Opinion
Civil Action No. 3:98CV-626-S
February 3, 1999
MEMORANDUM OPINION
This matter is before the court on motion of the plaintiffs, Sisco Sheet Metal ("Sisco") and Kentucky Associated General Contractors Self-Insured Fund ("KAGC"), for remand of this matter to the Jefferson County, Kentucky Circuit Court.
This matter arose from a personal injury suffered on September 16, 1994 by David Robinson, an employee of Sisco, for which he filed a workers' compensation claim. The plaintiffs paid $7,901.77 in medical benefits. The administrative law judge who heard the claim dismissed it on the ground that Robinson had not established that his injuries were related to or arose from his employment. The decision was affirmed by the Workers Compensation Board.
Having paid the medical benefits, the plaintiffs now seek to recoup the amount from Humana Health Plans, Inc. ("Humana") on a theory of unjust enrichment. The plaintiffs contend that since there has been a determination that the injury suffered by Robinson did not entitle him to workers' compensation benefits, Humana, Robinson's union's health carrier, should have paid the medical costs. Thus the plaintiff's contend that Humana has been unjustly enriched by the plaintiffs' payment of what they allege to be Humana's obligation.
On October 2, 1998, Humana filed a notice of removal of the action to this court on the ground that "[p]laintiffs' claim is for failure to provide health benefits for health care services as allegedly required by an employer's group health plan and, therefore, arises under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq." Notice of Removal, ¶ 3. In response to the removal, the plaintiffs filed a motion to remand, stating that 1) the complaint raises only a state law cause of action, 2) the plaintiffs are not participants or beneficiaries of an ERISA plan, and 3) the case may not be removed to federal court on the basis of a defense which raises a federal question.
The law of this circuit with respect to removal on the ground of ERISA preemption was set out in Warner v. Ford Motor Company, 46 F.3d 531, 534 (6th Cir. 1995):
In Metropolitan Life [ Insurance Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987)], the [United States Supreme] Court did hold that the scope of the "complete preemption" exception for removal is narrow . . . The Court ruled that the exception is narrowly limited in the ERISA context to state common law or statutory claims that fall within the ERISA civil enforcement provision of 29 U.S.C. § 1132(a)(1)(B) because "the legislative history consistently sets out this clear intention to make [§ 1132(a)(1)(B)] suits brought by participants and beneficiaries federal questions for the purpose of federal court jurisdiction . . ." Id. at 66, 107 S.Ct. at 1547. Therefore, in order to come within the exception, a court must conclude that the common law or statutory claim under state law should be characterized as a superseding ERISA action "to recover benefits due to him under the terms of his 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," as provided in § 1132(a)(1)(B).
In its response to the remand motion, Humana states that KAGC is a "fiduciary" under § 1132(a)(3) because "as a self-insured provider of workers' compensation benefits, [it] exercises substantial discretion over plan assets," Humana's Response, pg. 2, and is thereby authorized to bring suit under 29 U.S.C. § 1332(a). Humana's argument fails for two reasons.
First, it appears to this court that the only ERISA-preempted state law claims which may be removed from state to federal court under the "complete preemption" exception for removal are claims brought by participants or beneficiaries to recover benefits, or to enforce or clarify their rights under an ERISA plan. 29 U.S.C. § 1332(a)(1)(B). Claims by fiduciaries under § 1132(a)(3) are not removable. See, Warner, supra. See also, Mallory v. Electronic Data Systems, 1995 WL 871194 (E.D.Mich., unpubl.) (action remanded on the ground that claims falling under § 1132(a)(3) are not removable; removal limited to claims covered by § 1132(a)(1)(B)).
We do not read Michigan Affiliated Healthcare System, Inc. v. CC Systems Corporation of Michigan, 139 F.3d 546 (6th Cir. 1998) to hold to the contrary. The court in that case did not address the question of whether a claim falling under § 1132(a)(3) is removable to federal court, as that issue does not appear to have been before the panel. Rather, the court concluded that CC Systems was not a "fiduciary" for purposes of the statute.
Second, even if removal extended to fiduciaries' claims under § 1132(a)(3), the plaintiffs in this action have not filed suit as fiduciaries of an employee benefit plan. They have sued as payors of workers' compensation benefits, and thus fall outside the ambit of § 1132(a)(3).
For the reasons set forth hereinabove, the court concludes that the motion to remand must be granted as this court lacks jurisdiction.
A separate order will be entered herein this date in accordance with this opinion.