Burgos v. Group & Pension Administrators, Inc.

• Citation: 286 F.Supp.2d 812
• Decision Date: 13 August 2003
• Docket Number: No. CIV.A.H-03-0989.,CIV.A.H-03-0989.
• Parties: Maria Fe BURGOS, Plaintiff, v. GROUP & PENSION ADMINISTRATORS, INC., Tex-Trude, L.P., and Tex-Trude, Inc. Employee Benefit Plan, Defendants.
• Court: U.S. District Court — Southern District of Texas

Page 812

286 F.Supp.2d 812

Maria Fe BURGOS, Plaintiff, v. GROUP & PENSION ADMINISTRATORS, INC., Tex-Trude, L.P., and Tex-Trude, Inc. Employee Benefit Plan, Defendants.

No. CIV.A.H-03-0989.

United States District Court, S.D. Texas, Houston Division.

August 13, 2003.

Ivar Nelson Heggen, Attorney at Law, Steven A. Wisch, Attorney at Law, Houston, TX, for Maria Fe Burgos, plaintiff.

Dean J. Schaner, Haynes & Boone, Houston, TX, for Group & Pension Administrators Inc, Tex-Trude LP, Tex-Trude Inc Employee Benefit Plan, defendants.

MEMORANDUM AND OPINION

ROSENTHAL, District Judge.

Maria Burgos alleges that after she had surgery, Group & Pension Administrators, Inc., ("GPA"), Tex-Trude, L.P., and Tex-Trude, Inc. Employee Benefit Plan (collectively "Tex-Trude") wrongfully denied her benefits under a medical care plan. Burgos asserts state law statutory causes of action under the Texas Insurance Code, art. 21.21 §§ 4-16 and 21.21-2; the Texas Deceptive Trade Practices Act, ("DTPA"), TEX. BUS. & COMM. CODE §§ 17.46, 17.50; and common law causes of action including negligence, negligence per se, intentional infliction of emotional distress, breach of the duty of good faith and fair dealing, and breach of contract. (Docket Entry No. 20, ¶¶ 27-31). Burgos seeks actual and punitive damages and statutory penalties. Burgos alternatively alleges a right to recover benefits under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. (2001). (Id. at ¶¶ 32-45).¹ Defendants have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the state common law and statutory claims, asserting ERISA preemption. (Docket Entry No. 24).

This court has carefully considered the pleadings; the motions and briefs; the parties' submissions; the record; and the applicable law. Based on that review, for the reasons set out below, this court GRANTS the motion to dismiss the state law claims.

I. Background

Burgos's former employer, Tex-Trude, L.P., provided health insurance through the Tex-Trude, Inc. Employee Benefit Plan (the "Plan"). Burgos, a native of Mexico, speaks little English and cannot read or write English. She asserts that Tex-Trude employed a high percentage of other workers illiterate in English but fluent in Spanish. In this suit, Burgos alleges that Tex-Trude and the Plan did not adequately inform her or other Spanish-speaking employees of rights and obligations under ERISA; did not provide a summary plan description, ("SPD"), in Spanish; and did not provide a Spanish-speaking employee or representative to explain the rights and obligations under the Plan. (Docket Entry No. 20, ¶¶ 13, 16).

In 2001, Burgos's doctors advised her to have a bladder suspension procedure, which required an extended leave of absence from work. On December 12, 2001, Burgos notified Tex-Trude that she needed the procedure and asked for the time off. As of December 12, 2001, the last day Burgos worked before the procedure, Burgos had paid her insurance premiums in full. Tex-Trude allowed Burgos to take the leave of absence. Burgos alleges that although her family members asked Tex-Trude for help in understanding the rights, duties, and obligations under her insurance plan in Spanish, Tex-Trude refused such requests.

Burgos alleges that Tex-Trude and GPA notified her health care providers on April 22, 2002 that the Plan did not cover the bladder suspension procedure she had undergone in December 2001 or any related medical care, and that her insurance had been cancelled retroactively to December 1, 2001. When she returned to work in March 2002, her insurance was reinstated, but the bladder suspension treatments and other previously covered medical conditions were excluded as preexisting conditions. Burgos sued GPA and Tex-Trude, L.P. in Texas State Court, 234th Judicial District, Harris County, on February 13, 2003. Defendants timely removed.

Burgos alleges that she is entitled to recover benefits in the amount of $20,000.00. She alleges that her health insurance was wrongfully terminated and that she was fired in whole or in part in retaliation for filing suit. As an alternative to the state law statutory and common law claims,² she alleges the following specific claims under ERISA: violation of DOL Reg. § 2520.102-2(c), which requires disclosure of ERISA rights in a language other than English if a certain percentage of the plan participants are literate only in the same non-English language; a claim for benefits under section 502(a)(1)(13); and claims for ERISA discrimination and retaliation under section 510.

Defendants moved to dismiss on the grounds that Burgos did not plead any federal claims and that ERISA preempted the state claims asserted. (Docket Entry No. 6). Burgos submitted an amended complaint on May 9, 2003, adding the ERISA claims to her state law causes of action. Defendants then moved to dismiss the state law claims, again citing ERISA preemption. Burgos filed a second amended complaint on July 7, 2003, adding Tex-Trude, Inc. Employee Benefit Plan as a defendant. Defendants moved again to dismiss the state law claims under Rule 12(b)(6) on July 18, 2003.

II. The Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), this court must liberally construe a complaint in favor of the plaintiff. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). A court may not dismiss under Rule 12(b)(6) "unless 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "In order to avoid dismissal for failure to state a claim, however, a plaintiff must plead specific facts not mere conclusory allegations. We will thus not accept as true conclusory allegations or unwarranted deductions of fact." Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994) (internal citations, quotation marks and ellipses omitted). In considering a motion to dismiss for failure to state a claim, a district court must limit itself to the contents of the pleadings, including certain attachments. FED. R. CIV. P. 12(b)(6). "Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim." Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993); see also Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir.2000); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994); Field v. Trump, 850 F.2d 938, 949 (2d Cir.1988). The SPD attached to defendants' motion to dismiss is appropriately considered in this court's Rule 12(b)(6) analysis.

III. Analysis

A. Tex-Trude Provided an ERISA Plan

ERISA applies to "any employee benefit plan if it is established or maintained by" either an employer or an employee organization. 29 U.S.C. § 1003(a); Meredith v. Time Ins. Co., 980 F.2d 352, 354 (5th Cir.1993). An "employee welfare benefit plan" under ERISA is defined as:

any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer³ or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants⁴ or their beneficiaries⁵, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care benefits, or benefits in the event of sickness, accident, disability, death or unemployment ...

29 U.S.C. § 1002(1). "Whether a particular set of insurance arrangements constitute an `employee welfare benefit plan' is a question of fact." Hansen v. Continental Ins. Co., 940 F.2d 971, 976 (5th Cir.1991) (citing Gahn v. Allstate Life Ins. Co., 926 F.2d 1449, 1451 (5th Cir.1991)). In determining whether a particular plan qualifies as an "employee welfare benefit plan," the court must decide (1) whether a plan exists, (2) whether the plan falls within the safe-harbor provision established by the Department of Labor, and (3) whether the plan satisfies the primary elements of an ERISA plan. See Meredith, 980 F.2d at 355; Salameh v. Provident Life & Accident Ins. Co., 23 F.Supp.2d 704, 710 (S.D.Tex.1998). Both requirements are met in this case. Because the SPD states that Tex-Trude, L.P. contributes to the plan, the safe-harbor requirements are not met and the plan does not fall within the provision. (Docket Entry No. 1, Ex. 1, p. 4); see Hansen, 940 F.2d at 977 (holding that informational pamphlet containing employer's name distributed to employees indicated employer endorsement of the plan).

The primary elements of an ERISA plan are present when an employer establishes or maintains a plan with the intent to benefit employees. See Meredith, 980 F.2d at 355-56; Cristantielli v. Kaiser Found. Health Plan of Texas, 113 F.Supp.2d 1055, 1059 (N.D.Tex.2000). Tex-Trude, L.P., the employer, is the plan fiduciary and Tex-Trude makes contributions on behalf of its employees. (Docket Entry No. 1, Ex. 1, p. 4); see Hansen, 940 F.2d at 978 (holding that requisite intent indicated by plan pamphlet bearing corporate name and logo).

The record establishes that, as a matter of law, Tex-Trude's Plan is a self-funded employee welfare benefit plan subject to ERISA. (Docket Entry No. 1, Ex. 1., pp. 3, 6).

B. ERISA Preemption

ERISA preempts state laws in two ways. "Complete preemption" occurs where a state claim seeks the type of relief provided through section 502(a), ERISA's exclusive civil enforcement provision. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Section 502(a)(1)(B) provides that a participant in or beneficiary of an employee benefit plan subject to ERISA may bring a civil action to recover benefits due under the plan, to enforce rights under the plan, or to clarify rights to future benefits under the plan. 29 U.S.C. §...