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May 25, 2001


The opinion of the court was delivered by: Bartle, District Judge.


Plaintiff seeks benefits under a group disability policy issued by defendant Metropolitan Life Insurance Company ("Metropolitan") to plaintiff's employer Sears, Roebuck and Co.*fn1 The complaint, which alleges breach of contract, and violations of Pennsylvania's bad faith statute, 42 Pa. Cons.Stat.Ann. § 8371, and its Unfair Trade Practices and Consumer Protection Law, Pa.Stat.Ann. tit. 73, § 201-1 et seq., was originally filed in the Court of Common Pleas of Philadelphia County. Metropolitan removed the action to this court on the ground that the claims involved are preempted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.

Metropolitan now moves to dismiss this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. It contends that plaintiff has no viable state law claims due to ERISA preemption. It also asserts that leave to amend the complaint properly to state an ERISA claim would be futile because the action is time barred.

For purposes of ruling on this motion, we accept as true the well-pleaded factual allegations in the complaint and draw any reasonable inferences from them in plaintiff's favor. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). We may consider documents not formally attached to the complaint in deciding a Rule 12(b)(6) motion to dismiss when the complaint relies upon those documents and authenticity is unchallenged. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Plaintiff began receiving disability benefits on October 1, 1987, but, effective February 1, 1996, such benefits were terminated. According to an October 15, 1997 letter plaintiff received from Metropolitan and attached to her brief in opposition to defendant's motion to dismiss, plaintiff appealed the termination of benefits to Metropolitan on March 22, 1996. On August 5, 1996, Metropolitan upheld its decision. In an October 6, 1997 letter, plaintiff requested Metropolitan to review her claim and its 1996 decision and in support enclosed "medical evidence." On October 15, Metropolitan rejected this latest appeal as untimely. It further advised plaintiff, "No further review or appeal of the denial will be considered." Plaintiff commenced the instant action apparently by writ of summons in the Court of Common Pleas in January, 2000. The complaint was not filed until March 9, 2001.

Since plaintiff has sued as a beneficiary under a group policy issued by her employer, her action is governed by ERISA. Thus, her three state law claims are preempted. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Under ERISA, however, there are two types of preemption, express and complete, and the distinction is significant here. ERISA's express preemption provision, § 514(a), provides that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." 29 U.S.C. § 1144(a). "State-law claims that are subject to express preemption are displaced and thus subject to dismissal." In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999), cert. denied, 530 U.S. 1242, 120 S.Ct. 2687, 147 L.Ed.2d 960 (2000). Both plaintiff's statutory state law bad faith and consumer protection claims "relate to" an employee benefit plan and are expressly preempted by § 514(a). See Pilot Life, 481 U.S. at 48, 107 S.Ct. 1549; Norris v. Continental Cas. Co., Civ. A. No. 00-1723, 2000 WL 877040 (E.D.Pa. June 28, 2000); Tutolo v. Independence Blue Cross, Civ. A. No. 98-CV-5928, 1999 WL 274975 (E.D.Pa. May 5, 1999). We will therefore dismiss Counts II and III of plaintiff's complaint with prejudice.

Plaintiff's breach of contract claim in Count I also "relates to" an employee benefit plan, but because it falls "within the scope of ERISA's civil-enforcement provisions," it is subject to what is known as the complete preemption doctrine. U.S. Healthcare, 193 F.3d at 161. Section 502(a)(1)(B) of ERISA provides a cause of action for beneficiaries who seek to "recover benefits due" or to "clarify . . . rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). State law claims that fall within the scope of § 502 are removable to federal court, whereas expressly preempted claims are not. Thus, complete preemption "operates to confer original federal subject matter jurisdiction notwithstanding the absence of a federal cause of action on the face of the complaint." Id. at 160. In other words, completely preempted claims are converted into federal claims instead of being "displaced" like expressly preempted claims. Our Court of Appeals has made clear that "[c]laims that are completely preempted are `necessarily federal in character,' and thus are converted into federal claims." Id. Such claims are removable to this court.

What is not clear is whether a completely preempted claim should be dismissed with leave to amend to state explicitly an ERISA claim or whether it should simply be converted into an ERISA claim. See Gould v. Great-West Life & Annuity Ins. Co., 959 F. Supp. 214, 219 (D.N.J. 1997). Decisions in this district have done both. For example, in Cecchanecchio v. Continental Casualty Co., Civ. A. No. 00-4925, 2001 WL 43783 (E.D.Pa. Jan.19, 2001), the court dismissed plaintiff's completely preempted claims, but granted leave to file an amended complaint bringing claims for relief under ERISA. On the other hand, in Delong v. Teacher's Insurance and Annuity Association, Civ. A. No. 99-1384, 2000 WL 426193 (E.D.Pa. Mar.29, 2000), the court simply converted plaintiff's completely preempted claims into federal claims under ERISA. Several circuit courts have endorsed the latter approach. See Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992); Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114 (10th Cir. 1991).

Keeping in mind that we are to construe pleadings "so as to do substantial justice," Fed.R.Civ.P. 8(f), we think the more practical as well as the speedier and less expensive approach is to convert plaintiff's claim into an ERISA claim. See Fed. R.Civ.P. 1. It is obvious from the language of Count I that plaintiff is seeking to recover benefits allegedly due under her employer's disability plan. Further, as part of the relief requested in Count I, she seeks a declaration that she is entitled to continuing disability benefits. These allegations clearly state a claim for relief under § 502 of ERISA even though there is no specific reference to the statute. We will thus treat Count I of plaintiff's complaint as setting forth an ERISA claim.

We now turn to the question whether plaintiff's ERISA claim is barred by the limitations period contained in the insurance contract.

The contract's "Proof of Loss" provision reads:

For periodic payment for a continuing disability, written proof covering the occurrence, character, and extent of loss must be given to [Metropolitan] at its Home Office within 90 days after the end of each period for which benefits are payable, or less frequently if requested by [Metropolitan].
If it was not reasonably possible to give written proof in the time required, [Metropolitan] may not deny the claim for this reason if the proof is filed as soon as reasonably possible. In all cases however, the proof required must be given no later than one ...

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