(06/97)
United States District Court, Northern District of Illinois PP
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge James B. Moran than Assigned Judge
CASE NUMBER 01 C7723 DATE 2/1/2002
CASE Carolyn Kopecky vs. UNUM Life Insurance Co. ete.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Memorandum Opinion and Order
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) g Brief in support of motion due.
@) Oo Answer brief to motion due. . Reply to answer brief due.
(4) im Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at :
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) Qa Trial[set for/re-set for] on at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) General Rule 21 OFRCP41(a)(1) OFRCP41(a)(2).
qo) if (Other docket entry] Enter Memorandum Opinion and Order. Defendant now moves to dismiss
count II and plaintiff’s claim for future disability benefits, That motion is granted. Status hearing set for
February 6, 2002 at 9:15am. to stand.
al [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. oa
Notices mailed by judge's staff.
Notified counsel by telephone. FEB eo 3 Zane
oY | Docketing to mail notices. . () (L) ' K
Mail AO 450 form. Lungs i isi sn docking deputy aials | a)
Copy to judge/magistrate judge. eae ws _,
ua 4 94420 Feo v 5 2002
C2: Ud 7 a date mailed notice
courtroom
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CAROLYN KOPECKY, )
Plaintiff, ‘
vs. } No. 01 C 7723
UNUM LIFE INSURANCE COMPANY ;
OF AMERICA, )
Defendant. ) £8 0 5 2002

MEMORANDUM OPINION AND ORDER

This case began in state court as a state law suit on an insurance policy. It was,
however, in reality an ERISA claim, and, after removal, plaintiff recast it as an ERISA claim.
One state law vestige remains: a count Il claim for attorneys’ fees pursuant to 215 ILCS
5/155, for vexatious and unreasonable failure to pay disability benefits. Plaintiff also secks
past due benefits and a declaration that she is entitled to benefits for the rest of her life.
Defendant now moves to dismiss count Il and plaintiff’s claim for future disability benefits.
That motion is granted.

Plaintiff concedes that 215 ILCS 5/155 is normally preempted, Gawrysh v. CNA
Insurance Companies, 978 F.Supp. 790 (N.D.IIL 1997), but she argues that it applies here
because the policy refers to Illinois as the governing jurisdiction, and states that it “is
delivered in and governed by the laws of the governing jurisdiction.” If this was not a policy
issued as part of an ERISA plan, clearly it would be interpreted pursuant to Illinois, as
contrasted to, say, Indiana, law. But it is an ERISA plan, which was the basis for removal.
If Illinois law controlled, the case should have remained in state court. Plaintiff may

ultimately be entitled to attorneys’ fees, but as a matter of ERISA, not Illinois, law.

15


No. 01 C 7723 Page 2

Plaintiff also concedes that we cannot enter a judgment for future benefits, but hopes
to evade that conclusion by characterizing the relief sought as only a declaration of
entitlement. She cites no authority, A declaration is but a slight removed from a judgment
for damages. If plaintiff prevails, the result may make recovery of future benefits

uncontested or much easier to attain. But we cannot conclusively predict the future.

Gd JAMES B. MORAN
nior Judge, U. S. District Court
Fu. j 2002.