Gallup Med Flight, LLC v. Builders Trust of New Mexico (240 F. Supp. 3d 1161, 2017)

United States District Court for the District of New Mexico 2017-02-28

Commerce and Trade Indians Judiciary and Judicial Procedure Labor Transportation

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Builders Trust of New México’s Partial Motion to Dismiss, filed November 17, 2016 (Doc. 4)(“MTD”); and (ii) Plaintiffs Motion for Judgment on the Pleadings, filed December 6, 2016 (Doc. 10)(“Motion for Judgment”). The Court held a hearing on'January 23, 2017." The primary issue is whether federal subject-matter jurisdiction exists where, as is the case here, a complaint asserts federal preemption of state workers’ compensation regulation as the primary ground for entitlement to recovery. Because the Court concludes that Defendant Builders Trust of New Mexico has not established federal-question jurisdiction over Plaintiff Gallup Med Flight, LLC’s, state law contract claims against it, the Court will remand this case to the Eleventh Judicial District Court, County of McKinley, State of New Mexico, where it was originally filed, for further state court proceedings.

FACTUAL BACKGROUND

The Court next sets out the factual background for this case. Given the. different standards for ruling on a MTD and a Motion for Judgment, the Court presents a different set of facts tailored to each of the different motions. The factual background is as follows.

1. MTD Facts.

The Court takes its following recitation of the facts from Med Flight’s Complaint for Debt and Money Due and Breach of Contract, filed November 10, 2016 (Doc. 1-4)(“Complaint”). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background is largely Med Flight’s version of events.

According to the Complaint, the Plaintiff, Med Flight, is a company with its principal place of business in Gallup, New Mexico, and the Defendant, Builders Trust, is a workers’ compensation insurance company doing business in New Mexico. See Complaint ¶¶ 1-2, at 1. The Complaint then alleges, as background, that on or about October 5, 2015, “Michael Woods,” a “Murphy Builders” employee, received emergency medical treatment at Rehoboth McKinley Christian Health Care Services Emergency. Department (“Reho-both Health”), in Gallup, New Mexico, for a work-related injury. Complaint ¶ 4, at 1. The Complaint alleges that Builders Trust provides “workers’ compensation insurance” to Woods’ employer, Murphy Builders. Complaint ¶ 5, at 1.

The Complaint explains that Physician Assistant Floyd Bodden, PA-C, at Reho-both Health was unable to treat Woods’ medical condition, and thus Doctor Kenneth Kelly, MD, .authorized his transfer to University of New Mexico Hospital (“UNMH”). See Complaint ¶6, at 2. For Woods’ transport, Med Flight’s “fixed wing aircraft” service was retained as the medivac from Rehoboth Health to UNMH. Complaint ¶ 7, at 2. The Complaint further alleges that Med Flight’s transport of Woods proceeded safely and in accordance with federal law. See Complaint ¶ 8, at 2. The controlling federal law, according to the Complaint, is the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (“EMTALA”), and the regulations implementing the EMTALA and regarding “Centers of Medicare and Medicaid Services (‘CMS’),” found at 42 C.F.R. § 489.24. Complaint ¶¶ 10-11, at 2. The Complaint provides that the CMS regulations mandate that

it is the treating physician at the transferring hospital who decides how the individual is transported to the recipient hospital and what transport service will be used, since this physician has assessed the individual personally. The transferring hospital is required to arrange transport that minimizes the risk to the individual who is being transferred, in accordance with the requirements of § 489.24[ (e)(2)(iv) ].

Complaint ¶ 11, at 2 (alteration in original). Here, the Complaint indicates that Med Flight “provides critical emergency air transportation,” that Med Flight operates under a certificate from the Federal Aviation Administration (“FAA”) and constitutes an “air carrier” under “the Airline Deregulation Act ..., Pub. L. No. 95-504, 92 Stat. 1705 (1978),” and that Bodden at Rehoboth Health “completed and signed a MEDICAL NECESSITY TRANSPORT FORM” when deciding to transport Woods to UNMH. Complaint ¶¶ 12-14, at 2-3. The Complaint thus explains that, under the Airline Deregulation Act (“Airline Act”), “it is in the public interest to place maximum reliance on competitive market forces and on actual and potential competition (A) to provide the needed air transportation system, and (B) to encourage efficient and well-managed carriers to earn adequate profits and to attract capital,” Complaint ¶ 15, at 3 (internal quotation marks omitted), and that, “[t]o prevent state interference with this objective, Congress included a preemption provision in the [Airline Act] that prohibits a State from enacting or enforcing any statute, regulation or other provision of law ‘related to a price, route, or service of an air carrier,’ ” Complaint ¶ 16, at 3 (quoting 49 U.S.C. § 41713(b)). According to the Complaint, the United States Department of Transportation (“DOT”) takes the position that the Airline Act’s “preemption provision applies to the field of air ambulance services,” Complaint ¶ 17, at 3, and Med Flight, in particular, is chosen for its “favorable estimated transport times,” Complaint ¶ 18, at 3.

2. Motion for Judgment Facts.

The Court takes its following recitation of the facts from (i) Med Flight’s Motion for Judgment; (ii) Defendant Builders Trust of New Mexico’s Response to Plaintiffs Motion for Judgment on the Pleadings, filed December 19, 2016 (Doc. 14)(“Motion for Judgment Response”); and (iii) Gallup Med Flight, LLC’s Reply in Support of Motion for Judgment on the Pleadings [Doc. 10], filed January 5, 2017 (Doc. 16)(“Motion for Judgment Reply”). The Motion for Judgment sets forth these facts as its proffer of “Material Facts,” Motion for Judgment at 1-6, which the Motion for Judgment Response then, in part, disputes, see Motion for Judgment Response at 1-6. The Motion for Judgment Response first explains that the Motion for Judgment does not, as is required for a “motion for judgment on the pleadings,” set forth “the material facts contained in the pleadings,” and, instead, makes a “statement of material facts [that] is replete with new, unsubstantiated assertions ... [and thus] the Court should convert Plaintiffs Motion into a motion for summary judgment.” Motion for Judgment Response at 1-2. In the Motion for Judgment Reply, Med Flight “acknowledges that it is the Court’s prerogative to consider matters outside the pleadings, attached as exhibits by either party, and thereby convert [Med Flight’s Motion to a Motion for Summary Judgment.” Motion for Judgment Reply at 2 n.2 (citing Hartford Cas. Ins. Co. v. Trinity Universal Ins. Co., 158 F.Supp.3d 1183, 1196 (D.N.M. 2015)(Vazquez, J.)). The Motion for Judgment Response thus purports to dispute certain facts in the Motion for Judgment’s proffer and then sets forth six primary facts that Builders Trust considers “disputed.” Motion for Judgment Response at 1-6. Given Med Flight’s acquiescence to the notion that it is the Court’s prerogative to treat its Motion for Judgment as a motion for summary judgment, see Motion for Judgment Reply at 2 n.2, the Court will address the Motion for Judgment in that manner by, to the best of its ability, construing the motions appropriately. The Court thus provides its second recitation of the facts for the purposes of the Motion for Judgment by setting forth the universe of undisputed facts upon which the mov-ant, Med Flight, asserts it is entitled to summary judgment as a matter of law. See D.N.M.L.R. of Civil Procedure 56.1(b).

Med Flight, is a company with its principal place of business in Gallup, New Mexico. See Motion for Judgment ¶ 1, at 1 (setting forth this fact); Motion for Judgment Response at 1 (not disputing this fact). Med Flight provides “fixed and rotary wing aircraft” ambulatory services in New Mexico - and neighboring states. Motion for Judgment ¶ 2, at 1 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). Med Flight “performs emergency air transports under the authority granted by the Federal Aviation Administration (‘FAA’) to operate as a Part 135 air carrier” and thus constitutes an “air carrier” as the term 'is defined in the “Airline Deregulation Act of 1978 .... ” Motion for Judgment ¶ 3, at 1-2 (setting forth this fact). See Motion for Judgment Response at 2 (not disputing this fact). Med Flight “was registered with the [DOT] to operate as a Part 298 air taxi operator,' providing on-demand air ambulance services.” Motion for Judgment ¶ 3, at 1-2 (setting forth this fact). See Motion for Judgment Response at 2 (not disputing this fact).

On or about October 5, 2015, Woods, a Murphy Builders employee, received emergency medical treatment for a work-related injury at Rehoboth Health. See Motion for Judgment ¶ 4, at 2 (setting forth .this fact); Motion for Judgment Response at 1-6 (not - disputing this fact). Builders Trust provides “workers’ compensation insurance” to. Woods’ employer, Murphy Builders. Motion for Judgment ¶ 5, at 2 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). Physician Assistant Bodden at Rehoboth Health was unable to treat Woods’ medical condition and thus arranged for his transfer; Dr. Kelly authorized the transfer to UNMH. See Motion for Judgment ¶ 6, at 2 (setting forth this fact); Motion for Judgment Response at 1-6 (not disputing this fact). “Based on the distance between the medical facilities, the unavailability of ground transportation and Mr. Woods’ medical condition, a medical transport fixed wing aircraft from [Med Flight] was dispatched by ... Bodden .,., [and] approved by Dr. Kelly.” Motion for. Judgment ¶ 7, at 2 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact).. Med Flight’s transport of Woods from Rehoboth Health to UNMH proceeded safely and in accordance with EMTALA and other controlling federal law. See Motion for Judgment .¶ 8, at 2 (setting forth this fact); Motion for Judgment Response at 1-6 (not disputing this fact). “Congress enacted EMTA-LA as a way to combat ‘patient dumping.’ ” Motion for Judgment ¶ 9, at 2-3 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). “[U]nder [EMTALA], if an individual comes to the emergency department of a hospital and requests treatment, the hospital must examine the person to determine if an emergency medical condition exists ,.. [and i]f there is a medical emergency the hospital must provide either the additional examination or treatment that is necessary to stabilize [the condition] or else transfer the patient to another medical facility,” and “[ojnly those patients that have an unstabilized [condition] are transferred.” Motion for Judgment ¶ 10, at 3 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). Accordingly, a “hospital is also required to ensure the patient is ‘stable’ prior to the transfer,” which is defined as ■meaning “within reasonable medical probability, no medical deterioration of the condition is likely to result-from the transfer of the" individual from a facility.” "Motion for Judgment ¶ 11,- at" 3 (setting forth this fact)(citing CFS regulations at 42 C.F.R. 489.24(b)). See Motion for Judgment Response at 1-6 (not disputing this fact).’

There were no reported violations of the EMTALA in connection with Woods’ transfer. See Motion for Judgment ¶ 12, at 3 (setting forth this fact); Motion for Judgment at 1-6 (not disputing this fact). “EMTALA requires the receiving hospital to accept the transfer if they provide higher care. The statute and the regulations provide that any participating which has ‘specialized capabilities or facilities’ ... or which is a ‘regional referral center’ in a rural area, may not refuse to accept- a patient in transfer, if it has the capacity to treat the individual.” Motion for Judgment ¶ 13, at 3 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). “The receiving hospital will be obligated to accept the transfer in most cases, so long as it has the ability to treat the patient and its capabilities exceed those of the referring hospital, even if only because of overcrowding or temporary unavailability of personnel.” Motion for Judgment ¶ 13, at 4. See Motion for Judgment Response at 1-6 (not disputing this fact). “EMTALA also requires hospitals that accept payment under the Medicare program to provide emergency health care treatment to anyone in need regardless of citizenship, legal status, or ability to pay.” Motion for Judgment ¶ 14, at 4 (setting forth this fact)(quoting the CMS regulations at 42 C.F.R. § 489.24(d)). See Motion for Judgment Response at 1-6 (not disputing this fact). Med Flight provides “emergency air transportation to anyone in need regardless of citizenship, legal status, or ability to pay. [Med Flight] does not generally inquire about the individual’s method of payment or insurance status at the time of transport.” Motion for Judgment ¶ 15, at 4 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). Med Flight “is not self-dispatching and is generally called upon to provide transports because medical facilities providing emergency care must comply with the EMTALA and must follow certain of EMTALA’s implementing regulations” promulgated by CMS. Motion for Judgment ¶ 16, at 4 (setting forth this fact). “CMS specifically mandates that it is the treating physician at the treating hospital who decides how the individual is transported to the recipient hospital and what transport service will be used ... [t]he transferring hospital is required to arrange transport that minimizes the risk to the individual who is being transferred .... ” Motion For Judgment ¶ 17, at 4-5. See Motion for Judgment Response at 1-6 (not disputing this fact). “EMTALA places the responsibility on the transferring hospital to ensure that the Statute’s requirements are met. As to a transport from a transferring hospital, the Statute requires that the patient be accompanied by qualified personnel and transportation equipment.” Motion for Judgment ¶ 18, at 5. See Motion for Judgment Response at 1-6 (not disputing this fact).

Med Flight “is called by a hospital to provide emergency transportation because it has ‘qualified personnel and transportation equipment’ to provide critical emergency air transportation for those in dire need of such transportation,” and Med Flight is “generally selected and dispatched by a patient’s treating physician ... because, in addition to being an EM-TALA qualified provider, the provider also has favorable estimated transport times.” Motion for Judgment ¶ 19, at 5 (setting forth this fact). See Motion for Judgment Response at 1-6 (not disputing this fact). Med Flight is an “air carrier” under the Airline Act and “sets a market rate for the transport that consists of a lift-off fee and a mileage fee, that combined represents [Med Flightj’s billed charges.” Motion for Judgment ¶20, at 5 (setting forth this fact). “[T]he [Airline Act] expressly states that it is in the public interest to place ‘maximum rebanee on competitive market forces and on actual and potential competition (A) to provide the needed air transportation system, and (B) to encourage efficient and well-managed earners to earn adequate profits and attract capital.’ ” Motion for Judgment ¶ 21, at 5-6 (setting forth this fact)(citing Airline Act § 3(a)). See Motion for Judgment Response at 1-6 (not disputing this fact). “[T]o prevent interference with its objective, Congress included a preemption provision in the [Airline Act] that prohibits a State from enacting or enforcing any statute, regulation or other provision of law ‘related to a price, route, or service of an air carrier.’ ” Motion for Judgment ¶22, at 6 (setting forth this fact)(citing Airline Act § 4(a)). See Motion for Judgment Response at 1-6 (not disputing this fact). The DOT “has taken the position that the [Airline Act]’s preemption provision applies to the field of' air ambulance services.” Motion for Judgment ¶ 23, at 6. See Motion for Judgment Response at 1-6 (not disputing this fact).

Woods signed a “Billing and Consent to Transport Form,” wherein he agreed to pay Med Flight, and “assign all right, title and interest in all [of his] benefit plans,” before his transport to UNMH. Upon completion of Woods’ transport to UNMH from Rehoboth Health, Med Flight billed Builders Trust. See Motion for Judgment ¶ 24, at 6 (setting forth, this fact); Motion for Judgment Response at -1-6 (not disputing ■■ this fact). Builders -, Trust “paid $10,477.36” to Med Flight in response to the billed charges. Motion for Judgment ¶ 25, at 6 (setting forth this fact). See Motion for Judgment Response at 4 (not disputing this fact).

PROCEDURAL HISTORY

The Court next sets forth the procedural history of this case. The Court includes the procedural history of this case in state court, as well as in federal court. The procedural history is as follows.

1. The Complaint.

Med Flight filed the Complaint in state court, in the Eleventh Judicial District Court, County of McKinley, State of New Mexico. Complaint ¶¶ 1-24, at 1-5. The Complaint makes three counts of allegations against Builders Trust. See Complaint ¶¶ 19-34, at 3-5. Count I, for “Collection of Debt and Money Due,” alleges that Woods suffered a work-related injury necessitating Med Flight’s transport to UNMH, resulting in Med Flight’s submission of a bill to Murphy Builders for “$58,-834.29.” Complaint ¶¶ 19-20, at 3-4. The Complaint explains that, upon receipt, Murphy Builders submitted Med Flight’s bill to Builders Trust, “its workers’ compensation insurer,” but that, in contravention of New Mexico law, Builders Trust paid Med Flight only “$10,477.36,” and refuses to pay the remainder of charges. Complaint ¶¶ 21-24, at 4.

In the Complaint’s Counts II and III, for “Breach of Contract”1 and “Breach of Covenant of Good Faith,” the Complaint alleges that Woods signed a “Billing and Consent to Transport” form assigning Med Flight “all right, title and interest in all benefit plans from which his dependents or he were entitled to recover for the services provided by” Med Flight. Complaint ¶ 26, at 4. Accordingly, the Complaint provides that Builders Trust “was contractually obligated to- pay for the medical services provided to its insured Michael Woods” and that,’ further, “Woods was entitled to recover from Defendant payment for the services.” Complaint ¶¶ 27-28, at 4. Thus, the Complaint states that Builders Trust “has breached its contract to pay for the services provided by” Med Flight and that Med Flight has incurred “$48,366.93” in damages. Complaint ¶¶ 29-30, at 4.

The Complaint thereafter alleges that all contracts in New Mexico include an “implied covenant of good faith and fair dealing,” and that Builders Trust, in bad faith, has disregarded Med Flight’s right to payment for the.services it provided Woods by paying only a partial amount of the bill and refusing to pay the rest of the balance. Complaint ¶¶ 31-33, at 4-5. The Complaint then realleges that, as a result of the breach, Med Flight has incurred damages in the amount of “$48,356.93,” Complaint ¶ 34, at 5. In sum, the Complaint requests “Compensatory damages in the amount of $48,356.93,” “[p]rejudgment interest on this amount from October 5, 2015, through the date of judgment,” and “[a]ny other interest, damages, or relief available at law or equity.” Complaint ¶¶ A-C, at 5.

2. The Notice of Removal.

Builders Trust removed the case to federal court with its Notice of Removal, filed November 10, 2016 (Doc. l)(“Notice of Removal”). The Notice of Removal explains that Med Flight originally brought this matter before the New Mexico Workers’ Compensation Administration, “requesting a determination of contested billing dispute.” Notice of Removal ¶ 1, at 1. At the Workers’ Compensation Administration hearing, however, the Notice of Removal states that Med Flight argued that the Workers’ Compensation Administration did not have jurisdiction over that billing dispute, because the Airline Act “preempts any State regulation or review of its rates,” resulting in the Workers’ Compensation Administration’s dismissal of the matter with prejudice. Notice of Removal ¶ 1, at 1. Then, according to the Notice of Removal, Med Flight filed its Complaint in state court. See Notice of Removal ¶ 2, at 2. The Notice of Removal asserts, regarding subject-matter jurisdiction in federal court, that, “[ajlthough Plaintiff dresses its claims for relief in the garb of state law, courts regularly look past the nominal causes of action to the litigation realities when deciding whether federal question jurisdiction exists” and that the Supreme Court of the United States of America has emphasized the “commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law.” Notice of Removal ¶¶ 9-10, at 3. Importantly, the Notice of Removal identifies that, “even though state law creates ... causes of action, a case might still arises under the laws of the United States if ... right to relief under state law requires resolution of a substantial question of federal law.” Notice of Removal ¶ 10, at 4 (internal quotation marks omitted). In this case, the Notice of Removal alleges:

Plaintiff’s Complaint alleges that Plaintiff was improperly reimbursed for its air ambulance services and that the [Airline Act] preempts any State statute, regulation, or law that allows for any reimbursement other than the total billed amount.... Instead of looking at the New Mexico Workers’ Compensation Act as its exclusive remedy, Plaintiffs request for relief rests entirely on the Court’s interpretation of the [Airline Act]’s preemption provision. A federal question is thus necessarily raised in the Complaint.

Notice of Removal ¶ 11, at 4.

The Notice of Removal further explains that, with the Airline Act Congress “deregulated the commercial airline industry so that airlines would compete with one another based on price, routes, and service,” and that air ambulance patients differ “from typical airline passengers because they often have no choice between ambulance providers.” Notice of Removal ¶ 12, at 4. States, as the Notice of Removal provides, “have regulated the rates that air ambulance providers charge through statutes, regulations, and workers’ compensation authorities,” and “air ambulance providers have increasingly begun to file suits asserting that state agencies lack the authority to regulate or reduce air ambulance fees.” Notice of Removal ¶¶ 13-14, at 5. Thus, according to the Notice of Removal, the Complaint “alleges that workers’ compensation providers must pay the rates charged by the ambulance provider—without any limitation or review imposed by the” Workers’ Compensation Administrar tion. Notice of Removal ¶ 14, at 5.

The Notice of Removal therefore alleges that it disputes “that Congress actually intended the [Airline Act] to preempt state workers’ compensation laws and regulations,” and that federal cases are on appeal “before the Tenth and Fifth Circuits” regarding this matter. Notice of Removal ¶ 15, at 5. The Notice of Removal further explains that the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), “precludes federal statutes from preempting state regulation of insurance unless the federal statute specifically relates to the business of insurance” and that “the [Airline Act] does not specifically relate to the business of insurance.” Notice of Removal ¶ 16, at 5. The Notice of Removal asserts that, because the “Plaintiffs claims are primarily based on its allegation that the [Airline Act] preempts state regulation” of workers’ compensation insurance in the air ambulance context, grounds for removal based on federal-question jurisdiction exist. Notice of Removal ¶ 17, at 5-6.

3. The Answer.

Builders Trust, after filing the Notice of Removal, answered the Complaint with Builders Trust of New Mexico’s Answer to Plaintiffs Complaint for Debt and Money Due and Breach of. Contract, filed November 17, 2016 (Doc. 3)(“Answer”). The Answer,- in relevant part, “admits that Plaintiff charged $58,834.29 for the transport,” “that it paid Plaintiff $10,477.36,” but “specifically denies that Plaintiff is entitled to any more money than what was paid.” Answer ¶¶ 20, 23, 24, at 4. The Answer further denies the existence of any contractual obligation by Builders Trust to Med Flight. See Answer ¶¶ 26-35, at 4-5. Importantly, the Answer raises a number of defenses to ■ the Complaint, including “fail[ure] to state a claim” and a potential time bar. Answer at 5-6. The Answer also asserts as a defense- that Builders Trust “acted prudently, in good faith, and each of its actions relative to the Plaintiff and the allegations in Plaintiffs Complaint were'justified,” and that “[t]here was an honest dispute regarding the value ■ of Plaintiffs claim and [Builders. Trust] is entitled to contest the amount claimed by Plaintiff.” Answer- at 6. Further, the Answer asserts as a defense that “[t]he Airline Deregulation Act does not entitle Plaintiff to obtain the remedies' sought in this case, and does not preempt the New Mexico Workers’ Compensation Act or the New Mexico workers’ compensation proceedings,” and that '“[t]he McCarran-Fer-guson Act, 15 U.S.C. § 1012(b), precludes federal statutes from preempting state regulation of insurance, unless the federal statute specifically relates to the business of insurance. Accordingly, the Airline Deregulation Act cannot govern reimbursements due to Plaintiff under the insurance policy at issue in this case.” Answer at 6. Last, the Answer contends that the dispute is not ripe, and that the Contract policy’s terms, “unclean hands, laches, waiver, estoppel and/or ratification,”- and “comparative bad faith or comparative fault or failure to timely comply with policy preconditions to suit” all bar Med Flight’s claims. Answer at 6-7. The Answer also asserts that Med Flight is barred, or limited, to the extent Builders Trust has relied on any of its “acts, omissions, material misrepresentations or material representations” to its detriment. Answer at 7.

4. The MTD.

Builders Trust filed its MTD on November 17, -2016, asserting that “Counts II and II,” alleging breach of contract, and breach of the covenant of good faith and fair dealing, fail to “set forth claims upon which relief can be granted,” because there is no contract between Builders Trust and Med Flight. MTD at 1. In addition, the MTD asserts that there is no contractual privity between Med Flight and Builders Trust, and that thus Med Flight lacks standing to pursue its claims. See MTD at 1. Accordingly, the MTD requests that the Court dismiss “Counts II and III with-prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).”- MTD at 1.

After restating the Complaint’s factual allegations, and the legal standards appurtenant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedures, Builders Trust first argues in the MTD that Med Flight “has entirely failed to set forth a plausible claim for either breach of contract,” because, “[although Plaintiff alleges that Mr. Woods assigned to Plaintiff his interest in all benefit plans from which he was entitled to recover for' the services provided by Plaintiff, Plaintiff has failed to establish Mr. Woods’ entitlement to recover from [Builders Trust].” MTD at 5. Builders Trust asserts that, specifically, Med Flight “has failed to allege the existence of any contract betweem Mr. Woods and [Builders Trust]. As the workers’ compensation insurer for Murphy Builders— the company for which Mr. Woods was working—any insurance-contract would be between [Builders Trust] and Murphy Builders.” MTD at 5. Thus, Builders Trust argues that, “[g]iven the absence of any contract between Plaintiff and. [Builders Trust], Plaintiff cannot sustain a claim for breach of contract against [Builders Trust].” MTD at 5 (citing Healthsource, Inc. v. X-Ray Assocs. of N.M., 2005-NMCA-097, ¶¶ 19-21, 138 N.M. 70, 116 P.3d 861). Builders Trust then argues that Med Flight nonetheless lacks standing to pursue its breach-of-contract claim, because “there is no contract and, thus, no contractual privity between” Med Flight and Builders Trust. MTD at 5.

Next, the MTD addresses Med Flight’s claim for breach of the covenant of good faith and fair dealing, and argues that, “[i]n New Mexico, the existence of a covenant of good faith and fair dealing requires an underlying contract.” MTD at 6. Thus, Builders Trust asserts that, because there is no contract between it and Med Flight, the covenant cannot apply, and, further, because no contract exists, no contractual privity to support standing exists between it and Med Flight. See MTD at 6. Builders Trust thus requests that the Court dismiss the Complaint’s Count II and II. See MTD at 6 (citing Fed. R. Civ. P. 12(b)(1), (b)(6)).

5. The MTD Response.

Med Flight responded to the MTD with Plaintiff Gallup. Med Flight, LLC’s Response to .Defendant Builders Trust of New Mexico’s Partial Motion to Dismiss, filed December 5, 2016 (Doc. 8)(“MTD Response”). Med Flight asserts that Woods is a third-party beneficiary to the workers’ compensation .insurance contract between Builders Trust and Woods’ employer Murphy Builders, and that Woods assigned any claims he had as a third-party beneficiary regarding .his air ambulance transport to Med Flight. See MTD Response at 1. This assignment,. Med Flight argues, establishes contractual privity between it and Builders Trust, supporting its claims for breach of contract, and breach of the covenant of good faith and fair dealing. See MTD Response at 1.

In support of Med Flight’s claims, the MTD Response first argues that a third-party beneficiary of a contract can have enforceable rights against another party to the contract, and that Woods was a third-party beneficiary, with enforceable rights, to the workers’ compensation insurance contract between Murphy, Builders—who was required “by statute to provide workers’ compensation for its employees”—and Builders Trust. MTD Response at 3-4. Med Flight further argues that the insurance agreement between Murphy Builders and Builders Trust was “intended to benefit Murphy Builders [sic] employees, such as Michael Woods, who are injured while performing work for Murphy Builders.” MTD Response at 4. Thus, Med Flight asserts that “[t]here can be no dispute that Mr. Woods was a third party beneficiary for any workers’ compensation insurance contract between [Builders Trust] and Murphy Builders,” and that therefore Woods is entitled to enforce all of the his rights under the insurance contract between Builders Trust' and Murphy Builders. MTD Response at 4. In this case, then, the MTD Response concludes that Woods, as a valid third-party beneficiary, assigned his rights to Med Flight regarding his air ambulance transport to UNMH, authorizing Med Flight’s suit against Builders Trust in the present action. See MTD Response at 4.

Med Flight then argues that, because Woods is a third-party beneficiary to the. workers’ compensation insurance contract between Murphy Builders and Builders Trust, and that he assigned his rights under that contract, in relevant part, to Med Flight, Med Flight’s “allegations adequately plead claims for breach of contract and breach of the covenant of good faith and fair dealing” where Builders Trust has not fulfilled the cost of the air ambulance’s services. MTD Response at 4. Here, according to the MTD Response, Med Flight has “pleaded in its Complaint that [Builders Trust] breached its contract in refusing to pay the billed charges under workers’ compensation associated with the treatment provided by” Med Flight to Woods. MTD Response at 5. The MTD Response also argues that Med Flight has “further pleaded that by refusing to pay billed charges arising out of the treatment ... [Builders Trust] breached the covenant of good faith and fair dealing which is present in every contract in New Mexico.” MTD Response at 5. Med Flight then reiterates that the Court should draw, all reasonable inferences from the Complaint in its favor and that the Court should therefore deny the MTD. See MTD Response at 5-6.

6. The MTD Reply.

Builders Trust replied-in support of its MTD with Defendant Builders Trust of New Mexico’s Reply in Support of Its Partial Motion to Dismiss, filed December Í9, 2016 (Doc. 12)(“MTD Reply”). The MTD Reply argues, first, that the “Plaintiff has entirely failed to set forth any legal authority supporting its assertion that a third party beneficiary can assign his rights to workers’ compensation benefits to his healthcare providers.” MTD Reply at 1. Although “no New'Mexico court has addressed this issue,” the MTD Reply cites to the Restatement (Second) of Contracts § 317(2)(A) (1979), for the proposition that

Mr. Woods could not assign his workers’ compensation benefits to Plaintiff because any such assignment would have materially changed [Builders Trust’s] duty and increase the risk imposed on [Builders Trust] by the contract. Moreover, any such assignment would be contrary to New Mexico’s public policy. Accordingly, Plaintiff has not, and cannot, set forth the existence of a contract between Plaintiff and [Builders Trust].

MTD Reply at 1, Builders Trust thus contends that the lack of support for Med Flight’s “claim that there is contractual privity between itself and [Builders Trust] because Mr. Woods assigned to [Med Flight] his interest as a third-party beneficiary of the workers’ compensation insurance contract between [Builders Trust] and Murphy Builders,” is grounds for dismissing the Complaint’s Counts II and III regarding breach of contract. MTD Reply at 2.

Builders Trust argues that “the only case regarding assignment to which Plaintiff cites is Seaboard Fire & Marine Ins. Co. v. Kurth, 1980-NMCA-112, 96 N.M. 631, 633 P.2d 1229,” which considered “whether a claimant under the New Mexico Workers’ Compensation Act could assign his claim against a third-party tortfeasor such that he was not an indispensable party to the action brought against the tortfeasor.” MTD Reply at 2 (alterations omitted). According to Builders Trust, a man named Higgins was injured in a car accident with a defendant named Kurth, and, after the accident, Seaboard paid Higgens an amount “under the workers’ compensation policy” and then retained a subrogation receipt from Higgens. MTD Reply at 2-3. According to Builders Trust, a few years after the accident and that transaction, Seaboard and Higgens sued Kurth asserting a claim “based on the payment of benefits to Mr. Higgens under the New Mexico Workers’ Compensation Act.” MTD Reply at 3. The MTD Reply explains that the state court first dismissed Higgens from the suit, and then Seaboard, because Higgens was an essential party. See MTD Reply at 3. Builders Trust provides that, on appeal, Seaboard argued that Higgens had assigned his right to actions to Seaboard with the sub-rogation receipt, and the Court of Appeals of New Mexico partially agreed, holding that the subrogation receipt—although not investing Seaboard a right of subrogation—provided Seaboard a right to reimbursement, and thus Higgens was a dispensable party. See MTD Reply at 3. Builders Trust thus explains that “the New Mexico Court of Appeals has stated that Seaboard Fire & Marine Ins. Co. simply stands for the proposition that the New Mexico Workers’ Compensation Act creates no right of subrogation or assignment in the insurer, merely a right of reimbursement.” MTD Reply at 3^4 (internal quotation marks and alteration omitted).

Accordingly, Builders Trust argues that the present case is dissimilar; here, the Court is not considering an “insurer’s right of reimbursement from a third party for the benefits that were issued to a worker. Instead, this case involves an alleged assignment to a healthcare provider of the workers’ right to benefits under the workers’ compensation contract between his employer and his employer’s insurer.” MTD Reply at 4. Builders Trust then cites the Restatement (Second) of Contracts, which provides: “A contractual right can be assigned unless ... the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor ... or materially increase the burden of risk imposed on him by his contract.” MTD Reply at 4-5. In this case, Builders Trust explains that Woods could not assign his benefits, because that assignment materially changes its duties and increases its risk in the contract. See MTD Reply at 5. That result is the case, according to Builders Trust, because the assignment does not “merely change the person to whom payment was to be made. Instead, it would subject [Builders Trust] to the risk of having to make a higher payment ... [because the] contract with Murphy Builders requires it only to pay for reasonable and necessary health care services from a healthcare provider.” MTD Reply at 5. Builders Trust relies on the language in the Contract, stating: “We will pay promptly when due the benefits required of you by New Mexico workers [sic] compensation law.” MTD Reply at 5 (alterations omitted). Because the third-party beneficiary, Woods, could assign his rights to benefits to a healthcare provider, such assignment entails an increased risk that Builders Trust will be liable to pay any charges, no matter how exorbitant. See MTD Reply at 5.

Builders Trust also contends in the MTD Reply that such an assignment “would be contrary to New Mexico’s public policy,” because the New Mexico Workers’ Compensation Act is intended “to protect injured workers from becoming dependent on public welfare and to provide them with some financial security.” MTD Reply at 6. According to Builders Trust, “[a]n employee’s assignment of their workers’ compensation benefits to a healthcare provider would not prevent the employee from becoming dependent on public welfare or provide the employee with financial security.” MTD Reply at 6. Further, allowing assignment, Builders Trust contends, creates “unprecedented litigation,” because litigants can bypass bringing disputes before the Workers’ Compensation Administration. MTD Reply at 6. The MTD Reply thus concludes by requesting that the Court grant the MTD. MTD Reply at 7-8.

7. Motion for Judgment.

Med Flight filed its Motion for Judgment on January 5, 2017. See Motion for Judgment at 1. The Motion for Judgment argues that Med Flight is “entitled to the relief sought in its Complaint as a matter of law as there are no material facts which dispute the relief sought by [Med Flight].” Motion for Judgment at 1. After setting out what the Motion for Judgment calls the “Material Facts,” Med Flight argues that CMS regulations mandate that “the treating physician at the transferring hospital [ ] decides how the individual is transported to the recipient hospital.” Motion for Judgment at 6-7. Further, according to Med Flight, under EMTALA, the responsibility is “on the transferring hospital to ensure the Statute’s requirements are met.” Motion for Judgment at 7. According to Med Flight, regulations interpreting EMTALA require “hospitals accept payment under the Medicare program to provide emergency health care treatment to anyone in need.... ” Motion for Judgment at 7.

The Motion for Judgment next provides the scenarios where “federal law may supersede, or preempt, state law,” and explains that the Airline Act “includes a preemption clause that prohibits States from enacting or enforcing laws that have a connection with, or reference to, an air carrier’s prices, routes or services,” and that the preemption clause has broad overarching application. Motion for Judgment at 7-9 (internal quotation marks omitted). The Motion for Judgment also indicates that the Supreme Court has “held that a state ‘may not seek to impose their own public policies or theories of competition or regulation on the operations of an air carrier,’ whether by statute or common law or equitable contract doctrines.” Motion for Judgment at 11 (citing American Airlines, Inc. v. Wolens, 513 U.S. 219, 225-28, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995)). As Med Flight argues, “air ambulance operators certified by the FAA are air carriers entitled to the protections afforded by the [Airline Act],” which means that “[o]nce the [DOT] Secretary certificates an air ambulance operator, the competitive marketplace, rather than state regulations, controls the operator’s prices, routes, and services, and only the secretary may revoke an air ambulance operator’s certificate.” Motion for Judgment at 13.

Med Flight then provides the legal standard for a motion for judgment on the pleadings: “Judgment on the pleadings may be granted if the moving party clearly establishes that no material fact remains to be resolved, and that the party is entitled to judgment as a matter of law.... The Court may examine the pleadings and any facts which the Court can take judicial notice.” Motion for Judgment at 13. Here, Med Flight asserts in its Motion for Judgment that “New Mexico Workers’ Compensation Statute and Rules are not preempted by the [Airline Act],” and, thus, because “the [Airline Act] does not preempt the New Mexico Workers’ Cotripen-sation Act, the reverse-preemption doctrine of the McCarren Ferguson Act is not ripe for adjudication in this case, but the defenses raised by the Defendant in its Answer are pre-empted by the [Airline Act].” Motion for Judgment at 14.

Regarding Airline Act preemption of the New Mexico Workers’ Compensation Act, Med Flight explains that

the NM Act is not written in a manner that relates to air ambulance fates or services nor does the fee schedule include in its over 9,100 services a provision for payment to air carriers. It appears that New Mexico has' simply chosen to avoid the issues of the [Airline Act] by not setting a fee schedule for an air carrier.

Motion for Judgment at 14. Thus, Med Flight contends, because “air carrier rates seem to be intentionally omitted ... the [New Mexico Workers’ Compensation Act] provides for such a situation, providing that a ‘health care provider shall be paid his usual and customary fee for services rendered or the maximum charge established pursuant to Subsection A of this section, whichever is less.’” Motion for Judgment at 15 (citing New Mexico Workers’ Compensation Act § 52-4-5(B)). According to Med Flight, the New Mexico Administrative Code defines “usual and customary fee” as “the monetary fee that a practitioner normally charges for any giw en health care service,” which is the fee that it charged Builders Trust and that Builders Trust has refused to pay. Motion for Judgment at 15 (citing N.M. Admin. C. 11.4.7.8(C)(2)), Thus, Med Flight argues, Builders Trust’s statement that the “Plaintiff seeks to compel [Builders Trust] to pay increased air ambulance fees/rates and bad faith damages, alleging that the [Airline Act] preempts establishment of State regulation and review of its rates, including review by the New Mexico Workers’ Compensation Administration,” is false: Motion for Judgment at 15. Med Flight explains that, although the Airline Act preempts New Mexico’s regulation of air carrier rates, the New Mexico Workers’ Compensation Act has-“not attempted to establish air ambulance rates thus there is nothing to be pre-empted.” Motion for Judgment at 15, Med Flight argues that, in light of the New Mexico Workers’ Compensation Act, it is only asking it be paid its “usual and customary” fees, which it billed in the case of Woods’ transport 'to UNMH, Motion for Judgment at 15. According to Med Flight, because there is nothing left for further determination “as the statutory language is unambiguous,” it is owed its usual and customary amount, which it argues it charged in this case. Motion for Judgment at 16.

Med Flight then argues, however, that the Airline Act preempts Builders Trust’s affirmative defenses, even though “the [Airline Act] permits state-law-based court adjudication of routine breach of contract claims.” Motion for Judgment at 16. Med Flight argues that such preemption of Builders Trust’s defenses exists, because, “[although .the [Airline Act] has not preempted [Med Flight]!s state law breach of contract claim • against Builders Trust, there.are instances where certain claims asserted against an air carrier ... are preempted.” Motion for Judgment- at 17. Those instances include, Med Flight argues, Builders Trust’s asserted defenses of “unclean hands, laches, waiver, estoppel, and/or ratification,” and of “comparative bad faith or comparative fault or failure to timely comply with policy preconditions to suit.” Motion for Judgment at 18. Thus, the Motion for Judgment concludes by stating: “Because the parties agree that the [Airline Act] does not preempt the New Mexico Workers’ Compensation Act, the reverse preemption doctrine of the McCarren Ferguson Act is not applicable and the issue raised by [Builders Trust] in its Affirmative Defenses is not ripe for adjudication in this case.” Motion for Judgment at 18.

8. Motion for Judgment Response.

The Motion for Judgment Response begins by arguing that

judgment on the pleadings is entirely inappropriate in this case because the pleadings reveal numerous disputes regarding the material facts. Additionally, [Med Flight] is not entitled to judgment on the pleadings because it cannot demonstrate, as a matter o'f law, that there was contractual privity ... or that [Builders Trust] breached the underlying contract.

Motion for Judgment Response at 1. Further, Builders Trust, in its Motion for Judgment Response, argues that Med Flight “misconstrues the applicable law in contending that [Builders Trust]’s defenses are preempted.” Motion for Judgment Response at 1. Builders Trust then argues that Med Flight’s • ■ •

statement of material facts is replete with' new, unsubstantiated assertions'. The Court should disregard this extraneous information. If the Court considers this extraneous . information, it should convert Plaintiffs - Motion into a motion for summary judgment. Even if the Court were to convert ... [Med Flight] has entirely failed to support its assertions with citations to the record [and] the Court should not consider [the] unsubstantiated assertions.

Motion for Judgment Response at 2 n.l. In the same vein, Builders Trust also argues that “[m]any of these asserted facts contain charactérizations of law' [and although a court may consider any facts of which it can take judicial notice in ruling on a motion for judgment on the pleadings ... a court can only take judicial notice of adjudicative facts, not legislative facts.” Motion for Judgment Response at 2. Builders Trust thus requests that, in its conversion of the Motion for Judgment to a summary judgment' motion, the Court not take judicial notice 'of legislative facts alleged as material facts. See Motion for Judgment Response at 2.

The Motion for Judgment Response then disputes the material facts—in the context of a motion for judgment on the pleadings—by first noting which proffered material facts contain information beyond those that the pleadings provide, and then proffering its own “disputed” material facts. Motion-for Judgment Response at 2-6. According to Builders Trust, the. disputes, essentially, are whether contractual privity, by Woods’ assignment of his contractual rights to Med Flight, exists between Med Flight and Builders Trust, and whether the amount Med Flight billed Builders Trust constitutes Med Flight’s normal charge for services.. See Motion for Judgment Response at 5-6. Builders. Trust then explains the framework of EMTALA regarding the transfer .of patients .from hospital to hospital. See Motion for Judgment Response at 6-7,. Next, the Builders Trust discusses preemption and how Congress “enacted the [Airline Act] after determining that maximum -reliance on competitive market forces would best further efficiency,. innovation, and low prices as well as variety and quality of air transportation services,” and thereby included a broad preemption clause in the Airline Act. Motion for Judgment Response at 7-8 (internal quotation marks omitted). Builders Trust argues that the preemption clause’s scope is broad, reaching state enforcement actions that have “a connection with or reference to airline rates, routes, or services,” and that “the central purpose of the” Airline Act is to eliminate “federal regulation of rates, routes, and services” so that the market can govern these categories. Motion for Judgment Response at 8-10. Thus, according to Builders Trust, the preemption clause’s purpose is to ensure that states do not fill the void that the Airline Act’s deregulation creates. See Motion for Judgment Response at 10. Common law contract claims under the Airline Act are, the Motion for Judgment Response argues, thus an integral component of the market forces that the Airline Act sought to embolden. See Motion for Judgment Response at 10.

The Motion for Judgment Response then turns to Builders Trust’s argument against judgment on the pleadings, first framing Med Flight’s argument in the Motion for Judgment as being “that the Court should enter judgment on the pleadings because the [Airline Act] does not preempt the New Mexico Workers’ Compensation Act and because the New Mexico Workers’ Compensation Act provides that Plaintiff is entitled to be paid its usual and customary fee for [ ] services that it provided.” Motion for Judgment Response at 13. The Motion for Judgment Response then concedes that Builders Trust “agrees that the [Airline Act] does not preempt the New Mexico Workers’ Compensation Act or review by the New Mexico Workers’ Compensation Administration.” Motion for Judgment Response at 13. Yet, Builders Trust also asserts that, although Med Flight states in the Motion for Judgment that it declined to submit to the Workers’ Compensation Administration’s jurisdiction for reasons other than preemption, “the Order of Dismissal ... shows otherwise,” and indicates that Med Flight cited federal law as its reason for refusing to submit to the Workers’ Compensation Administration’s jurisdiction. Motion for Judgment Response at 13 n.3 (citing Order of Dismissal (dated July 13, 2016), filed December 19, 2016 (Doc. 14-1)). Nonetheless, Builders Trust then argues that Med Flight has not, in the pleadings, set forth that the amount it charged Builders Trust was the “usual and customary fee.” Motion for Judgment Response at 13. Indeed, Builders Trust contends, whether the amount Med Flight charged is the usual and customary fee is the subject of an “honest dispute.” Motion for Judgment Response at 13. Builders Trust then disputes the existence of a contractual obligation or a breach of a contract on its part. See Motion for Judgment Response at 14. Builders Trust contends that the “Plaintiff has entirely failed to set forth any legal authority supporting its assertion that a third party beneficiary can assign his rights to workers’ compensation benefits to a healthcare provider. Any such assignment is contrary to the law, as set forth in the Restatement (Second) of Contracts.” Motion for Judgment Response at 16. Further, in this case, Builders Trust asserts that an assignment by Woods to Med Flight would have “materially changed” its duty under its contract and “increased the risk imposed” on it by the contract. Motion for Judgment Response at 16. Builders Trust thus contends that it has “complied with its contract to pay reasonable health services” and that Woods’ alleged assignment was not valid. Motion for Judgment Response at 16-17.

Builders Trust next argues that, should the Court conclude that a contract exists through assignment, nonetheless, it fulfilled its obligation to pay “a reasonable, customary fee for air ambulance services” under its contract with Murphy Builders. Motion for Judgment Response at 17. Builders Trust argues that by paying what it “deemed to be the reasonable healthcare services” cost, its contractual obligations and covenant of fair dealing obligations were met. Motion for Judgment Response at 17-18. Last, the Motion for Judgment Response addresses the contention that the Airline Act preempts Builders Trust’s defenses. See Motion for Judgment Response at 18. Builders Trust argues that the Supreme Court, in American Airlines v. Wolens, did not discuss Airline Act preemption of equitable contract doctrines, and that here, regardless, the “equitable defenses relate only to Plaintiffs conduct” as opposed to “state-imposed obligations,” meaning that Airline Act preemption does not apply. Motion for Judgment Response at 20.

9. Motion for Judgment Reply.

The Motion for Judgment Reply provides that “contractual privity exists as a result of valid assignment and the assignment did not expand any obligation of Defendant. Further, Defendant inaccurately presented [argument to] [the Workers’ Compensation Administration] as it pertains to billing by air medical providers and Defendant is required to pay [Med Flight] for [Med Flight’s normal and customary charges.” Motion for Judgment Reply at 1. Med Flight contends that assignment, such as that of Woods to Med Flight, is “common practice in the medical industry ... and legally could not[ ] expand any of Defendant’s obligations.” Motion for Judgment Reply at 1-2. Med Flight also contends that the amount it billed was the “amount normally charged.” Motion for Judgment Reply at 2. Med Flight reiterates that the law “clearly shows” that it is entitled to full compensation “for amounts normally charged,” that it “is in contractual privity, through assignment,” and that the contract has been breached. Motion for Judgment Reply at 2.

Regarding conversion of the Motion for Judgment into a summary judgment motion, the Motion for Judgment Reply provides that Med Flight “acknowledges that it. is the Court’s prerogative to consider matters outside the pleadings, attached as exhibits by either party, and thereby convert [Med Flight]’s Motion to a Motion for Summary Judgment.” Motion for Judgment Reply at 2 n.2 (citing Hartford Cas. Ins. Co. v. Trinity Universal Ins. Co., 158 F.Supp.3d at 1196). Med Flight then addresses the assignment issue, and provides that “[h]ealth care providers can, and regularly do, receive assignments from patients against insurers.” Motion for Judgment Reply at 2 (citing Webb Aff.)(explaining that Webb is Med Flight’s Vice President, and that this assignment and billing is standard practice). Med Flight argues that “the majority view is that healthcare providers may receive an assignment from patients.” Motion for Judgment Reply at 2-3 (citing Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997), but explaining that the United States Court of Appeals for the Tenth Circuit has not yet addressed the issue). Thus, Med Flight maintains that it received a valid assignment of Woods’ insurance benefits through the standard procedures that were followed during his transport to UNMH. See Motion for Judgment Reply at 3-4. According to Med Flight, that assignment “did not expand Defendant’s obligations,” because “an assignee ... acquires by virtue of his assignment nothing more than the assignor had.... ” Motion for Judgment Reply at 5.

Med Flight next addresses whether it “billed the amount normally charged for the transport of Michael Woods.” Motion for Judgment Reply at 6. According to Med Flight, the Workers’ Compensation Administration “does not limit or set a price, that air ambulance medical providers may charge for their services, unlike other medical services covered by the Act.” Motion for Judgment" Reply at 6. Instead, Med Flight states, the New Mexico Workers’ Compensation Act provides that “a health care provider shall be paid his usual and customary fee for services rendered or at the maximum charge established pursuant to Subsection A of this section, whichever is less.” Motion for Judgment Reply at 6 (citing New Mexico Workers’ Compensation Act § 52-4-5(B))(emphasis omitted). Med Flight argues that given the lack of a fee schedule under the New Mexico Workers’ Compensation Act, the Airline Act preempts Builders Trust’s affirmative defenses, because “Defendant is unilaterally attempting to set an air carrier’s rates” by contesting this bill. Motion for Judgment Reply at 6. Med Flight then explains that Builders Trust contests that it charged the usual and customary amount solely by reference to the Frazier Aff., which Méd Flight argues “appears on its face to be expert opinion regarding the market value of air ambulance services in New Mexico,” and which Med Flight argues the Court should disregard, because expert testimony is not a substitute for facts. Motion for Judgment Reply at 7. Further, the Workers’ Compensation Administration, according to Med Flight, “does not state that medical providers not covered by the Act’s fee schedule can only be paid the usual and customary fee, but instead states that medical providers shall be, paid their usual and customary fees which has been interpreted to mean the monetary fee that a practitioner normally charges.” Motion for Judgment Reply at 7. Accordingly, the Med Flight submits that it charged its “usual and customary fee” in this case. Motion for Judgment Reply at 7 (citing the Webb Aff.).

10. The January 23,2017, Hearing.

The Court held a hearing on January 23, 2017. See Transcript of Hearing, taken January 23, 2017 (“Tr.”). The Court began the hearing by requesting that the parties argue the MTD and Motion for Judgment together, and then indicated:

I guess I’m "not quite sure why these claims [can’t] be assigned from an in-suréd to a health care provider. It seems like the biggest objection from Builders Trust is that it expands the right, but I guess you could just say it doesn't expand the right. Whatever is assigned is no more or greater than what the individual insured has. I guess I’m not seeing that that’s a problem. I guess I worry about does making these assignable undercut the workmen’s comp act ... and their ability to negotiate these flights and other health care providers, so I don’t quite understandf] that and whether it would or not. But it seems to me that the sort of privity and standing arguments and those sort of things that the defendant argues all fall by. the wayside if this claim can be assigned. And I guess I am inclined to think it can be.

Tr. at 2:16-3:11 (Court). The Court also indicated that it had done work, in a different context, which required it to research the cost of a medivac transport, leading the Court to be “a little concerned about the total amount that was being charged. It seemed high ... I was a little bit skeptical that I could grant summary judgment on the amount.” Tr. at 3:20-4:14 (Court). Additionally, the Court was hesitant to conclude that “I have1 jurisdiction over this.” Tr. at 4:14-18 (Court).

Builders Trust then argued, beginning with the issue of assignment, and stated that “[t]he assignment would run the risk that the rights would be greater and expanded.” Tr. at 5:13-15 (Sherrell). Builders Trust explained that the operative fact is how the assignment of workers’ compensation rights will “undercut the workers’ comp administration,” because then the “health care providers would basically bypass the workers’ comp administration, where you just have one administration that’s looking at the bills and determining the reasonable[ness] and instead healthcare providers would be able to bypass [that procedure] and go to all th