Opinion
No. 01 C 7723
February 1, 2002
MEMORANDUM OPINION AND ORDER
This case began in state court as a state law suit on an insurance policy. It was, however, in reality an ERISA claim, and, after removal, plaintiff recast it as an ERISA claim. One state law vestige remains: a count II claim for attorneys' fees pursuant to 215 ILCS 5/155, for vexatious and unreasonable failure to pay disability benefits. Plaintiff also seeks past due benefits and a declaration that she is entitled to benefits for the rest of her life. Defendant now moves to dismiss count II and plaintiff's claim for future disability benefits. That motion is granted.
Plaintiff concedes that 215 ILCS 5/155 is normally preempted, Gawrysh v. CNA Insurance Companies, 978 F. Supp. 790 (N.D.Ill. 1997), but she argues that it applies here because the policy refers to Illinois as the governing jurisdiction, and states that it "is delivered in and governed by the laws of the governing jurisdiction." If this was not a policy issued as part of an ERISA plan, clearly it would be interpreted pursuant to Illinois, as contrasted to, say, Indiana, law. But it is an ERISA plan, which was the basis for removal. If Illinois law controlled, the case should have remained in state court. Plaintiff may ultimately be entitled to attorneys' fees, but as a matter of ERISA, not Illinois, law.
Plaintiff also concedes that we cannot enter a judgment for future benefits, but hopes to evade that conclusion by characterizing the relief sought as only a declaration of entitlement. She cites no authority. A declaration is but a slight removed from a judgment for damages. If plaintiff prevails, the result may make recovery of future benefits uncontested or much easier to attain. But we cannot conclusively predict the future.