Opinion
CIVIL ACTION NO: 02-2694 SECTION: "J"(4)
September 4, 2003
ORDER AND REASONS
Before the Court is the Motion to Dismiss State Law Claims pursuant to Rule 12(b)(6) and the Motion to Strike Jury (Rec. Doc. 13) filed by defendant UNUM Life Insurance Co. of America ("UNUM"). Also before the Court is the Motion for Leave to File First Amended Complaint (Rec. Doc. 19) filed by plaintiff. All of the motions are opposed. The motions, set for hearing on August 20, 2003, are before the Court on briefs without oral argument.
BACKGROUND
Plaintiff, while employed at Pepsi Americas, Inc. and a participant in Pepsi's ERISA-governed group disability plan, became disabled as a result of a heart condition. He began receiving disability benefits, which were terminated by UNUM on August 31, 2001, based on its conclusion that plaintiff was no longer eligible. Plaintiff subsequently filed suit alleging that his benefits were wrongfully terminated, and seeks to recover from UNUM for claims brought pursuant to ERISA sections 510 (wrongful discharge) and 502(a) (to recover benefits and enforce rights under the policy), as well as under state law.
In plaintiff's original complaint, the state law claims are premised upon UNUM's alleged breach of contract, fraud and/or negligence, unfair and deceptive trade practices, and "all pendent state/common law causes of action." Complaint, ¶ 7. However, following the filing of UNUM's Motion to Dismiss based on ERISA preemption, plaintiff moved for leave to amend his Complaint to specify certain state statutes upon which his claim rests. Those statutes are: La. R.S. 22:170 et seq., La. R.S. 22:230 et seq., La. R.S. 22:657 et seq., La. R. S. 22:1213 et. seq., and La. R.S. 22:229.1 et seq., all contained in the Louisiana Insurance Code. Apparently, plaintiff recognizes that his state "common law claims'" as set forth in the original complaint are preempted, and he has attempted to save them from preemption by invoking the Louisiana Insurance Code. See Plaintiff's Opp., Rec. Doc. 18, at 3-4. In making this argument, plaintiff contends that the claims brought under the Insurance Code are saved by section 514(b)(2)(A) which excepts from preemption any state laws which regulate insurance. Id. at 4, citing 29 U.S.C. § 1144(b). Accordingly, the task before the Court is to determine whether plaintiff has actually stated a claim under the cited provisions of the Louisiana Insurance Code, and if so, whether any such claim is preempted by ERISA.
DISCUSSION
Plaintiff's suggestion that claims brought under the Louisiana Insurance Code are automatically saved from preemption could not be further from the truth. The Fifth Circuit has held explicitly that "the mere fact that a statute is part of a comprehensive state insurance code will not exempt it from preemption." Tingle v. Pacific Mut. Ins. Co., 996 F.2d 105, 109 (5th Cir. 1993). Rather, a state statute is saved from preemption only when two requirements are met: the statute must be "specifically directed toward entities engaged in insurance," and it must "substantially affect the risk pooling arrangement between the insurer and the insured." Kentucky Ass'n of Health Plans, Inc. v. Miller. — U.S. —, 123 S.Ct. 1471, 1479 (2003).
In this case, the task of determining whether plaintiff has a viable, non-preempted claim is significantly lightened by the fact that some of his claims are explicitly preempted or barred as recognized by existing precedent. For instance, plaintiff's claim under La. R.S. 22:657, governing payment of claims and penalties under health and accident policies, is clearly preempted, because it does not "substantially affect the risk pooling arrangement between insurer and insured." See, e.g. Bank of Louisiana v. Aetna U.S. Healthcare, Inc. 2003 WL 21634306 (E.D.La. July 9, 2003), quoting Kentucky, 123 S.Ct. at 1477;Cramer v. Association Life Ins. Co. 569 So.2d 533 (La. 1990). Likewise, as courts have concluded in similar cases, plaintiff has no standing to bring a claim under La. R.S. 22:1213, because there exists no private right of action under that statute. See, e.g. Jones v. Physicians Mutual Ins. Co. 2000 WL 1154615, *2 (E.D.La. Aug. 14, 2000), citing Clausen v. Fidelity Deposit Co. of Md., 660 So.2d 83, 86 (La.App. 1st Cir. 1995) (other citations omitted).
This leaves claims brought under revised statutes 22:170, 22:229.1, and 22:230. The Court need not reach the question of preemption, however, because (putting aside the question of whether any private right of action exists under these statutes) neither the complaint nor the proposed amended complaint state a claim under these provisions.
Louisiana Revised Statute 22:170, captioned "Life insurance policies; standard provisions," provides a general description of the requirements for life insurance policies issued in Louisiana. A review of plaintiff's proposed amended complaint reveals that it does not contain any allegations that 22:170 was violated. The only connection between life insurance and plaintiff's suit (which is on a disability policy) is that the disability policy which plaintiff seeks to enforce provided for a waiver of premiums on the group life insurance policy issued to plaintiff's employer. Plaintiff's proposed amended complaint seeks, inter alia, a "reinstatement of waiver of life insurance premiums he would have received but for the unlawful and intentional actions by defendants." Proposed Amd. Cmplt., ¶ IV. Thus, it is clear that the relief plaintiff seeks with respect to life insurance is enforcement of the ERISA policy, not enforcement of any provision of La. R.S. 22:170. A suit for benefits under an ERISA plan is clearly preempted. Reliable Home Health Car. Inc. v. Union Central Ins. Co., 295 F.3d 505, 515 (5th Cir. 2002).
La. R. S. 22:229.1 prohibits health and accident insurers from unilaterally cancelling a policy, increasing premiums, or reducing benefits under a policy after receipt of a claim. In this case, there is no allegation, nor does the record suggest, the plaintiff's policy was cancelled, his premium increased, or his benefits reduced. Because there are no allegations that 22:229.1 was violated, this statute provides no basis for recovery by plaintiff under state law.
Louisiana Revised Statute 22:230 is captioned "Disability loss of income policies." It sets out definitions and provisions for issuance of disability policies in Louisiana. Once again, the Court's review of the statute and plaintiff's complaint and proposed amending complaint does not reveal that plaintiff has or can allege an violation of the statute, or that enforcement of the statute would provide the relief sought. Thus, this statute too does not provide a basis for recovery under state law.
As the foregoing demonstrates, plaintiff concedes that his state "common law" claims are preempted, and he cannot state any non-preempted claim under the sections of the Louisiana Insurance Code upon which he relies. Thus, no state law claims are saved, and plaintiff's suit must proceed entirely under the applicable provisions of ERISA. As such, as plaintiff acknowledges, he is not entitled to a jury trial. Moreover, because the Court finds that allowing him to amend his complaint to add causes of action under the Louisiana Insurance Code would be futile, the motion for leave to do so should be denied. Goldstein v. MCI WorldCom. 2003 WL 21738963 (5th Cir. July 28, 2003), citingFoman v. Davis. 371 U.S. 178, 182, 83 S.Ct. 227 (1962). Therefore,
IT IS ORDERED that defendant's Motion to Dismiss State Law Claims and to Strike Jury (Rec. Doc. 13) should be and is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff's Motion for Leave to File First Amended Complaint (Rec. Doc. 19) should be and is hereby DENIED.