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Uddoh v. United Healthcare

United States District Court, E.D. New York

May 22, 2017



          BRIAN M. COGAN U.S.D.J.

         Plaintiffs pro se are a same sex, male couple who applied for insurance benefits through their insurance plan in connection with their desire to parent a child using in vitro fertilization (“IVF”) and with the help of a third-party surrogate. After initially issuing a conditional pre-approval of coverage for female harvesting and implantation procedures as to one of the insureds, the policy administrator reversed its position and denied coverage on the ground that it had mistakenly assumed that plaintiff Plamen Koev was a woman, and since Plamen turned out to be a man, harvesting and implantation procedures were not possible. Nor did the policy cover third-party surrogacy, whether for heterosexual or homosexual insureds. After further consideration, the policy administrator modified its position and agreed to pay for medical procedures necessary for the collection of sperm from both plaintiffs, but not for the collection or implantation of oocytes or surrogacy procedures.

         Claiming that the change of position has caused them damages, plaintiffs' amended complaint alleges five “causes of action” styled as follows: (1) “Breach of Contract”; (2) “Discriminatin [sic] and Overbreadth”; (3) “Promissory Estoppel”; (4) a second cause of action for “Discrimination”; and (5) “Misrepresentation.” Defendants consist of the plan administrator for plaintiffs' insurance plan, United Healthcare (“United”), and two United claims administrators, Ginger W. Whispell and Jennifer Jablonski (together with United, the “United Defendants”).

         This is plaintiffs' second effort to state a claim. I dismissed the initial complaint, which had also alleged claims against plaintiffs' insurance plan, “the Empire Plan, ” finding that the Empire Plan was not a suable entity and that plaintiffs had failed to state a claim against the United Defendants. I granted plaintiffs leave to bring an amended complaint against the United Defendants. The United Defendants have moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), and for the reasons set forth below, their motion is granted.


         Plaintiff Humphrey O. Uddoh is an attorney for the New York City Transit Authority. His employer provides health insurance through the New York State Health Insurance Program, which offers a plan known as the Empire Plan, under which he has been covered for almost a decade. He added his male partner, plaintiff Plamen Koev, as an additional insured at the same time he signed up. The application to add Koev disclosed that he was male. United acts as the policy and/or claims administrator for Empire, and defendants Jablonski and Whispell are employed by United.

         Plaintiffs decided to start a family in early 2014. Plaintiff Uddoh applied for pre-approval of certain IVF procedures which, in part, had to do with the fact that both of them had conditions requiring some fairly serious surgery in order to collect the sperm necessary for IVF. On May 16, 2014, he received a letter from United “confirming that the following qualified procedures for you and Plamen Koev are a covered expense under your health benefit plan: IVF, GIFT, ZIF, ICSI, Assisted Hatching, MESA, TESE, sperm, egg or inseminated egg procurement, processing, egg or embryo banking determined appropriate by your physician.”[1] The letter also stated: “Please note that payment is subject to patient eligibility and Empire Plan provisions at the time the health care services are received.” Shortly thereafter, defendant Whispell called one of Koev's medical care providers to inquire whether he was male or female. After finding out that Koev was a male, Whispell allegedly told the provider to immediately cancel the procedure.

         After learning about the exchange, Uddoh contacted defendant Jablonski. At that point, Jablonski accused Uddoh of insurance fraud, and threatened to seek recoupment of the surgical costs that it had already paid for Uddoh's two surgical procedures. In addition, the complaint alleges that Jablonski and Whispell made similar accusations of fraud to the health care provider.

         On November 4, 2014, United sent a letter to Koev disclaiming coverage for his portion of “infertility services.” The letter stated that

We have completed a request for infertility services for you. Your condition is not consistent with the Plan benefit for infertility services. You do not qualify for the benefit because your condition is not the reason a pregnancy cannot be achieved. In addition the plan does not provide benefits in connection with services for surrogacy.
Under the terms of the Empire Plan, “For the purposes of this benefit, infertility is defined as a condition of an individual who is unable to achieve a pregnancy because the individual and/or partner has been diagnosed as infertile by a physician.” In addition, “Medical expenses or any other charges in connection with surrogacy” are excluded from coverage under the Plan. Accordingly any charges or expenses for services related to your infertility or in connection with surrogacy are not covered.

         After these communications, Uddoh demonstrated to United that Koev had always been identified as a male both in the policy application and in claims that he had previously submitted. United thereupon agreed to modify its rejection letter. It agreed to cover the surgical procedures for the harvesting of the sperm from both partners, their storage, and fertilization. However, it did not agree to “procurement of oocytes” or “services rendered to a surrogate.” The basis for this denial was that the Empire Plan expressly excludes “[m]edical expenses or any other charges in connection with surrogacy”; “[a]ny donor compensation or fees charged in facilitating a pregnancy”; and “[a]ny charges for services provided to a donor in facilitating a pregnancy.”

         The complaint alleges that in reliance on the initial pre-procedure approval letter, plaintiffs spent $150, 000 which is not covered under the revised approval letter. Plaintiffs seek that amount in compensatory damages, plus “$1, 000, 000 in punitive damages, and $3, 000, 000 in treble damages.”


         I. Standard of Review

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. To determine if dismissal for failure to state a claim is appropriate, the Court must “accept as true all facts alleged in the complaint” and “draw all reasonable inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). When considering a motion to dismiss, “[t]he appropriate inquiry is not whether a plaintiff is likely to prevail, but whether he is entitled to offer evidence to support his claims.” Id. ...

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