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December 3, 2004.

MELANIE BLOOM, as Administratrix of the Estate of DAVID JEROME BLOOM, and the Beneficiary of the Insurance Policies at Issue, Plaintiff,

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Plaintiff Melanie Bloom, as administratrix of the estate of decedent David Jerome Bloom ("Bloom") and beneficiary of the insurance policies at issue in this case, sues defendants CIGNA Corporation ("CIGNA"), Life Insurance Company of North America ("LINA"), and Metropolitan Life Insurance Company ("Metlife") for accidental death benefits provided under insurance policies issued to the decedent. Plaintiff alleges (i) wrongful denial of benefits in violation of the Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq.; (ii) deceptive business acts in violation of New York General Business Law Section 349; and (iii) state law breach of contract. In addition to the accidental death benefits, plaintiff demands a jury trial, punitive or treble damages, and attorneys' fees and litigation costs. All three defendants move to dismiss the two state law claims pursuant to Fed.R.Civ.P. 12(b)(6), and to strike the jury demand. CIGNA seeks dismissal of the entire complaint on the ground that it is not a proper defendant. For the reasons set forth below, the motions are granted.


  The following facts, which are accepted as true for the purposes of this motion, are derived from plaintiff's complaint and attached exhibits.

  Bloom was a reporter for NBC, a subsidiary of General Electric ("GE"). (Compl. ¶ 14) The Complaint alleges that as part of the GE Accidental Death Insurance Plan ("the Plan"), Metlife and CIGNA issued insurance policies to Bloom that were intended to cover him in the event of injury or death while on assignment in a war zone, including Iraq during the spring of 2003. (Id. ¶ 16) On April 6, 2003, while covering the war in Iraq, Bloom died of an apparent blood clot. (Id. ¶ 17; Ex. D to Compl.)

  Following Bloom's death, plaintiff filed a claim with Metlife and CIGNA. Both companies denied the claim on the ground that Bloom's death was not accidental because he had had a genetic propensity to develop a pulmonary embolism, or blockage of a blood vessel by a blood clot. (Compl. at ¶ 19) Plaintiff filed a timely internal appeal to both companies, contending that the claim was proper and that payment should be made. (Id. ¶ 20) CIGNA and Metlife denied the appeal. (Id. ¶ 22) On July 22, 2004, plaintiff brought the instant action.


  This court has subject matter jurisdiction pursuant to the Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq. Dismissal of a claim is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


  All three defendants argue for dismissal of plaintiff's two state law claims on the ground that these claims are preempted by ERISA. CIGNA adds that it is not a proper defendant and should be dismissed from the action because it did not underwrite the Plan, did not deny plaintiff's claim for benefits, and is not a fiduciary to the Plan. LINA "concedes" that it underwrote the Plan, denied plaintiff's claim, and is the claim fiduciary to the Plan.

  In an affidavit responding to defendants' dismissal motions, plaintiff's counsel David Jaroslawicz expressed his client's willingness "to discontinue the action as against CIGNA without prejudice . . . so that if judgment is not satisfied [by LINA], we can look to CIGNA if that becomes necessary." (Affidavit of David Jaroslawicz, dated October 27, 2004 ("Jaroslawicz Aff.") at 1-2) Plaintiff states that "CIGNA is the ultimate corporate parent of LINA." (Id. at 1) She does not address squarely CIGNA's contention that it is an improper defendant in this case. (Id.) As to LINA and Metlife, plaintiff requests in the same affidavit that the jury trial demand and claims for punitive and treble damages under state law "be dismissed without prejudice so that they can be reinstated if the state of the law changes while this action is still pending." (Id. at 2) Jaroslawicz hopes for "changes" in the scope of ERISA preemption such that "in addition to an ERISA claim one may also bring a companion State Law claim." (Id.)

  The affidavit provides no legal support for either of these requests to dismiss without prejudice.

  Plaintiff does not dispute that the two state law claims are preempted by ERISA. The state law claims boil down to enforcement of plaintiff's alleged right to benefits under the Plan. ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan," 29 U.S.C. § 1144(a), and causes of action aimed "`to recover benefits due to [the plaintiff under the terms of the] plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.'" Lupo v. Human Affairs, Int'l, Inc., 28 F.3d 269, 272 (2d Cir. 1994) (citing 29 U.S.C. § 1132(a)(1)(B)). Hence, both claims are preempted. See Kolaskinski v. CIGNA Healthplan of Connecticut, Inc., 163 F.3d 148, 149 (2d Cir. 1998) (state law unfair trade practices and breach of contract claims brought to obtain benefits under ERISA plan are preempted by ERISA); Reichelt v. Emhart Corp., 921 F.2d 425, 431-32 (2d Cir. 1990).

  Accordingly, plaintiff's state law claims for breach of contract and deceptive business practices under N.Y. Gen. Bus. Law § 349 are dismissed with prejudice. Neidich v. Estate of Neidich, 222 F. Supp.2d 357, 375 (S.D.N.Y. 2002); Gulf South Med. & Surgical Inst. v. Pan Am Life Ins. Co., No 91-4649, 1992 WL 300766, at *4 (E.D. La. Oct. 5, 1992) (dismissal of state law claims entered with prejudice "because it operated on the merits of ...

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