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GARNER v. CAPITAL BLUE CROSS

July 13, 1994

ERMA GARNER, Individually and as Administratrix of the Estate of Melissa Wileman, Deceased, Plaintiff
v.
CAPITAL BLUE CROSS and PENNSYLVANIA BLUE SHIELD, Defendants



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 We are considering the motions for summary judgment filed by Defendants, Capital Blue Cross ("Blue Cross") and Pennsylvania Blue Shield ("Blue Shield"). We exercise jurisdiction according to 28 U.S.C. §§ 1331 and 1332.

 I. Facts and Procedural History

 This case arises from the death of Melissa Wileman, a young woman who was diagnosed in June, 1992, with peripheral neuroectodermal cancer. *fn1" Physicians placed Ms. Wileman on chemotherapy and the treatment decreased the size of her tumor by nearly 70 per cent. Her physicians suggested that her only remaining opportunity to entirely eliminate the cancer was to undergo a bone-marrow transplant.

 Ms. Wileman was employed by Lyon Fashions, Inc. ("Lyon"), a clothing manufacturer based in Pennsylvania. Defendant Capital Blue Cross provided benefits to Lyon employees. See Plan, Exh. A to the Amended Complaint. Capital Blue Cross initially declined to precertify the procedure, determining that it was experimental and, therefore, not covered by the Lyon policy. After receiving communication from the Pennsylvania Insurance Department and Ms. Wileman's counsel, Blue Cross reconsidered its earlier position and indicated to Ms. Wileman's counsel that it would pay for the treatment. It asserted that its decision was based on an exception in the plan and that it continued to believe its earlier refusal was correct. See Letter of 6/18/93 from Mary Jane Forbes to Pamela G. Shuman, Esq. However, while preparing for the bone-marrow transplant in June, 1993, doctors determined that Ms. Wileman was too weak to undergo the procedure. Ms. Wileman died on September 15, 1993.

 On January 21, 1994, Plaintiff Erma Garner, individually as Ms. Wileman's mother and as administratrix of her daughter's estate, filed a complaint in the Court of Common Pleas of Dauphin County, Pennsylvania. She alleged causes of action against Blue Cross and Blue Shield. By notice of February 14, 1994, Defendants removed the case, asserting that it falls within the ambit of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001, et seq. Plaintiff moved to remand and Defendants moved to dismiss and we denied the motions in our Memorandum and Order of April 15, 1994. We also permitted Plaintiff the opportunity to amend her complaint so that it might more clearly set forth her causes of action. Plaintiff filed an amended complaint on April 29, 1994, and both Defendants have moved for summary judgment, asserting that the causes of action plead by the amended complaint are preempted by ERISA.

 II. Law and Discussion

 A. The Amended Complaint

 In our Memorandum and Order of April 15, 1994, we suggested that Plaintiff amend her complaint to "more clearly indicate which causes of action she is pursuing." As Blue Cross notes in its brief, the amended complaint is plead in the same manner as the original complaint and we agree with Defendants that the amended complaint is confusing. It sets out eight "counts" and four "claims." The "counts" only obliquely indicate the asserted causes of action while the "claims" are labeled "wrongful death, survival action," "bad faith," and "emotional distress." We are unfamiliar with this pleading technique and share Defendants' concerns. In defending against a complaint, a defendant must be able to readily determine what is alleged. Here, Defendants (and the Court) are left to guess what Plaintiff intends to assert, particularly because several of the "counts" and "claims" appear to be duplicative. For example, Count III avers

 
50. The Defendants are responsible for the negligent and/or intentional infliction of emotional distress suffered by both Melissa Wileman and Erma Garner based upon their contemporary sensory perceptions of the Defendants' negligent denial and/or delay in granting pre-authorization for Melissa Wileman's bone marrow transplant.

 Claim IV avers

 
93. Based upon the negligent and/or intentional infliction of emotional distress, Plaintiffs are entitled to compensation from the Defendants for the emotional distress suffered plus punitive damages, attorney's fees and costs.

 These assertions appear to be redundant, as are Count IV and Claim III (bad faith) and Count II and Count VII (negligence). *fn2"

 A complaint which is prolix or confusing makes it difficult for a defendant to fairly defend and it erects hurdles to an orderly and efficient disposition of the case. See Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771, (7th Cir. 1994). Indeed, some courts have dismissed such complaints for failure to comply with Fed. R. Civ. P. 8(a) and (e). See Alfano v. Whitmore, No. 79 C 5394 (N.D. Ill. April 29, 1980). We are not inclined to take such this action, although we must conclude that Plaintiff did not heed the message in our Memorandum and Order of April 15, 1994. We will consider the motions for summary judgment and revisit the pleading issue if necessary.

 B. The Motions for Summary Judgment

 Summary judgment is appropriate when there remain no genuine issues as to any material facts and judgment may be entered as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When a movant submits that there is no genuine issue as to a material fact, its opponent must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 586; 106 S. Ct. 1348, 1356; 89 L. Ed. 2d 538 (1986).

 Defendants argue that the employee-benefit plan offered by Ms. Wileman's employer, Lyon Fashion, Inc., is governed by ERISA. With the exception of her previously filed motion to remand, Plaintiff does not deny that conclusion. See 29 U.S.C. § 1003(a) (1).

 1. Preemption

 The crux of the current motions is Defendants' argument that all of the allegations of the amended complaint recite state-law causes of action that are ...


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