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SHIFFLER v. EQUITABLE LIFE INS. SOCY. OF THE UNITE

February 6, 1986

SHIRLEY SHIFFLER, Administratrix of the Estate of JOHN W. SHIFFLER, Deceased, and SHIRLEY SHIFFLER, in her own right
v.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, et al.



The opinion of the court was delivered by: POLLAK

POLLAK, J.

 MEMORANDUM

 Plaintiff originally filed this action in the Court of Common Pleas of Philadelphia County in November, 1984. Although the suit was denominated an "Action in Declaratory Judgment," plaintiff sought an order directing the defendants to make payment to plaintiff of amounts allegedly due under two insurance policies issued to the deceased, John W. Shiffler, through his employer, Westinghouse Electric Corporation ("Westinghouse"). The Equitable Life Assurance Society of the United States ("Equitable"), an insurance company based in New York, provided coverage for both policies, which were issued pursuant to two employee benefit plans maintained by Westinghouse for its employees: the Westinghouse Insurance Plan (the "Insurance Plan") and the Westinghouse Personal Accident Insurance Plan (the "Accident Plan"). Westinghouse is the plan administrator for both plans. Westinghouse, Equitable, and the two plans are defendants in this action.

 In December, 1984, defendants removed the action to this court. In their petition for removal, they stated that this court had original jurisdiction to hear the action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). According to defendants, the purpose of this suit was to recover benefits and enforce rights under employee benefit plans and, thus, was properly labelled an action under the Employee Retirement Income Security Act ("ERISA").

 It is not necessary to recapitulate the procedural history of this action, which is adequately summarized in my Memorandum/Order of May 28, 1985. 609 F. Supp. 832 (E.D. Pa. 1985). In that memorandum, I observed that I would dispose of plaintiff's second motion to remand once the parties had filed submissions on two questions dealing with the preemption issue raised by this motion:

 
1) Which of the counts of plaintiff's complaint, if any, assert claims which are preempted by ERISA and replaced by a cause of action under 29 U.S.C. § 1132(a)(1)(B)?
 
2) If any claims are identified under question 1 as a basis for removal, what would be the basis for this court's jurisdiction (1) over the claims which are not preempted and replaced by ERISA and/or (2) over the parties against whom only state law claims have been stated?

 I also noted that defendants would have the burden on this issue.

 Having now received the parties' submissions on these questions, I will consider whether removal of this action was proper or whether this case should be remanded to state court.

 A.

 1) Which of the counts of plaintiff's complaint, if any, assert claims which are preempted by ERISA and replaced by a cause of action under 29 U.S.C. § 1132(a)(1)(B) ?

 1. Statutory Framework

 Although ERISA imposes upon plans certain requirements relating to participation, funding, and vesting, it does not regulate the substantive content of the plans. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S. Ct. 2890, 2896-97, 77 L. Ed. 2d 490 (1983). Yet the statute does include a provision under which ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. 29 U.S.C. § 1144(a). The "relate to" language of this provision has been broadly interpreted to cover state laws that directly or indirectly affect ERISA plans. See Shaw, 103 S. Ct. at 2899-2901. Moreover, the statute has defined state law to include "any laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. § 1144(c)(1). Thus, the term state law includes the common law developed by state courts.

 This broad preemption provision, however, is substantially qualified by an insurance "savings clause": "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." 29 U.S.C. § 1144(b)(2)(A). This clause is in turn qualified by the so-called "deemer clause," which states that no employee-benefit plan "shall be deemed to be an insurance company or other insurer . . . or to be engaged in the business of insurance . . . for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." 29 U.S.C. § 1144(b)(2)(B). These clauses have been interpreted to show Congress's intent to preserve from preemption state laws regulating insurance contracts except for those that apply directly to the benefit plans themselves.

 Finally, Section 1132(a) provides for certain civil causes of action intended to promote enforcement of the statutory scheme:

 
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, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
 
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;

 29 U.S.C. § 1132(a)(1) & (2). Pursuant to Section 1132(e)(1), state and federal courts have concurrent jurisdiction over complaints brought under Section 1132(a)(1)(B); federal courts have exclusive ...


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