UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wayne E. Hopper,

Plaintiff

v. Civil No. 06-cv-10-SM

Opinion No. 2007 DNH 016

Standard Insurance Company;

William Gallagher Associates;

and Cubic Wafer, Inc.,

Defendants

O R D E R

Wayne Hopper brings this suit against Standard Insurance

Company (“Standard”), William Gallagher Associates (“WGA”), and

Cubic Wafer, Inc. (“Cubic Wafer” or “the Company”), formerly

known as Xanoptix, Inc., claiming that he relied, to his

detriment, upon incorrect representations made by the defendants

regarding Cubic Wafer’s group disability insurance plan. Hopper

also alleges that Cubic Wafer violated his rights under the

Americans with Disabilities Act (“ADA”).

Defendant Cubic Wafer answered and cross-claimed against

Standard and WGA (document no. 17). Specifically, against WGA,

Cubic Wafer claims breach of fiduciary duty (Count I), negligence

(Count II), negligent misrepresentation (Count III), and

promissory estoppel (Count IV). Cubic Wafer also seeks

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indemnification (Count V) and contribution (Count VI) from WGA in

the event it is held liable to Hopper. Against Standard, Cubic

Wafer asserts negligence (Count VII), negligent misrepresentation

(Count VIII), promissory estoppel (Count IX), indemnification

(Count X), and contribution (Count XI).

Cross-claim Defendants Standard and WGA move to dismiss

cross-claim Counts I through XI. For the reasons set forth

below, Standard’s motion is granted and WGA’s motion is denied.

STANDARD OF REVIEW

FED. R. CIV. P. 12(b)(6) permits a court to dismiss a claim

when the plaintiff “fail[s] to state a claim upon which relief

can be granted.” Under this rule, the court must conduct a

limited inquiry, focused not on “whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims.” Scheuer v. Rhodes, 416 U.S.

232, 236 (1974). When reviewing a motion to dismiss, the court

must accept all facts pleaded in the complaint as true and any

inferences must be drawn in the light most favorable to the

plaintiff. See, e.g., Citibank v. Grupo Cupey, Inc., 382 F.3d

29, 31 (1st Cir. 2004) (quoting TAG/ICIB Servs., Inc. v. Pan Am.

Grain Co., 215 F.3d 172, 175 (1st Cir. 2000)). The court may,

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however, “reject claims that are made in the complaint if they

are ‘bald assertions’ or ‘unsupportable conclusions.’” United

States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220,

224 (1st Cir. 2004) (quoting Arruda v. Sears, Roebuck & Co., 310

F.3d 13, 18 (1st Cir. 2002)). “A district court may grant a

12(b)(6) motion to dismiss for failure to state a claim upon

which relief can be granted only if ‘it clearly appears,

according to the facts alleged, that the plaintiff cannot recover

on any viable theory.’” Pomerleau v. W. Springfield Pub. Sch.,

362 F.3d 143, 145 (1st Cir. 2004) (quoting Correa-Martinez v.

Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)).

DISCUSSION

The relevant facts and applicable legal framework are

described in the court’s contemporaneous order (document no. 42)

granting Standard’s and granting in part WGA’s Motions to

Dismiss. 

I. Breach of Fiduciary Duty.

Count I of Cubic Wafer’s cross-claims alleges that WGA owed

Cubic Wafer a fiduciary duty to properly advise the Company with

regard to the scope of insurance and employee benefit products

and services sold by WGA. Because WGA is not an ERISA entity,

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see Hampers v. W.R. Grace & Co., Inc., 202 F.3d 44, 53 (1st Cir.

2000) (citing Stetson v. PFL Ins. Co., 16 F. Supp. 2d 28, 33 (D.

Me. 1998)) (explaining that the “primary ERISA entities are the

employer, the plan, the plan fiduciaries, and the beneficiaries

of the plan”), and because WGA played no role in administering

plan benefits provided under Standard’s insurance policy, any

fiduciary duty WGA allegedly owed Cubic Wafer arose, if at all,

independently of the ERISA plan. The claim is therefore not

sufficiently “related” to an ERISA plan to justify preemption,

and, accordingly, WGA’s motion to dismiss Count I is denied.

II. Negligence and Negligent Misrepresentation.

Counts VII and VIII of Cubic Waver’s cross-complaint allege

that Standard negligently misrepresented the scope of disability

insurance coverage available under Standard’s policy. Counts II

and III assert the same against WGA.

As against Standard, both counts “relate to” the ERISA plan,

since adjudication of those claims necessarily requires

comparison of the representations made to Cubic Wafer with the

coverage provided under the plan. See Carlo v. Reed Rolled

Thread Die Co., 49 F.3d 790, 794-95 (1st Cir. 1995) (claims that

required review of an ERISA-governed plan were preempted). 

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Accordingly, Cubic Wafer’s negligence claims against Standard are

preempted by ERISA and Standard’s motion to dismiss is granted.

Cubic Wafer’s negligence and negligent misrepresentation

claims against WGA, however, are different. As discussed in the

contemporaneous order (document no. 42), WGA’s role was that of

“a seller of insurance, not as an administrator of an employee

benefits plan.” Woodworker’s Supply, Inc. v. Principal Mut. Life

Ins. Co., 170 F.3d 985, 991 (10th Cir. 1999). Because claims

relating to the sale and marketing of benefit plans are

traditionally not preempted by ERISA, see Hampers, 202 F.3d at 53

(citing cases), Cubic Wafer’s negligence and negligent

misrepresentation cross-claims against WGA are not preempted by

ERISA. WGA’s motion to dismiss Counts II and III is denied.

III. Promissory Estoppel, Indemnification, and Contribution.

Counts IV and IX, against WGA and Standard, respectively,

seek to enforce the promised insurance coverage upon which Cubic

Wafer and Hopper allegedly relied. Counts V and X seek

indemnification from WGA and Standard, respectively, and Counts

VI and XI seek contribution from WGA and Standard, respectively.

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As against Standard, all three claims are dismissed. In

denying benefits to Hopper, Standard plainly acted in its

capacity as an ERISA entity, determining benefit eligibility. 

Moreover, like the negligence claims, Cubic Wafer’s promissory

estoppel, indemnification, and contribution claims are

sufficiently related to the ERISA-governed benefits plan that

adjudication of those claims would require the court to review

and construe the plan. To allow Cubic Wafer to recover from

Standard would essentially provide an “‘alternative enforcement

mechanism[]’ to ERISA’s enforcement regime,” Hampers, 202 F.3d at

51 (quoting N.Y. State Conference of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co., 514 U.S. 645, 646 (1995)), which is

the very sort of redress that the ERISA preemption clause seeks

to eliminate. See Travelers, 514 U.S. at 646. Cubic Wafer’s

claims against Standard all seek, substantively, some form of

relief defined by coverage (benefits) claimed to be owed Hopper

under the plan, or the plan as described. Accordingly, Cubic

Wafer’s promissory estoppel, indemnification, and contribution

claims are preempted, and Standard’s motion to dismiss is

granted.

As against WGA, Cubic Wafer’s claims remain viable for the

same reasons its negligence and breach of fiduciary duty claims

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remain viable. The conduct about which Cubic Wafer complains

relates only to the sale of benefit plans and insurance policies. 

WGA played no role in the administration of the benefit plan and

did not determine coverage eligibility for plan participants. As

noted above, that type of conduct is not sufficiently “related”

to the ERISA plan to justify preemption of claims arising from

such conduct. Accordingly, WGA’s motion to dismiss Counts IV, V,

and VI is denied.

CONCLUSION

For the foregoing reasons, Defendant Standard Insurance

Company’s Motion to Dismiss Cubic Wafer’s Cross-Claims (document

no. 22) is granted as to all claims asserted against it. 

Defendant William Gallagher Associates’s Motion to Dismiss Cubic

Wafer’s Cross-Claims (document no. 34) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 7, 2007

cc: Edwinna C. Vanderzanden, Esq.

Byrne J. Decker, Esq.

William D. Pandolph, Esq.

Charles P. Bauer, Esq.

Stephen A. Duggan, Esq.

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