Citations
- 933 F. Supp. 2d 1313
Full opinion text
MEMORANDUM OPINION
KARON OWEN BOWDRE, District Judge.
This controversy arises from Plaintiff Express Oil’s attempt to create a self-funded health benefits plan for its employees while eliminating any uninsured risk for itself by procuring stop-loss insurance. Express Oil employed and relied on Defendants ANB Insurance and Alan Wood to help it transition from a fully-insured to a self-funded health plan, design a suitable self-funded plan, and procure appropriate stop-loss insurance. Express Oil purchased a self-funded plan from Defendant Blue Cross, and Blue Cross administered the plan, which became effective in 2003. Express Oil allegedly believed that the self-funded plan had a $1 million dollar comprehensive lifetime maximum for each covered member and thus procured stop-loss insurance covering any member’s claims that exceeded $75,000 up to the $1,000,000 dollar comprehensive lifetime maximum.
The genesis of this specific dispute is the birth of twins by one of Express Oil’s employees. One of the twins was born with very serious medical issues and quickly amassed costly medical bills under Express Oil’s self-funded plan. During the early years of the child’s life, Express Oil paid over $2.8 million dollars in claims on the child. During the 2007-2008 policy year, Express Oil exhausted its $1,000,000 lifetime maximum stop-loss reimbursement benefits. Under the self-funded plan’s definition of “lifetime maximum,” however, many of the claims incurred by the child were not subject to the self-funded plan’s lifetime maximum, and Express Oil remained liable for the claims that exceeded the $1 million ceiling of the stop-loss insurance policy. Express Oil was exposed to this liability as a result of the misinterpretation of the self-funded plan’s definition of “lifetime maximum” and its subsequent procurement of stop-loss insurance that did not fully cover it from the liabilities from which it had intended to protect itself. In the instant lawsuit, Express Oil seeks to hold at least one of the Defendants liable -for this costly gap in coverage.
This unusual ERISA case comes before the court on Defendants ANB Insurance Services and Alan L. Wood’s Motion for Partial Summary Judgment (doc. 87); Defendant Nesbitt & Co.’s Motion for Summary Judgment (doc. 90); Defendant Blue Cross and Blue Shield of Alabama’s Motion for Partial Summary Judgment (doc. 92); and Defendant Blue Cross and Blue Shield of Alabama’s Motion to Strike (doc. 113). The parties have fully briefed ANB and Wood’s Motion for Partial Summary Judgment and Blue Cross’s Motion for Partial Summary Judgment. Plaintiffs Express Oil Change, LLC, and the Express Oil Change Group Health Care Plan (collectively “Express Oil”) did not file a response to Nesbitt’s Motion for Summary Judgment. The court has considered the parties’ submissions and applicable law, and for the reasons explained below, concludes that Blue Cross’s Motion to Strike is due to be granted in part and denied in part; Nesbitt’s Motion for Summary Judgment is due to be granted in its entirety; Blue Cross’s Motion.for Partial Summary Judgment is due to be granted in its entirety; and ANB and Wood’s Motion for Partial Summary Judgment is due to be granted as to Count VII for negligent procurement of insurance but due to be denied on . Count XII for breach of fiduciary duty.
I. PROCEDURAL HISTORY AND COUNTS ALLEGED IN THE AMENDED AND RECAST COMPLAINT
Express Oil Change, LLC filed this lawsuit on November 10, 2008 in the Circuit Court for Jefferson County, Alabama, against ANB Insurance Services, Inc.; S.S. Nesbitt & Co.; and Alan L. Wood. (Doc. 1-1, at 22). On November 6, 2009, Express Oil Change amended the complaint and added Blue Cross and Unimerica Insurance Company as Defendants. Blue Cross removed the case to this court on February 3, 2010, based on this court’s federal question jurisdiction over ERISA claims (doc. 1), .and on March 24, 2010, Blue Cross filed a breach of contract counterclaim against Express Oil (doc. 15). On April 20, 2010, Express Oil Change, with the leave of court, filed an “Amended and Recast Complaint” (doc. 24) which added the Express Oil Change Group Health Care Plan as a Plaintiff and added several new claims. On February 16, 2011, Unimerica Insurance Company filed a motion for summary judgment (doc. 43), to which Express Oil elected not to file a responsive brief. The court granted Unimerica’s motion for summary judgment and dismissed Unimerica with prejudice on April 20, 2011 (doc. 63), leaving Nesbitt, Blue Cross, ANB, and Wood as the remaining defendants.
The Amended and Recast Complaint alleges sixteen different counts. Counts I, II, III, IV, V, &■ VI are alleged against Blue Cross; counts VII, VIII, XI, & XII are alleged against Wood, ANB, and Nesbitt; counts IX & X are alleged against Wood only; and counts XIII & XIV are alleged against ANB and Nesbitt only. Counts XV & XVI are no longer in the case because they were alleged only against Unimerica, which this court dismissed, as silted above. (Doc. 63).
A. Counts alleged against Blue Cross and by Blue Cross
The Amended and Recast Complaint alleges the following counts against Blue Cross: Count I — breach of duty as an ERISA fiduciary; Count II — breach of contract; Count III — breach of the implied covenant of good faith and fair dealing; Count IV — negligent or wanton failure to properly design the plan; Count V — negligent or wanton failure to properly administer, handle, process, and pay claims under the plan; and Count VI — fraudulent suppression. In its answer, Blue Cross asserts a breach of contract counterclaim against Express Oil, which is not addressed in this opinion.
B. Counts alleged against Wood, ANB, and Nesbitt
The Amended and Recast Complaint alleges the following counts against Wood, ANB, and Nesbitt: Count VH^-negligent or wanton failure to procure sufficient stop-loss insurance for Express Oil; Count VIII — breach of an express or implied contract with Express Oil to provide expertise and guidance regarding Express Oil’s self-funded plan; Count XI — fraudulent suppression; and Count XII — breach of fiduciary duties.
C. Counts alleged against Wood only
The Amended and Recast Complaint alleges the following counts against Wood: Count IX — negligent or wanton breach of contract; and Count X — fraud.
D. Counts alleged against ANB and Nesbitt only
The Amended and Recast Complaint alleges the following counts against ANB and-S.S. Nesbitt: Count XIII — negligent or wanton failure to properly investigate, hire, train, supervise, and retain Wood; and Count XIV — vicarious liability for the wrongful conduct of Wood.
II. STATEMENT OF FACTS
A. Background
Before 2003, Express Oil had a fully-insured health plan for its employees. In 2002, Express Oil contemplated changing to a self-funded plan, also known as a self-insured plan. Under a self-funded plan, an employer provides health benefits to its employees out of its own funds, in contrast to a fully-insured plan in which an employer pays fixed premiums to an insurance carrier, which in turn pays the health benefits of the employees. Self-funding has a number of benefits, among them increased flexibility in designing a health care plan and a potential reduction in cost.
That potential reduction in cost, however, is counterbalanced by an increase in risk resulting from unpredictable or catastrophic claims, which may be devastating to a smaller employer that may not have the financial resources to meet those obligations. To protect against these catastrophic claims, most self-funded employers purchase “stop-loss insurance.” Stop-loss insurance is a separate contract between the employer and a stop-loss insurance carrier where the insurance company agrees to reimburse the employer for claims that exceed a certain level. Many of these stop-loss contracts, however, also provide for a ceiling on the amount of reimbursement an employer may receive. In addition to procuring stop-loss insurance, many self-funded employers also contract out the administration of their employees’ claims to a third-party administrator.
Blue Cross supplied Express Oil with the self-funded plan that Express Oil ultimately. used in administering health benefits to its employees. The plan limited the amount of benefits that Express Oil covered members could receive, a term known as the “lifetime maximum.” A “covered member” is any Express Oil employee who subscribes to the plan and any eligible dependents. Def. Blue Cross Ex. 4, 2007 SPD, at 44. Under the lifetime maximum, Express Oil employees were, eligible for up to $1,000,000 in lifetime benefits for every covered member; however, as defined under the plan, this cap applied only to some services, such as out-of-network services, or services not provided by a hospital, physician, or provider with which any Blue Cross and/ or Blue Shield plan has a Preferred Provider Organization (“PPO”) contract for the furnishing of health care services. The plan did not set any limitation on the benefits a member could receive for in-network services, or services provided by a hospital, physician or provider with which any Blue Cross and/or Blue Shield plan has a PPO contract.
Express Oil, however, apparently understood that the plan would provide a comprehensive lifetime maximum of $1,000,000 for all services to its members, an understanding that factored into the way Express Oil procured stop-loss insurance. Because Express Oil believed that it would only be exposed to $1,000,000 in claims for any one covered member, it procured stop-loss insurance with a specific deductible of $75,000 per covered member per year and a $1,000,000 per covered member lifetime maximum reimbursement. Thus, under its stop-loss insurance contract, Express Oil would pay up to $75,000 per covered member per year for its members’ claims; if any one member’s claims exceeded $75,000, then the stop-loss carrier would reimburse Express Oil that amount, but only up to $1,000,000 over the life of the member.
Express Oil did not realize that this self-funding plan and stop-loss insurance arrangement left a gap where Express Oil could be exposed to unlimited liability if a covered member used over $1,000,000 of in-network services. This gap became starkly visible when an Express Oil employee’s wife, a covered member, gave birth prematurely to twins, also covered members, incurring catastrophic claims that, over several years, significantly exceeded the $1,000,000 ceiling on Express Oil’s stop-loss insurance.
This gap in risk exposure — and who is at fault for its existence — underlies this lawsuit. Express Oil alleges that four different entities or individuals are liable: ANB Insurance Agency, the agency that assisted Express Oil in moving to a self-funded plan and helped it procure stop-loss insurance; Alan Wood, an ANB employee and the agent who assisted Express Oil with its self-funded plan and stop-loss insurance; S.S. Nesbitt, the insurance agency that acquired ANB’s assets in 2007 and that hired Wood after the acquisition; and Blue Cross Blue Shield, which' provided Express Oil with .and administered its self-funded plan.
B. Express Oil’s transition to ■ a self-funded plan
Before 2003, Ricky Brooks, the Chief Executive Officer of Express Oil, developed a personal relationship with Richard Pardue, an insurance broker who worked at ANB Insurance in 2003. Brooks and Pardue established a relationship and routinely saw each other socially. Their relationship before 2003 extended into the business realm as well, as Pardue and Brooks invested money together in a new Express Oil store in Tarrant, Alabama. Before 2003, Pardue also served as Express Oil’s agent for its property and casualty insurance and its worker’s compensation coverage. In November 2001, Pardue left HRH, an insurance agency, to run and develop Alabama National Bank’s insurance operation, ANB Insurance Services.
In 2002, Ronnie Hill, a self-employed insurance agent, made an unsolicited phone call to Greg Glover, Express Oil’s Chief Financial Officer, Secretary, and Treasurer, to talk with Glover about the concept of a self-funded insurance plan. According to Glover, Hill discussed a concept which involved “more risk than a fully insured plan,” but that “might save some money over time.” Depo. Gregory Glover 83:15-83:17 (Oct. 7, 2009) (Depo. Glover I). Hill suggested to Glover that Express Oil contact Blue Cross about the administrative services that Blue Cross could provide to a self-funded plan.
Glover contacted Blue Cross in 2002, asking about the fees associated with a self-funded plan and requesting a report. In response, Blue Cross provided a claims experience report and a rate for administering the self-funded plan. At that time, Express Oil decided not to switch to a self-funded plan, however, because United Healthcare had given Express Oil a quote for a fully-insured plan that was less expensive than Express Oil’s then fully-insured plan with Blue Cross, and also because the subject of the self-funded plan “just seemed so complex and no longer worthy of [Glover]’s time.” Depo. Glover I 94:13-94:14.
In 2003, Express Oil contacted ANB Insurance (now operating as Nesbitt and Co.). Greg Glover and Ricky Brooks met with ANB employees Richard Pardue and Alan Wood to discuss transitioning from a fully-insured health plan to a self-insured plan. Glover testified in deposition that “[Wood] was presented as the benefits expert at the agency and was experienced in the concept [of the self-funded plan].” Depo. Glover I 120:12-120:15. Glover’s observation accords with Pardue’s own testimony that Wood was the ANB employee with expertise in the area of stop-loss insurance regarding self-funded plans.
According to Glover, the 2003 meeting “eventually resulted in a self-funded plan for Express Oil Change where ANB was the agent on the stop-loss and from our perspective was our consultant on the overall issue.” Depo. Glover I 120:18-120:21. Glover asked Wood for help with the plan design, and Glover understood that Wood was helping Express Oil form a self-funded plan. After Glover and Brooks decided to go with a self-funded plan, Wood and Glover began communicating with Blue Cross about options for a self-funded insurance plan, although Glover never had a face-to-face meeting with anyone at Blue Cross. - Glover understood that Blue Cross offered various plan options and gave a lot of flexibility in designing the plans, based in part on his experience with Blue Cross when it fully-insured Express Oil.
At some point during June or July 2003, Glover requested that Blue Cross provide him a summary of what Blue Cross could set up as a self-funded plan. Blue Cross supplied Express Oil with two examples of self-funded plans in July 2003. In addition to the Blue Cross-supplied plans, Wood also provided Glover with more generalized examples of self-funded plans in response to Glover’s request for “help and advice just in general to plan design issues.” Depo. Glover I 146:21-146:23. In Glover’s communication with Blue Cross he corresponded with Stephanie Talbot, a marketing representative at Blue Cross, about how he wanted to design Express Oil’s self-funded plan, and discussed issues such as co-pays for doctor’s visits and prescription card co-pays or deductibles.
1. The Plan Benefits Comparison Chart
The plan comparison that Blue Cross provided in July 2003 was a chart comparing the “Personal Choice Benefits” and the “BlueCard PPO” plans. The chart indicated, for both plans, that the “Lifetime Maximum” was $1,000,000 per person. The definition of the lifetime maximum in this chart did not limit the lifetime maximum to certain services nor did it state that the lifetime maximum was comprehensive.
Although Glover could not specifically recall which of the proposed Blue Cross plans Express Oil ultimately used, he believed they used the “BlueCard PPO” plan. Glover testified that in his discussions with both Blue Cross and Wood, he never discussed specifics of the plan as it related to the lifetime maximum.
2. The 2003 Summary Plan Description, updated annually
Before the self-funded plan went into effect on October 1, 2003, Blue Cross provided Glover with a document, the Summary Plan Description (“SPD”), that summarized the benefits the plan would make available to Express Oil employees. Although Glover could not specifically recall whether the document he received was the 2003 SPD, Glover understood the document he did receive reflected the terms of Express Oil’s plan that were to apply to the employees. The 2003 SPD included a definition of the “Lifetime Maximum,” which was the same definition included in Express Oil’s previous fully-insured plan with Blue Cross. The 2003 SPD defined the Lifetime Maximum as
$1,000,000 lifetime maximum for each covered'member; applies only to Other Covered Services, Non-PPO Outpatient Hospital Services, Non-PPO Physician Services, Mental Health and Substance Abuse Physician Services unless otherwise stated.
Ex. 3, 2003 SPD at 6 (emphasis added). Because the lifetime maximum is defined to apply only to certain services, any service riot enuriierated. in that definition has no limitation on the lifetime amount that a covered member can incur. Thus, under Express Oil’s plan, as summarized in the SPD, no lifetime maximum applied to benefits for services that were provided through the Blue Cross network — PPO services — and that were not “Other Covered Services.”
Some of the “Other Covered Services” were defined in a separate table in the 2003 SPD. The table also includes a footnote stating that “[m]ost other covered services are paid at 80% of the Allowed Amount after the calendar year deductible is met.” Def. Blue Cross Ex. 3, 2003 SPD at 7. The 2003 SPD later enumerates a full list of “Other Covered Services.” Number 15 in that list says “Physician’s Covered Services. Surgery includes preoperative and postoperative care, reduction of fractures and endoscopic procedures, maternity deliveries and heart eatherization.” Def. Blue Cross Ex. 3 at 22.
From 2003 to 2008, Express Oil renewed its self-funded plan with Blue Cross, and each year around October Blue Cross issued a new SPD. Each year Blue Cross accompanied the updates with a letter informing Glover that it was printing the annual SPD. Blue Cross produced letters from 2004 to 2007 where Glover indicated on the letter that the SPDs were “Approved as Written” and signed the letter.
The record reflects that no meaningful differences existed between these SPDs until 2007. In 2006, Blue Cross issued an SPD in the middle of the plan’s year, although Glover could not recall why nor could he recall any changes that occurred in the plan. ■ Although Blue Cross issued the 2006 SPD mid-year, the 2006 SPD appears identical to the 2003 SPD. In 2007, Blue Cross issued a more substantial update to its SPD, although Blue Cross claimed that the changes were all in formatting.
3. The Benefits Summary
In addition to the 2003 SPD, Blue Cross also provided Express Oil with a Benefits Summary. The Benefits Summary, created on August 11, 2003, and revised on September 15, 2003, also provided the same definition of the lifetime maximum as in the 2003 SPD. Glover testified in deposition that he recalled receiving the Benefits Summary, but that he did not know whether it was provided to him before the plan went into effect on October 1, 2003.
k. Glover executes the document making the self-funded plan effective and the Administrative Services Agreement
On September 26, 2003, Glover signed Blue Cross’s plan description document, which indicated that the plan would become .effective on October 1, 2003. The plan description document did not include a detailed definition of the lifetime maximum, instead stating under subheading “F. Major Medical Benefits” that Express Oil’s plan provided a $1,000,000 maximum lifetime benefit. Def. Ex. 11 to Depo. Glover I at 4. Glover had the opportunity to read the document before he signed it, although he could not recall in his deposition whether he had read the document. Glover testified that changes were made to the plan over time, including at time periods other than renewal, and that benefits were added to the plan at his request.
On December 11, 2003, Glover also executed an Administrative Services Agreement (“ASA”) with Blue Cross setting out each parties’ obligations and responsibilities with respect to the self-funded Express Oil plan. The 2003 ASA defined Blue Cross as the “Claims Administrator” and Express Oil as the “Plan Sponsor” and “Plan Administrator,” and provided that Blue Cross, as Claims Administrator, “shall administer the benefits provided by the Plan ... subject to all of the terms and conditions of the Plan----” Ex. 1, 2003 ASA at 1. The 2003 ASA also included a “hold harmless” provision, which provided in relevant part that Blue Cross’s execution of the ASA “shall not be deemed as the assumption by the Claims Administrator of any responsibility other than the provision of Administrative Services only as specified [in the ASA].” Ex. 1, 2003 ASA at 4.
C. Express Oil’s procurement of stop-loss insurance
Express Oil’s only discussions about stop-loss insurance during the first year of the self-funded plan’s existence were with Wood. Glover did not discuss stop-loss proposals with anybody at Blue Cross during 2003 or 2004. Express Oil, with Wood as its agent, first procured “Specific Excess Loss Insurance” from Monumental Life Insurance Company, effective beginning October 1, 2003. Under the stop-loss policy with Monumental, Express Oil received coverage of up to $1,000,000 per covered person with a specific deductible per covered person of up to $75,000. Thus, under this stop-loss policy, Express Oil paid a premium for each covered member in exchange for reimbursement by Monumental for any covered member’s claims that exceeded $75,000. Glover testified that his belief that the plan had a comprehensive lifetime maximum per covered member of $1,000,000 factored into the decision to procure stop-loss insurance that only covered up to $1,000,000.
Beginning in 2004, Express Oil obtained proposals for stop-loss insurance each year from other agents, in addition to ANB Insurance and Wood, before it purchased stop-loss insurance. Notwithstanding the additional proposals, Express Oil decided to renew its stop-loss coverage with Monumental for 2004 with the same $75,000 specific deductible and the same coverage.
D. Blue Cross sends Express Oil stop-loss insurance proposals in 2005
In 2005, Blue Cross provided Express Oil. with a stop-loss proposal from Companion Life Insurance Company. Glover forwarded the proposal to Wood but did not look at it himself. Companion Life’s stop-loss proposal suggested coverage of $2,000,000, an amount that Glover, admitted in deposition would not have been necessary if the plan benefits were capped at $1,000,000 for all services. To the extent Glover discussed stop-loss proposals with the Blue Cross marketing representatives, he testified that he had “very limited discussions” with them because they were “clearly uncomfortable in [that] arena.” Depo. Greg Glover 75:18-75:20 (Aug. 5, 2011) (“Depo. Glover II”). Ultimately, Express Oil renewed its stop-loss coverage in 2005 with Monumental, which at some point became Unimerica, with the same $75,000 specific deductible and $1,000,000 lifetime maximum reimbursement per covered member.
E. The Inception of the Q claim
In May 2006, the wife of one of Express Oil’s employees, “Mr. Q,” had twins that were born prematurely. One of the twins was born with a serious medical condition, and the child’s health conditions resulted in substantial medical claims totaling $378,047.00 for the plan and policy year October 1, 2005-September 30, 2006 (the court shall refer to this claim, and others incurred by Mr. Q, as the “Q claim”). After Express Oil exhausted the $75,000 deductible, it received $303,047.00 in stop-loss insurance reimbursement benefits under its stop-loss insurance policy with Unimerica for the Q claim Express Oil paid in that plan and policy year.
F. Express Oil’s Stop-Loss Coverage in 2006, and the continuing accrual of the Q claim
In September 2006, Express Oil renewed its stop-loss coverage and accepted Unimerica’s proposal for $1,000,000 in lifetime benefits per covered member. Because'the stop-loss insurance issued for a self-funded group plan in Alabama is obtained on an annual basis and subject to underwriting review each year, any covered member with medical claims that continue over several years may be “lasered,” ie., excluded from insurance coverage or subject to a higher deductible for each subsequent policy year. Thus, when Express Oil renewed its stop-loss coverage with Unimerica after the first year the Q claim accrued, Unimerica lasered the Q claim by increasing the specific deductible for the Q child to $195,000 for that year.
Blue Cross also provided Express Oil with another stop-loss proposal from Companion Life in 2006. That proposal indicated that it was based on Express Oil’s current plan using the Blue Cross network. Blue Cross also provided Express Oil a stop-loss proposal from Lloyds of London in 2006, which required a $350,000 specific annual deductible for the Q claim. Glover could not recall discussing either of the 2006 proposals with anybody at Blue Cross, and ultimately renewed the stop-loss coverage with Unimerica.
Throughout the October 1, 2006-Sep-tember 30, 2007 policy year, the Q claim continued to accrue, and Express Oil paid medical claims of $850,972.62 through its plan for the Q child. After exhaustion of the required deductible amount, Unimerica provided $627,003.22 in stop-loss reimbursement benefits.
G. Express Oil’s Stop-Loss Coverage in 2007, the 2007 updates to the SPD and ASA
In 2007, Express Oil renewed its stop-loss insurance with Unimerica, accepting a proposal that provided for $1,000,000 in lifetime benefits per covered member, with an increase in the Q child’s specific annual deductible to $225,000. During the October 1, 2007-September 30, 2008 policy year, Express Oil paid medical claims in excess of $1.5 million for the Q child. Under the stop-loss policy, Unimerica only provided $69,948.78 in stop-loss reimbursement benefits to Express Oil because it had exhausted its $1,000,000 lifetime maximum stop-loss reimbursement benefits for the Q claim. Because much of the Q claim resulted from medical services not subject to the Express Oil plan’s lifetime maximum, Express Oil remained liable for much of the Q child’s claims that exceeded the $1,000,000 ceiling in Unimerica’s stop-loss insurance policy.
On November 17, 2007, Glover wrote to a Blue Cross employee, Mark McLaughlin, explaining that Glover had been informed that the Q claim had hit the $1,000,000 mark, which would end the stop-loss carrier’s liability. Glover asked whether Express Oil’s plan indeed had a $1,000,000 lifetime maximum and whether that maximum would affect Blue Cross’s, payments on the Q claim. Mr. McLaughlin responded by quoting the pre-2007 SPDs’ definition, of the lifetime maximum, explaining that the maximum did not apply to PPO services provided by a PPO provider. Glover states that this e-mail was the first time he learned that Express Oil’s plan did not have a comprehensive lifetime maximum.
In 2007, Blue Cross also issued a new SPD that appeared different from the 2006 SPD. Mary Bell, an employee with Blue Cross’s Customer Benefits Administration, explained that Blue Cross, in connection with a software upgrade, reformatted its “template” plan documents. According to Blue Cross, the changes were intended to make the SPD more user-friendly by putting all the relevant information on a topic in one place. Some of the language in the plan also changed, although an operations manager in Blue Cross’s Claims Department, Jeremy Dennis, testified that the changes were not substantive. Specifically, Dennis testified that the SPD did not introduce any changes into how the lifetime maximum was calculated, what services were applicable to the lifetime maximum, and the 365 day inpatient hospital limit.
Although Dennis testified that the 2007 SPD did not change how the lifetime maximum was calculated, the language about the lifetime maximum did change. Before 2007, the lifetime maximum was defined as a $1,000,000 maximum benefit that applied only to certain services. See supra Part I.B.2. In the 2007 update, the SPD defined the lifetime maximum in two separate parts of the document. First, under the heading “COST SHARING,” the 2007 SPD stated that the lifetime maximum was $1,000,000. 2007 SPD at 8.
Later under the “Lifetime Maximum” subheading, the 2007 SPD stated:
The lifetime maximum benefit for each covered member under the plan is specified in the table above. The lifetime maximum is the maximum amount each covered member is eligible to receive for applicable covered services in his or her lifetime. Lifetime maximum amounts are accumulated from claim payment amounts under the plan and prior or subsequent plans or contracts -issued to your group by us.
The lifetime maximum generally applies to services or supplies that are subject to the calendar year deductible. It may also apply to certain other services and supplies, depending upon specifications from your group.
The following áre some examples that generally apply to the lifetime maximum:
• Certain other covered services and supplies;
• Out-of-network outpatient hospital services (except treatment of accidental injury rendered within 72 hours);
• Out-of-network physician services
2007 SPD át 9.
When Blue Cross issued the reformatted SPD, its Customer Benefit Administration sent each group a letter along with the SPDs for approval. . In the letter to Express Oil, dated December 11, 2007, Blue Cross stated:
We remind you that you are the “plan administrator” and “plan sponsor” under ERISA ... and/or the terms of your plan. Among other things, this imposes upon your group the sole legal responsibility to ... (iii) ascertain that the booklet accurately and fully describes the benefits that you intend for us to provide or administer.... Nothing in our agreements with you and no actions taken by us are intended to delegate any of these responsibilities under the plan or applicable law to us.
Your acceptance of our provision of benefits under the plan to your employees and their dependents constitutes your group’s acceptance of the terms of this letter and an affirmative direction to us to administer benefits as provided for herein.
Def. Blue Cross Ex. 12 at 2. Kathy Palmer, Express Oil’s Director of Payroll, signed this letter on January 9, 2008.
Blue Cross also updated its ASA in 2007. The 2007 ASA stated that the Claims Administrator, Blue Cross, would “exercise the discretionary fiduciary authority to process and adjudicate claims under the Plan.” Def. Blue Cross Ex. 2 at 3. The 2007 ASA further explained that this discretionary fiduciary authority “encompasses all determinations and findings necessary to process and adjudicate claims, such as the discretionary authority to construe and apply the Plan.... ” Def. Blue Cross Ex. 2 at 3. The 2007 ASA included a section titled “Stop-Loss Insurance,” specifically providing that the “Employer is responsible for selecting and maintaining in force, if desired, suitable stop-loss insurance coverage.” Def. Blue Cross Ex. 2 at 5. The 2007 ASA also provided that the “Claims Administrator is entitled to rely on instructions, communications, or directions from the Employer concerning Plan design ... and other areas of Plan administration for which the employer is responsible.” Def. Blue Cross Ex. 2 at 9.
H. Blue Cross’s administration and payment of claims
During the relevant time period, Jeremy Dennis was the operations manager for claims administration in the group account area at Blue Cross. Dennis testified that Blue Cross administers claims based on the SPD, and that the internal systems are coded based on the SPD to determine what benefits applied to each group. Dennis also testified that the SPD in its entirety demonstrated what services were covered under “Other Covered Services,” as that term is referenced in the definition of the lifetime maximum. Specifically, Dennis emphasized that the footnote under the table of “Other Covered Services” that stated that “Most Other Covered Services are paid at 80% of the Allowed Amount after the calendar year deductible is met” brought within the scope of “Other Covered Services” any service listed in the SPD that is paid at 80%. 2006 SPD at 7.
I. The Q claim audit and Blue Cross’s credit to Express Oil
Between May 2006 and October 2008, the total paid claims for the Q claim exceeded $2,800,000. Although Glover testified that he “would not pretend to be able to see a problem with how [Blue Cross] adjudicated the [Q] claim,” his new agent, Wade Bice, advised him to hire somebody to audit the Q claim. On Bice’s advice, Express Oil retained Northshore International Insurance Services as consultants and auditors to evaluate how Blue Cross administered the plan to determine if Blue Cross had overpaid the Q claim under Express Oil’s plan.
Northshore consultants Adria Garneau and Tammy Burns evaluated Blue Cross’s handling of the Q claim and prepared two reports. The first report, dated August 3, 2009, was based on the 2006 SPD and Blue Cross business records. The supplemental report, dated August 28, 2009, incorporated the 2007 SPD.
In the August 3, 2009 report, North-shore determined that Blue Cross paid a total $2,854,928.14 in Q claims. Of this sum, Northshore determined that Blue Cross had paid $1,277,699.09 for services subject to the $1,000,000 lifetime maximum; Northshore, thus, concluded that Blue Cross had overpaid the Q claim by $277,669.09. Blue Cross alleges that this report, however, did not apply all the terms of the plan, and Garneau qualified the report as being formed on the basis of an incomplete ability to determine which physician services were in-network or out-of-network. While the report did exclude hospital stays less than 365 days from the calculation of the lifetime maximum, it included in-network physician services, which, according to Blue Cross, were not subject to the lifetime maximum. North-shore decided to include in-network physician services based on its interpretation of the 2006 SPD’s definition of the lifetime maximum. Specifically, Northshore concluded that the definition of lifetime maximum in the 2006 SPD stated that it applied only to certain services, including “Other Covered Services,” and, in turn, that the SPD’s section on “Other Covered Services” included “Physician’s covered services.” Garneau could not recall applying the 2007 SPD when calculating the overpayment in the August 3, 2009 report.
Northshore revised its overpayment calculation in the August 28, 2009 report, concluding that Blue Cross had paid only $84,584.10 over the $1,000,000 lifetime maximum for the Q claim. Garneau stated that to the best of her recollection, the difference between the August 3 and August 28 reports was the application of the 2007 SPD. Thus, the August 28, 2009 report excluded all physician services, both in- and out-of-network, after October 1, 2007 from the lifetime maximum, but still included in-network physician services before October 1, 2007, based on North-shore’s opinion that the 2006 SPD did not clearly outline which covered services would apply to the $1,000,000 lifetime maximum. Northshore, thus, calculated the overpayment by applying all pre-2007 physician services toward the lifetime maximum, except for inpatient hospital services that exceeded the 365-day inpatient hospital limit. Because Blue Cross asserts that in-network physician services should not have counted towards the lifetime maximum, it states that Northshore’s overpayment calculation would be reduced even further if these services- were excluded from the lifetime maximum. •
In early 2009, Blue Cross determined that it had overpaid the Q claim subject to the $1,000,000 cap, and gave Express Oil a return credit for approximately $110,000. Dennis, Blue Cross’s operations manager, testified in deposition that the overpayment had resulted from a reporting error.
J. Termination of the Plan
In October, 2008, Express Oil elected to terminate its self-funded plan and return to a fully-insured plan. Blue Cross did not offer to insure Express Oil under a fully-funded plan, and Express Oil terminated its self-insured plan with Blue Cross.
K. Nesbitt acquires the assets of ANB Insurance
In' May 2007, Nesbitt acquired the assets of ANB Insurance under an Asset Purchase Agreement. Section 3.2 of the Asset Purchase Agreement provided that Nesbitt would not assume any of the liabilities of ANB Insurance arising out of any events occurring before the Effective Time for acquisition in May 2007, except as expressly included in the Asset Purchase Agreement. (“Asset Purchase Agreement,” Doc. 89-1, at 11). Nesbitt also hired Wood in May 2007, after it acquired the assets of ANB Insurance. Before it purchased the assets of ANB in May 2007, Nesbitt was not at all involved with selling insurance or providing any services to Express Oil.
L. Alleged roles of the parties in designing Express Oil’s plan and procuring stop-loss insurance
1. Responsibility for designing or advising on the lifetime maximum
One of the central disputes in this case surrounds the lifetime maximum and whether Blue Cross was responsible for advising and explaining the operation of the lifetime maximum in the plan to Express Oil. The definition of Blue Cross’s lifetime maximum, as it existed from 2003 to 2007, is present in two different documents about which Glover was questioned in his deposition: the 2003 SPD and the Benefits Summary. Blue Cross also provided Express Oil with two different documents that did not provide the definition of lifetime maximum limiting it to “other covered services” and out-of-network services, but instead only stated that the lifetime maximum was $1,000,000: the plan benefits comparison chart Talbot provided to Glover in July 2003 and the application to establish a new group plan signed by Glover in September 2003.
T. Wayne Bowling, Express Oil’s expert witness and a vice president at the insurance brokerage firm Willis of Alabama, submitted an expert report stating that he became aware, as early as 1999, “that the standard Blue Cross Blue Shield of Alabama PPO plan design had a feature that was different and unique from other carriers and [third-party administrators].” Expert Rpt. Wayne Bowling at 2. This “different and unique” feature was the lifetime maximum that did not apply to all covered charges,' unlike most plans up until the mid-2000s “that included a $1,000,000 lifetime maximum for ALL covered charges.” Expert Rpt. Wayne Bowling at 2. Thomas Yeary, Blue Cross’s expert witness and an insurance broker with forty years experience, also acknowledged that Blue Cross had a unique plan, explaining that “Blue Cross contracts have always contained an unusual lifetime maximum provision,” and that “[k]nowledgeable employee benefits brokers are aware of this unique feature of the Blue Cross Contract.” Expert Rpt. Thomas Yeary at 2.
Some of the witnesses also acknowledged that Blue Cross customers — specifically CFOs or other management personnel responsible for an employer’s self-funded plan — could reasonably misunderstand Blue Cross’s lifetime maximum provision, believing it to be a comprehensive limitation. Bowling testified that although “an average intelligent person that reads [the provision on'lifetime maximum benefits] could understand it,” his. experience was that most people did not understand it. Depo. Wayne Bowling 175:3-175:6. Bowling also stated that, “The majority of the employers that I met with were not aware that this lifetime limit did not apply to all charges.... In my experience, I found that without their broker, agent or consultant pointing it out to them; [sic ] it is unlikely that the average Employee Benefit manager, Human Resource director or Chief Financial Officer would be aware of this benefit.” Expert Rpt. Wayne Bowling at 2-3. Similarly, Mark McLaughlin, who worked as both a marketing representative and a service representative for Blue Cross, testified that he sometimes dealt with customers who would not comprehend that the lifetime maximum applied only to certain services, instead believing that it was a comprehensive limit. ■ Express Oil’s executives fell into the category of those who did not understand the lifetime maximum, as both Glover and Brooks stated that they believed that the plan had a $1,000,000 comprehensive lifetime maximum for all services when the plan became effective.
Bowling also testified that Blue Cross had no responsibility to advise an employer on how the lifetime maximum applied to certain services if Blue Cross did not supply lifetime coverage. He stated in his expert report that “[i]f the employer chooses to self insure the entire risk, it is the role of the broker or consultant to inform them of that risk.”
Express Oil, however, cites to evidence that Express Oil argues shows that Blue Cross’s normal practice was to explain the limited $1,000,000 lifetime maximum to customers. Bill Kerley, an Assistant District Manager at Blue Cross, testified that Blue Cross would normally undertake to go over the lifetime maximum with customers at initial sales presentations, where Blue Cross would cover the benefits of the self-funded plan in detail. In response to this evidence, Blue Cross emphasizes that Kerley’s testimony applied to initial sales presentations, which Blue Cross did not do with Express Oil in this case. Blue Cross also cites to the testimony of Clay Steed, a marketing service representative at Blue Cross at the time Express Oil switched to a self-funded plan, who testified that he would not proactively bring up the lifetime maximum when Blue Cross “already had the business.” Depo. Clay Steed 123:12-13.
Express Oil also cites to the testimony of Thomas Byrd, ANB’s expert witness and a founder of a third-party administrator firm that specializes in self-funded ERISA programs; Byrd stated that Blue Cross’s SPDs made it very difficult to identify which services fell within the scope of “Other Covered Services” that applied towards the lifetime maximum. Mary Bell, a Blue Cross employee in Customer Benefits Administration, explained why Blue Cross could not offer an exhaustive definition of the lifetime maximum in its plan documents. Specifically, she stated that because Blue Cross could not know how it would process a claim until it received the claim, Blue Cross could not list everything that would go towards the lifetime maximum.
2. Responsibility for plan design and cost
Blue Cross cites to Express Oil’s expert, Bowling, who stated that Express Oil’s broker, ANB, had the responsibility of knowing Express Oil’s objectives regarding plan design and cost and helping Express Oil make decisions regarding the plan. Bowling further stated that the broker’s role also includes advising the client of the risk of the non-comprehensive lifetime maximum and offering coverage or a way to mitigate risk by redesigning the plan.
III. MOTION TO STRIKE
Whén Blue Cross filed its reply brief, it contemporaneously filed a motion to strike Glover’s affidavit (PI. Ex. 36) and a portion of Garneau’s affidavit (PI. Ex. 51) that Express Oil submitted with its opposition brief. Blue Cross argues that the statements it moves to strike are either contradictory or inconsistent with these witnesses’ prior sworn deposition testimony.
A. Standard of Review
The Eleventh Circuit has held that “a party cannot give ‘clear answers to unambiguous questions’ in deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction.” Rollins v. Tech-South, 833 F.2d 1525, 1530 (11th Cir.1987). When a party does so, “the court may disregard the affidavit as a sham.” Id. The Eleventh Circuit clarified that courts are to “apply this rule sparingly because of the harsh effect this rule may have on a party’s case,” because allowing “every failure of memory or variation in a witness’ testimony to be regarded as a sham would require far too much from lay witnesses and would deprive the [jury] the traditional opportunity to determine which point in time and with which words the affiant was stating the truth.” Id. To disregard an affidavit, the court must find “some inherent inconsistency” between the deposition testimony and the affidavit. Id.
B. Discussion
1. Greg Glover
Blue Cross focuses on two paragraphs of the affidavit of Greg Glover, Express Oil’s Chief Financial Officer, as inconsistent with his deposition testimony. In paragraph three of his affidavit, Glover states that Blue Cross provided him with a “benefit comparison”, chart, which did not explain Blue Cross’s lifetime maximum. He further states in this' paragraph that “[t]his was the document that I reviewed and used to, compare the benefits we had under our existing United Healthcare plan.” Aff. Gregory Glover ¶ 3. In the next paragraph, Glover states that “[w]hile Express [Oil] was considering moving to a self-funded plan, I do not believe I ever had a discussion with anyone at Blue Cross about the $1,000,000 lifetime maximum per member or saw any document that explained how the $1,000,000 maximum per member actually worked.” Aff. Gregory Glover ¶ 4. As the court reads Blue Cross’s motion to strike, it interprets Glover’s affidavit as stating that he did not receive any documents before the plan went into effect that explained the lifetime maximum.
Blue Cross asserts Glover’s deposition testimony contradicts these statements; in his deposition testimony, Glover speaks in more uncertain terms about the documents he relied upon. For example, in his deposition Glover authenticated an application he signed to establish a new group plan. Blue Cross also cites to portions of Glover’s deposition where he testified that he may have received other documents, such as the 2003 SPD or the Benefits Summary, that explained that the lifetime maximum was limited, and not comprehensive. In his first deposition, Glover testified that he recalled receiving a booklet from Blue Cross' in the fall of 2003 and that he recalled receiving a document similar to the 2003 SPD before Express Oil’s plan became effective. More significantly, Glover testified that although he could not remember when he looked at the provisions relating to the lifetime maximum, he recalled reviewing the provisions of the lifetime maximum some time before the plan became effective. Depo. Glover I 191:12— 192:12. Later in his deposition, Glover also equivocated on what documents he received from Blue Cross, testifying that he was unable to say whether he received the 2003 SPD and that he could not emphatically state that the benefits comparison was the only document he read before the plan became effective.
Upon review of Glover’s deposition testimony and affidavit, the court disagrees that his affidavit is inherently inconsistent with his testimony, largely because the court interprets Glover’s affidavit differently than Blue Cross does. The court reads paragraph three of Glover’s affidavit as stating that the primary document upon which he relied in comparing the proposed benefits of Blue Cross’s plans to United Healthcare’s was the benefits comparison chart; The court does not read this statement to mean that the only document Glover received or read was the benefits comparison chart.
Similarly, the court reads paragraph four more narrowly than Blue Cross. Glover states in that paragraph that he did not believe he ever saw a document that explained how the $1,000,000 lifetime maximum actually worked while Express Oil was considering moving to a self-funded plan. As the court reads this statement, Glover’s affidavit does not preclude that Express Oil received the SPD or Benefits Summary after Express Oil decided to create its self-funded plan, or that Glover received documents containing, but not necessarily fully explaining, the definition of the lifetime maximum, even if he does not believe that he did. Under this interpretation, even Glover’s admission that he read the language regarding the definition of lifetime maximum contained in the SPD or Benefits Summary before October 1, 2003 is not inconsistent with his affidavit, because Glover could have read that language after Express Oil decided to create the self-funded plan — ie., after it moved beyond the point of considering its self-funded plan to executing the plan.
Thus, the court concludes that the affidavit contains enough qualifying language as to render it benign, such that it does-not create any new genuine issues of material fact that Blue Cross seems to fear. Ultimately, the court reads Glover’s affidavit as stating less than what both Blue Cross and Express Oil interpret it to mean, and, accordingly, DENIES- Blue Cross’s motion to strike Glover’s affidavit. In doing so, the court emphasizes that it does not read the affidavit as creating a genuine dispute of material fact that Glover did not receive any plan documents containing the description of the lifetime maximum. That Glover may not have recalled reviewing the documents does not negate his testimony that Express Oil received at least some document detailing the plan benefits, including the lifetime maximum, before October 1, 2003, even if Glover did not read or comprehend the document. Moreover, Glover’s testimony does not negate that the 2003 SPD and the Benefits Summary contain the definition of lifetime maximum at issue in this case, even if Glover believes that he did not see such a document.
2. Adria Garneau
Blue Cross moves to strike two paragraphs of the affidavit of Northshore consultant Adria Garneau. In paragraph five of Garneau’s affidavit, she summarizes her conversations with Blue Cross, after Northshore submitted one of its reports, regarding what services were subject to the lifetime maximum. Garneau states that “[Blue Cross’s] explanations were not always consistent” and that in her telephone conferences .with Blue Cross, “[Blue Cross] took the position, rather emphatically, that Express [Oil’s] 2007 SPD had been changed to provide that in-network physician charges were not subject to the lifetime maximum.” Aff. Adria Garneau ¶ 5. In paragraph seven of Garneau’s affidavit, she states her understanding that Blue Cross was taking the position that the scope of services subject to the lifetime maximum did not change between the 2006 and 2007 SPDs. She then states that if she accurately understood Blue Cross’s position, “it is certainly a reversal of the position [Blue Cross] took in [Northshore’s] discussion with [Blue Cross] representatives in 2009.” Aff. Adria Garneau ¶ 7.
Blue Cross cites to Garneau’s deposition in which she testified that Blue Cross consistently asserted to her that in-network physician services should not count towards the lifetime maximum. See Depo. Adria Garneau 81:9-81:13 (“Q: ... Blue Cross has always contended that in-network physician services should not count toward the lifetime maximum, correct? A: That’s what they said, yes.”); Depo. Adria Garneau 83:6-83:13 (Q: “[Blue Cross has] been consistent stating that out-of-network physician services do count towards the lifetime max, correct? A: Correct.”). Blue Cross also cites to a portion of Garneau’s deposition where she testifies that Blue Cross told her the 2007 SPD was issued to clarify, and not change, the 2006 SPD.
In response to Blue Cross’s argument, Express Oil argues that Blue Cross misunderstands Garneau’s affidavit. Express Oil asserts that when Garneau refers to “services” in paragraph five, she is not referring to inconsistencies in Blue Cross’s application of in-network physician services to the lifetime maximum, but to inconsistencies generally in what services counted as “Other Covered Services” applicable to the lifetime maximum — i.e., services apart from physician services. Express Oil asserts that paragraph seven’s reference to the “reversal of Blue Cross’s position” is not directed towards inconsistencies in Blue Cross’s position on whether in-network physician services apply towards the lifetime maximum, but instead to inconsistencies between the language of the 2006 and 2007 SPDs. Express Oil further argues that even if Garneau’s affidavit was inconsistent with her deposition testimony, the inconsistency does not rise to the level of making her affidavit, or portions of it, a “sham affidavit.”
The court concludes that, unlike Blue Cross’s interpretation of Glover’s affidavit, Blue Cross’s interpretation of Garneau’s affidavit is mostly accurate. The court agrees with Express Oil that Garneau’s statement that “[Blue Cross’s] explanations [regarding services subject to the lifetime maximum] were not always consistent” could be read to mean that Blue Cross provided inconsistent explanations for what services applied to the lifetime maximum. Accordingly, the court DENIES Blue Cross’s motion to strike that statement in paragraph five. But the court cannot read Garneau’s subsequent statement in paragraph five that “[Blue Cross] took the position [in telephone conferences with Northshore], rather emphatically, that Express [Oil’s] 2007 SPD had been changed to provide that in-network physician charges were not subject to the lifetime maximum to mean anything other than that Blue Cross changed its position on whether in-network physician services could apply to the lifetime maximum. Garneau gave a clear answer to an unambiguous question in her deposition, and now flatly contradicts that answer in her affidavit. Accordingly, the court GRANTS Blue Cross’s motion to strike the referenced excerpt in her affidavit, the fifth sentence of paragraph five. The court STRIKES this sentence, and will not consider it when reviewing the underlying motions for summary judgment.
In replying to Express Oil on paragraph seven, Blue Cross concedes that it did change some language between the 2006 and 2007 SPD, but maintains that the changes were intended to clarify the SPDs, and not substantively change the scope of services applied to the lifetime maximum as paragraph seven of Garneau’s affidavit implies. The court agrees with Blue Cross’s interpretation of this paragraph, despite Express Oil’s efforts to paint Garneau’s statement as referring to changes between the 2006 and 2007 SPD, as opposed to substantive changes in Blue Cross’s position on whether in-network physician services applied to the lifetime maximum. Because the second sentence of paragraph seven of Garneau’s affidavit also contradicts the clear answers she gave to unambiguous questions in her deposition, the court also GRANTS Blue Cross’s motion to strike the second sentence of paragraph seven. The court STRIKES this sentence and will not consider it when reviewing the underlying motions for summary judgment.
TV. STANDARD OF REVIEW
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. When a district court reviews a motion for summary judgment, it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 311, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). The moving party can meet this burden by offering evidence showing no dispute of material fact or by showing that the non-moving party’s evidence fails to prove an essential element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-28, 106 S.Ct. 2548. Rule 56, however, does not require “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Disagreement between the parties is not significant unless the disagreement presents a “genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)) (emphasis added); see also Advisory Committee Note to 1963 Amendment of Fed.R.Civ.P. 56(e) (“The very mission of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”). The moving party need not present evidence in a form admissible at trial; “however, he may not merely rest on [the] pleadings.” Celotex, All U.S. at 324, 106 S.Ct. 2548. If the evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented through the prism of the substantive evidentiary burden,” to determine whether the nonmoving party presented sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir.1988). The court must refrain from weighing the evidence and making credibility determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir.2000); Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). “Even if a district court ‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.’ ” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.2013) (citing Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.2006)). The court should not disregard self-serving statements made in sworn testimony simply because they are self-serving at the summary judgment stage, and if the self-serving statements create a genuine issue of material fact, the court should deny summary judgment on that basis. Id. 1253.
Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Graham, 193 F.3d at 1282. The nonmoving party “need not be given the benefit of every inference but only of every reasonable inference