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Kaplan v. Blue Cross and Blue Shield of Florida, Inc., 07-11699, 2008 WL 4926623, 07-11699 (11th Cir. Nov. 19, 2008)

Kaplan v. Blue Cross and Blue Shield of Florida, Inc., 07-11699, 2008 WL 4926623, 07-11699 (11th Cir. Nov. 19, 2008)

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Published by: FloridaLegalBlog on Oct 22, 2009
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10/21/2009

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FILEDU.S. COURT OF
 
APPEALSELEVENTH CIRCUIT NOV 19, 2008THOMAS K. KAHNCLERK 
[DO NOT PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT ________________________  No. 07-11699 Non-Argument Calendar  ________________________ D.C. Docket No. 06-80162-CV-DTKHERIC KAPLAN,BONNIE KAPLAN,Plaintiffs-Appellants,versusBLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,Defendant-Appellee. ________________________ Appeal from the United States District Courtfor the Southern District of Florida ________________________ 
(November 19, 2008)
Before ANDERSON, HULL and COX, Circuit Judges.PER CURIAM:In late 2003, Plaintiffs Eric and Bonnie Kaplan (“the Kaplans”) beganreceiving BOTOX Cosmetic (“BOTOX”) injections from Bach McComb, a one-time
 
osteopath who had lost his license to practice medicine in Florida. The Kaplanssought the BOTOX injections for purely cosmetic purposes. After receiving severalinjections without incident, the Kaplans suffered severe injuries when, on November 24, 2004, McComb substituted raw botulinum-A toxin for BOTOX.The Kaplans submitted approximately $800,000 of resulting medical bills totheir health insurer, Blue Cross and Blue Shield of Florida, Inc. (BCBSF). BCBSFdenied their claims, finding that the November 24, 2004 injections were “cosmeticservices,” not covered under their health insurance plan and that the medical care theKaplans required as a result of those injections were “complications of non-coveredservices,” also not covered under their health insurance plan.After an administrative review process yielded affirmance of BCBSF’scoverage determination, the Kaplans sued BCBSF in district court, alleging violationof ERISA. On cross-motions for summary judgment, the district court denied theKaplans’ motion and granted summary judgment to BCBSF. The Kaplans nowappeal that judgment.We find no reversible error. The district court correctly found that BCBSF didnot misinterpret the language of the Kaplan’s health insurance plan when it deniedtheir claims. (R.1-28 at 11.) Like the district court, we decline to accept the Kaplans’arguments that McComb’s substitution of raw botulinum-A toxin for BOTOX
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