*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion

should not be published and is not precedent except under the limited circumstances

set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50728

Summary Calendar

 

BARBARA A. PETERS,

Plaintiff-Appellant,

versus

METROPOLITAN LIFE INSURANCE CO.,

Defendant-Appellee.

 

Appeal from the United States District Court for

the Western District of Texas

(USDC No. A-01-CV-585-JN)

_______________________________________________________

January 2, 2003

Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Barbara A. Peters appeals the district court’s dismissal of

her suit against Metropolitan Life Insurance Co. under Articles 21.21 and 21.55 of
2

the Texas Insurance Code. We affirm the judgment of the lower court for the

following reasons:

1. The Employee Retirement Income Security Act, 29 U.S.C. § 1101 et seq.

(“ERISA”) preempts “any and all State laws insofar as they may now or

hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). Articles

21.21 and 21.55 of the Texas Insurance Code relate to an employee benefit

plan because the statutes “ha[ve] a connection with or reference to such a

plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983); see also

Ramirez v. Inter-Continental Hotels, 890 F.2d 760, 762-63 (5th Cir. 1989).

2. The recent Supreme Court decisions UNUM Life Ins. Co. of Am. v. Ward,

526 U.S. 358 (1999), and Rush Prudential HMO, Inc. v. Moran, 122 S. Ct.

2151 (2002), did not alter the analytical framework applied to determine

whether a statute is saved from ERISA preemption. We apply the same test

after Ward and Moran as we did in Ramirez.

3. Peters’s action is not saved by 29 U.S.C. § 1144(b)(2)(A) (“the savings

clause”). First, the statutes do not deal with transferring or spreading

policyholders’ risks. Second, the statutes do not define the terms of the

relationship between the insurer and the insured; they simply provide that, in

some cases, breach of an insurance contract may entitle a policyholder to
3

exemplary damages. Ramirez, 890 F.2d at 763. The statutes at best satisfy

one of the three McCarran Ferguson Act factors (because they are limited to

entities within the insurance industry). See Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 51 (1987). Thus, the provisions do not merit the protection of

the savings clause.

4. Peters seeks to recover, under a state law cause of action, remedies

unavailable to her under ERISA—namely, the recovery of insurance benefits

plus an interest penalty (Article 21.55) and recovery for unfair or deceptive

insurance practices (Article 21.21). Any provision for ultimate relief in a

judicial forum that adds to the judicial remedies provided by ERISA “patently

violates ERISA’s policy of inducing employers to offer benefits by assuring a

predictable set of liabilities, under uniform standards of primary conduct and

a uniform regime of ultimate remedial orders and awards when a violation has

occurred.” Moran, 122 S. Ct. at 2166 (citing Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 56 (1987)).

For the foregoing reasons, we affirm the judgment of the district court dismissing

Peters’s state law claims.

AFFIRMED.