 of the Superior Court Civil Rules;

5

5. For statutory interest on the judgment from the date judgment is entered until paid in full;

6

6. For prejudgment interest on the special damages;

7

7. For prejudgment interest on liquidated damages;

8

8. For class certification;

9

9. For Class Notice of Class Member rights;

10

10. For injunctive relief;

11

11. For declaratory relief;

12

12. For punitive damages in accordance with Illinois and/or New York law;

13

13. For such other and further relief as the Court may deem just and equitable.

14 15 16 17 18 19 20

DATED this 28th day of February, 2024.

STRITMATTER KESSLER KOEHLER MOORE /s/Andrew Ackley Andrew Ackley, WSBA#41752 Paul Stritmatter, WSBA#4532 Lisa Benedetti, WSBA#43194 Counsel for Plaintiffs 3600 15th Ave W Ste. 300 Seattle, WA 98119 (206) 448-1777

21 22 23 24

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 22

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

1 2 3

CERTIFICATION

4

I hereby certify that a copy of the foregoing document was served on the interested

5 6 7 8 9 10 11 12 13 14 15 16 17 18

parties in this action in the manner described as follows: Jeffrey M. Wells Williams, Kastner & Gibbs PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Phone: (206) 628-6600 Email: jwells@williamskastner.com Attorneys for Defendants Multiplan, Inc. and Regence Blueshield

U.S. Mail Fax Legal messenger Electronic Delivery

Errol J. King, Jr. Katherine C. Mannino Taylor J. Crousillac Brittany H. Alexander Phelps Dunbar 400 Convention Street, Suite 1100 Baton Rouge, LA 70802 Email: errol.king@phelps.com katie.mannino@phelps.com taylor.crousillac@phelps.com brittany.alexander@phelps.com Pro Hac Vice Attorneys for Defendants Multiplan, Inc. and Regence Blueshield

U.S. Mail Fax Legal messenger Electronic Delivery

DATED this 28th day of February, 2024.

19 20 21

/s/ Debra M. Watt Debra M. Watt Paralegal debbie@stritmatter.com

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FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT - 23

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777