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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEBRA STARLING,

Plaintiff, Civil Action No.

09-CV-12147

vs.

HONORABLE PAUL D. BORMAN

LUCY M. STARLING,

Defendant.

______________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION 

FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S 

REQUEST FOR COSTS AND ATTORNEY FEES

I. INTRODUCTION

This is a breach of contract case involving the Employee Retirement Income Security Act

(“ERISA”). Plaintiff Debra Starling (“Debra”) is suing Defendants BOS Benefits Center-BUDD

(“BOS”) and Lucy M. Starling (“Lucy”) to recover the survivor benefits of her deceased husband,

Oscar Starling (“Oscar”). Debra claims that BOS is improperly paying the benefits to Lucy, Oscar’s

ex-wife. The Complaint contains one count for breach of contract under Michigan law. 

On July 29, 2009, the Court entered a stipulated order dismissing BOS from the case without

prejudice. See docket entry 10. Therefore, Lucy is the only remaining defendant.

Now before the Court is Lucy’s Motion for Summary Judgment, Costs, and Attorney Fees

[docket entry 11]. For the reasons that follow, the Court will grant Lucy’s Motion for Summary

Judgment but deny Lucy’s request for costs and attorney fees.

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II. BACKGROUND

This action was originally filed in Wayne County Circuit Court on May 13, 2009, and

removed to this Court on June 3, 2009. Subject matter jurisdiction is premised upon 28 U.S.C. §

1331 (federal question), as the case involves ERISA. 

In her Complaint, Debra claims that

4. Defendant Budd Company has and continues to disburse survivor

benefit payments to Defendant Lucy M. Starling even though

Plaintiff Debra Starling has demanded that she be paid.

5. Plaintiff Debra Starling promptly informed Budd Company that they

were improperly paying Defendant Lucy M. Starling and all benefit

payment [sic] are entitled to Plaintiff Debra Starling.

6. Defendant Lucy M. Starling’s Judgment of divorce terminated all of

Defendant Lucy Starling’s rights to any pension, annuity, or

retirement system of her former husband the late Mr. Oscar Starling;

who prior to death was the current husband of the Plaintiff Debra

Starling. 

7. On February 2, 2009 the Plaintiff Debra Starling’s attorney received

a letter from Budd Company stating that Plaintiff Debra Starling was

not entitled to the Optional Survivor Benefit Plan under ERISA.

Compl. at ¶¶ 4-7. BOS has paid the survivor benefits to Lucy and not Debra because, prior to the

divorce, Oscar named Lucy as the beneficiary on the plan documents and failed to change the

beneficiary designation after the divorce. Thus, Lucy remained the named beneficiary of Oscar’s

survivor benefits at the time of Oscar’s death.

The Judgment of Divorce between Lucy and Oscar is attached to Debra’s Complaint. The

relevant portion of the order reads as follows:

PENSION, ANNUITY OR 

RETIREMENT BENEFITS

IT IS FURTHER ORDERED AND ADJUDGED that the rights of

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either party in and to any pension, annuity or retirement benefits of the other

or any accumulated contributions of any pension, annuity or retirement

system in which the other party is a participant or beneficiary, or any other

right of contingent right in and to unvested pension, annuity or retirement

benefits of the other party is hereby terminated.

Debra claims that she—and not Lucy—is entitled to Oscar’s survivor benefits because, by virtue of

the divorce judgment, Lucy waived any right to retain the funds being paid to her as the named

beneficiary.

III. ANALYSIS

Lucy advances two arguments in her motion for summary judgment. First, Lucy contends

that she is not a proper party to this case because she has no control or discretion over the benefits

plan. See Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir. 1988) (“[u]nless an employer is shown

to control administration of a plan, it is not a proper party defendant in an action concerning

benefits”); Little v. UNUMProvident Corp., 196 F. Supp.2d 659, 672 (S.D. Ohio 2002) (“in the Sixth

Circuit, the proper party defendant in an ERISA action concerning benefits is the party that is shown

to control administration of the plan”). Second, Lucy argues that the breach of contract claim fails

because there is no contract between her and Debra. See Webster v. Edward D. Jones & Co., L.P.,

197 F.3d 815, 819 (6th Cir. 1999) (interpreting Michigan law) (in order to recover for breach of

contract, the plaintiff must prove, among other things, “the existence of a contract between the

parties”).

In response, Debra states that she brought this lawsuit under Michigan contract law and not

under ERISA. Debra further states that she “filed this lawsuit in the Wayne County Circuit Court

relying on the Court to uphold the Judgment of Divorce signed by Lucy that gave up all of her rights

to any benefits that she would have had to Oscar B. Starling’s retirement income.” Debra relies on

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Moore v. Moore, 266 Mich. App. 96 (2005), discussed below, in support of her argument that “there

are several genuine issues as to whether Lucy is entitled to any of Mr. Starling’s benefits at all.”

The Court must determine whether Debra’s state law breach of contract claim against Lucy

is preempted by ERISA. If it is, the Court must grant summary judgment in favor of Lucy because

she does not “control administration of the plan” and is therefore not a proper defendant in an

ERISA action for benefits. See Daniel, 839 F.2d at 266; Little, 196 F. Supp.2d at 672. 

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). “This preemption provision is to be construed

broadly; a law ‘relates to’ an ERISA plan ‘if it has a connection with or reference to such a plan.’”

McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir. 1990) (quoting Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 96-97 (1983)). As stated by the Sixth Circuit,

[t]he United States Supreme Court has held that Congress’ intent in enacting

ERISA was to completely preempt the area of employee benefit plans and to

make regulation of benefit plans solely a federal concern. The Court

consistently emphasizes the broad scope of preemption under ERISA. Thus,

only those state laws and state law claims whose effect on employee benefit

plans is merely tenuous, remote or peripheral are not preempted. This circuit,

too, has repeatedly recognized that virtually all state law claims relating to

an employee benefit plan are preempted by ERISA. It is not the label placed

on a state law claim that determines whether it is preempted, but whether in

essence such a claim is for the recovery of an ERISA plan benefit.

Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir. 1991) (citations omitted).

See also Drescher v. Union Underwear Co., Inc., 858 F. Supp. 653, 656 (W.D. Ky. 1994) (“[a] claim

too remote, tenuous, or peripheral to relate to an ERISA plan simply cannot, except in the most

extraordinary circumstances, constitute a claim to recover benefits, enforce rights, or clarify the

terms of an ERISA plan under § 1132”). Thus, “state common law claims for benefits under an

employee benefit plan regulated by ERISA are preempted as long as the lawsuit relates to an

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employee benefit plan.” Wright v. General Motors Corp., 262 F.3d 610, 613 (6th Cir. 2001).

Additionally, on at least two occasions, the Sixth Circuit has held that federal law—and not

state law—governs the determination of whether an ex-spouse waived his or her right to ERISA

benefits by virtue of a divorce judgment issued by a state court. In McMillan, the ex-wife of the

decedent, on the one hand, and the widow of the decedent, on the other hand, claimed the proceeds

of the decedent’s two ERISA plans. 913 F.2d at 310. When the decedent was married to his exwife, he named her as the beneficiary to the plans. Id. at 311. The two later got divorced, at which

point they signed a joint settlement in which they agreed that the decedent would receive all property

not otherwise disposed of in the agreement. Id. However, the decedent never changed the

beneficiary designation in connection with his two plans and at the time of the decedent’s death, the

ex-spouse remained the beneficiary named in the plan documents. Id. The trial court granted

summary judgment in favor of the widow, concluding after applying state law that the ex-spouse had

waived her right to the proceeds by virtue of the joint settlement entered into in the divorce

proceedings. Id. The Sixth Circuit reversed, holding that (1) federal law—and not state

law—applies to the waiver analysis, (2) the plan documents controlled in accordance with “the

explicit provisions of ERISA,” and (3) the ex-spouse was therefore entitled to the benefits under the

ERISA plans. Id. at 311-312. 

Six years later, the Sixth Circuit reached the same conclusion in Metro. Life Ins. Co. v.

Pressley, 82 F.3d 126 (6th Cir. 1996), a case involving the same general factual framework as

McMillan and the present case. The decedent is Pressley participated in a his employer’s ERISAgoverned life insurance plan, the proceeds of which were claimed by the decedent’s ex-wife, on the

one hand, and the decedent’s estate, on the other hand, following the decedent’s death. 82 F.3d at

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127-128. When the decedent and his ex-wife were married, he designated her as the beneficiary to

the insurance policy; however, when the two got divorced, he never changed the beneficiary

designation. Id. at 128. The divorce decree between the two contained a provision, as mandated

by Michigan law, stating that the two “shall hereafter own any and all items of personal property

including, but not limited to . . . insurance policies . . . now in his or her possession, free and clear

of any claim thereto by the other.” The decree also stated that “any rights of either party in any

policy or contract of life . . . insurance of the other, as beneficiary, are hereby extinguished.” Id. at

127-128. Notwithstanding this language, the trial court determined that the ex-wife was entitled

to the life insurance proceeds because (1) “ERISA preempted Michigan domestic relations law,” (2)

“the designation of [the ex-wife] as beneficiary of record controlled” under ERISA, and (3) “neither

the statement of waiver in the Divorce Decree, nor [Michigan law] . . . effected a waiver of [the exwife’s] claim to the benefits” under ERISA. Id. at 128. Relying in part on McMillan, the Sixth

Circuit affirmed, stating that “a designation of beneficiaries has a connection with or reference to

an ERISA plan, preempting state law.” Id. at 129.

McMillan and Pressley are applicable to the present case, foreclosing Debra’s argument that

this case is governed by Michigan law and not ERISA. In both McMillan and Pressley, the Sixth

Circuit determined that ERISA preempts any state law purporting to affect the designation of

beneficiaries in an ERISA-governed plan. Thus, the law in this circuit is clear under McMillan and

Pressley that federal law, and not state law, governs the determination of whether an ex-spouse

waived his or her right to ERISA benefits by virtue of a divorce judgment issued by a state court

because any state law purporting to affect this determination “relate[s] to any employee benefit plan”

under § 1144(a) and is therefore preempted by federal law.

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Debra attempts to avoid this result by relying on the decision of the Michigan Court of

Appeals in Moore. Moore involved essentially the same facts as McMillan and Pressley but reached

the opposite result. While married to his ex-wife, the decedent in Moore named her as the

beneficiary to his ERISA-governed life insurance policy and pension death plan. 266 Mich. App.

at 97. However, after the two got divorced, the decedent died without changing the beneficiary

designation. Id. The decedent and his ex-wife entered into a consent judgment of divorce providing

that each party’s interests in the other party’s life insurance policies was terminated by the judgment

of divorce. Id. Relying on Pressley, discussed above, the trial court determined that the ex-wife was

entitled to the proceeds because she was the beneficiary named in the plan documents and the waiver

language contained in the consent judgment of divorce was invalid as preempted by ERISA. Id. at

102. The Court of Appeals reversed, holding that the ex-wife “is not entitled to the proceeds from

the insurance policy and the pension death benefits because she expressly waived any entitlement

in the divorce judgment.” Id. at 101. In so holding, the Moore court explicitly rejected Pressley,

stating as follows:

[T]he federal courts are split on the question whether ERISA preempts an

attempt to explicitly waive a named beneficiary’s rights to an interest in an

ERISA-regulated benefits plan. The United States Court of Appeals for the

Sixth Circuit has held [in Pressley] that a common-law waiver cannot

override the designation of a named beneficiary under ERISA. The trial

court here relied on Pressley to rule in favor of plaintiff. However, Pressley

represents the minority view on this issue. The majority and better view

holds that a person can explicitly waive his rights to ERISA plan benefits

even where he may be the named beneficiary. With respect to questions of

federal law, this Court is not bound by precedent from federal courts except

the United States Supreme Court. However, where the United States

Supreme Court has not resolved an issue, a state court may choose among

conflicting lower federal court decisions, as we do, to adopt the rule it

determines to be most appropriate. 

Id. at 102 (citations and footnote omitted).

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 Lucy urges the Court to find that she is entitled to Oscar’s benefits over Debra as a

matter of law. However, the Court will decline to adjudicate this issue because the proper

defendant, i.e., “the party that is shown to control administration of the plan,” is not before the

Court. 

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Because Moore expressly declined to follow precedent by which this Court is undisputably

bound, it is not controlling. The Court is constrained to follow McMillan and Pressley, both of

which reflect the settled law in this circuit. Accordingly, as a matter of law, Debra’s state law

breach of contract claim is preempted by ERISA.

Having determined that Debra’s state law claim is preempted by ERISA, it is now clear that

any claim for benefits asserted against Lucy is not cognizable. As stated above, “in the Sixth

Circuit, the proper party defendant in an ERISA action concerning benefits is the party that is shown

to control administration of the plan.” Little, 196 F. Supp.2d at 672. See also Daniel, 839 F.2d at

266 (“[u]nless an employer is shown to control administration of a plan, it is not a proper party

defendant in an action concerning benefits”). In the present case, Debra does not argue that Lucy

in any way controls the administration of the plan. Therefore, she is not a proper defendant herein.

Because she is the only remaining defendant, this action will be dismissed.1

Finally, Lucy requests an award of costs and attorney fees incurred in filing the present

motion on the grounds that Debra unreasonably withheld consent to the relief sought by Lucy. The

request is governed by E.D. Mich. LR 7.1(a)(3), which states that “[t]he court may tax costs for

unreasonable withholding of consent” (emphasis added). Lucy contends that Debra’s withholding

of consent was unreasonable because Debra “did not submit any contract as she was required to do

in alleging breach of contract.” However, the failure of Debra’s claim against Lucy does not stem

from Debra’s failure to submit a contract; rather, it stems from the fact that the claim is preempted

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by ERISA. In any case, the Court finds, in its discretion, that Debra’s withholding of consent was

not unreasonable and, accordingly, will deny Lucy’s request for costs and attorney fees.

IV. ORDER

For the reasons stated above, 

IT IS ORDERED that Lucy’s Motion for Summary Judgment [docket entry 11] is granted.

IT IS FURTHER ORDERED that Lucy’s request for costs and attorney fees is denied.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: October 30, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

October 30, 2009.

s/Denise Goodine 

Case Manager

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