Opinion
No. 87-1907.
September 27, 1988. Rehearing Denied November 15, 1988.
An Appeal from the Circuit Court of Dade County; David L. Levy, Judge.
Bernard P. Goldfarb, Lawrence Daniels and Adam H. Lawrence, Miami, for appellants.
Lamchick, Glucksman Johnston and Steven G. Glucksman, Miami, for appellee.
Before HUBBART, NESBITT and PEARSON, DANIEL S., JJ.
The final order of dismissal under review is reversed, pursuant to the appellee's confession of error, and the cause is remanded to the trial court for further proceedings upon a holding that on this record no showing was made below that the circuit court's subject matter jurisdiction over the instant action was preempted by the Employee Retirement Income Security Act of 1974, [ERISA], 29 U.S.C. §§ 1001-1381. This reversal, however, shall be without prejudice to the appellee to renew its motion to dismiss as to count I of the complaint and submit whatever proofs it deems necessary to show that the circuit court lacks subject matter jurisdiction as to that count under the above federal act. We conclude, however, that as to counts 2-4 of the complaint the trial court clearly has subject matter jurisdiction under the above federal act — a conclusion which the appellee, in effect, concedes upon this appeal. 29 U.S.C. § 1132(a)(1)(B); 29 U.S.C. § 1132 (e)(1) ; see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 1556, 95 L.Ed.2d 39, 51 (1987); accord Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146-47, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96, 106 (1985).
Section 1132(e)(1) of ERISA provides:
"(e) Jurisdiction
(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section."
Emphasis supplied.
Section 1132(a)(1)(B) provides that:
"(a) Persons empowered to bring a civil action
A civil action may be brought —
(1) by a participant or beneficiary —
. . . .
(B) to recover benefits due to him under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."
REVERSED AND REMANDED.