A recent Law 360 story by Adam Lidgett, “Humana Says Atty Fee Fight Not Worth High Court’s Time” reports that health insurer Humana has urged the U.S. Supreme Court not to review the Fifth Circuit's decision rejecting a woman's push to make the company foot the bill for a six-figure attorney fees tab in a suit over coverage, saying her argument that the ruling created a circuit split doesn't hold water.

In a Friday brief, Humana Health Plan of Texas Inc. shot back at a petition from a plan beneficiary only identified as Ariana M. that had asked the high court to review an appellate finding that she wasn't entitled to attorney fees after she ultimately lost her attempt to get full coverage for a stay at a Utah treatment center.

Even though Ariana M. argued that the Fifth Circuit decision created a split with a First Circuit decision in which a separate plaintiff did get attorney fees, Humana said that there was no real appellate split. Unlike the First Circuit case, Ariana M. didn't win a remand back to a plan administrator, so the two cases are different, the insurer said.

And "even if there were a conflict, this case would present a particularly poor vehicle for resolving it," Humana argued.

"The unpublished decision below is fact-bound and does not bind any future panel or district judge in the Fifth Circuit (let alone any court outside that circuit)," Humana argued. "It therefore serves as no obstacle to future claimants."

Ariana M. had challenged a decision by Humana to stop paying for treatment of her eating disorder. The Southern District of Texas initially ruled in favor of Humana, and a Fifth Circuit panel later affirmed that decision, according to court documents.

But in March 2018, a majority of the full Fifth Circuit breathed new life into the case, adopting a lower standard for reviewing decisions by benefits plan administrators to deny coverage to workers.

Specifically, eight of 14 judges said in that 2018 decision that courts should apply de novo review — analyze a denial of benefits anew — unless the plan's documents explicitly give its administrator sole discretion to consider claims. They overturned the court's 1991 Pierre v. Connecticut General Life Insurance Company ruling, which held that de novo review applies to appeals challenging an administrator's interpretation of plan language but only lets courts analyze an administrator's interpretations of facts for abuse of discretion.

But after the Ariana M. case was kicked back down, Humana won summary judgment when the district court again said the insurer's denial was correct. And after Ariana M. lost her bid to get about $140,000 in attorney fees, she again appealed to the Fifth Circuit, which also affirmed the second summary judgment ruling in Humana's favor and affirmed the denial of Ariana M.'s attorney fee bid.

She asked the high court for review earlier this year, arguing she could collect attorney fees under the Employee Retirement Income Security Act. Ariana M.'s petition said that the Supreme Court has already found that "an applicant need not be a 'prevailing party'" to be able to collect attorney fees under the applicable provision of ERISA. She said that she "need only achieve 'some success on the merits'" to be eligible for such fees.

Amar Raval, an attorney for Ariana M., said in a statement to Law360 on Monday that he disagreed with Humana's brief on the merits.

"This case shows the fundamental difficulty that people like Ariana face when they sue under ERISA," he said. "Even though the law does not require her to be a 'prevailing party,' courts have interpreted ERISA in such a way that it's difficult to ever get attorney fees. We hope to change that, and we are encouraged that the Supreme Court asked for more briefing in this case."