912 F.2d 1469
Feldspar Truckingv.Greater Atl.
NO. 89-8450
United States Court of Appeals,Eleventh Circuit.
JUL 31, 1990

1
Appeal From:  N.D.Ga.

2
AFFIRMED.


634 S.E.2d 518 (2006)
ALLEN et al.
v.
WRIGHT.
No. A06A0662.
Court of Appeals of Georgia.
July 14, 2006.
*519 Chambless, Higdon, Richardson, Katz & Griggs, David N. Nelson, Norman C. Pearson III, Martin, Snow, John C. Daniel III, Richard A. Epps, Jr., Macon, for appellants.
Savage, Turner, Pinson & Karsman, William H. Pinson, Jr., Savannah, for appellee.
Love, Willingham, Peters, Gilleland & Monyak, Allen S. Willingham, Atlanta, Robertson, Bodoh & Nasrallah, Matthew G. Narsallah, Marietta, amici curiae.
ADAMS, Judge.
Ernestine C. Wright filed a medical malpractice action against Thomas M. Allen, M.D., his professional corporation, Four Rivers Orthopedic Associates, P.C., and Meadows Regional Medical Center, Inc. Purporting to comply with OCGA § 9-11-9.2, Wright executed an authorization to release her medical records and filed it contemporaneously with her complaint. Defendants moved to dismiss the complaint, arguing that the authorization executed by Wright did not comply with OCGA § 9-11-9.2 in several respects, most notably in that it did not allow communications between defendants' attorneys and plaintiff's treating physicians outside the presence of and without first notifying plaintiff's attorney. The trial court denied defendants' motions, finding that OCGA § 9-11-9.2 was preempted by the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191; 42 U.S.C. § 1320d et seq. ("HIPAA") and that OCGA § 9-11-9.2 "conflicts with the formal discovery methods recognized under the Georgia Civil Practice Act. . . ." We granted defendants' application for interlocutory appeal to determine issues relating to the enforcement of OCGA § 9-11-9.2.
1. The identical issue raised in this appeal  whether HIPAA preempts OCGA § 9-11-9.2  was recently decided as a matter of first impression by this Court in Northlake Med. Center v. Queen, 280 Ga.App. ___(2), ___ S.E.2d ___, 2006 WL 1914716 (2006). We agree with the reasoning set forth in Division 2 of that opinion and find it to be controlling here. It follows that the trial court did not err by denying defendants' motion to dismiss Wright's complaint for failure to comply with OCGA § 9-11-9.2.
2. In light of our holding in Division 1, we need not address the parties' remaining arguments.
Judgment affirmed.
RUFFIN, C.J., JOHNSON, P.J., BARNES and PHIPPS, JJ., concur.
ANDREWS, P.J., and MIKELL, J., dissent.
*520 MIKELL, Judge, dissenting.
I respectfully dissent for the reasons stated in the dissenting opinion of Presiding Judge Andrews in Northlake Med. Center v. Queen, 280 Ga.App. ___(2), ___ S.E.2d ___, 2006 WL 1914716 (2006).
I am authorized to state that Presiding Judge ANDREWS joins in this dissent.


                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                              No. 15-6045

ROBERT EARL TIPPENS, JR.,

                Petitioner - Appellant,

          v.

COMMONWEALTH OF VIRGINIA,

                Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cv-00757-HEH)

Submitted:   March 17, 2015                 Decided:   March 20, 2015

Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert Earl Tippens, Jr., Appellant Pro Se. Rosemary Virginia
Bourne, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Robert     Earl    Tippens,      Jr.,      seeks    to    appeal       the    district

court’s     order     granting      in     part    and       denying    in        part    the

Respondent’s     motion      to    dismiss      his     28    U.S.C.    § 2254       (2012)

petition.      This court may exercise jurisdiction only over final

orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and

collateral     orders,    28      U.S.C.   § 1292       (2012);      Fed.    R.    Civ.    P.

54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-

46 (1949).      The order Tippens seeks to appeal is neither a final

order   nor    an     appealable      interlocutory           or    collateral       order.

Accordingly, we dismiss the appeal for lack of jurisdiction.                               We

dispense      with    oral     argument      because         the    facts     and        legal

contentions     are    adequately        presented      in    the    materials       before

this court and argument would not aid the decisional process.

                                                                                DISMISSED

                                            2


659 F.2d 1091
U. S.v.Taylor
80-1007
UNITED STATES COURT OF APPEALS Ninth Circuit
7/31/81

1
C.D.Cal.

AFFIRMED


692 S.W.2d 222 (1985)
286 Ark. 290
Thea CLEMENS, Appellant,
v.
FIRST NATIONAL BANK OF BERRYVILLE, Ar., Appellee.
No. 85-40.
Supreme Court of Arkansas.
June 24, 1985.
*223 Barry J. Watkins, Springdale, for appellant.
Constance G. Clark, Fayetteville, for appellee.
HOLT, Chief Justice.
At issue in this case is the liability of a bank for honoring transactions conducted by one of co-signatories on an account. The trial court found the bank was protected by statute and granted partial summary judgment on those grounds. Our jurisdiction is pursuant to Sup.Ct.R. 29(1)(c) as we are being asked to interpret the applicable statutes.
The facts which gave rise to this cause of action are as follows. In February, 1979, the appellant Thea Clemens, who was then Thea Howes, executed a general power of attorney naming Jack Howes, at that time her husband, as her attorney in fact. In May of 1979, Jack and Thea Howes borrowed money from the appellee, First National Bank of Berryville, Arkansas, for the purchase of Ron's Liquor Store in Berryville. The loan of $46,000 was evidenced by a promissory note and secured by stock in IDS New Dimensions Fund, Inc., owned by Mrs. Howes. During the closing of the loan the bank was given a copy of the general power of attorney from Thea Howes in favor of Jack Howes by Mr. Howes. At the same time, the Howeses opened a checking account in the name of Ron's Liquor Store on which they, together with an employee, were authorized signatories. The $46,000 was deposited in the liquor store account.
In September 1979, Jack Howes told Burton George, president of appellee bank, that he wanted to redeem the IDS stock to pay off the note to the bank and increase the store's inventory. The bank prepared a letter of redemption and sent it via Mr. Howes to Mrs. Howes for her signature. Mr. Howes returned the letter bearing what the bank believed to be Mrs. Howes' signature. The letter was then sent to IDS with a request that the proceeds be credited to appellant's account.
On September 21, the stock proceeds of $63,671.96 were credited to the liquor store account. Of that amount, $47,098.84 was debited to pay off the $46,000 note and a $3,000 note executed by Jack Howes and, purportedly, by Thea Howes on September 13.
On December 13, 1979, Jack Howes presented a $14,671.40 check to the appellee for payment. The check was from State Farm Life Insurance Co., and represented the cash surrender value of a life insurance policy owned by Thea Howes. Unknown to the bank, the check bore the forged endorsement of Thea Howes. Of that sum, $4,055.44 went to pay off a $4,000 note executed by Jack Howes and purportedly, Thea Howes, on October 30; $3,000 went to Jack Howes in cash; and $7,615.96 was deposited in the liquor store account.
In January, 1980, the appellant discovered that her husband had redeemed her stock and cashed her life insurance policy after forging her name on the check. She telephoned Burton George, making him aware for the first time of her husband's improprieties. On February 11, 1980, the appellant executed a revocation of her general power of attorney and delivered a copy to Mr. George.
The parties were later divorced and on December 30, 1980, the appellant filed suit against appellee for negligence, breach of contract, conversion and fraud. The bank denied liability and moved for summary judgment on the grounds that they were protected to the extent the proceeds from the transactions were deposited to the liquor store account and that they relied on her power of attorney in liquidating the securities and honoring the check.
*224 The trial court granted a partial summary judgment in favor of the bank, finding that the appellant had no cause of action to recover the $63,671.96 realized from the liquidation of the securities and deposited in the liquor store account, an account over which both parties had joint control. The court also found the appellant had no cause of action over the $7,615.96 of the insurance check deposited to the same account. The court held however that as to the $7,055.44 of the insurance proceeds not deposited in the liquor store account, there remained a genuine issue of material fact to be litigated between the parties.
The appellant appealed the trial court's decision, but the appeal was dismissed by this court as untimely in the absence of a final judgment. A trial was held on the remaining issues on August 20, 1984 and the jury returned a verdict for the appellee. The appellant brings this appeal from the partial summary judgment granted by the trial court.
In reviewing motions for summary judgment, the burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. The evidence submitted in support of the motion is viewed most favorably to the party against whom the relief is sought. Walker v. Stephens, 3 Ark.App. 205, 626 S.W.2d 200 (1981). "Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ." Walker.
The trial court based its decision as to the stock proceeds on Ark.Stat.Ann. § 67-521 (Repl.1980) (repealed in 1983) which provides:
When a deposit shall have been made in the names of two [2] or more persons and in form to be paid to any of the persons so named, such deposit and any additions thereto made by any of the persons named in the account, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any of said persons. Such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge of said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of said joint tenants not to pay such deposit in accordance with the terms thereof.
The appellant offers three reasons why this statute is inapplicable. First, she argues the statute applies "[w]hen a deposit shall have been made in the names of two or more persons" but this deposit was made in the name of "Ron's Liquor Store", not in the names of Jack and Thea Howes. This contention is without merit. The appellee loaned money to Jack and Thea Howes to purchase the liquor store and that money was placed in the liquor store account on which Jack and Thea Howes were co-signatories. The deposit made to the liquor store account could be paid to either Jack or Thea Howes and therefore meets the requirements of the statute.
Second, the appellant contends that before the statute applies, the addition to the account must be made by one of the persons named in the account. The redemption checks sent by IDS were made payable to "First National Bank for account of Thea W. Howes." The appellant maintains that the deposit was made by the appellee instead of by the appellant. This argument elevates form over substance. Whether the deposit was made by one or the other parties is irrelevant. The point is that it was deposited to an account in their joint ownership.
The final basis urged by the appellant is that under § 67-521 there must be a withdrawal by a person named on the account and here, the appellee actually debited the account. Again, form is being asserted over substance. The withdrawals, like the deposit, were made at the direction *225 of Jack Howes, who is one of the persons authorized to draw on the account.
We have held that the purpose of § 67-521 is to protect "the bank in making payments from deposits in the names of any two persons," Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969). The bank was acting pursuant to Jack Howes' instructions when it withdrew the $47,098.84 to pay off the parties' loan and when it withdrew $3,006.56 to satisfy the second note. The balance of the proceeds remained in the liquor store account and therefore became the property of both Jack Howes and the appellant. The bank's action was protected by § 67-521.
The appellant's remaining argument concerns the second transaction where the appellee honored a forged endorsement on an insurance check. Arkansas Stat.Ann. § 85-3-419(1)(c) (Add.1961) provides that an instrument is converted when it is paid on a forged endorsement. There is a common law exception to this rule however when the proceeds of the forged instrument are paid to the person whom the drawer intended to receive them, Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970). The trial court found that the insurance check was deposited to the liquor store account. The court said:
Although the money did not reach Plaintiff's [appellant's] hands in the manner she expected, it is true that it reached her and was credited to the Ron's Liquor Store account on which she was an authorized signatory and owner. Her loss was caused by the subsequent actions of Jack Howes.
In Starkey, supra, this court recognized the common law exception and stated, "We cannot believe that it was the intent of the General Assembly to hold a drawee (the bank) liable where the money actually reached the parties intended by the drawer of the check." The court further found that it is a "principle of statutory construction that a statute will not be construed so as to overrule a principle of established common law, unless it is made plain by the act that such a change in the established law is intended."
The appellant attempted to distinguish Starkey by saying that in that case, the money actually reached the intended payees, while here the proceeds were deposited in an account on which appellant could sign, but there is no proof she received the money. Nevertheless, since the appellant was a co-signer on the account, the money was available to her at all times and, as the trial court held, the money reached her although not in the manner she expected.
Authority for the common law exception to § 85-3-419 is also found in Merchants' Nat'l Bk. v. Home Bldg. & Savings Ass'n, 180 Ark. 464, 22 S.W.2d 15 (1929). In Merchants, the court held a bank not liable for cashing checks, payable jointly to an agent for a savings and loan association and the association's borrower, upon forged endorsements. The court found that the proceeds of the checks reached the agent's hands and were credited to the agency account exactly as if the checks had been properly endorsed.
The loss was sustained through Dewberry's [the agent's] improper use of the money after it came to his hands. It is true the money did not reach his hands in the manner the association expected, but it is nevertheless true that it did reach him and was credited to his agency account, and was thereafter misused, and thus the loss was caused.
Merchants, supra.
The appellant again attempted to distinguish the instant case by saying that Thea Howes did not create the situation which caused her loss, while the savings and loan in Merchants did create the situation by creating the agency. Actually, however, by giving Jack Howes her general power of attorney, the appellant did create the situation which resulted in such substantial loss to her. The misuse of the funds occurred after they were deposited in the liquor store account and were withdrawn by Jack Howes. The appellee and the appellant *226 were both innocent in the transactions, but Thea Howes' act in granting the power of attorney is the act which most contributed to producing the loss. The loss must therefore fall upon her. Cureton v. Farmers' State Bank, 147 Ark. 312, 227 S.W. 423 (1921).
Since the bank is shielded from liability by statute and common law, the trial court was correct when it granted a partial summary judgment.
Affirmed.
GEORGE ROSE SMITH, J., not participating.


247 P.3d 650 (2011)
STATEWIDE CONSTRUCTION, INC., Plaintiffs-Respondents,
v.
Sequoia PIETRI, Luke Crawford, Jim Crawford and Maggie Crawford, Lonnie R. King and Charlene King, husband and wife, Larry Monkarsh, Defendants-Appellants, and
M & T Mortgage, First Horizon Home Loans, Estate of Raymond Piatt, Anthony F. Frontino, Gerry Lee Ikola and Ellen I. Ikola, Defendants.
No. 36934.
Supreme Court of Idaho, Boise, January 2011 Term.
February 7, 2011.
*652 Evans, Keane, LLP, Boise for appellants. Victor Villegas argued.
Cosho Humphrey, LLP, Boise, for respondents. Mackenzie E. Whatcott argued.
BURDICK, Justice.
This case involves the interpretation and application of I.C. § 55-313 to the relocation of a private roadway/easement used for vehicular travel. The district court granted summary judgment in favor of Statewide Construction, Inc. ("Statewide") in a declaratory judgment proceeding, finding that Statewide, as the owner of the servient estate on which an express easement for vehicular travel was situated, could unilaterally relocate that easement, as that relocation did not injure the dominant estate holders. The dominant estate holdersSequoia Pietri, Luke Crawford, Jim Crawford, Maggie Crawford, Charlene King and Larry Monkarsh (collectively "Appellants")appeal, arguing that: (1) Idaho Code § 55-313 does not grant a servient estate holder the right to unilaterally relocate an express easement, and such relocation constitutes a per se injury; (2) the Statement of Legislative Intent for I.C. § 55-313 makes it clear that the legislature meant to exclude access roads that enter onto a public highway from unilateral relocation under I.C. § 55-313; (3) if I.C. § 55-313 does allow unilateral relocation of an express easement it is in violation of the "takings clause" of the Fifth Amendment to the United States Constitution, and its equivalent under Article I, section 14 of the Idaho Constitution, as it amounts to a taking of Appellants' property right for a private rather than public purpose; (4) even if the relocation were considered a permissible taking under the United States and Idaho Constitutions, I.C. § 55-313 is in violation of due process requirements, as it provides no mechanism for providing Appellants with just compensation for their loss; and (5) even if the foregoing arguments fail, the district court erred in granting summary judgment as there remains a genuine issue of material fact as to whether Appellants were injured by the relocation of their easement. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
Statewide owns a parcel ("Parcel 1") consisting of approximately 15.18 acres, located in Valley County, Idaho. There are seven parcels of land located adjacent to Parcel 1, which hold express easements by deed over Parcel 1, allowing ingress and egress.
On May 31, 2005, Statewide applied for a Conditional Use Permit to develop a subdivision on Parcel 1, and that permit was subsequently issued. The permit required Statewide to construct a new roadway to provide access to the lots in the proposed subdivision. Statewide dedicated a seventy foot easement ("New Easement") and constructed a road, which is over three hundred feet away from the original easement ("Original Easement") being used by Appellants. Statewide intended for Appellants to use the New Easement, eliminating the Original Easement location, but Appellants did not consent to such relocation.
Statewide filed a declaratory judgment action on October 31, 2008, and a summary judgment motion on April 16, 2009, requesting that the district court declare that Statewide could relocate the easement under I.C. § 55-313 without Appellants' consent. Appellants filed a cross-motion for summary judgment on May 26, 2009.
The district court issued a memorandum decision on July 15, 2009, granting Statewide's motion for summary judgment and denying Appellants' cross-motion. A final judgment was entered on September 2, 2009, and Appellants timely appealed on September 23, 2009.

*653 II. STANDARD OF REVIEW
As this Court wrote in Mutual of Enumclaw Insurance, Co. v. Pedersen:
On appeal from the grant of a motion for summary judgment from a declaratory judgment proceeding, this Court employs the same standard as used by the district court originally ruling on the motion. On review, summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). This Court liberally construes all disputed facts in favor of the non-moving party, and draws all reasonable inferences and conclusions supported by the record in favor of the party opposing the motion. If reasonable people could reach different conclusions or draw conflicting inferences from the evidence, the motion must be denied. However, if the evidence reveals no disputed issues of material fact, the trial court should grant the motion for summary judgment.
133 Idaho 135, 138, 983 P.2d 208, 211 (1999) (internal citations omitted).

III. ANALYSIS
The crux of this action is the interpretation of I.C. § 55-313, which is titled "Relocation of access" and provides as follows:
Where, for motor vehicle travel, any access which is less than a public dedication, has heretofore been or may hereafter be, constructed across private lands, the person or persons owning or controlling the private lands shall have the right at their own expense to change such access to any other part of the private lands, but such change must be made in such a manner as not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or interested in such access.
There are three questions before this Court. First, whether I.C. § 55-313 prohibits a landowner from relocating a private access road where that private access road enters onto a public roadway. Second, whether I.C. § 55-313 permits a servient estate holder to unilaterally move an expressly granted easement (where the easement is for motor vehicle travel) without the consent of the dominant estate holder(s), and if so whether the statute is in violation of the United States Constitution and the Idaho Constitution. Third, whether there are genuine issues of material fact regarding whether Appellants have suffered an injury under I.C. § 55-313. These issues shall be addressed in turn.

A. Idaho Code § 55-313 allows for the relocation of access less than a public dedication, whether or not the access road enters onto a public roadway.
Appellants argue that the Statement of Legislative Intent for I.C. § 55-313 demonstrates that the legislature did not intend to allow for relocation of access roads where they immediately enter onto a public highway system. Statewide argues that I.C. § 55-313 is clear on its face, and as such, it is inappropriate to resort to any statutory construction or examination of legislative history.
In City of Sun Valley v. Sun Valley Co., this Court noted that "where the language of a statute is unambiguous, there is no need to consult extrinsic evidence. We have consistently held that where statutory language is unambiguous, legislative history and other extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent of the legislature." 123 Idaho 665, 667, 851 P.2d 961, 963 (1993). Furthermore, "[t]he most fundamental premise underlying judicial review of the legislature's enactments is that, unless the result is palpably absurd, the courts must assume the legislature meant what it said. Where a statute is clear and unambiguous the expressed intent of the legislature must be given effect." Id. (quoting State, Dep't of Law Enforcement v. One 1955 Willys Jeep, V.I.N. XXXXXXXXX, 100 Idaho 150, 153, 595 P.2d 299, 302 (1979)).
Appellants cite to several cases which they claim demonstrate that this Court may examine legislative intent even absent ambiguity. See Ada Cnty. Bd. of Equalization v. Highlands, Inc., 141 Idaho 202, 207, 108 P.3d 349, *654 354 (2005) ("A statute need not be ambiguous in order for this Court to examine the legislature's intent in enacting it."); State v. Stover, 140 Idaho 927, 931-32, 104 P.3d 969, 973-74 (2005) (acknowledging that a statute is unambiguous, but still considering public policy behind the statute and legislative history). In examining these cases, it is evident that although there have been cases in which this Court went on to consider public policy and legislative intent where a statute was unambiguous on its face, these considerations were never used to alter the plain textual meaning of a statute. See also George W. Watkins Family v. Messenger, 118 Idaho 537, 540, 797 P.2d 1385, 1388 (1990).
Idaho Code § 55-313 allows for relocation of access, where that access is "less than a public dedication." The phrase "less than a public dedication" is unambiguous. A public dedication may be made through either a statutory dedication or a common law dedication. Worley Highway Dist. v. Yacht Club of Coeur D'Alene, Ltd., 116 Idaho 219, 222, 775 P.2d 111, 114 (1989). Appellants offer no argument that the Original Easement has been dedicated to the public by Statewide as either a statutory or common law dedication, therefore the easement in question is not excluded from the scope of I.C. § 55-313. As I.C. § 55-313 is unambiguous and makes no reference to whether or not an access for motor vehicle travel is entering onto a public road, in limiting the applicability of said statute, Appellants' argument fails.[1]

B. Idaho Code § 55-313 permits a servient estate holder to move an expressly granted easement without consent from the dominant estate holder(s).
Appellants argue thateven where a property owner is permitted to relocate an access roadwhere an access road takes the form of an express easement it may not be moved without the consent of the dominant estate holder(s). Appellants contend that allowing such a relocation without consent is a per se injury to the dominant estate holder, and thus not permitted under I.C. § 55-313. Statewide argues that the district court correctly found that "if consent was required to relocate, [I.C. § 55-313] would simply say so. Instead, the statute provides for relocation so long as the easement does not obstruct motor vehicle travel or otherwise injure any person using the easement." The district court further reasoned that "if any unilateral relocation was per se injurious, section 55-313 and the language regarding injury to any person using the easement would be wholly ineffective."
Appellants argue that it is the majority common law rule that an express easement may not be relocated by either the dominant or servient estate holders without the consent of the other. The Arizona Supreme Court in Stamatis v. Johnson noted that it is an "almost universal rule" that an easement, once definitely established, cannot be changed by either the dominant or servient estate holder without the other's consent. 71 Ariz. 134, 224 P.2d 201, 202-03 (1950). However, the Court in Stamatis also quoted 28 C.J.S., Easements, § 84, stating: "As a general rule, in the absence of statutes to the contrary, the location of an easement cannot be changed by either party without the other's consent, after it has been established ... except under the authority of an express or implied grant or reservation to this effect." Id. at 203 (emphasis added). Thus, whatever the "almost universal rule" might be, the Stamatis Court recognized that such a rule may be altered by statute.[2]
*655 Here, it is instructive to consider I.C. § 55-313 alongside I.C. §§ 42-1207 and 18-4308,[3] which allow for the relocation of irrigation ditches, canals, laterals, drains or buried irrigation conduits ("appurtenances") by the owner of the property upon which such appurtenances are located, where such relocation does not impede water flow or injure those using the appurtenance at issue. Appellants acknowledge that much of the language in these two statutes is "strikingly similar" to the language of I.C. § 55-313. However, both I.C. § 42-1207 and I.C. § 18-4308 require that "[t]he written permission of the owner of a ditch, canal, lateral, drain or buried irrigation conduit must first be obtained before it is changed or placed in buried pipe by the landowner" whereas I.C. § 55-313 contains no equivalent provision. The inclusion of language requiring written permission of the easement owner in I.C. §§ 42-1207 and 18-4308, and the absence of such language from I.C. § 55-313, strongly suggests that the legislature did not intend to require the servient estate holder to gain the consent of the dominant estate holder(s) in order to move an access road.[4]
Appellants argue that the absence of the language requiring consent in I.C. § 55-313 should not be considered determinative on this issue as there are "a myriad of ways a private roadway is created" other than by easement, and I.C. § 55-313 was intended to address them all generally. The only example of an alternative way to create an interest in a private access road that Appellants provide is that of a license to enter land, but as Appellants note, licenses are freely revocable and create no estate in lands. See State v. Bowman, 124 Idaho 936, 945, 866 P.2d 193, 202 (Ct.App.1993). Where permission to use an access road is freely revocable there is no logical reason why the owner of the property upon which the road is located would need statutory authority to relocate that road. The property owner could simply revoke the license, relocate the road, and then renew the license.
Appellants argue that this Court's opinion in Villager Condominium Ass'n v. Idaho Power Co., 121 Idaho 986, 829 P.2d 1335 (1992), demonstrates judicial recognition that unilateral relocation of an express easement is impermissible. The issue in Villager was whether Idaho Power, as the dominant estate holder, could relocate its express easement to install power lines underground by instead installing the lines above ground on cement pads. Id. at 987-88, 829 P.2d at 1336-37. Villager provides no guidance to the facts at hand for several reasons: (1) in Villager it was the dominant estate holder seeking to relocate the easement, not the servient estate holder, and it involved a change in the character of the easement, not mere location; and (2) the easement at issue in Villager was not an access road and I.C. § 55-313 was therefore inapplicable.
Appellants next cite Turner v. Cold Springs Canyon Ltd. Partnership, 143 Idaho 227, 141 P.3d 1096 (2006), arguing that this opinion demonstrates that this Court agrees with the majority position on unilateral easement relocation expressed in Stamatis. However, the discussion about relocation of an access road in Turner was dicta, as this Court held that the issue had not properly been raised on appeal. Id. at 229, 141 P.3d at 1098. In addition, neither party in Turner argued that I.C. § 55-313 applied.
Statewide in turn cites to Benninger v. Derifield, 142 Idaho 486, 129 P.3d 1235 (2006), as "the only published decision in Idaho that does address Section 55-313." *656 Although the trial court in Benninger had found that the servient estate holder was entitled to modify or relocate an access road (driveway) without consent from the dominant estate holder, that issue was not raised on appeal. See id. at 488, 129 P.3d at 1237. Therefore, the Benninger case is of no precedential value here.
If the legislature had intended for the unilateral relocation of an easement to constitute a per se injury under I.C. § 55-313, it would have required consent from the dominant estate holder(s), as it did in I.C. §§ 42-1207 and 18-4308.[5] It is true that, as a general principal, "the rules of common law are not to be changed by doubtful implication." Moon v. Bullock, 65 Idaho 594, 607, 151 P.2d 765, 771 (1944) (quoting Congdon v. Congdon, 160 Minn. 343, 200 N.W. 76, 82 (1924)), superseded on other grounds by statute, I.C. § 5-327, as recognized in Doggett v. Boiler Eng'g & Supply Co., 93 Idaho 888, 890, 477 P.2d 511, 513 (1970). However, "where the implication is obvious it cannot be ignored." Id. See also Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 583, 513 P.2d 627, 635 (1973) ("Where the clear implication of a legislative act is to change the common law rule we recognize the modification because the legislature has the power to abrogate the common law."). If I.C. § 55-313 requires consent from all interested parties prior to the relocation of an access road easement, there would be no reason for that statute to have been enacted; access road easements could already be relocated if all interested parties agreed. This Court has noted that "it is incumbent upon a court to give a statute an interpretation that will not render it a nullity." Hecla Mining Co. v. Idaho State Tax Comm'n, 108 Idaho 147, 151, 697 P.2d 1161, 1165 (1985). See also State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 (2004) (noting that the Court disfavors statutory construction that leads to absurd results). Therefore, we hold that the clear implication of I.C. § 55-313 is to allow for the relocation of an access road where such relocation does not injure interested partieseven where that road takes the form of an express easementwithout the consent of the dominant estate holder(s).
Appellants next argue that if Statewide is permitted to use I.C. § 55-313 to unilaterally relocate the Original Easement it will have the same impact as vacating that easement. Appellants state that this vacation would deprive them of a recognized property interest without compensation in violation of both Article I, § 14 of the Idaho Constitution and the Fifth Amendment (Takings Clause) of the United State Constitution.
Article I, section 14 of the Idaho Constitution is entitled "Right of Eminent Domain" and provides, inter alia, "[p]rivate property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor." The Fifth Amendment of the United States Constitution prohibits the taking of private property "for public use; without just compensation." Appellants cite no authority for the proposition that the relocation of an easement constitutes a taking of property. In fact, in authorizing the relocation of the access roads, I.C. § 55-313 expressly provides that "such change must be made in such a manner as not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or interested in such access." As such, any relocation authorized *657 under I.C. § 55-313 will provide the dominant estate holders with the same benefit they were entitled to under the easement in its original location. Therefore a takings analysis is unnecessary.

C. There are no genuine issues of material fact as to whether Appellants have suffered an injury due to the relocation of the express easement, under I.C. § 55-313.
Appellants allege that, in addition to their claimed per se injuries, they will suffer specific injuries if the Original Easement is relocated. Specifically, Appellants allege that: (1) the New Easement provides less direct access to Appellants' parcels, and as appellants King, Pietri and Crawford drive heavy equipment across the easement in the course of business, this will create safety problems for residents in the area; (2) appellant King has a business contract with the other appellants to plow snow from the Original Easement, which will effectively be nullified if the relocation occurs; and (3) appellant Monkarsh believes the New Easement location will make it more difficult to see oncoming traffic for purposes of accessing the public highway, creating a safety concern.
Statewide argues, and the district court found, that "[i]njury in the context of relocation of easements under section 55-313 contemplates a taking or lessening in value to the dominant estate holders" and there was no evidence of that type of injury here. In assessing what type of injury was contemplated in I.C. § 55-313, it is again useful to consider I.C. §§ 18-4308 and 42-1207, which have an injury provision materially identical to that found in I.C. § 55-313.[6]See Jonathan Burky, Relocating an Easement Under Idaho Code § 55-313, The Advocate, May 2010, at 21-23.
In Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951), this Court first addressed the issue of what the term "injury" means in the context of I.C. § 42-1207. The version of I.C. § 42-1207 at issue in Simonson did not require the written permission of an appurtenance owner prior to the relocation of that appurtenance by the servient estate holder. Rather, the servient estate holder was free to relocate the appurtenance where such relocation would not impede water flow nor injure persons interested in the use of such appurtenance. Id. at 45, 237 P.2d at 97. Noting that "[p]rior to the enactment of [I.C. § 42-1207] the right of the owner of a servient estate to change the place or location of an easement did not exist", the Simonson Court found that the burden was on the servient estate holder to demonstrate that the relocation would not decrease water flow or injure the interested parties. Id. at 45-46, 237 P.2d at 97. Ultimately, this Court concluded:
We do not hold that a mere increase in the length of ditch, or other conditions, which result in a comparatively unimportant increase in maintenance, would be sufficient to deny the servient owner the right to change the location of a ditch. But, when such an increase in burden is accompanied by the requirement of rotating the use of the ditch, or other inconvenience, then the impediment to the flow of the water will be considered substantial and an injury within the statute.
Id. at 46, 237 P.2d at 97-98.
In Savage Lateral Ditch Water Users Ass'n v. Pulley, the servient estate holder relocated a lateral ditch, which resulted in a decreased water flow to downstream water users. 125 Idaho 237, 240, 869 P.2d 554, 557 (1993). The downstream water users filed for declaratory and injunctive relief and sought to return the lateral ditch to its original location. Id. at 240-41, 869 P.2d at 557-58. This Court concluded that:
[a]lthough a minor increase in the length of a ditch or other conditions which negligibly increase its maintenance are insufficient injuries by themselves to constitute a *658 violation of the statute, when such burdens are accompanied by forced rotation of ditch use or other inconvenience, the combined injuries are sufficient. When relocation of a ditch forces its users to rotate their use of the ditch with other users, this is an injury to them within the meaning of the statute.
Id. at 243-44, 869 P.2d at 560-61 (internal citation omitted). It is worth noting that Savage also involved the pre-1994 version of I.C. § 42-1207, and thus did not require the written consent of an appurtenance owner prior to a servient estate holder's relocation of that appurtenance.
An examination of these two cases reveals that this Court has taken a utilitarian approach to relocation of appurtenances. A mere increase in length or maintenance for an appurtenance does not constitute an injury under I.C. § 42-1207, but where the appurtenance holders' ability to obtain wateror their historical flow-rate of wateris restricted, this Court will find that an injury has occurred. As such, in determining whether there is an issue of material fact as to an injury under I.C. § 55-313, this Court should consider whether the relocation of the Original Easement to the New Easement location has impaired the ability of the Appellants to access their property (the purpose for which they hold their easement).
The district court erred in stating that an injury under I.C. § 55-313 is limited to a taking or a lessening in value of the dominant estate. However, upon an independent review of the Appellants' alleged injuries, assuming Appellants' allegations are true, we find no genuine issue of material fact existed as to Appellants suffering an injury under I.C. § 55-313 as a result of the relocation of the access-road easement.
As for the first alleged injury, the fact that it may take Appellants slightly longer to access their property from the New Easement than it did from the Original Easement is irrelevant; this is not an impediment to the use of the easement as an access road, and is not an injury under I.C. § 55-313. As to the related safety concern, that driving heavy equipment which is often covered in dirt and mud will create a safety hazard, there is no explanation as to why this would be a greater hazard where Appellants are using the New Easement to access public roads rather than the Original Easement. Although the New Easement shall be dedicated to public use and therefore have increased traffic, Appellants are using the Original Easement to access the public roads; they are already driving this equipment on highly travelled roads.
Second, the damage to the contract to plow snow is not related to the interest for which Appellants hold the easement, the access to their property. Loss of an incidental economic benefit to one easement holder where such benefit is not related to the purpose for which that easement is heldis not an injury, for purposes of I.C. § 55-313.
Finally, Appellants contend that the New Easement is less safe in that it is more difficult to see oncoming traffic. Valley County issued a Conditional Use Permit providing for the construction of an access at the New Easement location, clearly indicating that the County does not consider that location to present serious safety concerns. In any event, this type of decrease in convenience would be akin to a minor increase in maintenance costs, which was found not to constitute an injury under I.C. § 42-1207.

IV. CONCLUSION
We affirm the district court's grant of summary judgment in favor of Statewide. Idaho Code § 55-313 unambiguously permits the relocation of the access road at issue here, and does not require the consent of the dominant estate holders. That relocation does not constitute a taking, and there is no genuine issue of material fact as to whether Appellants sustained an injury under I.C. § 55-313. Costs to Statewide.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON concur.
NOTES
[1]  The Statement of Legislative intent reads: "It is the intent of the Legislature that the phrases, `any access which is less than a public dedication'. . . shall not include any access that is a part of a public highway system." Even if this Court were to consider this statement, Appellants' argument is unpersuasive. Although the access road at issue here directly enters onto a public highway system, it cannotas a privately-owned access road that is not open to use by the general publicbe considered "part of" a public highway system.
[2]  An example of such a statutory alteration may be seen in article 695 of the Louisiana Civil Code, which provides that:

The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.
[3]  Idaho Code § 18-4308 is essentially identical to I.C. § 42-1207, except that I.C. § 18-4308 makes it a misdemeanor to relocate such an appurtenance in noncompliance with the statute.
[4]  Prior to their amendment in 1994, I.C. §§ 42-1207 and 18-4208 did not require the consent of the appurtenance holder prior to relocation of the appurtenance by the servient estate holder. S.L. 1994, ch. 151, §§ 1 and 2, pp. 345-47. In several cases addressing the pre-1994 version of I.C. § 42-1207, the servient estate holder had relocated the appurtenance without consent of the appurtenance holder(s), and this Court implicitly acknowledged that such an action was permissible under the statute. See Simonson v. Moon, 72 Idaho 39, 237 P.2d 93 (1951); Savage Lateral Ditch Water Users Ass'n v. Pulley, 125 Idaho 237, 869 P.2d 554 (1993). For further discussion see section C below.
[5]  At the time that I.C. § 55-313 was enacted in 1985 neither I.C. §§ 42-1207 nor 18-4308 required the written consent of the appurtenance owner in order for the landowner to relocate or bury that appurtenance. S.L. 1985, ch. 252, § 1. However, in 1994 these statutes were amended to require that:

In the event that the ditch, lateral, buried irrigation conduit or canal is owned by an organized irrigation district, canal company, ditch association, or other irrigation entity, the written permission of the entity must first be obtained before a ditch, lateral, buried irrigation conduit, or canal is changed or placed in buried pipe by the landowner.
S.L. 1994, ch. 151, §§ 1 and 2, pp. 345-47. In 2002, the wording of the relevant portion of each statute was amended to read: "[t]he written permission of the owner of a ditch, canal, lateral, drain or buried irrigation conduct must first be obtained before it is changed or placed in buried pipe by the land-owner." S.L. 2002, ch. 115, §§ 3 and 4, pp. 327-30. If the legislature wished to require the consent of an easement holder under I.C. § 55-313 it would have altered that statute as well.
[6]  The relevant portion of I.C. §§ 42-1207 and 18-4308 provides that "such change must be made in such a manner as not to impede the flow of the water therein, or to otherwise injure any person or persons using or interested in such ditch, canal, lateral, drain or buried irrigation conduit." The relevant portion of I.C. § 55-313 states that "such change must be made in a manner as not to obstruct motor vehicles travel, or to otherwise injure any person or persons using or interested in such access."


938 F.Supp. 847 (1996)
Bobby Lee BARRON, Plaintiff,
v.
K-MART CORPORATION and Blue Cross and Blue Shield of Michigan, Inc., Defendants.
Civil Action No. CV 195-147.
United States District Court, S.D. Georgia, Augusta Division.
August 2, 1996.
*848 Sam George Nicholson, Andrew Marshall Magruder, Augusta, GA, for plaintiff.
Benjamin Howard Brewton, Dye, Tucker, Everitt, Wheale & Long, Augusta, GA, Michael R. Hurst, William H. Major, Heyman & Sizemore, Atlanta, GA, for defendants.

ORDER
BOWEN, District Judge.
Before the Court is Defendants' Motion for Summary Judgment in the above-captioned case. Upon consideration of the parties' briefs and oral arguments before this Court on June 18, 1996, the Motion for Summary Judgment is GRANTED for the reasons stated below.

*849 I. FACTS
Plaintiff Bobby Lee Barron has worked for Defendant K-Mart Corporation for over twenty years. In 1994, he was employed as an assistant manager of a K-Mart store in Augusta, Georgia. Plaintiff was enrolled in the employee welfare benefit plan that included health care and hospitalization benefits. This plan is self-funded by K-Mart and administered by Defendant Blue Cross and Blue Shield of Michigan, Inc. ("Blue Cross"). As claims administrator of the plan, Blue Cross is responsible for the review and evaluation of all medical claims. Specifically, Blue Cross determines the reasonableness of fees for covered services, and it decides to what extent in-patient hospital care meets the criteria for reimbursement under the plan.
On April 6, 1994, Plaintiff checked himself into the Augusta Regional Medical Center for alcohol dependency. Pursuant to the terms of K-Mart's employee welfare benefit plan, Plaintiff's medical provider contacted Blue Cross and requested authorization for Plaintiff's hospital stay. The plan specifically provides as follows:
If a call for pre-certification is not made, or if your hospitalization exceeds the number of approved days, you may be required to pay all unprecertified Hospital room and board charges and Physician Inpatient medical visit costs if the Claims Administrator determines that the admission or additional length of stay does not meet the specific guidelines utilized by the Claims Administrator.
However, you may still decide to enter the Hospital if the admission is denied. You will be responsible for paying the entire cost for Hospital room and board and the Physician's Inpatient medical visits.
(Defs.' Mot.Summ.J., Ex. B, Comprehensive Health Care Plan, at 26.) Blue Cross authorized benefits for four days of in-patient care. However, Blue Cross denied a subsequent request for authorization of an additional twenty-six days of hospitalization after Dr. Pang Man, a board-certified psychiatrist employed by Blue Cross as a consultant, reviewed Plaintiff's medical records. In Dr. Man's opinion, the additional in-patient care was not "medically necessary" and Plaintiff could receive proper care on an out-patient basis. Plaintiff appealed the denial of benefits but to no avail. Plaintiff filed the present suit, seeking payment for the additional twenty-six days of in-patient care.
In support of his demand for payment, Plaintiff has attached the affidavit of his treating psychiatrist, Dr. Andrew J. Hurayt, to his Brief in Opposition to the Motion for Summary Judgment. Dr. Hurayt attests that when Plaintiff was admitted, he was suffering from not only alcoholism but also severe depression which included homicidal and suicidal ideations. (Hurayt Aff. ¶ 8.) Dr. Hurayt had recommended that Plaintiff undergo detoxification for one week and then remain hospitalized for treatment of his depression. Dr. Hurayt states that Plaintiff's depression had been so severe that it required the constant monitoring provided by in-patient care. Also, Dr. Hurayt had prescribed the anti-depressant Paxil and had suggested to Plaintiff that in-patient care was necessary for him to fully reap the benefits of the medicine. (Id.) Thus, in Dr. Hurayt's opinion, the additional hospitalization was medically necessary. (Id. ¶ 9-10.)

II. SUMMARY JUDGMENT STANDARD
The Court should grant summary judgment only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The applicable substantive law identifies which facts are material in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
"The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). When the moving party has the burden of proof at trial, that party must carry its burden at summary judgment by presenting evidence affirmatively showing that, "on all the essential elements of its case ..., no reasonable jury could find for the non-moving party." *850 United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc). When the non-moving party has the burden of proof at trial, the moving party may carry its burden at summary judgment either by presenting evidence negating an essential element of the non-moving party's claim or by pointing to specific portions of the record which demonstrate that the non-moving party cannot meet its burden of proof at trial, see Clark, 929 F.2d at 606-608 (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); merely stating that the non-moving party cannot meet its burden at trial is not sufficient, Clark, 929 F.2d at 608. Any evidence presented by the movant must be viewed in the light most favorable to the non-moving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608.
If  and only if  the moving party carries the initial burden, then the burden shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark, 929 F.2d at 608. The non-moving party cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.1981), cert. denied, 456 U.S. 1010, 102 S.Ct. 2303, 73 L.Ed.2d 1306 (1982). Rather, the non-moving party must respond by affidavits or as otherwise provided in Fed.R.Civ.P. 56. "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. A genuine issue of material fact will be said to exist "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106 S.Ct. at 2510.
The clerk has given the non-moving party notice of the summary judgment motion, the right to file affidavits or other materials in opposition, and of the consequences of default; thus, the notice requirements of Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985), are satisfied. The time for filing materials in opposition has expired, and the motion is ripe for consideration. The Court will proceed to review the applicable substantive law and inquire whether the moving party  and, if necessary, the non-moving party  has carried its burden as set forth above. See Clark, 929 F.2d at 609 n. 9.

III. DISCUSSION
The issue of the applicability of benefits as provided by the plan in this case is subject to and controlled by the statutory scheme of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. The threshold question in this case concerns what standard of review should be applied to Blue Cross's denial of benefits. Once the standard of review is determined, the focus becomes whether there exists any genuine issues of material fact with regard to whether Blue Cross's decision to deny benefits meets the applicable standard.

A. Standard of Review

A court must review de novo the denial of benefits under an ERISA plan "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989), quoted in Lee v. Blue Cross/Blue Shield of Alabama, 10 F.3d 1547, 1549 (11th Cir.1994). In cases in which such discretionary authority is granted to the plan administrator, courts have applied the "arbitrary and capricious" standard of review to benefit decisions. Lee, 10 F.3d at 1550; Anderson v. Blue Cross/Blue Shield of Alabama, 907 F.2d 1072, 1076 (11th Cir. 1990).
In this case, the ERISA plan provides that Blue Cross, as plan administrator, has the discretion to determine whether in-patient care is "medically necessary," that is, necessary to provide "safe and adequate care" under the circumstances, before the Plaintiff may receive benefits for such care. Thus, both parties agree that the standard of review in this case is not de novo. However, Plaintiff argues the "arbitrary and capricious" standard is likewise inappropriate because *851 Blue Cross has a conflict of interest and is unable to administer the plan fairly.
The "arbitrary and capricious" standard affords great deference to the decisions of a plan administrator. As long as an administrator's decision is reasonable, it will be upheld even if the decision is wrong. However, if the claims administrator is acting under a conflict of interest, this deference is greatly diminished. Florence Nightingale Nursing Serv., Inc. v. Blue Cross/Blue Shield of Alabama, 41 F.3d 1476, 1481 (11th Cir.1995) (citing Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57). The Nightingale court articulated the following burden shifting analysis to be used in such cases: "[I]f a conflict of interest is established, the burden shifts to the administrator to prove that his or her interpretation of the plan was not tainted by self-interest." Id. at 1481 (citation omitted).
In Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556 (11th Cir.1990), the court held that a conflict of interest exists where an insurance company which makes the claims decisions is also the entity responsible for paying the claims. Id. at 1561-62; accord Anderson, 907 F.2d at 1076. In Nightingale, however, the plan administrator processed claims for a self-funded health care plan. Nevertheless, the court upheld the finding of the district court that the plan administrator had a conflict of interest. Nightingale, 41 F.3d at 1482. Plaintiff cites Nightingale as controlling precedent, arguing that although K-Mart funds the plan administered by Blue Cross, Blue Cross still has a conflict of interest based on its business relationship with K-Mart.
A closer look at the facts of Nightingale shows that the case is inapposite to the case at bar. The plan administrator in Nightingale, Blue Cross/Blue Shield of Alabama, denied benefits to an AIDS patient under a plan funded by the patient's employer. Nightingale, 41 F.3d at 1478-79. This denial of benefits was the subject of litigation for two years before the claims were reviewed by a claims evaluator, Dr. Holloway.[1] The district court heard ample evidence that Dr. Holloway's review of the benefits claim was tainted by Blue Cross's in-house counsel. In fact, the in-house counsel edited Dr. Holloway's findings before they were released.[2]Id. at 1480. The district court also heard testimony concerning Blue Cross's desire to maintain its business relationship with the employer-insurer. Id. at 1481. Thus, the claims evaluator's decision to deny benefits was indirectly influenced by Blue Cross's financial interest and directly influenced by Blue Cross itself. In light of all this evidence, the Eleventh Circuit held that it could not overturn the district court's finding of a conflict of interest as clearly erroneous. Id. at 1482.
In the case at bar, Plaintiff has not submitted any evidence to support a similar finding that the plan administrator was laboring under a conflict of interest. Plaintiff only argues that it may be inferred that Blue Cross, as a business associate of K-Mart, would want to satisfy its client by paying fewer claims. This inference alone is not enough to establish a conflict of interest such that Blue Cross's seemingly objective decision to deny benefits should not be given the appropriate deference. Thus, the arbitrary and capricious standard is the proper standard of review.

B. Analysis

A review of a denial of benefits under an ERISA plan is conducted under the arbitrary and capricious standard as follows:
[T]he function of the court is to determine whether there was a reasonable basis for the decision, based upon the facts as known to the administrator at the time the decision was made.... As long as a reasonable basis appears for [the defendants'] decision, it must be upheld as not being arbitrary and capricious, even if there is evidence that would support a contrary decision.
Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1139-40 (11th Cir.1989) (citations omitted). The decision must be sustained as a *852 matter of law unless the decision is arbitrary and without reasonable basis. See Chilton v. Savannah Foods & Indus., 814 F.2d 620 (11th Cir.1987). Thus, even if the decision is wrong, it will be upheld if it is rational and in good faith.
The question now before this Court is whether Blue Cross had a reasonable basis to deny Plaintiff coverage for the additional in-patient care. When Blue Cross denied coverage, an in-house psychiatrist had reviewed Plaintiff's medical files, which included the admission notes of the day Plaintiff voluntarily admitted himself to the hospital. The admission notes state the following: "Patient admits to suicidal ideation and has specific plan, has numerous guns in the house, and has thought of actually shooting himself. He does not wish to do this. The patient denies homicidal ideation." Prior to his admission to the hospital, Plaintiff had no history of alcohol or drug treatment or of psychiatric care. Dr. Man, the in-house psychiatrist, stated in his affidavit that he recommended the authorization of the first four days of in-patient care for treatment. His recommendation included consideration of the need to monitor Plaintiff's suicide threat. (Man Aff. ¶ 5.)
However, the hospital notes also include notations which indicate that as early as April 8, two days after admission, Plaintiff denied suicidal tendencies and denied any physical complications or side effects from detoxification. Plaintiff was gradually gaining an appetite and did not have any seizures or tremors. Additionally, Plaintiff was attending all scheduled therapy sessions and demonstrated a proclivity to get the help he needed. In Dr. Man's opinion based on the medical record, the additional twenty-six days of in-patient care were not medically necessary to insure that Plaintiff received safe and adequate care because by April 9 his detoxification treatment was complete. Id. ¶ 7. Dr. Man opined that Plaintiff could receive the same level of treatment and care after this point on an out-patient basis because he did not require constant monitoring. Id. ¶ 8.
As discussed above, the medical notes are sufficient to support Dr. Man's assessment of Plaintiff's hospitalization needs.[3] Although there is evidence in the record of Plaintiff's suicidal ideations at the time of admission, as long as a reasonable basis exists for denying the challenged coverage, the denial must be upheld "even if there is evidence that would support a contrary decision." Jett, 890 F.2d at 1140. I find, therefore, that a reasonable basis existed for Blue Cross to deny benefits for the additional in-patient care based on the facts known to Blue Cross at the time the decision was made.

IV. CONCLUSION
For the reasons stated above, I cannot find that the decision to deny benefits to Plaintiff was arbitrary and capricious. Accordingly, Defendants' Motion for Summary Judgment is GRANTED. The clerk is instructed to CLOSE this case and ENTER FINAL JUDGMENT for Defendants, assessing costs against Plaintiff.
NOTES
[1]  The district court dismissed without prejudice the original action so that the plaintiff could pursue internal administrative remedies under the plan first. Id. at 1480.
[2]  The district court referred to the relationship between Dr. Holloway and Blue Cross's in-house counsel as "incestuous." Id. at 1480 n. 3.
[3]  This assessment is clearly contrary to Dr. Hurayt's assessment as demonstrated by his affidavit. The medical opinions and information contained in Dr. Hurayt's affidavit were not in the record at the time the claims decision was made. Thus, I cannot consider this affidavit as evidence in my review of the decision. Jett, 890 F.2d at 1139.


                            UNITED STATES of America, Plaintiff-Appellee,

                                                      v.
                                John Collier WIMS, Defendant-Appellant.

                                                No. 98-3684

                                         Non-Argument Calendar.
                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                              March 28, 2001.

Appeal from the United States District Court for the Northern District of Florida. (No. 91-01032-1-CR-
MMP), Maurice M. Paul, Judge.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.

        PER CURIAM:

        This case is before the court for consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000).

                                                      I.

        John Collier Wims was indicted by a Northern District of Florida grand jury on December 10, 1991.1
Wims was charged in seven of the eleven counts. Count One charged Wims and six others with conspiracy
to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. § 846 (by virtue of violating

21 U.S.C. §§ 841(a) and 841(b)(1)(A)); Counts Two through Six charged Wims with five separate instances
(from January to August 1989) of possession of, with the intent to distribute, a mixture containing cocaine,

all in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A) and 18 U.S.C. § 2. Count Eleven was a forfeiture
count for drug proceeds, pursuant to 21 U.S.C. § 853(a)(1).

        Wims went to trial with four co-defendants; the other two co-defendants testified for the Government

at the trial. A jury found Wims guilty as charged on March 9, 1992. On May 22, 1992, the district court

sentenced Wims to life imprisonment on Counts One and Two, and to forty years' imprisonment on each of
Counts Three through Six.2 All sentences were to be served concurrently.

    1
    This indictment superseded a previous indictment, issued September 10, 1991, against Wims and
two others. We refer to this superseding indictment simply as "the indictment."
    2
     The forfeiture count was dismissed on motion of the Government.
        Wims appealed, but his appeal was dismissed for want of prosecution. On November 5, 1998, the
district court, in a proceeding brought under 28 U.S.C. § 2255, granted Wims leave to prosecute an

out-of-time appeal. We affirmed the convictions and sentences. United States v. Wims, 207 F.3d 661 (11th

Cir. Jan.4, 2000) (per curiam) (unpublished table decision). The United States Supreme Court granted Wims's
petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Wims v. United States, ---

U.S. ----, 121 S.Ct. 32, 148 L.Ed.2d 3 (Oct. 2, 2000) (mem.).
                                                       II.

         The only issue before us on remand is whether Wims's sentences should be set aside because they

violate the constitutional principle that every element of a crime must be proven to a jury beyond a reasonable

doubt.3 Because the defendant did not raise a constitutional objection at or before sentencing, we review this

case for plain error.4 See United States v. Candelario, 240 F.3d 1300 (11th Cir.2001). Before we may correct

an error that was not timely raised, all four prongs of plain error review must be satisfied: "[T]here must be
(1) error, (2) that is plain, and (3) that affect[s] substantial rights.... If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520

U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (internal quotations and citation omitted)

(alteration in original); see also Fed.R.Crim.P. 52(b).

         The first prong of plain error review requires that there must be error. Wims alleges that there is

error insofar as his sentences exceed the twenty year maximum penalty prescribed in 21 U.S.C. §

841(b)(1)(C) for convictions of cocaine possession (or conspiracy) without reference to quantity.5 We agree

    3
     Wims also alleges that there was insufficient evidence to prove a conspiracy, that unreliable hearsay
formed the basis for attributing drug quantity to him, and that the prosecutor's closing argument to the
jury was impermissible. We adhere to our previous disposition of these issues. United States v. Wims,
207 F.3d 661 (11th Cir. Jan.4, 2000) (per curiam) (unpublished table decision).
    4
     We will consider the Apprendi issue because Wims, in his initial brief on appeal, raised the
constitutional issue that drug quantity should have been determined by the jury. Cf. United States v.
Ardley, 242 F.3d 989 (11th Cir.2001) (holding, in a case on remand from the Supreme Court for
reconsideration in light of Apprendi, that the defendant abandoned the Apprendi issue because he failed to
raise it in his initial brief, his reply brief, or in his suggestion for rehearing en banc).
    5
     21 U.S.C. § 841(b)(1)(C) reads, in pertinent part:

                 In the case of a controlled substance in schedule I or II, except as provided in
that there is error. In Apprendi, the Supreme Court established, as a constitutional matter, that "[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-

63; see also Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311

(1999) (stating that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable

doubt"). In light of Apprendi, we have held that "drug quantity in [21 U.S.C. § ] 841(b)(1)(A) and section

841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt."

United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). There is error if the defendant's sentence

exceeds the maximum sentence allowed by statute without regard to quantity. Id. at 1328; United States v.

Nealy, 232 F.3d 825, 829 (11th Cir.2000). In the instant case, Wims's sentences of life imprisonment (Counts

One and Two) and forty years' imprisonment (Counts Three through Six) exceed the twenty year maximum

prescribed in section 841(b)(1)(C).6 Wims thus satisfies the first prong of plain error review.
        The second prong of plain error review requires that an error must be plain. An error is "plain" if it

is "obvious" or "clear under current law." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777,

123 L.Ed.2d 508 (1993). A sentence that exceeds the statutory maximum without regard to quantity is clear

error under current law. See Rogers, 228 F.3d at 1328. This is sufficient for the error to be considered "plain"

even though the law was different at the time of Wims's conviction and sentencing. See Johnson, 520 U.S.

at 468, 117 S.Ct. at 1549 (holding that "where the law at the time of trial was settled and clearly contrary to
the law at the time of appeal—it is enough that an error be 'plain' at the time of appellate consideration").

                 subparagraphs (A), (B), and (D), such person shall be sentenced to a term of
                 imprisonment of not more than 20 years ... [and if] any person commits such a violation
                 after a prior conviction for a felony drug offense has become final, such person shall be
                 sentenced to a term of imprisonment of not more than 30 years....

        Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II.
    6
     We note in passing that even though the indictment did not specify drug quantities, as required by
Rogers, 228 F.3d at 1327, it charged Wims with crimes by alleging violations of section 841(a) and put
Wims on notice that he was subject to potential life imprisonment by claiming that his actions violated
section 841(b)(1)(A). (In fact, by alleging violations of section 841(b)(1)(A), the indictment served Wims
with notice that the Government was charging him with possessing (or conspiring to possess) at least five
kilograms of a mixture containing a detectable amount of cocaine or at least fifty grams of a mixture
containing cocaine base.)
        Although Wims shows that there was plain error in his sentences, he is unable to satisfy the third
prong of the plain error review: Wims fails to show that the error affected his substantial rights. Counts

Three through Six of the indictment charged Wims and Pablo Cruz with possession of cocaine, with intent

to distribute, on four separate occasions in 1989. Cruz entered into a plea bargain; Wims was convicted and

sentenced to forty years' imprisonment on each count.7 At trial, Cruz testified for the prosecution that he

delivered two-kilogram quantities of cocaine to Wims in four successive months in 1989; that is, Cruz made
four two-kilogram deliveries to Wims.8 Wims did not contest, either at trial or sentencing, the amounts of the

drugs about which Cruz testified.9 Because the amount of drugs was uncontested on Counts Three through

Six, the jury must have found that Wims possessed "500 grams or more of a mixture or substance containing

a detectable amount of" cocaine. 21 U.S.C. § 841(b)(1)(B). Because conviction for a violation of section
841(b)(1)(B) carries a term of imprisonment between five and forty years, Wims's forty year sentences do

not exceed the "prescribed statutory maximum" sentence in violation of Apprendi, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435. Wims's substantial rights were therefore not affected by receiving forty year

sentences on Counts Three through Six. See Candelario, 240 F.3d at 1311-12.

    7
     We note that, under the Sentencing Guidelines, Wims could have been sentenced to more than forty
years' imprisonment on Counts Three through Six based on relevant conduct, despite the asserted cap in
the Pre-Sentence Investigation Report ("PSI") of forty years, pursuant to 21 U.S.C. § 841(b)(1)(B). (The
indictment, in fact, charged Wims with violating 21 U.S.C. §§ 841(a) and 841(b)(1)(A).) Because the
Government has not cross-appealed the error of the district court in adopting the PSI's stated maximum
imprisonment of forty years, we do not address the error.
    8
      The defendant's brother (Willie Wims, Sr.), nephews (Willie Wims, Jr., and Otis Wims), and niece
(Velinda Wims) also testified regarding Counts Three through Six. The only substantial variance from
Cruz's testimony was that the amount of drugs in two of the four transactions may have been slightly
higher or lower than two kilograms. Willie Wims, Jr., testified that one of the purchases (June 1989)
involved a sale of 2.5 kilograms from Cruz to the defendant, but the defendant only kept two kilograms,
giving half a kilogram to Willie Wims, Jr. Velinda Wims testified that another of the purchases (July
1989) involved one kilogram and two ounces, rather than two kilograms. (Velinda also testified that this
purchase was made for the defendant from Cruz's twin brother rather than from Cruz; this does not
change our analysis.) These minor variances regarding quantity, even if true, do not alter the outcome of
this case.
    9
     In fact, Wims's only unsuccessful objection at sentencing regarding drug quantity was that the PSI
improperly attributed 196 kilograms of cocaine to him in relation to the conspiracy in Count One. A
ruling in Wims's favor would have altered the amount of drugs attributable to him from 270 kilograms to
74 kilograms. This would have changed Wims's base offense level under the Sentencing Guidelines from
44 to 42. (The offense level based on drugs would have decreased from 38 (150 or more kilograms of
cocaine) to 36 (at least 50 but less than 150 kilograms of cocaine); the 4 level increase for role in the
offense and the 2 level increase for use of a firearm during the offense would not have changed.) Based
on Wims's criminal history category of I, an offense level of 44 carries a mandatory term of life
imprisonment; an offense level of 42 carries a range of 360 months to life imprisonment. The district
court could have sentenced Wims to the same terms of imprisonment under either offense level.
         Count Two of the indictment charged Wims with possession of cocaine, with intent to distribute, on
January 18, 1989, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A). Wims was convicted and sentenced

to life imprisonment on this count. The undisputed testimony at trial was that the amount of cocaine

purchased on January 18, 1989, was six one-kilogram packages;10 the only issue was whether the drugs from

this transaction belonged to the defendant. The jury's guilty verdict reveals that they did attribute the drugs
to Wims, which necessarily means they attributed six kilograms of cocaine to Wims. Wims failed to object,

either at the sentencing hearing or in his written objections to the PSI, to the quantity of drugs from this

transaction as six kilograms, providing further support for the proposition that the amount was not at issue.

         For Wims to be sentenced to life imprisonment on Count Two after Apprendi, we must find that the

jury, as a necessary part of its guilty verdict, determined possession of at least five kilograms of cocaine. See

21 U.S.C. § 841(b)(1)(A) (prescribing a sentence of between ten years and life imprisonment for possession

of at least five kilograms of cocaine); cf. Candelario, 240 F.3d at 1312 (holding that a finding of at least five

grams of cocaine base exposed the defendant to the penalties prescribed in section 841(b)(1)(B)). Because
the jury necessarily determined that Wims possessed six kilograms of cocaine when it convicted him on
Count Two, Wims's substantial rights were not affected by a sentence of life imprisonment, as authorized by

section 841(b)(1)(A).
         Count One of the indictment charged Wims (and six others) with conspiracy to distribute cocaine and
crack cocaine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A), all in violation of 21 U.S.C. § 846. Wims

was convicted and sentenced to life imprisonment on this count. A finding of at least five kilograms of
cocaine is required to authorize a life sentence for Wims, pursuant to 21 U.S.C. § 841(b)(1)(A). The jury's
convictions on Counts Two through Six demonstrate that the jury necessarily found at least five kilograms

of cocaine, as the substantive offenses in those counts all formed part of the conspiracy.11 Wims's sentence

    10
       The testimony regarding the January 18, 1989, possession showed that six kilograms were
confiscated by police in a traffic stop of Willie Wims, Sr. (the defendant's brother), who was traveling as
the lead car (the "mule" car) in a two-car caravan from Miami to New York; the defendant was in the
second car (the "point" car) of this caravan. The testimony came from Willie Wims, Sr. (the driver of the
first car), the passenger in the first car, the defendant's nephew (to whom the defendant later talked about
the stop), the police officer who stopped the first car, the police officer who searched the first car and
subsequently stopped the second car, and the lab technician who tested and quantified the cocaine. There
was no testimony about an amount other than six kilograms.
    11
       At a minimum, the jury found at least five kilograms of cocaine on Count Two alone. Moreover,
the jury found at least 500 grams of cocaine on each of Counts Three through Six. (In fact, we believe
that the jury found six kilograms (more than five kilograms) on Count Two and two kilograms (more than
500 grams) on each of Counts Three through Six, but we need not conclusively determine these greater
of life imprisonment on Count One did not, therefore, affect his substantial rights.

        The fourth prong of plain error review is an inquiry whether the error "seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings." Johnson, 520 U.S. at 467, 117 S.Ct. at 1549

(internal quotations omitted). Because Wims fails to satisfy the third prong of plain error review, we need

not address this fourth prong. See Candelario, 240 F.3d at 1312.

        Although there was error in Wims's sentencing, his substantial rights were not affected by the error.

Therefore, Wims's convictions and sentences are
        AFFIRMED.

amounts to dispose of this appeal.) It is clear, therefore, that the jury found at least seven kilograms of
cocaine to convict Wims of all six counts. The fact that a higher amount of drugs was attributed to Wims
at sentencing, as relevant conduct, is irrelevant for Apprendi purposes.


122 U.S. 519 (1887)
TEXAS TRANSPORTATION CO.
v.
SEELIGSON.
Supreme Court of United States.
Submitted April 25, 1887.
Decided May 27, 1887.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.
Mr. T.N. Waul for appellants.
Mr. W.E. Earle and Mr. W.W. Boyce for appellee.
*520 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
This is an appeal under § 5 of the act of March 3, 1875, c. 137, 18 Stat. 470, from an order of the Circuit Court remanding a suit which had been removed from a state court. The suit was begun December 18, 1883, in the Circuit Court of Harris County, Texas, by Henry Seeligson, a citizen of that *521 state, and the owner of twenty shares of the capital stock of the Texas Transportation Company, a Texas corporation, against that company, and A.C. Hutchinson, Charles Fowler, E.W. Cave, and L. Megget, its directors and principal officers, for an account of the affairs of the company; and to annul and set aside a note of the company for $335,000 to Charles Morgan, together with a deed of trust given for its security. Hutchinson is a citizen of Louisiana, but all the rest of the defendants are citizens of Texas. On the 9th of February, 1884, a supplemental petition was filed in the suit alleging that C.P. Huntington had become the owner of the note given to Morgan, and bringing him in as a defendant. Citation was served on him March 13, 1884, and, on the 31st of the same month, he, being a citizen of New York, presented his petition for the removal of the suit to the Circuit Court of the United States for the Eastern District of Texas, on the ground "that there is a controversy in said suit which is wholly between citizens of different states, and which can be fully determined as between them, to wit, a controversy between said Seeligson, plaintiff, and your petitioner, and a controversy between your petitioner, on one side, and in which the interests of the said Seeligson, the Texas Transportation Company, and the other defendants, officers of said company, are on the other side." Upon this petition an order of removal was made, and the suit entered in the Circuit Court on the 16th of October, 1884, when the defendants appeared, and, on the 1st of December, filed a joint and several demurrer to the bill. On the 5th of January, 1885, this demurrer was sustained as to Huntington, but overruled as to the rest of the defendants. The bill was then amended, and afterwards, on the 9th of March, it was ordered that the "complainant do recast and amend his bill so as to conform to the equity rules of the Supreme Court, and that, in so amending and recasting his pleadings, he have leave to bring in two or more bills, as counsel may advise, so as to save to complainant all the causes of action contained in his original bill," and that, "if this order is not complied with by the rule day in May next, the complainant's bill shall stand dismissed with costs." On the 2d of May, Seeligson *522 made a motion to remand the suit, and this being overruled, on the 4th of May he filed an amended bill, to which the defendants demurred June 1. This demurrer was set down for argument on the first Monday in November. Other motions were filed by the defendants, but, before any of them were disposed of, Seeligson, on the 19th of November, dismissed the suit as to Huntington, and at once moved to remand. This motion was granted January 9, 1886, and from that order this appeal was taken.
As the suit could only have been removed because of the alleged separate cause of action against Huntington, it was right to remand it as soon as the discontinuance was entered as to him. The express provision of § 5 of the act of 1875, is, that if "it shall appear to the satisfaction of said Circuit Court at any time after such suit has been ... removed thereto that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, ... the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require." The court was not required to keep the suit after the discontinuance, simply because it might have been removed when Huntington was a party. As soon as he was out of the case, it did appear that "the suit did not really and substantially involve a dispute or controversy properly within" its jurisdiction.
The order to remand is affirmed.