Opinion
Civil Action 01-D-659-S
August 8, 2001
ORDER
Before the court are two motions: (1) Defendants' Motion To Dismiss or Strike State Law Claims; and (2) Defendants' Motion To Strike Jury Demand, both of which were filed June 8, 2001. plaintiffs filed a Response July 24, and Defendants issued separate Reply briefs August 3. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motions are due to be granted.
I. DISCUSSION
In their Motions, Defendants argue ERISA preemption and move to strike all of Plaintiffs' state law claims. Plaintiffs concede that their claims of fraud, suppression, conspiracy, negligence and wantonness are preempted. Plaintiffs argue that their bad faith claim, however, is "saved" because ERISA does not preempt "any law of any State which regulates insurance." 29 U.S.C. § 1144(b)(2)(A). Plaintiffs rely on two recent opinions from the Northern District of Alabama, one of which is on appeal, for the proposition that "the tort of bad faith, based upon common sense, is a law that regulates insurance, and therefore falls within the ERISA savings clause." See Gilbert v. Alta Health Life Ins. Co., 122 F. Supp.2d 1267 (M.D. Ala. 2000); Hill v. Blue Cross/Blue Shield of Ala., 117 F. Supp.2d 1209 (M.D. Ala. 2000).
Resp. at 6-7 (unnumbered).
Id. at 3.
The court reminds both parties of their ethical obligations to disclose all relevant facts to the tribunal. Plaintiffs should have alerted the court about the pending appeal, and Defendants should have attached a copy of Judge Smith's unpublished order inSkinner v. Tyson Foods, Inc., 00-S-2075-NE (M.D. Ala. 2001), if they harbored any hopes that the court would give it any consideration. Furthermore, the court notes that unpublished opinions are of no precedential value whatsoever. See Hatcher v. Phoenix Home Life Mut. Ins. Co., 99-D-395-N (M.D. Ala. 2001) (unpublished). Cf. Danny J. Boggs Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 GREEN BAG 2d 17, 25 (2000).
Resp. at 4.
While the court is hesitant to create an inter-District split, the court declines to follow Gilbert and Hill. The Eleventh Circuit has squarely held that claims of bad faith, under Alabama law, are preempted and, necessarily, superpreempted. See Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207 (11th Cir. 1999).Gilbert and Hill do not adequately address Butero, but instead appear to rely on a footnote in a recent United States Supreme Court case that suggests that bad faith causes of action are saved if the claim can be brought only against insurance companies. See UNUM Life Ins. Co. of Am., 526 U.S. 358, 377 n. 7 (1999). The court finds that the UNUM footnote is dicta. The court is bound by the Eleventh Circuit's holding in Butero and, therefore, finds that Plaintiffs' claims are due to be stricken.
II. ORDER
It is CONSIDERED and ORDERED that Defendants' motions be and the same are hereby GRANTED. (Doc. Nos. 4-5.) Plaintiffs' breach of contract be and the same is hereby CONVERTED into an appropriate claim under ERISA. Counts Two through Seven of Plaintiffs' Complaint be and the same are hereby DISMISSED. A Rule 26(f) scheduling reminder will follow in due course.
DONE this 8th of August, 2001.