Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, if the Court deems matters outside the 1

pleadings are being presented, the Motion can be treated as one for Summary Judgment. However, “[T]he Third

Circuit has held that consideration of ‘an undisputedly authentic document that a defendant attaches as an Exhibit

to a Motion to Dismiss’ does not require that the Motion to Dismiss be converted into a Motion for Summary

Judgment ‘if the plaintiff’s claims are based on the document.’” Vosgerichian v. Commodore International, 862 F.

Supp. 1371, 1375 (E.D. Pa. 1994), citing Pension Benefit Guaranty Corp. v. White Consolidated Industries, Inc., 998 F.

2d 1192, 1196 (3 Cir. 1993). rd

Doc#: 1314671 v1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUSAN BARISH : CIVIL ACTION

 :

Plaintiff :

 :

vs. : NO. 02-CV-4244

 :

SECURITY MUTUAL LIFE INSURANCE :

COMPANY OF NEW YORK :

:

Defendant :

BRIEF IN SUPPORT OF THE MOTION TO DISMISS

PLAINTIFF’S COMPLAINT OF DEFENDANT,

SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Rule 7.1 of the Local

Rules of the United States District Court for the Eastern District of Pennsylvania, Defendant, Security

Mutual Life Insurance Company of New York, by and through its attorneys, White and Williams LLP,

hereby submits this Brief in support of its Motion to Dismiss. This Court should Dismiss Plaintiff's 1

Complaint because the pleadings and claim of Plaintiff, Susan Barish, establish that there is no genuine

issue as to any material fact and that Security Mutual is entitled to judgment as a matter of law. 

Specifically, because Barish’s claims are governed by the Employee Retirement Income Security Act

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("ERISA"), 29 U.S.C. §1001 et seq., the state law claims and demands in her Complaint are

preempted and her exclusive remedy, if any, lies under the civil enforcement scheme of ERISA, and

thus this Court should dismiss Plaintiff's Complaint.

I. PROCEDURAL HISTORY

Plaintiff, Susan Barish, commenced this action on June 6, 2002 by filing a Complaint in the

Court of Common Pleas of Philadelphia County, Pennsylvania. A copy of this Complaint is attached

hereto as Exhibit “1.” On or about June 28, 2002, Security Mutual filed a Notice of Removal to this

Court on the basis of ERISA federal question and diversity jurisdiction.

This is the Motion to Dismiss Barish’s Complaint of Security Mutual. Because Plaintiff’s claims

are governed by ERISA, her state law claims and demands are preempted and the Complaint in its

entirety should be dismissed.

II. STATEMENT OF FACTS

Underlying this matter is Barish’s assertion in her Complaint that Security Mutual issued a group

policy of insurance, which included life insurance, to JAL Associates, Inc., numbered SP33,845, under

which she claims entitlement to life insurance benefits as the named beneficiary of her deceased

husband, a former employee of JAL. Plaintiff’s Complaint, ¶¶10, 15. Barish claims in her Complaint

that she has made proper demand for life insurance benefits under this contract purportedly covering

her husband, but that she has not received the benefits claimed. Plaintiff’s Complaint, ¶¶17-18.

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An alleged copy of the Security Mutual policy numbered SP 33,845 is attached as Exhibit “A”

to Plaintiff’s Complaint. See Exhibit “1” hereto. This policy is part of an employee welfare benefit

plan established and/or maintained by an employer. See Exhibit “A” to Plaintiff’s Complaint, e.g. the

Eligibility provisions and Schedule of Benefits, attached hereto as part of Exhibit “1.” The policy was

issued to employer, JAL Associates, Inc. identified on p.1 of the policy as the “Policyholder.” Eligible

persons, as defined in the policy and as long as they met the “Active Work” provisions, included two

classes: “A. Any such eligible Employee who is an Officer [or] B. Any other such eligible Employee.” 

Id. , Definitions. Further, attached as Exhibits “B” and “C” to Plaintiff’s Complaint are copies of a

purported Group Premium Statement addressed to the employer, JAL Associates, Inc., and an alleged

group Enrollee and Dependents List. See Exhibits “B” and “C” to Plaintiff’s Complaint, attached

hereto as part of Exhibit “1.” Barish avers that this group insurance policy was “provided... to all

employees of JAL Associates, Inc.” Plaintiff’s Complaint, ¶10. The Security Mutual policy is thus an

employee welfare benefit plan subject to the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. §1001, et seq.

Barish’s Complaint consists of only one count asserting breach of contract. Plaintiff’s

Complaint, ¶19. Said Complaint does not validly set forth a cause of action against Security Mutual

because under ERISA the Complaint raises a federal question and is subject to federal preemption.

Since the group insurance policy under which Barish seeks benefits is part of an ERISA plan,

federal ERISA law applies and preempts the state law claims and demands set forth in Plaintiff’s

Complaint. Hence, Barish has failed to state a claim against Security Mutual in her Complaint, which

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should be dismissed in its entirety. 

III. STATEMENT OF QUESTIONS INVOLVED

A. Whether the group disability insurance policy at issue 

is part of an ERISA plan.

Proposed answer in the affirmative.

B. Whether ERISA preempts Plaintiff’s state law claims 

for breach of contract.

Proposed answer in the affirmative.

IV. ARGUMENT

A. The Policy Under Which The Plaintiff Seeks Benefits

 Is Part Of An ERISA Plan 

This Court should grant Security Mutual’s Motion to Dismiss because the policy under which

Barish seeks damages is part of an ERISA plan. For that reason, ERISA preempts Barish’s state law

cause of action. The policy at issue as attached to Plaintiff’s Complaint was established and/or

maintained as part of an employee welfare benefit plan. Thus, under prevailing law, Barish’s claims are

governed exclusively by ERISA.

ERISA governs employee welfare benefit plans. ERISA sets forth five elements for a plan,

fund, or program to constitute an "employee welfare benefit plan":

(1) A plan, fund, or program,

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(2) Established or maintained,

(3) By an employer,

(4) For the purpose of providing benefits,

(5) To participants or their beneficiaries.

29 U.S.C. § 1002(1) (paraphrased in pertinent part). See also Donovan v. Dillingham, 688 F.2d 1367,

1371 (11th Cir. 1982). The policy at issue satisfies all five elements of the statutory definition of an

"employee welfare benefit plan" as set forth above.

The Donovan case established the standard for determining whether an employee benefit

program constitutes an ERISA plan under criterion (1) above:

[A] 'plan, fund, or program' under ERISA is

established if from the surrounding circumstances a

reasonable person can ascertain the intended benefits, a

class of beneficiaries, the source of financing, and the

procedures for receiving benefits.

688 F.2d at 1373. In this case, the facts unequivocally show that the group insurance plan which

included life insurance, upon which Barish’s cause of action is based meets the Donovan standard: A

reasonable person could readily ascertain the "intended benefits” (group insurance benefits, including life

insurance, as set forth in the policy); the "class of beneficiaries" (the eligible employees as defined in the

policy and as long as they met the “Active Work” provisions, identified in the policy as “A. Any such

eligible Employee who is an Officer [or] B. Any other such eligible Employee,” Exhibit “1”); the "source

of financing" (the discounted group premium payments as arranged by the employer under the group

plan); and a "procedure for receiving benefits" (the procedure for submitting a claim as set forth in the

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policy). Thus, the group insurance policy at issue is part of a "plan, fund or program" under ERISA.

The group plan at issue was established and/or maintained as an employee benefit.

Accordingly, Donovan criterion (2), referenced above, has been met in this case.

The plan also satisfies criteria 3, 4, and 5 of the statutory definition of an "employee welfare

benefit plan" under ERISA. There is no dispute that the benefits offered to the designated employees

are the type of benefits (including life insurance) described in ERISA. Finally, Plaintiff’s decedent

would be eligible for this coverage so long, inter alia, as he met the “Active Work” provisions, at the

group discounted rate by virtue of his employment. Thus, the group insurance policy under which

Barish seeks benefits in this action is part of an employee welfare benefit plan governed by ERISA.

B. ERISA Preempts Plaintiff’s State Law Claims Mandating 

Dismissal of Plaintiff’s Complaint 

This Court should dismiss Barish’s Complaint because ERISA preempts all state laws that

"relate to" employee welfare benefit plans. Pilot Life Insurance Company v. Dedeaux, 481 U.S. 41

(1987). ERISA provides that the rights, regulations and remedies afforded by that statute "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). ERISA defines the term "state law" broadly to include "all laws, decisions, rules,

regulations, or other State action having the effect of law, of any state." 29 U.S.C. § 1144 (c) (1).

The United States Supreme Court has repeatedly made it clear that the preemption provisions

of ERISA are extremely broad. Pilot Life, 481 U.S. at 45-46 ("The express preemption provisions of

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ERISA are deliberately expansive."); Shaw v. Delta Airlines, Inc., 463 U. S. 85, 96 (1983) ("The

breadth of [29 U.S.C. § 1144 (a)'s] pre-emptive reach is apparent...."). The United States Supreme

Court has employed a similarly broad definition in determining whether a law "relates to" an employee

welfare benefit plan. A state law "'relates to' a benefit plan...if it has a connection with or reference to

such a plan'". Shaw, 463 U.S. at 96-97. Furthermore, because Congress used the phrase "relate to"

in its broad sense, the United States Supreme Court has "emphasized that the pre-emption clause is not

limited to 'state laws specifically designed to affect employee benefit plans'". Pilot Life, 481 

U.S. at 47-48. Accord Shaw, 463 U.S. at 98 (preemption clause should not "be interpreted to

preempt only state laws dealing with the subject matters covered by ERISA - reporting, disclosure,

fiduciary responsibility, and the like").

Barish’s state law claims and demands for breach of contract in the Complaint arise out of her

denied claim for life insurance proceeds as the purported named beneficiary of her husband under the

policy issued by Security Mutual to her husband’s employer, JAL. The United States Supreme Court

has held that state law claims that assert improper processing of claims for benefits are preempted by

ERISA. Pilot Life. Not unlike the state law claims held preempted in Pilot Life, the very bases of

Barish’s state law claims in this action are that Security Mutual has refused to pay her claim for life

insurance proceeds under the group insurance policy. As such, Barish’s state law claims "relate to" an

ERISA employee welfare benefit plan and, therefore, Barish’s state law claims are preempted by

ERISA.

Regardless of how the state law causes of action are characterized, the federal appellate Courts

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have repeatedly given the preemptive provision of ERISA a sweeping scope. See Pilot Life, supra,

(state common law breach of contract, fraud, and bad faith claims preempted by ERISA); 

Metropolitan Life Insurance Company v. Taylor, 481 U.S. 58 (1987) (common law breach of contract

and tort claims for mental anguish preempted by ERISA); Smith v. Dunham-Bush, 959 F.2d 6 (2nd

Cir. 1992) (contract, tort, and oral promises preempted); Reichelt v. Emhart Corp., 921 F.2d 425

(2nd Cir. 1990) (breach of contract claim preempted); Pane v. RCA Corp., 868 F.2d 631 (3rd Cir.

1989); (breach of contract, breach of covenants of good faith and fair dealing and claim of intentional

infliction of emotional distress preempted); Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 512

(3rd Cir. 1995) ("[E]ven a common law cause of action is preempted by ERISA if it conflicts directly

with an ERISA cause of action."). Accordingly, Barish’s state law causes of action are preempted by

ERISA.

Within the United States Court of Appeals for the Third Circuit, the District Courts have

repeatedly upheld the ERISA preemption as applied to common law, breach of contract, bad faith,

fraud, consumer protection and related claims.

In Ruth v. Unum Life Insurance Company of America, 1994 U.S. Dist. LEXIS 12501 (E.D.

Pa. September 2, 1994) (James T. Giles, J.), all of Plaintiff’s claims were dismissed on the basis of

ERISA preemption. There, Cindy Ruth became totally disabled in October 1987 when she was

diagnosed with Chronic Fatigue Syndrome and a number of related symptoms. See id. at *2. 

Pursuant to the terms of her disability policy, Unum paid disability benefits of approximately $810.00

per month to Ruth from January 1988 through November 1992. Id. In November, 1992, however,

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Unum terminated Ruth's benefits. See id. at *3. Thereafter, Ruth commenced an action for breach of

contract and bad faith. This Court determined that Ruth's disability policy was part of a "plan" subject

to ERISA. See id. at *4. Further, the Court determined that all of Ruth's claims were preempted by

ERISA. See id. at *18. The Court dismissed the Complaint for failure to state a claim upon which

relief could be granted. Id.

In Garner v. Capital Blue Cross, 859 F. Supp. 145 (M.D. Pa. 1994) Judge Caldwell dismissed

each of Plaintiff’s counts/claims on the basis of ERISA preemption. The Garner case arose out of the

denial of health benefits pursuant to an employee-benefit plan. Plaintiff brought counts/claims sounding

in breach of contract, bad faith, fraud, negligent infliction of emotional distress, violation of the

covenants of good faith and fair dealing, wrongful death and survival. Finding that a proper ERISA

claim had not been pled and that each count or claim pled was preempted by ERISA, the Court held

that “ERISA does not contemplate an action such as that brought here.” Id. at 150. 

Additional cases holding that state law causes of action such as those based upon breach of

contract are preempted by ERISA include the following: Schneider v. UNUM Life Insurance Co., 149

F. Supp. 2d 169 (E.D. Pa. 2001)(common law contract claims and consumer protection law claims

preempted); Osaowski v. Life Insurance Company of North America, 139 F. Supp. 2d 668 (W.D. Pa.

2001)(breach of contract and bad faith claims preempted); Reilly v. Keystone Health Plan East, Inc.,

1998 U.S. Dist. LEXIS 11337 (E.D. Pa. July 27, 1998) (Joseph L. McGlynn, J.); Alberts v.

Independence Blue Cross and Pennsylvania Blue Shield, 1996 U.S. Dist. LEXIS 17353 (E.D. Pa.

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November 22, 1996) (Clifford Scott Green, J.) ; Hall v. Hartford Life and Accident Insurance

Company, 1995 U.S. Dist. LEXIS 2097 (E.D. Pa. February 23,1995) (James McGirr Kelly, J.); 

Rallis v. Trans World Music Corporation, 1994 U.S. Dist. LEXIS 3514 (E.D. Pa. March 25, 1994)

(Ronald L. Buckwalter, J.); Booz v. Unum Life Insurance Company, 1993 U. S. Dist. LEXIS 13143

(E.D. Pa. July 28, 1993) (Clarence C. Newcomer, J.); Gelzinis v. John Hancock Mutual Life Insurance

Company, 1993 WL 131566 (E.D. Pa. 1993)

(Hutton, J.); Northwestern Institute of Psychiatry v. Travelers Insurance Company, 1992 WL 331521

(E.D. Pa. 1992) (Yohn, J.).

V. CONCLUSION

For all the foregoing reasons, and specifically because ERISA preempts Barish’s state law

claims for breach of contract, Defendant, Security Mutual Life Insurance Company of New York,

respectfully requests that this Court grant its Motion to Dismiss. Barish’s state law claims for breach of

contract are preempted necessitating the dismissal of Plaintiff’s Complaint in its entirety.

Respectfully submitted,

WHITE AND WILLIAMS LLP

By: 

Elizabeth A. Venditta, Esquire

Attorney I.D. Nos. 36000

1800 One Liberty Place

Philadelphia, PA 19103-7395

(215)864-6392

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Attorneys for Defendant,

Security Mutual Life Insurance 

Company of New York

Dated: July 2, 2002

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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUSAN BARISH : CIVIL ACTION

 :

Plaintiff :

 :

vs. : NO. 02-CV-4244

 :

SECURITY MUTUAL LIFE INSURANCE :

COMPANY OF NEW YORK :

:

Defendant :

CERTIFICATE OF SERVICE

I, Elizabeth A. Venditta, Esquire, hereby certify that on this 2nd day of July, 2002, I caused a

true and correct copy of the foregoing Motion to Dismiss Plaintiff’s Complaint of Defendant, Security

Mutual Life Insurance Company of New York, Brief in Support of the Motion to Dismiss, Proposed

Order and Exhibits to be served upon the following person, by placing same in the United States mail,

first-class and postage prepaid:

Allen H. Silverman, Esquire

42 S. 15 Street th

1312 Robinson Building

Philadelphia, PA 19102

WHITE AND WILLIAMS LLP

 By:______________________________

Elizabeth A. Venditta, Esquire

Attorneys for Defendant,

Security Mutual Life Insurance

Company of New York

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