No. 04 C 292 Page4

enforce via § 502(a); and 3) the plaintiffs state law claim cannot be resolved without

interpreting the contract governed by ERISA.” Berge v. Automobile Mechanics Local 701

Union, 2003 WL 22594367 at *1 (N.D.ML. 2003)(citing Jass v. Prudential Health Care Plan, 88

F.3d 1482, 1487 (7" Cir. 1996)). Section 502(a) grants a plan participant or beneficiary the
right to bring a civil action to recover benefits due under the terms of a plan, or to enforce or
clarify his rights under the plan. 29 U.S.C. § 1132(a)(1). Plaintiff, as a covered dependent of
his father, was a beneficiary of the Plan, and thus can bring an action under § 502(a),
satisfying the first requirement. His two claims against Bankers are unjust enrichment (count
I) and failure to provide benefits (count If). Count II is clearly a claim to recover benefits due
under the Plan, a cause of action that can be enforced under § 502(a). Count I, while styled
as a state law claim in plaintiffs complaint, seeks to clarify his rights under the terms of the
Plan. Plaintiff's claim that defendant was unjustly enriched requires a determination of
whether he was obligated to reimburse Bankers for medical expenses in the event of a third
party settlement. Thus, both counts fall within the scope of § 502(a). Finally, plaintiff's claims
require interpretation of the terms of the Plan. In order to determine whether Bankers was
entitled to reimbursement or whether it should have paid for the additional expenses, the court
must analyze the Plan. Given these factors it is evident that plaintiff's case is an ERISA action,
over which this court has original jurisdiction.

Plaintiff’s argument that the state court may also address ERISA claims has no bearing.
Though the state court has concurrent jurisdiction, defendant has the option to remove the
case to federal court, and it has chosen to exercise this option. The case has been properly

removed, given that federal law completely preempts state law claims that can be brought


No. 04 C 292 Page 3

stemming from the injury of his son, to the extent of any recovery through settlement,
judgment, or other means, from a third party responsible for the injury. Following this
agreement, Bankers served a subrogation lien on all parties involved in the accident. On
November 12, 2002, the accident litigation settled and Bankers was paid $378,369.08, under
protest. From the settlement proceeds, plaintiff also paid certain medical costs that had not
been paid by Bankers. In his complaint, plaintiff sets these costs at $66,000. However, his
motion to remand states the sum was $106,447.66. Plaintiff claims that defendant was unjustly
enriched by the payment of $378,369.08 and that under the terms of his father’s health
insurance policy defendant should have covered the additional costs plaintiff paid.
DISCUSSION

Before addressing defendant’s motion to dismiss, the court must determine whether this
action should be remanded to state court or whether it was properly removed to federal court.
In defendant’s notice of removal it asserted that plaintiff’s claim is completely preempted by
the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and
that this court has original jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29
U.S.C. § 1132(e)(1). Plaintiff counters that the case should be remanded because the state
court has concurrent jurisdiction, regardless of an ERISA claim; that there are several state
law issues that should be resolved in state court; and state courts have repeatedly addressed
medical subrogation liens on policies that are subject to ERISA.

A state law claim is properly recharacterized as an ERISA claim and therefore
removable to federal court when “1) the plaintiff is eligible to bring an action under § 502(a);

2) the plaintiff's cause of action falls within the scope of an ERISA provision plaintiff can


«

No. 04 C 292 Page 5

under § 502(a)(1)(b) of ERISA. See Metropolitan Life Insurance Company v. Taylor, 481 U.S.
58, 62-63 (1987). Thus, we deny plaintiff's motion for remand and turn to the motion to
dismiss.

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint, not the merits

of the case. Triad Assocs., Inc. vy. Chicago Hous. Auth., 892 F.2d 583, 586 (7 Cir. 1989). In

deciding 2 motion to dismiss the court must assume the truth of all well-pleaded allegations,
making all inferences in the plaintiff's favor. Sidney S. Arst Co. v. Pipefitters Welfare Educ.
Fund, 25 F.3d 417, 420 (7" Cir. 1994). The court should dismiss a claim only if it appears
“beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Defendant states three reasons for dismissing plaintiff's action: 1) plaintiff can only
bring claims pursuant to ERISA because all other state law claims are preempted, and plaintiff
has brought this ERISA action against the wrong defendant, 2) plaintiff has no basis for
recovery because defendant’s right to reimbursement is valid, and 3) plaintiff has failed to
exhaust his administrative remedies before bringing this case. We do not reach defendant’s
second and third arguments because dismissal is justified on the basis of its first argument.

As discussed above, both of plaintiff’s counts, though pleaded as state law claims, are
properly characterized as ERISA claims. Given that ERISA preempts state law, including
common law, which relates to an employee benefit plan, Pilot Life Ins. Co. v. Dedeaux, 481
USS. 41, 48-49 (1987), plaintiff has only ERISA claims. Plaintiff brings these claims against
Bankers, which issued the insurance policy to the Plan. However, an ERISA suit to recover

benefits may only be brought against the Plan as an entity. See 29 U.S.C. § 1132(d); Jass v.


Se Mingte Order Form (06/97)

) N Lo United States District Court, Northern District of Dlinois

Nive Magierate edge James B. Moran “nan Asngned Judge
CASE NUMBER 04 C 292 DATE 4/27/2004
CASE FRANK RIZZO vs. BANKERS LIFE & CASUALTY COMPANY
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:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Briefin support of motiondue__.
@) a Answer brief to motion due. . Reply to answer brief due__.
(4) Qo Ruling/Hearingon____ssetfor____at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_—sset for____at
(6) ia} Pretrial conference[held/continued to} [set for/re-set for]on____—ssetfor_ ss at_
) Qo Trial[set for/re-set for] on at
(8) Oo (Bench/Jury trial] [Hearing] held/continuedto___—_at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) UO Local Rule 41.1 OFRCP4I(ayi) O FRCP41(a)(2).

ao [Other docket entry] © Enter Memorandum Opinion And Order. Plaintiffs motion to remand is
denied and defendant’s motion to dismiss is granted, though plaintiff is given leave to amend his
complaint to name the proper defendant.

(i) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.

\ N
3

Copy to judge/magistrate judge.

date mailed notice

courtroom Tiss . id
LG deputy’s my ws

Date/time received in .
central Clerk's Office mailing deputy iniats



No. 04 C 292 Page 6

)

Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7" Cir. 1996). Bankers is neither the
Plan, nor the plan administrator. Thus, it is not the proper party for plaintiff’s counts seeking
the return of his reimbursement and the payment of his medical expenses.

Plaintiff argues he has not sued the wrong defendant — that he has brought an unjust
enrichment claim against the party to whom he paid a reimbursement. As the Seventh Circuit
stated in Jass, “[T]he preemptive force of ERISA is so powerful that it converts ‘a state law
claim into an action arising under federal law,’ even if the plaintiff does not want relief under

ERISA.” 88 F.3d at 1490 (quoting Metropolitan Life Ins. Co. y. Taylor, 481 U.S. 58, 66-67

(1987)). We have found that ERISA does preempt plaintiff’s unjust enrichment claim because
his claim that he was not obligated to reimburse Bankers is a claim to clarify or enforce his
rights as a beneficiary under a benefits plan. Thus, even though his payment went to Bankers,
the proper defendant for his action is the Plan.
CONCLUSION
For the foregoing reasons plaintiff's motion to remand is denied and defendant’s
motion to dismiss is granted, though plaintiff is given leave to amend his complaint to name

the proper defendant.

JAMES B. MORAN
or Judge, U. S. District Court

Cer PY, » 2004.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
FRANK RIZZO, )
)
Plaintiff, ) lige

becisten

vs. ) No. 04 C 292 APR 23 2004
)
BANKERS LIFE & CASUALTY )
COMPANY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Frank Rizzo Jr. brought this action against Bankers Life & Casualty Company
(Bankers) in the Cook County Circuit Court, alleging that Bankers had been unjustly enriched
and had failed to pay certain of his medical expenses covered by his father’s health insurance
policy. Defendant removed the case to federal court and filed a motion to dismiss.
Subsequently, plaintiff filed a motion to remand. Plaintiff’s motion to remand is denied and
defendant’s motion to dismiss is granted.

BACKGR

The allegations in the complaint are taken as true and provide the basis for the
statement of facts. Before reciting the pertinent facts of this case, the court must address the
scope of its review for these motions. Generally, when deciding a motion to dismiss, the court
only looks to the complaint to determine whether plaintiff states a claim. Alioto vy. Marshall
Field’s & Co., 77 F.3d 934, 936 (7" Cir. 1996). If the movant submits documents outside the
complaint with its motion to dismiss, the court must either ignore the documents or convert
the motion to dismiss into a motion for summary judgment. See Federal Rule of Civil

Procedure 12(b). However, where the complaint references 2 document, but fails to attach it,


No. 04 C 292 Page 2

the document may be incorporated into the complaint and reviewed by the court. See Tierney
y. Vahle, 304 F.3d 734, 738 (7" Cir. 2002); Davis v. Potter, 301 F.Supp.2d 850, 856 (N.D.IIL
2004). With its motion to dismiss, defendant submitted a number of documents, including a
group policy between defendant and the International Union Operating Engineers Local 399
Health and Welfare Trust, excerpts from the summary plan description for the Trust’s health
insurance plan, and a reimbursement agreement signed by plaintiff's father. Plaintiff’s
complaint refers to the group policy, the terms of coverage under the plan, and the
reimbursement agreement. Therefore, we incorporate these documents into our review. By
widening the review the court is able to ensure that plaintiff does not avoid Rule 12(b)(6)
dismissal only because he failed to attach a copy of the controlling documents.

On April 26, 1998, plaintiff suffered a severe injury to his right leg in a motor vehicle
accident. Plaintiff, a minor at the time, received insurance benefits as a covered dependent of
his father, Frank Rizzo, Sr (Rizzo Sr.). Rizzo Sr.’s employer provided him coverage through
a group health insurance policy issued by Bankers. Rizzo Sr. and his dependents received
policy benefits in accordance with the terms of the health insurance plan known as the
International Union of Operating Engineers, Local 399 Health and Welfare Trust (Plan).
Under the terms of the Plan the Board of Trustees for the Local 399 Health and Welfare Trust
was both the plan sponsor and the plan administrator.

Though the complaint does not provide the details, sometime after plaintiff's injury,
litigation commenced against a third party involved in plaintiff's accident. On December 17,
1998, Rizzo Sr. signed a reimbursement agreement stating that, individually and as the natural

guardian for the estate of his son, he would reimburse Bankers for all payments made