Kris Crutcher v. Multiplan, Inc. ( 2022 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-3572
    ___________________________
    Kris Crutcher; Tri-Lakes Diagnostic Imaging, LLC
    lllllllllllllllllllllPlaintiffs - Appellants
    v.
    MultiPlan, Inc.; Private Healthcare Systems, Inc.
    lllllllllllllllllllllDefendants - Appellees
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Springfield
    ____________
    Submitted: September 23, 2021
    Filed: January 5, 2022
    ____________
    Before SMITH, Chief Judge, GRUENDER and STRAS, Circuit Judges.
    ____________
    SMITH, Chief Judge.
    Kris Crutcher, owner of Tri-Lakes Diagnostic Imaging, LLC (TLDI), brought
    suit against MultiPlan, Inc. (MultiPlan) and its subsidiary Private Healthcare Systems,
    Inc. (PHCS), alleging numerous causes of action, including those relevant to this
    appeal—breach of contract and a right to an award of attorneys’ fees. The district
    court denied her claim of attorneys’ fees based on a finding that the indemnity clause
    in the Network Agreement to which both parties succeeded did not provide for an
    award of attorneys’ fees in litigation between parties to the contract. The court also
    held that Crutcher’s conduct waived the contractual amendment-in-writing
    requirement and that the revised fee schedule was therefore a valid modification to
    the contract. We affirm the denial of attorneys’ fees but reverse as to waiver.
    I. Background
    A. The Parties
    Crutcher and TLDI (collectively, appellants) operated a small medical
    diagnostic imaging practice located in Branson, Missouri. MultiPlan and PHCS
    (collectively, appellees) are two preferred provider organizations (PPOs) that operate
    as intermediaries between providers and payors (i.e., health insurance agencies) in the
    healthcare sector. As part of the PPO relationship, MultiPlan enters into agreements
    with healthcare providers forming a network. Under these arrangements, providers
    agree to charge payors a discounted rate in exchange for “steerage.” Steerage
    represents the increase in business that results from being in-network. MultiPlan also
    enters into agreements with third-party payors, such as insurance companies, for
    access to MultiPlan’s PPO network discounted rates on behalf of their plan members.
    Individuals on such plans receive healthcare services from PPO providers at
    discounted rates. PHCS is MultiPlan’s nationwide primary PPO network.
    B. The Network Agreement
    On April 1, 2000, Medical Investments of Branson, LLC, doing business as
    Branson Imaging, entered into the Network Agreement with United Payors & United
    Providers (UP&UP). Pursuant to this agreement, Branson Imaging, as “Provider,”
    agreed to accept discounted rates for UP&UP clients in exchange for UP&UP’s
    promise to use best efforts to require clients to create financial incentives or benefits
    for their participants to seek out the services of Branson Imaging.
    -2-
    Section IV.A. of the Network Agreement provides as follows:
    Provider shall render Services, subject to the availability of facilities and
    services, as are available to Covered Persons in accordance with
    Covered Person’s Health Benefit Program. Provider agrees to accept
    payment in amounts not exceeding those specified in Attachment A,
    attached hereto, as payment in full for all Charges for all Services
    rendered to Covered Persons. All entities billing under Provider Tax
    Identification Number will be subject to rates specified in Attachment
    A.
    R. Doc. 295-2, at 15. The original version of Attachment A to the Network
    Agreement, titled “Percent of Charges,” states that providers would be paid at a
    discounted rate of “75% of Charges for Services rendered.” Id. at 20. Additionally,
    Section IV.Q. of the Network Agreement contains an indemnity clause, reading as
    follows:
    UP&UP shall indemnify and hold Provider harmless from loss, damage
    or defense costs (including reasonable attorneys’ and defense fees)
    arising from actual or alleged wrongful acts or omissions of UP&UP, its
    officers, employees, subcontractors or other agents, in performing
    services contemplated under this Agreement.
    Id. at 17. The Network Agreement also provided that it would “renew[] automatically
    for successive one (1) year terms unless UP&UP or Provider, [gave] written notice
    to the other party of its intention to terminate this Agreement no later than ninety (90)
    days prior to the expiration of the then current term.” Id. The contract also noted that
    “UP&UP [was] contracting for itself and for the benefit of its wholly-owned
    subsidiaries or affiliates having common management and control with UP&UP,
    including, but not limited to, UP&UP, Inc. d/b/a America’s Health Plan® and any
    subsequently acquired subsidiary, company or affiliate.” Id. at 14.
    -3-
    UP&UP was later acquired by BCE Emergis Corp. (BCE), which was then
    acquired by MultiPlan in 2004. MultiPlan acquired PHCS in October 2006. MultiPlan
    and PHCS thereby succeeded to the original Network Agreement between UP&UP
    and Branson Imaging.
    C. TLDT
    On April 2, 2001, “Branson Imaging, LLC” was canceled as a fictitious name
    by Medical Investments of Branson, LLC, and MultiPlan changed the TIN associated
    with the Network Agreement in its electronic systems.
    On January 10, 2003, Articles of Incorporation were filed on behalf of Tri-
    Lakes Diagnostic Technologies (TLDT). On or around February 8, 2003, Branson
    Imaging wrote to Blue Cross Blue Shield of Missouri, advising that Branson Imaging
    was operating under the new name of TLDT and that Branson Imaging’s TIN had
    changed. MultiPlan accordingly changed the “provider name” and TIN associated
    with the Network Agreement in its electronic systems.
    D. The August 1, 2007 Letter
    On August 1, 2007, appellees sent a letter addressed to Branson Imaging at the
    premises then occupied by TLDT. The letter notified Branson Imaging that because
    of the integration of MultiPlan and PHCS, reimbursement under the Network
    Agreement would be changed from the 25-percent discount rate to an SSRIM1 fee
    schedule. The correspondence included a written copy of the new fee schedule. No
    one from Branson Imaging or TLDT responded to this letter. TLDT continued to
    operate and accept discounts under the Network Agreement, as amended by the
    SSRIM fee schedule following the August 1, 2007 letter.
    1
    The SSRIM schedule followed a variable pricing scheme rather than a fixed
    discount rate as the original contract specified.
    -4-
    E. TLDI
    In September 2007, Crutcher began providing office management services for
    TLDT. On February 5, 2008, Crutcher filed Articles of Organization for TLDI. TLDI
    occupied the office space formerly occupied by TLDT and Branson Imaging. On
    February 22, 2008, Crutcher wrote to PHCS advising that the imaging facility had
    again changed its ownership and name.
    On or about May 5, 2008, Crutcher sent a fax to appellees, advising again of
    the name change and requesting that TLDI be substituted for Branson Imaging under
    the Network Agreement. The fax included a letter from Crutcher to “ATTN: Registrar
    Fax 1-781-487-8273,” with the subject line “Name Change/TIN change,” dated April
    16, 2008. R. Doc. 295-2, at 30. That letter reads:
    Dear Registrar, we have changed our name and EIN. The former name
    for our company was Branson Imaging. The address remains the same
    as well as the services and imaging capabilities we offer. Please make
    the following changes to update your system. See accompanying W-9
    form.
    Tri Lakes Diagnostic Imaging, LLC (formerly known as Branson
    Imaging)
    523 State Hwy 248, Suite 300
    Branson, MO 65616
    417-332-2152
    Fax 417-332-0443
    Id. Crutcher identified the “NEW EIN” and noted that “[t]he billing address is the
    same as the business address above.” Id. She concluded the letter by stating: “We
    look forward to continuing to provide imaging services for our clients.” Id. Crutcher
    then provided a completed W-9 form with the same name (TLDI), address, and EIN
    as indicated in the April 16, 2008 letter.
    -5-
    Crutcher’s May 5, 2008 fax to appellees had a “Fax Cover Sheet,” with the
    handwritten subject line, “Name change/EIN change.” It included a handwritten note
    from Crutcher stating, “please make this change in your system.” Id. at 29.
    On or about June 9, 2008, Crutcher sent another fax to MultiPlan and PHCS,
    again asking for TLDI to be substituted for Branson Imaging under the Network
    Agreement. In addition, Crutcher wrote the following:
    I have tried to update this information online and noticed that in your
    system (find a provider) it is still showing as Branson Imaging. I would
    greatly appreciate the assistance with this update and look forward to
    continued patient services for your clients. Please let me know if there
    is any additional information I need to provide you for this update.
    Please see attached W-9 form.
    Id. at 34–35. Following her June 9, 2008 fax, Crutcher repeatedly reached out to
    PHCS to complain that appellees had not yet substituted TLDI for Branson Imaging
    under the Network Agreement and that appellees’ clients were not treating TLDI as
    a participating provider. She also appealed a number of claims on behalf of TLDI to
    appellees’ clients, asking that they be reprocessed and paid at the in-network level
    pursuant to the Network Agreement.
    MultiPlan’s records show that the provider name and TIN associated with the
    Network Agreement were eventually changed in MultiPlan’s electronic systems to
    TLDI and the pertinent TIN.
    F. Subsequent Dealings Between the Parties
    On or about February 20, 2009, MultiPlan replied in a letter to questions that
    Crutcher had raised about TLDI’s reimbursement on a claim. It stated, “Multiplan has
    received your request for pricing review of the above facility bill. Upon review it has
    -6-
    been determined that no adjustment is required. The correct allowable amount for the
    attached claim is $440.51.” R. Doc. 346-3, at 1 (emphasis omitted). In addition, the
    letter noted that the claim had been priced according to the “PHCS Facility – SSRIM
    fee schedule” and reflected “the correct allowable amount under [the] PHCS Facility
    Agreement.” Id. (emphasis omitted). On July 16, 2009, Crutcher telephoned
    MultiPlan regarding another claim, and MultiPlan advised her that the claim was
    priced according to a “complex fee schedule” associated with the Network
    Agreement. R. Doc. 315-16, at 21.
    On or about July 17 and 20, 2009, Crutcher, on behalf of TLDI, sent a fax to
    MultiPlan requesting a copy of the Network Agreement. MultiPlan responded on July
    22, stating that it was having trouble finding a copy of the original Network
    Agreement and representing that MultiPlan had been added to the Network
    Agreement through integration with BCE effective September 1, 2004, and that
    PHCS had been added through acquisition on or about December 1, 2007. MultiPlan
    also represented that it had changed the entity name from Branson Imaging to TLDI
    as well as the pertinent tax ID number per Crutcher’s request. A week later, on July
    29, MultiPlan found a copy of the original Network Agreement and faxed it to
    Crutcher. This document reflected a flat 25-percent discount rate rather than the
    complex SSRIM fee schedule.
    At the time, Crutcher and TLDI did not believe they were bound by a contract
    with PHCS to accept the reimbursement rates. Rather than object to the agreement,
    opt out of it, or seek its termination, TLDI continued to provide services to patients
    covered by MultiPlan’s clients and continued to accept payment for those services
    under the SSRIM fee schedule. Approximately six years later, Crutcher began to send
    correspondence on behalf of TLDI requesting that they produce a separate written
    contract between MultiPlan/PHCS and TLDI as well as the fee schedule applicable
    to TLDI since 2008. Subsequently, in August 2015, counsel for Crutcher and TLDI
    -7-
    sent MultiPlan a letter denying the existence of a valid contract between TLDI and
    appellees. The letter asserted that all discounts taken by appellees’ clients were
    improper.
    MultiPlan responded that TLDI had been substituted for Branson Imaging
    under the original Network Agreement in 2008 based on Crutcher’s request and that
    neither TLDI nor its predecessors had ever requested to opt out or terminate the
    Network Agreement. MultiPlan nonetheless agreed to disenroll TLDI, removing the
    company from its systems and provider database and stopping all discounts as of
    September 8, 2015. Appellants filed this action on November 6, 2015.
    G. Litigation
    Crutcher and TLDI filed suit against MultiPlan, alleging several causes of
    action. Only two are present before this court—breach of contract and attorneys’ fees.
    Crutcher and TLDI allege that MultiPlan breached the agreement (to which both
    parties succeeded) by applying discounts to TLDI’s claims in excess of the agreed-
    upon 25-percent discount rate. They seek damages as well as attorneys’ fees and costs
    under the contractual indemnity clause.
    Crutcher and TLDI allege that MultiPlan, pursuant to the Network Agreement,
    agreed upon a 25-percent discount rate. They assert that appellees breached the
    contract by charging them under the SSRIM fee schedule. The use of the SSRIM
    produced, in some cases, discounts exceeding the agreed-upon 25 percent. They
    further allege that the Network Agreement provides that “[a]ll amendments or
    modifications to this Agreement shall be mutually agreed to in writing” and that the
    parties never mutually agreed in writing to any contractual modification, including
    the SSRIM fee schedule. R. Doc. 295-2, at 18. Appellees argue in reply, and the
    district court found, that appellants consented to the fee schedule change by their
    -8-
    conduct. The court treated their consent as a waiver of their right to object to the
    modification as not occurring by a mutually agreed-to writing.
    The parties filed cross-motions for summary judgment on the breach-of-
    contract claim. The district court applied Missouri law to deny TLDI’s request for
    attorneys’ fees based on a finding that the contractual indemnity clause does not
    expressly refer to litigation between the parties. The court granted in part MultiPlan’s
    motion based on a finding of contract modification by waiver through conduct on the
    part of TLDI.
    II. Discussion
    Crutcher and TLDI appeal the district court’s grant of partial summary
    judgment to MultiPlan, arguing that the court erred in finding that no genuine dispute
    of material fact existed as to the issue of waiver. They also appeal the court’s denial
    of attorneys’ fees.
    A district court’s grant of summary judgment receives de novo review on
    appeal. Cottrell v. Am. Fam. Mut. Ins. Co., S.I., 
    930 F.3d 969
    , 971 (8th Cir. 2019).
    Summary judgment is appropriate where, viewing the evidence in the light most
    favorable to the non-moving party, “there is no genuine dispute as to any material fact
    and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    A. Attorneys’ Fees
    Appellants’ breach-of-contract claim included a request for an award of
    attorneys’ fees based on Section IV.Q. of the Network Agreement. The question is
    whether under Missouri law the contractual language includes costs incurred in
    litigation between the parties to enforce the contract’s terms. We hold that the
    contract does not include litigation between the contracting parties and that it
    -9-
    therefore limits recovery for attorneys’ fees to costs incurred in defending third-party
    lawsuits.
    “Missouri follows the American Rule on attorneys’ fees, which provides that
    each party to litigation must pay its own litigation expenses unless a statute
    specifically authorizes recovery of attorneys’ fees or a contract provides for them.”
    Monarch Fire Prot. Dist. of St. Louis Cnty. v. Freedom Consulting & Auditing Servs.,
    Inc., 
    644 F.3d 633
    , 637 (8th Cir. 2011) (citing Lucas Stucco & EIFS Design, LLC v.
    Landau, 
    324 S.W.3d 444
    , 445 (Mo. 2010) (en banc)). The issue before the court in
    Monarch was whether a contractual indemnity clause entitled the plaintiff to
    attorneys’ fees and costs incurred in a breach-of-contract action between the
    contracting parties. The indemnity clause at issue provided that the defendant would
    indemnify the plaintiff and hold him harmless “from and against any claim, cause of
    action, liability, damage, cost or expense, including attorneys’ fees and court or
    proceeding costs, arising out of or in connection with” the defendant’s wrongful acts,
    including “breach of the terms of [the contract] by [the defendant] or any person or
    entity under [the defendant’s] control.” 
    Id.
     The court held this language insufficiently
    definite to permit recovery of attorneys’ fees under Missouri law. The court relied on
    the Missouri Supreme Court’s decision in Nusbaum v. City of Kansas City, 
    100 S.W.3d 101
    , 109 (Mo. 2003) (en banc) (per curiam), for the proposition “that in order
    for a party to recover attorneys’ fees incurred in enforcing its right to indemnity under
    a contract, the indemnity clause at issue must expressly refer to the enforcement of
    the right to indemnity.” Monarch, 644 F.3d at 637. In addition, the court noted that
    such a requirement “squares with the ‘cardinal principle’ of contract interpretation,
    which ‘is to ascertain the intention of the parties and to give effect to that intent.’” Id.
    at 638 (quoting Dunn Indus. Grp., Inc. v. City of Sugar Creek, 
    112 S.W.3d 421
    , 428
    (Mo. 2003) (en banc) (per curiam)). Given that an indemnity clause ordinarily
    envisions third-party claims, express language referencing litigation between
    contracting parties is needed to ensure that parties know their obligations under the
    -10-
    contract. See id.; see also Jacobson Warehouse Co. v. Schnuck Mkts., Inc., 
    13 F.4th 659
    , 670 (8th Cir. 2021). Finally, the court reasoned that “an express language
    requirement reflects the American Rule’s longstanding policy against substantive fee-
    shifting as part of a merits award.” 
    Id.
    The indemnity clause in Section IV.Q. does not contain express language
    referring to the recovery of attorneys’ fees relating to litigation between Crutcher and
    TLDI and MultiPlan. This clause promises indemnity, including attorneys’ fees, in
    the event of loss or damage to the provider through MultiPlan’s “wrongful acts or
    omissions.” R. Doc. 295-2, at 17. It contains no explicit reference to litigation
    between the contracting parties. Cf. Sheppard v. East, 
    192 S.W.3d 518
    , 523 (Mo. Ct.
    App. 2006) (“In the event of litigation between the parties, the prevailing party shall
    recover . . . the cost of litigation including reasonable attorney’s fees.” (alteration in
    the original)); Jackson v. Christian Salvesen Holdings, Inc., 
    978 S.W.2d 377
    , 384
    (Mo. Ct. App. 1998) (“In the event any dispute between the parties hereto concerning
    this . . . Agreement should result in litigation, the prevailing party shall be reimbursed
    by the other for all reasonable costs, including . . . reasonable attorney’s fees . . . .”).
    Nor does it refer to the enforcement of contractual rights. Cf. Lee v. Invs. Title Co.,
    
    241 S.W.3d 366
    , 368 (Mo. Ct. App. 2007) (awarding attorneys’ fees where contract
    expressly provided for “attorneys’ fees . . . in connection with [plaintiff’s]
    enforcement of its rights under this Agreement”); RJF Int’l Corp. v. B.F. Goodrich
    Co., 
    880 S.W.2d 366
    , 369 (Mo. Ct. App. 1994) (awarding attorneys’ fees where
    contract expressly provided for indemnity for “each and every failure or breach of any
    representation, warranty, covenant and indemnification”).
    Rather, the language of Section IV.Q. limits recovery of attorneys’ fees to
    circumstances where liability to third parties is created through MultiPlan’s
    “wrongful acts or omissions . . . in performing services contemplated under this
    Agreement.” R. Doc. 295-2, at 17. That language is insufficient to meet the express
    -11-
    language requirement that applies to litigation involving the contracting parties. And
    even if the appellants could recover attorneys’ fees for litigation between the parties,
    they could only recover “defense costs (including reasonable attorneys’ and defense
    fees),” 
    id.,
     which would not include attorneys’ fees incurred in a suit they brought
    against MultiPlan. See Stahlhuth v. SSM Healthcare of St. Louis, 
    289 S.W.3d 662
    ,
    670 (Mo. Ct. App. 2009) (“In determining the parties’ intent, the courts look to the
    language of the contract, giving the terms their plain, ordinary, and usual meaning
    and so construing the terms to avoid rendering other terms meaningless.”).
    Since Monarch, Missouri courts have not departed from its logic. The
    requirement for express language protects the intent of the contracting parties and
    comports with the American Rule. Accordingly, we hold that the Network
    Agreement’s indemnity clause does not permit recovery of attorneys’ fees in this
    dispute between the contracting parties.
    B. Modification of Contract by Waiver
    Section VI.H. of the Network Agreement dictates that any amendment to the
    contract must be mutually agreed to in writing. The implementation of the SSRIM fee
    schedule changed the discount rate, which Attachment A to the original Agreement
    originally set at 25 percent. The record contains no signed writing showing that
    appellants consented to the change from a 25-percent discount to the SSRIM fee
    schedule. Hence, without a signed writing, MultiPlan must show that appellants
    waived the amendment-in-writing requirement. The district court found that Crutcher
    and TLDI’s continuation of business under the SSRIM evinced an intent to waive this
    requirement. Appellants claim that this conclusion was error on three distinct
    grounds. First, they argue that appellees forfeited the affirmative defenses of waiver
    and modification by failing to plead them in their answer. Second, they argue that
    waiver is unsupported in the record. Finally, they argue that the proposed
    -12-
    modification must fail for lack of consideration. We will consider each argument in
    turn.
    1. Adequacy of the Pleadings
    Appellants contend that appellees failed to plead the affirmative defenses of
    waiver and modification in their answer, such that they forfeited those defenses,
    precluding the district court from raising them sua sponte. Appellants argue that these
    defenses were not among the 29 affirmative defenses set forth in the answer.
    Appellees only raised modification in MultiPlan’s motion for summary judgment.
    Waiver was not raised by a party at all but was instead inserted by the court in its
    decision.
    “Waiver is an affirmative defense which must be affirmatively pleaded.”
    Barnwell & Hays, Inc. v. Sloan, 
    564 F.2d 254
    , 255 (8th Cir. 1977) (per curiam); see
    also Fed. R. Civ. P. 8(c). The failure to plead an affirmative defense results in its
    forfeiture and exclusion from the case. Wood v. Milyard, 
    566 U.S. 463
    , 470 (2012).
    “[T]he Rule 8(c) pleading requirement is intended to give the opposing party
    both notice of the affirmative defense and an opportunity to rebut it,” but we decline
    to adhere to a construction of the Rule that would privilege “form over substance.”
    First Union Nat’l Bank v. Pictet Overseas Tr. Corp., 
    477 F.3d 616
    , 622 (8th Cir.
    2007). As long as “an affirmative defense is raised in the trial court in a manner that
    does not result in unfair surprise, technical failure to comply with Rule 8(c) is not
    fatal.” 
    Id.
     (alterations and internal quotation marks omitted). This includes the “bare
    assertion” of a defense without being “articulated with any rigorous degree of
    specificity.” Zotos v. Lindbergh Sch. Dist., 
    121 F.3d 356
    , 361 (8th Cir. 1997)
    (emphasis and internal quotation marks omitted).
    -13-
    Appellees argue that they in fact asserted the defenses of waiver and
    modification in their answer to the second amended complaint, in which they averred
    that “Plaintiffs’ claims are barred in whole or in part under principles of equitable
    estoppel, waiver, notification, ratification, confirmation, acquiescence[,] and/or
    consent.” R. Doc. 361, at 34. The explicit assertion of waiver in their the answer
    constitutes an adequate pleading for Rule 8(c) under Zotos. Additionally, appellees
    argue that these defenses were sufficiently pleaded because the answer expressly
    “adopt[ed] and incorporat[ed] by reference . . . all allegations and averments” made
    in previously-filed summary judgment pleadings, which discussed modification with
    respect to the SSRIM fee schedule. Id. at 37. These instances were sufficient to put
    appellants on notice of the defenses of waiver and modification. Accordingly, we
    hold waiver and modification to have been pleaded adequately.
    2. Record Evidence of Waiver
    A valid waiver requires “intentional relinquishment of a known right.”
    Carroll’s Warehouse Paint Stores, Inc. v. Rainbow Paint & Coatings, Inc., 
    824 S.W.2d 147
    , 151 (Mo. Ct. App. 1992) (quoting Bartleman v. Humphrey, 
    441 S.W.2d 335
    , 343 (Mo. 1969)); see also Horne v. Ebert, 
    108 S.W.3d 142
    , 147 (Mo. Ct. App.
    2003). Absent an express declaration, waiver may be implied by conduct in “a clear,
    unequivocal, and decisive act.” Star Dev. Corp. v. Urgent Care Assocs., Inc., 
    429 S.W.3d 487
    , 494 (Mo. Ct. App. 2014) (internal quotation marks omitted); see also
    Robb v. Bond Purchase, L.L.C., 
    580 S.W.3d 70
    , 79–80 (Mo. Ct. App. 2019); Fritts
    v. Cloud Oak Flooring, Co., 
    478 S.W.2d 8
    , 14 (Mo. Ct. App. 1972). “[T]he conduct
    must be so manifestly consistent with and indicative of an intention to renounce a
    particular right or benefit that no other reasonable explanation of [the] conduct is
    possible.” Horne, 
    108 S.W.3d at 147
     (second alteration in original) (internal
    quotation marks omitted).
    -14-
    Does the record support a finding of waiver? The district court thought so. The
    court noted that the new fee schedule went into effect after Crutcher asked that
    MultiPlan substitute TLDI for Branson Imaging. From this, the district court inferred
    appellants’ intent to comply with whatever fee schedule was in effect at the time.
    Crutcher and TLDI went on to accept payment and steerage from MultiPlan for six
    years, from 2008 to 2014. The court concluded that the only reasonable explanation
    for their lengthy compliance with the revised rates is that appellants intended to waive
    their right to object to the introduction of the new fee schedule.
    Appellants argue that the record does not support a finding of waiver. Their
    argument focuses on the lack of evidence that either TLDI or its predecessor Branson
    Imaging received an August 1, 2007 letter, sent by MultiPlan to Branson Imaging.
    This letter advised Branson Imaging of MultiPlan’s acquisition of PHCS as well as
    the institution of the SSRIM fee schedule. They argue that whether this letter was
    received constitutes a material fact question affecting the issue of appellants’
    knowledge of their right to object to the modification’s lack of a signed writing.
    Missouri law presumes receipt of duly mailed materials. Am. Fam. Mut. Ins.
    Co. v. Vein Ctrs. for Excellence, Inc., 
    912 F.3d 1076
    , 1083 (8th Cir. 2019). To raise
    this presumption, evidence must be introduced that the letter was properly addressed,
    stamped, and placed in the mail. Shelter Mut. Ins. Co. v. Flint, 
    837 S.W.2d 524
    , 528
    (Mo. Ct. App. 1992). When direct proof that a particular letter was mailed is
    infeasible because of the volume of mail, “evidence of the settled custom and usage
    of the sender in the regular and systematic transaction of its business” will suffice to
    give rise to this presumption. 
    Id.
     (internal quotation marks omitted). However, even
    if this presumption is established with evidence of custom and usage, it nevertheless
    “may be rebutted by evidence it was not, in fact, received.” Ins. Placements, Inc. v.
    Utica Mut. Ins. Co., 
    917 S.W.2d 592
    , 595 (Mo. Ct. App. 1996). “Evidence of
    non-receipt, however, does not nullify the presumption but leaves the question for the
    determination of the jury under all of the facts and circumstances of the case.” 
    Id.
    -15-
    Even assuming arguendo that appellees have presented evidence sufficient to
    establish the presumption of receipt, appellants have countered with evidence that it
    was not received. The letter was sent prior to the formation of TLDI as a legal entity.
    Moreover, it was addressed not to TLDT, the business that occupied the premises at
    the time, but to Branson Imaging, its predecessor. The letter failed to turn up after a
    subpoena request for the business records of Branson Imaging and TLDT. Testimony
    from Crutcher’s husband, the sole employee of TLDT in October 2007, indicates that
    he had not seen the letter prior to his deposition; Crutcher herself testified to the same
    effect. These facts, among others, are sufficient to rebut the presumption of the
    letter’s receipt.
    MultiPlan allegedly sent this letter, addressed to Branson Imaging, to advise
    of changes to its provider arrangements, including the revised fee schedule. Whether
    it was ever received or seen by appellants or their predecessors is in dispute. The
    receipt of the letter advising appellants of the new fee schedule, together with their
    long-term practice of accepting payment and steerage may make for convincing
    evidence of waiver. However, not having received the letter, appellants may not have
    known of their right to object. Such ignorance is inconsistent with a knowing waiver.
    Giving the nonmoving party the benefit of all reasonable inferences,
    appellants’ knowledge of MultiPlan’s unilateral amendment of the contract should not
    be presumed without proof of notice. Crutcher may have known what the fee schedule
    was at a later date, but that does not necessarily mean she knew that the fee schedule
    was a contractual change to which she, as the contracting party’s successor, could
    have objected under the amendment-in-writing provision. That is to say, knowledge
    of the fee schedule then in place should not be equated with knowledge that it
    constituted an amendment to which she could have objected. Moreover, when
    Crutcher requested a copy of the Network Agreement in July 2009, MultiPlan sent
    her the original contract, which reflected the flat 25-percent discount, not the SSRIM
    fee schedule. And MultiPlan failed to advise her of this key difference. This, along
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    with the alleged non-receipt of the 2007 letter, makes it less likely that appellants
    were on notice of the change and therefore would have had no reason to raise an
    objection.
    Appellants’ course of conduct, accepting payment and steerage over the course
    of six years, certainly constitutes evidence of waiver. But it is also compatible with
    ignorance of their contractual right to object to a contract modification to which they
    never manifested consent in writing. Continuing with business as usual, absent proof
    of knowledge of the contractual right was not, on these facts, “a clear, unequivocal,
    and decisive act,” given multiple successive changes in ownership. Star Dev. Corp.,
    429 S.W.3d at 494 (internal quotation marks omitted). Appellants had the right (as
    successors to Branson Imaging) to object to the new fee schedule. Proof of their
    awareness of the newness of the fee schedule is needed to establish whether their
    contractual right to object was known, thus whether their conduct constituted
    “intentional relinquishment of a known right,” i.e., waiver. Carroll’s Warehouse, 
    824 S.W.2d at 151
     (internal quotation marks omitted). The 2007 letter’s receipt could aid
    in establishing such knowledge. Whether the letter was received is a material fact
    dispute. For this reason, we reverse the district court’s grant of partial summary
    judgment to MultiPlan on the issue of waiver.
    3. Consideration
    Finally, appellants contend that the proposed change to the SSRIM fee
    schedule failed as a modification to the contract for lack of consideration. Under
    Missouri law, parties to a contract are free to modify it as they please, but a valid,
    enforceable modification requires all the ingredients necessary to form a contract in
    the first instance. Zumwinkel v. Leggett, 
    345 S.W.2d 89
    , 93–94 (Mo. 1961) (per
    curiam). “The essential elements of a valid contract include offer, acceptance, and
    bargained for consideration.” Johnson v. McDonnell Douglas Corp., 
    745 S.W.2d 661
    ,
    662 (Mo. 1988) (en banc). The requirement for consideration calls for the exchange
    of something of value as between the parties, which may include a promise. Baker v.
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    Bristol Care, Inc., 
    450 S.W.3d 770
    , 774 (Mo. 2014) (en banc) (citing Morrow v.
    Hallmark Cards, Inc., 
    273 S.W.3d 15
    , 25 (Mo. Ct. App. 2008)). The consideration
    requirement is not met, however, “when one party merely agrees to do that which it
    was already legally liable to do for a greater consideration, nor . . . when one party
    agrees to do less than it is already obligated to do for the same or greater
    consideration.” Medicare Glaser Corp. v. Guardian Photo, Inc., 
    936 F.2d 1016
    , 1020
    (8th Cir. 1991) (quoting Twin River Constr. Co. v. Public Water Dist. No. 6, 
    653 S.W.2d 682
    , 690 (Mo. Ct. App. 1983)). Simply put, a valid modification is one that
    actually changes both party’s obligations.
    Appellants rely on one case in particular for their contention that the
    modification fails for lack of consideration. In Medicare Glaser Corp., Medicare
    agreed to provide Guardian with its photofinishing business for at least two years in
    return for payment of certain advertising allowances. 
    Id. at 1017
    . The court found that
    an attempted modification failed for lack of consideration, reasoning as follows:
    We find that no consideration existed in the February 1986 attempt to
    modify the contract. Guardian was already legally liable for the 6%
    advertising accrual payment; Guardian simply agreed to make this same
    payment on a monthly rather than quarterly basis. Similarly, no
    consideration is evidenced by Guardian’s May 1986 agreement to
    increase the 6% advertising accrual payment to 13% since this increase
    was entirely offset by the 7% increase in charges to Medicare. In both
    cases, Guardian merely agreed to do that which it was already obligated
    to do, while Medicare received less than what it had contracted for under
    the original agreement.
    
    Id. at 1020
    .
    In Medicare Glaser Corp., changing the schedule of payments did not
    constitute consideration, as it did not change the obligation itself, but only how
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    regularly the balance had to be paid. Nor did the payment increase add up to valuable
    consideration, being completely offset by an increase in charges. Neither change
    altered the card game, but merely shuffled the deck. The clear lack of consideration
    in Medicare Glaser Corp. contrasts sharply with the present facts. When the new fee
    schedule went into effect, MultiPlan opened up the PHCS network to providers,
    allowing for additional patient steerage sources. The revised fee schedule together
    with the increased potential patient pool changed the obligations of both parties.
    TLDI, as a provider, would be subject to different rates accompanied by new and
    different steerage sources, and MultiPlan would be obligated to honor its new
    discount rates as to those new sources. These alterations in position suffice as
    consideration.
    III. Conclusion
    Accordingly, we affirm the district court’s denial of appellants’ request for an
    award of attorneys’ fees and reverse the court’s grant of partial summary judgment
    on the matter of waiver.
    ______________________________
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