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April 15, 1994


The opinion of the court was delivered by: MARY JOHNSON LOWE


 Before this court is an action brought by Farecilpa Lugo ("Plaintiff"), as the named beneficiary under two separate accidental death benefit plans (the "Plans"), pursuant to § 502(a)(1)(B) of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.A. § 1132(a)(1)(B) to recover benefits under the Plans. For the reasons set forth below, Plaintiff's action is dismissed.


 Plaintiff's husband ("Insured") died on October 8, 1984 after losing control of a van. The death certificate listed that he died of natural causes. Plaintiff completed and submitted claim forms to Hobart Corporation, the Insured's employer ("PMI" or "Third Party Defendant"). Plaintiff did not submit claims to defendant, AIG Life Insurance Company ("AIG" or "Defendant") until late 1987. Defendant denied Plaintiff's claims stating that Plaintiff was not entitled to collect under the Plans because the Insured's death did not occur within the terms of the policy. *fn1" Following a determination by the Worker's Compensation Board, stating that the Insured had died in the course of his employment as a result of injuries sustained in the October 8, 1984 accident, Plaintiff re-submitted her claim to AIG. AIG advised Plaintiff that the company would maintain its original position of denial.

 In October 1990, Plaintiff commenced an action against AIG. Defendant contends that, as a matter of law, Plaintiff is not entitled to collect under the Plans because Plaintiff failed to give timely notice of the claim to Defendant. Plaintiff claims to have given notice of claim to PMI and argues that PMI is the agent of AIG for the purpose of filing claims. AIG maintains that PMI is not its agent and any notice given to PMI cannot be deemed to be notice to AIG.

 In addition, Plaintiff argues that, even if PMI is not deemed to be AIG's agent, AIG, by not claiming a defense of late notice in its letters denying benefits, waived, or is estopped from asserting such a defense. AIG contends that the defense of late notice was preserved by the reservation of rights language in both denial of benefits letters.

 Finally, Plaintiff requests that she be given a jury trial. AIG contends that there is no right to a jury trial for equitable actions and since ERISA is governed by the law of trusts, Plaintiff is not entitled to a jury trial.

 On May 10, 1993, this court issued a Rule 16 Order specifying four issues for the parties to address: (1) does the rejection of a claim with reservation of all rights keep alive claims of rejection not specifically stated; (2) are there any facts, admissible in evidence, to support the claim that the Defendant authorized PMI as Defendant's agent; (3) does the Plaintiff have a right to a jury trial in an ERISA case; and (4) what factors extend the limitation to commence suit period as stated in the Plans and are such factors present. The Court ruled that Plaintiff had offered no evidence that PMI was the agent of AIG such that notice of accidental death to PMI constituted either a notice of claim or proof of loss to AIG. The ruling was held in abeyance pending submission by the parties of evidence that PMI acted as AIG's agent for receipt of notice of claim or proof of loss.


 ERISA was enacted because Congress intended employee benefit plans to be an exclusively federal concern. Thus, the goal of ERISA is "to provide uniform, national regulation of benefit plans." Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 147, (2d Cir.), cert. denied, 493 U.S. 811, 107 L. Ed. 2d 25, 110 S. Ct. 57 (1989). ERISA contains a broad preemption provision, which provides that the provisions of the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any [covered] employee benefit plan." 29 U.S.C. § 1144(a). ERISA defines an employee welfare benefit plan as "any plan. . .established or maintained by an employer. . .for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance. . .,. . .benefits in the event of. . .death." 29 U.S.C. § 1002(1)(A). State law is defined to include "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. § 1144(c)(1).

 ERISA's broad preemption provision, however, contains an exception: any state law which "regulates insurance" is exempt and "saved" from the preemption provision. 29 U.S.C. § 1144(b)(2)(A). But the scope of this "savings" clause is limited by the "deemer" clause, under which "an employee benefit plan. . .shall [not] be deemed to be an insurance company or other insurer. . .or to be engaged in the business of insurance. . .for purposes of any State purporting to regulate insurance companies [or] insurance contracts." 29 U.S.C. § 1144(b)(2)(B).

 AIG's Defense of Late Notice

 Plaintiff argues that because AIG failed to comply with New York Insurance Law § 3221(a)(6), which requires insurers to deliver to insured copies of "a certificate setting forth in summary form a statement of the essential features of the insurance coverage," AIG "has effectively waived and/or is estopped from asserting any rights (that plaintiff failed to comply with any policy provisions or limitations, etc.) related to the statute." (Pl.'s Br. at 4 (July 20, 1993)). In reply, AIG submits that Plaintiff admitted at deposition to having copies of the Plans in her possession at the time of Insured's death, (Def.'s Reply Br. at 4-5 (July 28, 1993)), and thus Plaintiff has failed to show that AIG did not comply with § 3221(a)(6).

 This Court does not agree with Plaintiff's argument that AIG has waived or is estopped from asserting its rights because AIG violated § 3221(a)(6) of New York Insurance Law. Section 3221(a)(6) of ...

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