Ninth Circuit Holds ERISA Does Not Preempt Out-of-Network Provider’s Negligent Misrepresentation Claim Arising from Aetna’s Verification-Call Statements, But Affirms Preemption of Promissory Estoppel Claim

In Healthcare Ally Management of California, LLC v. WSP USA, Inc., No. 24-3479, — F.4th —-, 2026 WL 2319896 (9th Cir. Aug. 11, 2026), an out-of-network surgery center, La Peer, placed a verification call to Aetna, the administrator of an ERISA-governed health plan sponsored by WSP USA, Inc., before performing a surgery for a plan-covered patient. Aetna told La Peer that the plan would pay the balance of the procedure at the Usual, Customary, and Reasonable (UCR) rate and that payment would not be based on the Medicare Fee Schedule. Neither Aetna nor WSP informed La Peer of any plan exclusion or limitation that might reduce that rate, and neither provided La Peer with a copy of the plan before the surgery. After La Peer performed the procedure and billed WSP, WSP paid at the Medicare rate, amounting to five percent of the bill. Healthcare Ally Management of California (HAMOC), La Peer’s successor in interest, sued WSP and Aetna in state court, asserting state law claims for negligent misrepresentation and promissory estoppel along with a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). After removal, the district court dismissed the § 1132(a)(1)(B) claim for lack of derivative standing, a ruling HAMOC did not appeal, and dismissed the state law claims under Rule 12(b)(6) as preempted by ERISA.

Reviewing ERISA preemption de novo, the Ninth Circuit reversed as to the negligent misrepresentation claim and affirmed as to the promissory estoppel claim. The court analyzed the negligent misrepresentation claim under both prongs of the “relate to” inquiry set out in 29 U.S.C. § 1144(a). On the “connection with” prong, the court applied the relationship test and held that the claim does not bear on an ERISA-regulated relationship. Although Aetna and WSP are ERISA entities and La Peer verified coverage under the ERISA plan, the court reasoned that ERISA does not supply a cause of action to providers, so the relationship between La Peer, as a provider, and Aetna, as a plan administrator, falls outside ERISA’s regulatory scope, and the tort alleged ran from a non-ERISA entity to ERISA entities without encroaching on the plan’s relationship with its beneficiary.

On the “reference to” prong, the court held that the claim does not depend on the existence of an ERISA plan. Surveying The Meadows v. Employers Health Insurance, 47 F.3d 1006 (9th Cir. 1995), Cedars-Sinai Medical Center v. National League of Postmasters, 497 F.3d 972 (9th Cir. 2007), and the Fifth Circuit’s Access Mediquip L.L.C. v. UnitedHealthcare Insurance Co., 662 F.3d 376 (5th Cir. 2011), reinstated en banc, 698 F.3d 229 (5th Cir. 2012), the court reasoned that the injury arises from the very fact misrepresented rather than from the denial of a plan benefit. The court emphasized that, under California law, the claim turns on what Aetna represented, whether Aetna had a reasonable ground for believing its statement, and whether La Peer justifiably relied to its detriment, not on the plan’s actual coverage terms, and that the patient here received the covered treatment. Because the injury is not rooted in a plan term, the claim is nonderivative and could not have been assigned under § 502(a), so it is not preempted. The court added that consulting the plan to contest an element or to calculate damages would not require preemption. The court also grounded its conclusion in congressional intent, reasoning that preemption would leave providers without any remedy against plans that misrepresent coverage, particularly where anti-assignment provisions bar assignment, contrary to ERISA’s objectives of setting fiduciary standards of conduct and making health care more available.

The court held that its prior decision in Bristol SL Holdings, Inc. v. Cigna Health & Life Insurance Co., 103 F.4th 597 (9th Cir. 2024), does not control the negligent misrepresentation claim, noting that Bristol did not involve a misrepresentation claim and expressly left open that question. The court distinguished Bristol on the ground that the oral contract theory there sought to supplant an ERISA plan’s fee-forgiving provision, whereas HAMOC’s negligent misrepresentation claim arises from an injury distinct from compliance with the plan. As to HAMOC’s promissory estoppel claim, however, the court held that Bristol controls, because the promissory estoppel causes of action are analogous in all legally meaningful respects, and affirmed dismissal of that claim. The court reversed the dismissal of the negligent misrepresentation claim, affirmed the dismissal of the promissory estoppel claim, and remanded.