956 F.2d 126 (7th Cir. 1992), 91-1809, Pohl v. National Benefits Consultants, Inc.

Docket Nº:91-1809, 91-1810.
Citation:956 F.2d 126
Party Name:Rosalie POHL, Steve Pohl, Peter Kellner, and Linda Kellner, Plaintiffs-Appellants, v. NATIONAL BENEFITS CONSULTANTS, INC., Defendant-Appellee.
Case Date:January 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 126

956 F.2d 126 (7th Cir. 1992)

Rosalie POHL, Steve Pohl, Peter Kellner, and Linda Kellner,

Plaintiffs-Appellants,

v.

NATIONAL BENEFITS CONSULTANTS, INC., Defendant-Appellee.

Nos. 91-1809, 91-1810.

United States Court of Appeals, Seventh Circuit

January 31, 1992

Argued Oct. 18, 1991.

Page 127

Vincent R. Petrucelli, Joseph C. Sartorelli (argued), Petrucelli & Petrucelli, Iron River, Mich., for plaintiffs-appellants.

Richard P. Carr, Kathleen Donius (argued), Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, Wis., for defendant-appellee.

Before POSNER, FLAUM and KANNE, Circuit Judges.

POSNER, Circuit Judge.

This is a consolidated appeal from orders dismissing two virtually identical suits; to simplify discussion we shall discuss only one of them, that of Mr. and Mrs. Pohl. Mr. Pohl is an employee of a business that has a health insurance plan administered by the defendant, National Business Consultants, Inc. (NBC), and governed by ERISA (Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.). The Pohls' minor daughter developed a psychiatric illness. Her doctor advised a course of treatment in a hospital. An employee of NBC told Mrs. Pohl that the plan would cover 80 percent of the costs of the treatment, but in fact the plan limited payment for this type of treatment to $10,000. The Pohls say that had they known of this limitation they would not have consented to the treatment. But thinking it was covered they did consent, their daughter underwent the treatment, and they were billed $19,000 and had to borrow money to pay the bill, incurring an interest expense. They brought this suit in state court originally, seeking common law damages for what is best described as negligent misrepresentation. Ollerman v. O'Rourke Co., 94 Wis.2d 17, 44-47, 288 N.W.2d 95, 108-09 (1980); Greycas, Inc. v. Proud, 826 F.2d 1560, 1564 (7th Cir.1987). The defendant removed the case to federal court under ERISA. The court entered judgment for the defendant on the ground that ERISA preempted the plaintiffs' common law claims while providing no remedy of its own for the alleged wrongdoing, thus leaving the plaintiffs remediless.

ERISA "shall supersede 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 knocks out any effort to use state law, including state common law, to obtain benefits under such a...

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