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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:22-cv-22339-GAYLES

CHERYL SILVERMAN,

Plaintiff,

v.

SUN LIFE AND HEALTH INSURANCE

COMPANY,

Defendant. 

 /

ORDER

THIS CAUSE comes before the Court on Defendant Sun Life and Health Insurance 

Company’s (“Defendant”) Motion to Dismiss for Failure to State a Claim (the “Motion”). [ECF 

No. 6]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the 

reasons set forth below, the Motion shall be denied. 

BACKGROUND1

In 1998, Plaintiff Cheryl Silverman (“Plaintiff”) a purchased group long-term disability 

(“LTD”) insurance policy from Combined Insurance Company of America (“CICA”) (the “CICA 

Policy”). [ECF No. 1 ¶ 5]. At that time, she already had an individual disability insurance (“IDI”) 

policy in force with MetLife (the “MetLife Policy”). Id. ¶ 7. Plaintiff purchased the CICA Policy 

as supplemental disability coverage to increase her total monthly benefit. Id. ¶ 8. The CICA Policy 

and the MetLife Policy did not contain an offset for benefits payable by the other policy. Id. 9.

1 As the Court is proceeding on a Motion to Dismiss, it takes the facts as alleged in the Complaint as true. See Brooks 

v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).

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On December 20, 2001, Defendant’s predecessor, GE Group Life Assurance Company 

(GEGLAC), advised Plaintiff in a letter that:

• her “current [insurance] coverage under CICA will be replaced with new coverage through 

[GEGLAC].”

• GEGLAC’s “mission is to provide [her] as an employer with the products and services that 

will enhance [her] benefit program . . . .”

• Transfer of her coverage would occur on March 1, 2002.

• Her “basic insurance plan [would] remain the same with respect to items such as plan 

deductible, coinsurance levels, elimination periods and benefit plan maximums.” 

• “Though [GEGLAC has] striven for uniformity, some contractual differences between 

[her] current plan of insurance and [her] new insurance coverage with GECLAC may 

exist.”

• Her payment of the enclosed bill “will constitute [her] consent to transfer her current 

coverage to GEGLAC. In addition, it will indicate [her] agreement to participate in the 

multiple employer trust (MET) that serves as the group policyholder for the GEGLAC 

coverage.”

• She would receive her new certificates of insurance after her conversion date, which 

GEGLAC encouraged her and her employees to review carefully. 

(the “Letter”). [ECF No. 1-4].

Based on the representations in the Letter, Plaintiff paid the premiums for coverage. [ECF 

No. 1 ¶ 19]. GEGLAC then terminated the CICA Policy, wrote a new GEGLAC policy, and issued 

new certificates of coverage (the “GEGLAC Policy”). [ECF No. 1 ¶ 14]; [ECF No. 1-5].

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Plaintiff was unaware that the GEGLAC Policy was not identical to the CICA Policy.2

Unlike the CICA Policy, the GEGLAC Policy contained an offset for IDI benefits. [ECF No. 1-5 

at 14]. As a result, the GEGLAC Policy would not pay a supplemental monthly benefit in 

combination with IDI coverage. [ECF No. 1 ¶ 16]. In addition, the GEGLAC Policy reduced the 

minimum monthly benefit to $100, whereas the CICA Policy provided that the minimum benefit 

would not be less than 11% of Insured Monthly Earnings. Id. ¶ 17. 

Plaintiff continued to pay premiums for both the GEGLAC Policy and her MetLife IDI 

Policy. [ECF No. 1 ¶ 22]. In 2007, Defendant acquired GEGLAC and assumed liability on the 

GEGLAC Policy. Id. ¶ 23.

In June 2020, Plaintiff became disabled from her occupation as an attorney and submitted 

claims under both her GEGLAC Policy and the MetLife Policy. Id.¶ 25. Both Defendant and 

MetLife approved Plaintiff’s disability claims. Id. ¶ 26. However, Defendant, relying on the 

GEGLAC Policy’s IDI offset, reduced Plaintiff’s benefits to the $100/month minimum. Id. ¶ 27. 

Plaintiff appealed, but Defendant denied the appeal. 

On July 26, 2022, Plaintiff filed this action against Defendant alleging claims under Florida 

law for fraudulent inducement (Count I) and negligent misrepresentation (Count II), violations of 

the Illinois Consumer Protection Act (Count III), and violations of the Connecticut Unfair Trade 

Practices Act (Count IV). [ECF No. 1]. The crux of each of Plaintiff’s claims is that GEGLAC 

made misrepresentations in the Letter about the GEGLAC Policy to induce her to accept the new 

GEGLAC Policy. In particular, Plaintiff contends that the GEGLAC Policy provided significantly 

less coverage than the CICA Policy despite GEGLAC representing that her coverage would remain 

the same.

2 The Complaint does not explain why Plaintiff failed to review the provisions of the GEGLAC Policy for the eighteen 

years that she paid premiums.

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Defendant has moved to dismiss Plaintiff’s Complaint, arguing that all of Plaintiff’s claims 

are preempted by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 

et seq., and that leave to amend to assert ERISA claims should be denied. 

STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although 

this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than 

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 

U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic recitation 

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). 

Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” 

Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a 

plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Id. at 678 (alteration added) (citing Twombly, 

550 U.S. at 556). 

When reviewing a motion to dismiss, a court must construe the complaint in the light most 

favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross 

& Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). The Court “may consider only 

the complaint itself and any documents referred to in the complaint which are central to the 

claims.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).

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3 Defendant relies on the Declaration of Michael Sabadosa, a Senior Underwriting Consultant for Defendant, and 

several screenshots of Defendant’s internal computer systems to establish that the GEGLAC Policy is an ERISA plan. 

Unlike a contract or other documents referenced in a complaint, these documents cannot be considered at this stage 

of the litigation. See Quinonez v. United States, No. 22-81425, 2023 WL 2393714, at *3 (S.D. Fla. Feb. 16, 2023) 

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DISCUSSION

There are two types of preemption under ERISA: complete preemption and defensive or 

conflict preemption. Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 

1344 (11th Cir. 2009). Under the doctrine of complete preemption, “Congress may preempt an 

area of law so completely that any complaint raising claims in that area is necessarily federal in 

character and therefore necessarily presents a basis for federal court jurisdiction. Congress has 

accomplished this ‘complete preemption’ in [ERISA § 502(a)], which provides the exclusive cause 

of action for the recovery of benefits governed by an ERISA plan.” Cotton v. Mass. Mutual Life 

Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005) (quoting Kemp v. Int’l Bus. Mach. Corp., 109 F.3d 

708, 712 (11th Cir. 1997)) (internal citation removed). Conflict or defensive preemption is not 

jurisdictional. Rather, it stems from ERISA § 514(a), which provides that the terms of the statute 

supersede all state laws that “relate to” an ERISA plan. 29 U.S.C. § 1144(a). Defensive preemption 

operates as an affirmative defense and requires dismissal of such claims. Butero v. Royal

Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir. 1999). Here, Defendant argues that 

Plaintiff’s claims are defensively preempted and subject to dismissal.4 Therefore, the Court must 

determine whether Plaintiff’s claims “relate to” an ERISA Plan.

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The ERISA statute does not define the term “relate to.” The Supreme Court has held that 

“a state law relates to an ERISA plan if it has a connection with or reference to such a plan.” 

(“The Court can consider pre-existing documents that are central to the claims and whose authenticity is not 

challenged. It cannot consider newly-created affidavits.”). Moreover, the Court declines Defendant’s invitation to 

convert the Motion into a motion for summary judgment. 

4 Plaintiff filed her Complaint in this Court alleging diversity jurisdiction as the parties are of diverse citizenship. On 

January 18, 2024, in response to the Court’s inquiry, Plaintiff filed a statement of claim alleging that the amount in 

controversy in this action exceeds $75,000. [ECF No. 40].

5 Plaintiff does not allege the existence of an ERISA plan in her Complaint and does not concede in her response to 

the Motion that the GEGLAC Policy is an ERISA plan. The Court is unable to determine, based on the allegations in 

the Complaint, whether the GEGLAC Policy is governed by ERISA. However, for purposes of this Motion, the 

assumes the existence of an ERISA plan. 

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Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001). To determine a state law’s “connection with” 

ERISA, courts must look to “ERISA’s objectives as a guide to the scope of the state law that 

Congress understood would survive.” Rutledge v. Pharmaceutical Care Management Assoc., 592 

U.S. 80, 86 (2020) (internal quotation omitted). Therefore, “courts [must] deduce Congress’s intent 

and . . . apply this interpretation to the facts of each case that arises.” Morstein v. Nat’l Ins. Services, 

Inc., 93 F.3d 715, 718 (11th Cir. 1996). While the phrase “relate to” is broad, “not every state law 

that affects an ERISA plan or causes some disuniformity in plan administration has an 

impermissible connection with an ERISA plan.” Rutledge, 592 U.S. at 87.

While courts routinely find that state law claims against an insurer to recover benefits 

“relate to” an ERISA plan, see e.g., Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1213 

(11th Cir. 1999), the same does not always hold true for fraudulent inducement claims like 

Plaintiff’s. In Morstein, the plaintiff alleged that an insurance agency and agent—non-ERISA 

entities—fraudulently induced her into changing benefit plans. The Eleventh Circuit held that 

Congress did not intend for such claims to be preempted. 

The Fifth Circuit has found that Congress did not intend for ERISA preemption to 

extend to state law tort claims brought against an insurance agent. Perkins v. Time 

Ins. Co., 898 F.2d 470, 473 (5th Cir. 1990). Such preemption, reasoned the Fifth 

Circuit, would “immunize agents from personal liability for their solicitation of 

potential participants in an ERISA plan prior to its formation” Id. We now adopt 

the rationale of the Fifth Circuit as stated in Perkins and hold that, when a state law 

claim brought against a non-ERISA entity does not affect relations among principal 

ERISA entities as such, then it is not preempted by ERISA.

Morstein, 93 F.3d at 722.

The Eleventh Circuit reached a similar result in Cotton. 402 F.3d at 1291. There, the 

plaintiffs based their claims on purported misrepresentations made by the defendant insurer to 

induce the plaintiffs to purchase insurance. The Eleventh Circuit found that the plaintiffs’ fraud 

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claims were not completely preempted by ERISA.6 In particular, the Court found it significant that

the plaintiffs were not challenging the defendant insurer’s decision not to pay benefits under the 

terms of the plan. Rather, the plaintiffs alleged that the defendants induced them to purchase the 

policy by misrepresenting the amount of benefits the policies would provide. “In other words, the 

plaintiffs’ dispute [was] with Mass Mutual the seller of insurance products, not Mass Mutual the 

ERISA fiduciary.” Id. In addition, because the plaintiffs were not seeking benefits under the policy, 

the Court found that the fraud claims did not “relate to” an ERISA plan. Finally, the Court focused 

on the role of the defendant when it made the purported misrepresentations. “It was not acting ‘in 

its role as an ERISA entity’ at the time the plaintiffs allege that it fraudulently induced them to buy 

the . . . insurance policies at issue here.” Id. at 1287. 

Based on the allegations in the Complaint, the Court finds that Plaintiff’s claims are akin 

to those in Morstein and Cotton.

7 Plaintiff alleges fraudulent inducement, misrepresentation, and 

related consumer protection claims against Defendant based on the representations made in the 

Letter. In sending the Letter, GEGLAC was not acting in its capacity as an ERISA entity. Rather, 

it was acting as the seller of an insurance product. See Cotton, 402 F.3d at 1284-85 (“[W]hen an 

insurer is not acting in its capacity as an ERISA entity, we can see no reason that Congress would 

6 While the holding in Cotton is based on complete preemption, the Eleventh Circuit also discussed several defensive 

preemption cases, noting that defensive preemption cases “may inform the complete preemption analysis.” Cotton, 

402 F.3d at 1281-82. The Court found that “[t]he complete preemption and defensive preemption doctrines are very 

complicated and the cases are numerous. The facts of the instant case do not fall neatly into any category of case law 

that allows for an easy or quick answer to be found from Eleventh Circuit case law.” Id. (quoting Wilson v. Coman, 

284 F. Supp. 2d 1319, 1341 (M.D. Ala. 2003)).

7 Defendant relies heavily on Hall v. Blue Cross, 134 F.3d 1063, 1064 (11th Cir. 1998), which held that a plaintiff’s 

fraudulent inducement claims were preempted by ERISA. However, in Hall, the plaintiff challenged the correctness 

of the defendant insurer’s decision to deny benefits under the relevant plan. Here, Plaintiff does not dispute that the 

GEGLAC Policy contains an offset for IDI benefits and a $100 minimum monthly benefit. Rather, Plaintiff contends 

that she never would have agreed to sign up for the GEGLAC Policy had GEGLAC not misrepresented its terms. As 

in Cotton, “the terms of the plan documents are clear and unambiguous, and the plaintiffs are not entitled to relief 

under them. Nor do their allegations, if properly characterized and understood, seek relief under the plan or challenge 

any action by Mass Mutual in its fiduciary capacity. This distinguishes the case from those in which we reasoned that 

the plaintiff was essentially challenging an insurer’s denial of benefits.” Cotton, 402 F.3d at 1291.

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have sought to immunize it from liability for fraud or similar state-law torts.”). Moreover, Plaintiff 

does not dispute Defendant’s interpretation of the GEGLAC Policy, namely that it contains an 

offset for IDI benefits and a minimum monthly benefit of $100. Instead, she challenges 

GEGLAC’s representations made before “formation of the plan itself.” Id. at 1283. At bottom, 

“reduced to the size of a pea, this case is really about claims of fraud and misrepresentations in the 

sale of some . . . insurance policies.” Id. at 1279. Accordingly, at this stage of the litigation, the 

Court finds that Plaintiff’s claims do not “relate to” an ERISA plan and, therefore, are not 

defensively preempted. 

Conclusion

Based on the foregoing, it is

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss for Failure to State 

a Claim, [ECF No. 6], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of January, 2024.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

.

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