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February 09, 2004.

JONATHAN WIRTH, individually and on behalf of all others similarly situated

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge


The issue presented concerns the propriety of the defendant's removal to this court of an action alleging illegal practices under Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL") where defendant relies on the doctrine of complete preemption under the Employee Retirement Income Security Act ("ERISA") as the basis for removal.


  Plaintiff Jonathan Wirth, a citizen of Pennsylvania, originally brought this purported class action against Aetna U.S. Healthcare ("Aetna") in the Court of Common Pleas of Bucks County. Aetna, whose correct legal name is Aetna Health, Inc., is a health maintenance organization and a Pennsylvania corporation. At all times relevant to this case, Wirth was covered by a healthcare agreement issued by Aetna to his father's employer. He claims that he and his fellow class members have suffered personal injuries in motor vehicle accidents that took place in the Commonwealth and have obtained, or are in the Page 2 process of obtaining, recoveries against third party tortfeasors. According to Wirth, Aetna has asserted liens against these tort recoveries for the medical benefits it has provided and is doing so pursuant to the indemnification and subrogation clauses in its healthcare agreements.*fn1 Plaintiff asserts that the liens are prohibited by § 1720 of Pennsylvania's MVFRL, a statute which among other things governs the insurance requirements for motor vehicle owners in the Commonwealth. Section 1720 reads as follows:

  In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to workers' compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary Page 3 or excess under section 1719 (relating to coordination of benefits).

 75 Pa. Cons. Stat. Ann. § 1720. In addition to seeking damages under § 1720 of the MVFRL, plaintiff asserts claims on behalf of the class for breach of contract, unjust enrichment, and bad faith insurance practices under 42 Pa. Cons. Stat. Ann. § 8371. The plaintiff also requests declaratory and injunctive relief. The complaint on its face does not plead a federal claim for relief.

  Aetna timely removed the action to this court, pursuant to 28 U.S.C. § 1441(a), on the ground that the plaintiff's claims are completely preempted by ERISA, 29 U.S.C. § 1001 et seq. Plaintiff has now moved to remand and seeks attorney's fees and costs pursuant to 28 U.S.C. § 1447 (c). Aetna, as the removing party, bears the burden of proving subject matter jurisdiction. Dukes v. U.S. Healthcare, 57 F.3d 350, 359 (3d Cir. 1995).


  Section 502(a)(1)(B) of ERISA states that "[a] civil action may be brought by a participant or beneficiary . . . to recover benefits due 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." 29 U.S.C.

  § 1132(a)(1)(B). A "plan" under ERISA includes an "employee benefit plan," that is, one " . . . established or maintained by an employer . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or Page 4 otherwise . . . medical, surgical, in hospital care or benefits . . . ." 29 U.S.C. § 1002(1) and (3).

  ERISA contains sections that deal expressly with preemption. These provisions are known as the "preemption clause," the "savings clause," and the "deemer clause." The "preemption clause" provides:
Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . .
ERISA § 514(a), as set forth in 29 U.S.C. § 1144(a). The "savings clause" reads:
Except as provided in subparagraph (B) [the deemer 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.
ERISA § 514(b)(2)(A), as set forth in 29 U.S.C. § 1144(b)(2)(A). Finally, there is the "deemer clause":
Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for the purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.
ERISA § 514(b)(2)(B), as set forth in 29 U.S.C. § 1144(b)(2)(B).
  As the Supreme Court has observed, these three clauses "are not a model of legislative drafting," but "[t]heir operation is nevertheless discernible." FMC Corp. v. Holliday, Page 5 498 U.S. 52, 58 (1990). In FMC, the Supreme Court described the interaction of these various clauses as follows:
The pre-emption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that "relate[s] to" an employee benefit plan governed by ERISA. The savings clause returns to the States the power to enforce those state laws that "regulate insurance," except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be "deemed" an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws "purporting to regulate" insurance companies or insurance contracts.
Id. It is against this statutory background that we must decide the issue of removal.

  As we have noted, the complaint alleges exclusively state law causes of action. Under the well-pleaded complaint rule, an action may be removed to this court based on federal question jurisdiction only if the federal claim appears on the face of the complaint. The fact that the defendant may have a defense under federal law is ordinarily not sufficient to allow removal. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 10 (1983); Pryzbowski v. U.S. Healthcare, Inc., 245 F.3d 266, 271 (3d Cir. 2001). However, the complete preemption doctrine is an exception to the well-pleaded complaint rule. Ry. Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 939 (3d Cir. 1998). Complete preemption exists when Congress has so thoroughly addressed an area of law that any claim brought within its scope is removable to the Page 6 federal court. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). A claim that has been completely preempted is removable regardless of whether a federal claim appears from a reading of the complaint. Id. The Supreme Court has determined that claims falling within the scope of § 502(a)(1)(B) of ERISA are subject to complete preemption. Metro. Life, 481 U.S. at 66; Pryzbowski, 245 F.3d at 271.

  In arguing that removal was improper, plaintiff suggests that his claim under § 1720 of the MVFRL is not within the terms of § 502(a)(1)(B) because it is not actually one for "benefits due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B). Plaintiff reasons that his claim directly relates to the amount of his tort recovery and is ...

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