AAC-AIR AMBULANCE CARIBBEAN ) CASE NO. ST-2023-CV-00267
INC. D/B/A/ AEROMD )
)
Plaintiff, ) JURY TRIAL DEMANDED
)
VS )
)
CIGNA HEALTH AND LIFE INSURANCE )
COMPANY; AXA ASSISTANCE USA INC )
AXA GROUP, LLC )
)
)
Defendants )
Cite as 2024 VI Super 41U
MEMORANDUM OPINION AND ORDER
qi! This matter is before the Court on
| Defendant Cigna Health And Life Insurance Company’s Motion To Dismiss and
accompanying Memorandum In Support Of Motion To Dismiss (“Motion”), filed
January 29, 2024
2 [Plaintiff] AeroMD[’s] Response To Defendant Cigna Health And Life Insurance
Company’s Motion To Dismiss (“Opposition”), filed March 20, 2024;
3 Defendant Cigna Health And Life Insurance Company’s Reply To Plaintiff's
Response To Motion To Dismiss (“Reply”), filed April 3, 2024
q2 The Court will deny Cigna’s Motion to Dismiss in part and grant the Motion to Dismiss in
part by dismissing with prejudice two (2) of the counts in the Complaint
I INTRODUCTION
A. Background
q3 On August 8, 2023, Plaintiff AAC-Air Ambulance Caribbean, Inc. d/b/a AeroMD
(“AeroMD”) filed a Complaint against Cigna Health and Life Insurance Company (“Cigna”),
AXA Assistance USA Inc. (“AXA”), AXA Group LLC (“AXA Group”), as well as members of
the Government Employees Service Commission (“GESC’”) Board collectively in their official
capacities as members of the GESC Board: Beverley A. Joseph, Gilbert Commissiong, Lori
Debbie Christopher, and John Abramson Jr. (collectively, “Board Members”),' asserting thirteen
(13) causes of action: Count One ~ Breach of Express Contract, asserted against all Defendants;
Count Two ~ Breach of Implied-In-Fact Contract, asserted against all Defendants; Count Three
Quantum Meruit/Unjust Enrichment, asserted against all Defendants; Count Four — Breach of
Contract asserted by AeroMD as Third-Party Beneficiary of the Cigna Plans, asserted against all
Defendants; Count Five — Breach of Fiduciary Duty — Cigna Non-ERISA Plans, asserted against
Cigna and AXA; Count Six — Breach of Fiduciary Duty — VI Government Plan, asserted against
all Defendants; Count Seven — Tortious Interference with Prospective Business Relations, asserted
against Cigna and AXA; Count Eight — Tortious Interference with Existing Contracts — Contract
Between AeroMD and Cigna/GESC, asserted against AXA; Count Nine — Tortious Interference
with Existing Contracts AeroMD Membership Program Contracts Between AeroMD and Certain
Cigna Plan Enrollees, asserted against Cigna and AXA; Count Ten — Violation of the Virgin
Islands Prompt Pay Statute, 22 V.I.C. § 1725, asserted against all Defendants; Count Eleven
Prima Facie Tort, asserted against all Defendants; Count Twelve — Gross Negligence, asserted
against Cigna and AXA; and Count Thirteen — Declaratory Judgment — Unfair Practices and
Frauds Act, asserted against all Defendants.”
qj4 AeroMD seeks damages for unpaid benefits; injunctive and declaratory relief to prevent
Defendants from engaging in actions prohibited by the Cigna plans and law; an order directing
Defendants to pay benefits in accordance with the Cigna plan; an award of lost profits, contractual
damages, and compensatory damages; an award of exemplary damages; restitution for
reimbursements improperly held by Defendants; declaration that Defendants violated the terms of
the Cigna Plans; requiring that Defendants pay AeroMD the benefit amounts; requiring that
Defendants make full payments on all previously denied charges; an award of reasonable
attorney’s fees; an award of costs of suit; an award of pre-judgment interest and post-judgment
interest; and all other relief to which AeroMD is entitled.> AeroMD demands a jury trial.’
B Parties’ Arguments
1. Motion To Dismiss
q5 Defendant Cigna Health And Life Insurance Company (“Cigna”) moves this Court
pursuant to Virgin Islands Rules of Civil Procedure 12(b)(6) and 12(e), to dismiss for failure to
state a claim upon which relief can be granted and for an order for a more definite statement. Cigna
states it “always tries to ensure that its members receive the air ambulance services that they need
and that often times [AeroMD]’s services are not the best option for transporting patients.”> Cigna
' On March 19, 2024, this Court issued Memorandum Opinion and Order 2024 VI Super 14U dismissing the GESC
Board and the Board Members from the case as the Court lacked subject-matter jurisdiction over them
? Pl.’s Compl. 18-35
3 PL.’s Compl. 36-37
first argues that Counts 5-7, 9, and 11-12 sound in tort and are thus time-barred by the two (2) year
statute of limitations as they rely on conduct pre-dating August 11, 2021. Cigna points out that
AeroMD purports to rely on conduct “dating back to at least 2020” and also that AeroMD’s
Complaint is less than clear about the relevant time period. Cigna argues that Count 1 must be
dismissed as there was no express contract. Cigna argues, in the alternative, that AeroMD be
ordered to identify what claim, identify its elements, and plead factual allegations that show an
express contract that could have been breached
qo Cigna argues that Count 4 must fail because AeroMD is not a third-party beneficiary of
any of the contracts but one whose benefit is merely incidental to the contract. Cigna states that
AeroMD’s conclusory allegation does not show that Cigna intended AeroMD to benefit from its
contracts with enrollees. Cigna argues Count 5 should be dismissed because Cigna is not aware of
and AeroMD does not provide what the “Cigna non-ERISA plans” are, and without knowing what
these plans are Cigna cannot verify what fiduciary duty exists and how it relates to AeroMD
Alternatively, AeroMD should be ordered to identify what these plans are and their relevant
assignment of rights section. Cigna argues Count 6 should be dismissed because the Government
of the Virgin Islands’ Cigna plan contains a binding anti-assignment clause, so it is not possible
for a right of a breach of fiduciary duty claim to be assigned to AeroMD
q7 Cigna argues that Count 10 should be dismissed for two reasons: first, AeroMD cannot
claim to be a healthcare provider as defined by the statute and ambulance providers are regulated
under a different framework; and second, even if it were a healthcare provider, AeroMD does not
provide any factual allegations that the claims are uncontested. Cigna argues that AeroMD’s Count
11 claim should be dismissed because under Virgin Islands law, AeroMD cannot plead a prima
facie tort unless the factual allegations are distinct from other torts claimed and here, they are not
Additionally, AeroMD does not plead an intentional lawful act, but rather wrongful conduct, so
Count 11 cannot be a prima facie tort. Cigna argues that Count 12 should be dismissed because
AeroMD did not “(and cannot)” plead that Cigna owes it a duty of care.° Lastly, Cigna argues
Count 13 should be dismissed as the Unfair Practices and Frauds act does not create a private right
of action and vests solely the Government with its enforcement
2. Opposition
q8 AeroMD responds that Cigna misconstrues Virgin Islands law or attempts to impose a
higher pleading standard. AeroMD argues that Cigna does not challenge Count 2, 3, 7, and 9
AeroMD states that the pleading standard is very generous and intended to focus cases on the
merits. AeroMD claims that its tort actions are not time-barred under the continuing violations
doctrine, and cites to several allegations where AeroMD states that Cigna continues to commit
6 Def.’s Mot. 13
tortious acts upon it. AeroMD also points that its stated relief sought is that Cigna be enjoined
from continuing to pursue the actions stated in the Complaint
49 AeroMD additionally argues Cigna seeks to impose a higher standard on it when stating
there is no express contract. AeroMD states that “the facts establish that Cigna, with full
knowledge of AeroMD’s pricing, expressly agreed for AeroMD to provide emergency air
ambulance services to Cigna Plan enrollees Cigna accepted AeroMD’s services knowing the
required payment; that these circumstances gave rise to a contractual duty for Cigna to pay”’ for
AeroMD’s services, and that Cigna breached this duty by failing to pay.® AeroMD states it does
point to documents indicating this contract, namely its invoices to Cigna and the publication of its
air ambulance emergency charges. AeroMD also argues Cigna misconstrues its contract as one to
procure or provide insurance when it is one to provide air medical evacuation services. AeroMD
also argues that Cigna relies on an unestablished Virgin Islands rule and that it did plead that there
was a Separate agreement between an insurer (Cigna) and an out-of-state provider (AeroMD)
Lastly, AeroMD argues under the notice pleading standard it was only necessary for it to plead
that a contract existed that created a duty, this contract was breached and AeroMD suffered
damages, and AeroMD did plead this
q10 AeroMD also states that it pleads it was a third-party beneficiary under the various plans,
which is sufficient to put Cigna on notice of the claim. AeroMD avers that “Cigna is free to attempt
to disprove that Cigna intended AeroMD to be a third-party beneficiary; however, it must do so in
discovery; not at the pleading stage.”? AeroMD argues that it has put Cigna on notice of the “non
ERISA plans” by pleading them, and Cigna’s status as a sophisticated health insurer alone should
put it on notice about what plans it refers to. AeroMD points out that there is no requirement that
it attaches the relevant plans to or quote any non-assignment clause in its Complaint, and Cigna
can always make a dispositive motion after discovery. AeroMD argues that despite the anti
assignment clause in the Government Plan, it had argued that the Defendants are estopped and/or
waived this provision in its Complaint, so that claim should not be dismissed
qi1 = AeroMD argues that its Prompt Pay Statute claim survives dismissal because it has pled
that it is the only Certificate of Need-approved air ambulance provider and a Certificate of Need
is required when one establishes a health facility or service or incurs an expenditure on behalf of
one, so it has given Cigna notice it is a health care facility or service subject to the Prompt Pay
Statute. AeroMD argues that Cigna has made partial payments, but there is no extant disagreement
over whether the claims are payable, so they are “uncontested” claims and thereby subject to the
Prompt Pay Statute
412 AeroMD contends that Virgin Islands law states that the prima facie tort can be plead in
the alternative and need not be dismissed at the pleading stage even if it overlaps with other claims
and that only after the close of evidence, if the proof shows another tort, may it be dismissed and
the claim submitted under the relevant tort. AeroMD also states it has plead several factual
allegations that are lawful but harmful to AeroMD, such as the de facto boycotting of its services
by Cigna and health service providers. AeroMD avers that it does plead that Cigna has violated a
fiduciary duty in its gross negligence claim, so it has plead all the requisite elements of a case
Lastly, AeroMD argues that there is a private right of action under the Virgin Islands’ Unfair
Practices and Frauds Act that was recognized in the case FirstBank Puerto Rico v. Ainger, 74 V.1
350 (V.I. Super. Ct. 2021)
3. Reply
qi3 Cigna’s reply focuses on four (4) arguments presented by AeroMD. Cigna contends that
AeroMD implicitly acknowledges it is not a health care provider by citing to a different statute
(the Certificate of Need statute, 19 V.I.C. § 223) and that acting on behalf ofa health care provider
does not make it a health care provider. Cigna argues that Ainger does not indicate that there is a
private right of action in the Unfair Practices and Frauds Act, as it was ruled that the Superior
Court got the “right result for the wrong reason” in that case because the bank had violated the
Unfair Practices and Frauds Act, not that the plaintiff could sue under that act. Cigna replies that
AeroMD does not allege that it has an express contract but rather its Complaint states that it
provides services for Cigna plan enrollees. Cigna states that the “fundamental element missing
from this Plaintiff's contract claim against Cigna is an agreement between these parties.”'° Cigna
avers that there is not only no allegation that Cigna has agreed to be bound by AeroMD’s terms
but recognition that it rejected Cigna’s unilateral pricing
414 Lastly, Cigna argues that the continuing violations doctrine does not protect AeroMD’s
claims that Cigna failed to pay for services in years prior to the limitations period. Cigna states
that the cases relied upon by AeroMD features continuing conduct (blocking a road) that
constituted a continuous tort, whereas here, AeroMD cannot claim that because it sent bills for
new services alleged non-payment of bills for services that predate the statute of limitations
somehow survives
II LEGAL STANDARD
A. Motion To Dismiss — 12(b)(6)
415 ‘Virgin Islands Rule of Civil Procedure 12(b)(6) allows a party to challenge a pleading for
“failure to state a claim upon which relief can be granted.”'' To survive a 12(b)(6) motion, the
plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,’!? and “(t]he facts alleged in the pleadings, and any inferences drawn therefrom must be
10 Def.’s Reply 3
viewed in the light most favorable to the plaintiff.”'3 All material allegations in the complaint are
taken as true, and the Court must construe all facts in a light most favorable to the non-moving
party 14
q16 “Even ifa complaint is ‘vague,’ ‘inartfully drafted,’ ‘a bare-bones outline,’ or ‘not a model
of specificity,’ the complaint may still be adequate so long as it can reasonably be read as
supporting a claim for relief[.]”!> Further, “the purpose of the notice pleading standard is to avoid
‘dismissals of cases based on failure to allege specific facts which, if established, plausibly entitle
the pleader to relief.’”'® Virgin Islands Rule of Civil Procedure 8(a) states that a claim for relief
must contain a short statement of the grounds for the Court’s jurisdiction, ‘a short and plain
statement of the claim showing that the pleader is entitled to relief — because this is a notice
pleading jurisdiction,” and “a demand for the relief sought, which may include relief in the
alternative or different types of relief.”"”
B. Tort; continuing violation doctrine
q17 Inthe Virgin Islands, there is a two (2) year statute of limitations on civil tort claims.'® The
Virgin Islands Supreme Court stated in Brouillard v. DLJ Mortg. Capital, Inc.'? that “[w]hen
courts apply the continuing violation doctrine, the claim will not be barred provided that at least
one wrongful act occurred during the statute of limitations period and that it was committed in
furtherance of a continuing wrongful act or policy or is directly related to a similar wrongful act
committed outside the statute of limitations.”*° The claim must contain wrongful acts, not merely
continuing ill effects.”!
C. Prima Facie Tort
q18 In Erbey Holding Corporation v. Blackrock Financial Management, Inc.,” the Superior
Court conducted a Banks analysis and adopted the “New Mexico/Missoun” approach to the prima
facie tort.?? “To state a claim for prima facie tort, a plaintiff must allege ‘(1) an intentional lawful
act by defendant; (2) defendant’s intent to injure the plaintiff; (3) injury to the plaintiff; and (4) an
13 Adams v. North West Company (International), Inc., 63 V.1. 427, 438 (Super. Ct. 2015) (citing Benjamin v. AIG
Ins. Co. of Puerto Rico, 56 V.1. 558, 566 (V.1. 2012))
'4 L’Henri, Inc. v. Vulcan Materials Co., Civ. No. 206-170, 2010 WL 924259, at *1 (D.V.1. Mar. 11, 2010) (citing
Christopher v. Harbury,
536 U.S. 403, 406 (2002))
'5 Basic Servs., Inc. v. Gov't of Virgin Islands,
2019 VI 21, $12 (citing Casaday v. Allstate Ins. Co.,
232 P.3d 1075
1080 (Utah App. 2010))
'6 Basic Servs., Inc., 410 (citing V.I. R. CIV. P. 8 Reporter’s Note; and Mills-Williams v. Mapp, 67 V.L. 574, 585 (V.1
2017))
17 V1, R. Clv. P. 8{a)
185 VIC. § 31(a)(5)(A)
'9 63 V.I. 788 (V.1. 2015)
20 Id. at 796 (quoting Felter v. Norton,
412 F. Supp. 2d 118, 125 (D.D.C. 2006)
' Td. (citing Sandutch v. Muroski,
684 F.2d 252, 254 (3d Cir. 1982))
absence of or insufficient justification for defendant’s act.’”** Further, the Court held that “[p]rima
facie tort can safely be asserted in the alternative and need not be dismissed at the pleading stage
even if it happens to overlap with other claims.””> Erbey Holding Corp.’s analysis is well-reasoned
and compelling, and this Court sees no reason to not adopt it
D. Contracts; contracts to provide or procure insurance; third-party
beneficiaries
q19 The Virgin Islands Supreme Court in Phillip v. Marsh-Monsanto*® adopted the following
elements for breach of contract claims: “(1) an agreement; (2) a duty created by that agreement;
(3) a breach of that duty; and (4) damages.””’ Express contracts are “memorialized in ‘oral or
written words.’
q20 ‘Parties in a contract to either procure or provide insurance must “agree upon a number of
essential elements to be enforceable.”?? These elements include “subject matter, risk insured
against, amount of insurance, premium rate, risk duration, and identity of parties.’°° “{O]ut-of.
network providers do not have pre-existing contractual relationships with the insurer.”?!
q21 Third-party beneficiaries may be intended or incidental, where an intended beneficiary
acquired rights through a promise between two (2) contracting parties, but an incidental one did
not.* In order for a plaintiff's third party standing to be recognized, a plaintiff must demonstrate
that ‘the circumstances are so compelling that recognition of the beneficiary’s right is appropriate
to effectuate the intention of the parties.’”*’
E. Insurer Prompt Pay Statute
422 The “Prompt Pay Statute” for insurers is located in 22 V.I.C. § 1725 and states in full
(a) Any insurer providing health insurance coverage shall be required to process
and pay any uncontested claim, within thirty (30) calendar days from the date of
receiving the claim
4 Id. (quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 315 (Mo. 1993))
5
Id. at $49
26 66 V.1. 612 (V.I. 2017)
27
Id. at 621 (citing Brouillard v. DLJ Mortg. Capital, Inc., 63 V.1. 788, 798 (V.I. 2015))
8 Turnbull vy. Turnbull, 2019 VI Super 94, 9 9
® Charleswell v. Chase Manhattan Bank, N.A., 45 V.1. 495, 508 (D.V.1. 2004)
30 fd. (citing to COUCH ON INSURANCE 3d § 13:18)
| Plastic Surgery Ctr., P.A. v. Aetna Life Ins. Co.,
967 F.3d 218, 231 (3d Cir. 2020)
»2 Forever Flowers Grande v. Yacht Haven Grande, Case Nos. ST-2009-CV-00339, ST-2010-CV-00406, 2011 V.I
LEXIS 154, at *2 (V.I. Super. Ct. Aug. 11, 2011) (unpublished) (citing first Danielson v. Innovative
(b) If there is a contested claim, the insurer shall, within the same thirty (30) day
calendar period notify the health care provider of its decision not to reimburse
that amount, which notice shall provide a clear and concise statement to the
health care provider of all the reasons for the insurer’s decision
(c) Any insurance payment which is not made within the thirty day period shall
accrue interest at the rate of 10% or the prevailing prime rate applicable on the
date of payment, pursuant to Title 11, section 951 of this Code, or whichever is
greater, from the date the services were provided to the date of payment
(d) The health care provider shall be entitled to receive payment from the patient for
any services rendered which are not reimbursable by the insurer within sixty
days after service is rendered
(e) The Commissioner of Insurance may review any contested claim to determine
whether (1) the services are covered under a health insurance plan, (2) the fees
are reasonable for the services, and any other matter necessary to determine how
the claim should be handied.**
q23 Health care provider is defined in 22 V.I.C. § 1722(b)
(b) “Health care provider” means a person, corporation, facility or institution
who must be licensed by this territory to provide health care or professional
medical services including but not limited to any physician, osteopath, hospital,
dentist, registered or licensed practical nurse, optometrist, podiatrist, physical
therapist, psychologist, chiropractor, par-medical personnel and emergency
medical technician, pharmacist and laboratory technicians, or any health care
facility, including but not limited to a medical center, hospital, clinic, health
center and/or group practice that are licensed or certified under the Virgin
Islands Code to provide treatment for injuries, diseases, pain or deformity of the
human body.*>
424 Ambulance services are defined in 22 V.I.C. § 1671
(a) “Ambulance service association” or “association” means any person issuing
ambulance service contracts as defined in this section, other than an authorized
insurer
(b) “Ambulance service contract” or “preened [sic] ambulance service contract”
means any contract or agreement whereby, for an agreed premium or specified
consideration or indemnify the contract or agreement holder from any type of
ambulance service on a preened [sic] basis.°°
q25 The Virgin Islands Code states this about the applicability of other Insurance Code laws to
ambulance service associations
(a) Except as provided in this chapter, ambulance service associations shall be
exeinpt from al! other provisions of the Virgin Islands Insurance Code
(b) Any rehabilitation, liquidation, conservation, or dissolution of an ambulance
service association insurer shall be conducted under the supervision of the
Commissioner. The Commissioner shall have all the powers with respect to
rehabilitation, liquidation, conservation, or dissolution of an ambulance service
association that are granted to the Commissioner under the provisions of chapter
51 of this title’
q26 =Title 19, § 223 of the Virgin Islands Code provides that a Certificate of Need is required in
certain circumstances
No person, organization or governmental unit, acting severally or jointly with
any other person, organization or governmental unit shall establish, construct, or
expand a health facility or health service, or incur capital expenditure on behalf
of a health facility or health service, or acquire major medical equipment in the
Virgin Islands without a certificate of need as provided in this chapter.**
F. Unfair Practices and Frauds Act; private right of action
427 The Unfair Practices and Frauds Act is contained in 22 V.I.C. § 1201 which states in full
(a) No person engaged in the business of insurance shall engage in unfair methods
of competition or in unfair or deceptive acts or practices in the conduct of such
business as such methods, acts, or practices are defined pursuant to subsection
(b) of this section
(b) In addition to such unfair methods and unfair or deceptive acts or practices as
are expressly defined and prohibited by this title, the Commissioner may from
time to time by regulations promulgated only after a hearing thereon, define
other methods of competition and other acts and practices in the conduct of such
business reasonably found by him to be unfair or deceptive
3622 VLC. § 1671(a)-(b)
(c) No such regulation shall be made effective prior to the expiration of 30 days
after the date of the order on hearing by which it is promulgated
(d) If the Commissioner has cause to believe that any person is violating any such
regulation he shall order such person to cease and desist therefrom. The
Commissioner shall deliver such order to such person direct or mail it to the
person by registered mail with return receipt requested. If the person fails to
comply therewith before expiration of ten days after the cease and desist order
has been received by him, he shall forfeit to the people of this territory a sum
not to exceed $250 for each violation committed thereafter, such penalty to be
recovered by an action prosecuted by the Commissioner
428 “The test for whether an implied right of action is created in a statute involves the two-part
test, noted in the U.S. Supreme Court decision Alexander v. Sandoval This Court adopted that
test in the 2012 decision, Olive v. de Jongh[.]”*° The two-part test involves whether the Legislature
intended to create a personal right as well as a private remedy.”° “The first part of this test accounts
for the statute’s text and construction to make a determination, while the second part examines the
statute’s text and construction, as well as the legislative history of the statute.’’*' Further, “language
that focuses on the ‘individual protected’ rather than the ‘person regulated’” may suggest there is
a private right of action, but language that focuses on the person regulated confers no implication
of a private right.*? Additionally, the Court looks to whether there is an express provision of one
method of enforcement, which suggests the Legislature intended to preclude other means.”
Additionally, the existence of a comprehensive remedial structure also implies there is no private
right of action.“*
Il. ANALYSIS
A. Counts 5-7 and 9, which are tort claims involving unpaid bills and a policy
of interfering with AeroMD’s business, are not time-barred
q29 Counts 5-7 (Breach of Fiduciary Duty and Tortious Interference With Business Practices)
and 9 (Tortious Interference With Prospective Business Relations), are not time-barred by the two
year statute of limitations on tort actions.*> Dismissal is appropriate if a claim is outside the statute
39 Joseph v. Legislature of the V.I., Case No. ST-2011-CV-00419, 2017 V.I. LEXIS 175, at *18 (V.I. Super. Ct. Apr
12, 2017) (unpublished) (citing Olive v. deJongh, 57 V.L. 24, 44 (V.L Super. Ct. 2012))
1
Id. at *19
4\
Id. at *18
Id. at *19
8 Id
44 Id
of limitations.*° However, the continuing violation doctrine preserves claims when there has been
one wrongful act allegedly conducted within the period of limitations and this act is indicative of
a continuing wrongful policy. Counts 5 and 6 allege underpayment and nonpayment of claims
Each allegedly unpaid or underpaid bill is a discrete and recognizable wrong. Moreover, AeroMD
alleges a pattern of underpaying or nonpayment that is indicative of a policy to not fully reimburse
AeroMD. Counts 7 and 9 allege a policy and continuing wrong by Cigna to interfere with
AeroMD’s services by barring Cigna plan enrollees from utilizing AeroMD’s services and instead
“shopping” other air ambulance providers to the detriment of enrollees and AeroMD. In addition
to showing a policy, the alleged wrongful act that occurred within the statute of limitations is the
same as the one that occurred outside of it, to wit, underpayment on a bill for services rendered
As AeroMD has alleged a continuing tort violation, these claims are not time-barred by the statute
of limitations and will not be dismissed at this stage
B. Count 11, prima facie tort, need not be dismissed as duplicative or time
barred
q30 ~=As outlined above, the Virgin Islands recognizes prima facie tort as a distinct and
recognizable cause of action that is not duplicative and need not be dismissed at the pleading stage
AeroMD is already prohibited by Virgin Islands law from recovering twice for the same element
of damages, so permitting AeroMD to go forward with this claim at this stage will not do injustice
as its recovery will necessarily be limited.*” As the wrongful conduct described in the Complaint
is ongoing, this claim also survives the statute of limitations due to the continuing violation
doctrine. Thus, the Court will not dismiss this count at this stage
C. Counts 1, 4, 5, 6, and 12 will not be dismissed as AeroMD has sufficiently
pled to put Cigna on notice of the claims against it
q3i Count | is a breach of contract claim. AeroMD states that Cigna expressly agreed that
AeroMD would provide air ambulance services, and that Cigna breached this agreement by
drastically underpaying for its services thereby causing it damages. It is not necessary for AeroMD
to provide more, attach any contract, or identify any specific claim. Count 1 will not be dismissed
at this stage
432 Count 4 alleges a breach of contract asserted as a third-party beneficiary. AeroMD asserts
that it is “a third-party beneficiary under the Cigna Plans, as Defendants intended to reimburse
4© See, e.g., Oliver v. Terminix International Co., 2020 V1 Super 54. 10 (“The Court concludes that this is an
instance where the complaint so clearly reveals the existence of the statute of limitations defense that the Court must
grant the motion to dismiss Count I.”’)
*’ See, e.g., Robertson y. Banco Popular De P.R., 2023 V1 3, 4 38 (“This Court has already held that plaintiffs are
prohibited from receiving a double recovery that would require a defendant to pay twice for the same element of
providers under the Cigna Plans for services provided to Cigna Plan enrollees.”** That it was
entitled to recover benefits, and that Cigna breached this duty and AeroMD suffered damages
AeroMD is not required to plead more than factual allegations that entitle it to relief, and it has
done so, thus dismissal is not warranted
433 Count 5 alleges a breach of fiduciary duty under certain non-ERISA plans. While Cigna
asserts this claim should be dismissed because AeroMD did not identify or attach these plans, that
is not a requirement at the pleading stage. AeroMD pled that Cigna was a fiduciary and that it
owed a duty to act in good faith and deal fairly, it breached this duty, AeroMD was harmed, and
that any anti-assignment clause defense is waived and/or estopped. AeroMD has met the notice
pleading standard here, and Count 5 will not be dismissed
434 Count 6 alleges breach of fiduciary duty under certain VI Government plans. Cigna argues
that these plans do contain an anti-assignment clause so that it is not possible for AeroMD to be
assigned a right to a breach of fiduciary duty claim. AeroMD, however, has pled that the
Defendants “have waived any purported anti-assignment provisions, have ratified the assignment
of benefits to AeroMD, and waived and/or are estopped from using any purported anti-assignment
provisions against AeroMD due to Defendants’ course of dealing with and statements to AeroMD
as an out-of-network provider.’ Taking factual allegations as true and in a light most favorable
to the pleading party, and considering that AeroMD has pled the other elements of a breach of
fiduciary duty claim, AeroMD has met the notice-pleading standard. Therefore, this claim will not
be dismissed
q35 Lastly, Cigna argues that Count 12, negligence, should be dismissed because AeroMD did
not and cannot plead that Cigna owed AeroMD a duty of care. AeroMD re-alleged and
incorporated paragraphs 1-85 of its Complaint in its negligence claim.*° AeroMD pled previously
that Cigna had a fiduciary duty of loyalty to it in previous sections. It also pled that Cigna breached
this duty, had wanton or reckless behavior, and AeroMD was harmed. Thus, AeroMD has
successfully put Cigna on notice of a negligence claim against it and asserted the requisite
allegations. Thus, this claim will not be dismissed
D. Count 10 will be dismissed with prejudice as AeroMD is not a healthcare
provider
q36 = =AeroMD asserts a violation of the Prompt Pay Statute. The Prompt Pay Statute applies to
healthcare providers. AeroMD asserts that it is a healthcare provider because it has a Certificate of
Need. AeroMD provides aerial ambulance services when patients need to be transported off-island
AeroMD’s registered business name is AAC-Air Ambulance Caribbean, Inc. AeroMD holds a
Certificate of Need because it incurs expenditures on behalf of health facilities or health services,
48 Pl.’s Compl. 26
for
10 18 2024