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March 31, 1993



The opinion of the court was delivered by: NEAL P. MCCURN


 Plaintiff commenced this action in New York State Supreme Court, Oneida County, on August 24, 1992, alleging (1) breach of contract, (2) unfair insurance claim settlement practices in violation of N.Y. Ins. L. § 2601 (McKinney 1985), and (3) deceptive business conduct in violation of N.Y. Gen. Bus. L. § 349 (McKinney 1988). Plaintiff essentially contends that defendants, his former employer and its parent company, failed to provide him with insurance coverage for home health care as required by his employee benefits plan. Defendant removed the case to this court pursuant to 28 U.S.C. § 1441 (West Supp. 1992), claiming that the causes of action set forth in plaintiff's complaint are preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461 (1988 & West Supp. 1992), and thus presents an action arising under federal law. Defendants now move to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff cross-moves pursuant to 28 U.S.C. § 1447 (1988) to remand the case to state court.


 In considering a motion to dismiss pursuant to Rule 12(b)(6), the court is obligated to accept as true the facts alleged in plaintiff's complaint. E.g. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); accord, e.g., Carino v. Deerfield, 750 F. Supp. 1156, 1160 (N.D.N.Y. 1990), aff'd mem., 940 F.2d 649 (2d Cir. 1991). Even assuming that defendants have a completely different version of the facts giving rise to this suit, the court cannot consider that version at this early stage of the litigation. See, e.g., Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990); Capital Imaging Assocs., P.C. v. Mohawk Valley Medical Assocs., 725 F. Supp. 669, 676 (N.D.N.Y. 1989). At any rate, defendants have not yet answered plaintiffs' complaint, opting instead to file the instant motion to dismiss. Accordingly, the court will review the issues presented in this case based upon the facts as set forth in plaintiff's complaint.

 From plaintiff's perspective, the facts of this case are relatively straightforward. He was employed by co-defendant Connecticut General Life Insurance Company for forty years before retiring in 1967. Complaint P 4. Connecticut General is a subsidiary of co-defendant CIGNA Companies. Id. P 3. Through his employment, plaintiff received an employee benefits package which entitled him to various insurance benefits, including health and medical insurance, even after his retirement. Id. PP 5-7. According to plaintiff, the health and medical insurance plan (hereinafter the "plan") is supposed to provide him with coverage for, inter alia, home health care in the event that such care is deemed necessary. Id. PP 7, 9.

 In November, 1990, plaintiff's medical condition deteriorated to the point where he needed home health care. Pursuant to the plan, defendants provided plaintiff with coverage for his home health care. Complaint PP 8-10. In January, 1991, however, defendants discontinued his coverage, thereby leaving plaintiff completely uninsured (at least with respect to his home health care). Id. PP 11, 14. Defendants terminated plaintiff's coverage even though plaintiff had, in his view, fully satisfied all of his obligations under the plan. Id. P 12. Plaintiff has demanded that defendants comply with the plan by resuming his coverage for home health care, but to no avail.


 While the facts of this case may be relatively simple, the governing law is anything but simple. These motions implicate intricate questions concerning the scope of ERISA, the preemption doctrine, and New York insurance law. *fn1" At least one fact seems certain, however; the parties seemingly agree, as they should, that the benefit plan under which plaintiff seeks coverage is an "employee welfare benefit plan" as defined in ERISA § 3(1), 29 U.S.C. § 1002(1) (West Supp. 1992), and used throughout that statute. See Howard v. Gleason Corp., 901 F.2d 1154, 1156 (2d Cir. 1990); see also Brundage-Peterson v. Compcare Health Servs. Ins. Corp., 877 F.2d 509, 510-11 (7th Cir. 1989); Donovan v. Dillingham, 688 F.2d 1367, 1372 (11th Cir. 1982) (en banc). Accordingly, the ensuing analysis is founded upon the premise that plaintiff's plan constitutes an employee welfare benefit plan falls within the meaning of ERISA.

 A. Motion to Dismiss

 Plaintiff essentially contends that defendants' termination of his home health care constituted a breach of contract and violated two New York statutes: N.Y. Ins. L. § 2601 and N.Y. Gen. Bus. L. § 349. Section 2601 of the Insurance Law prohibits insurance providers from engaging in "unfair settlement practices" in resolving claim disputes, and General Business Law section 349 generally proscribes "deceptive acts or practices in the conduct of business." Plaintiff contends that defendant violated these statutes and breached his employment contract by discontinuing his coverage for home health care when such coverage was clearly required by the terms of the plan.

 1. ERISA preemption

 Defendants move to dismiss the complaint on grounds that ERISA preempts the state causes of action asserted by plaintiff and provides the exclusive remedy for any claims that plaintiff might have. ERISA carries an express preemption provision which states, in pertinent part, that the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee health benefit plan." ERISA § 514(a), 29 U.S.C. § 1144(a) (emphasis added). The operative words in that provision are "relate to": only those laws that relate to an employee health benefit plan are preempted. The Supreme Court has construed the "relate to" clause as being "deliberately expansive," Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987), to reflect Congressional intent to prevent states from confusing, diluting, or undermining ERISA's comprehensive scheme. See, e.g., id. at 46-47 & 50; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 68 L. Ed. 2d 402, 101 S. Ct. 1895 (1981). Indeed, the legislative history shows that Congress included such a vast preemption clause "to displace all state laws that fall within [ERISA's] sphere, even including state laws that are consistent with ERISA's substantive requirements." *fn2" Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 85 L. Ed. 2d 728, 105 S. Ct. 2380 (1985) (citation omitted).

 In keeping with that intent, the Court has broadly interpreted ERISA's preemption of state laws that "relate to" benefit plans as proscribing any state action that bears on private pensions, even those that relate only indirectly. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct. 478, 483, 112 L. Ed. 2d 474 (1990); Alessi, 451 U.S. at 525. "The phrase 'relate to' was given its broad common-sense meaning, such that a state law 'relate[s] to' a benefit plan 'in the normal sense of the phrase, if it has a connection with or reference to such a plan.'" Metropolitan Life Ins. Co., 471 U.S. at 739 (quoting Shaw, 463 U.S. 85 at 97); accord, Dumac Forestry Servs., Inc. v. International Bhd. of Elec. Workers, 637 F. Supp. 529, 535 (N.D.N.Y. 1986) (McCurn, J.), aff'd in part, rev'd in part on other grounds, 814 F.2d 79 (2d Cir. 1987). significantly, the "state laws" that may be preempted by ERISA include ...

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