Crum v. Health Alliance-Midwest, Inc.

• Citation: 47 F.Supp.2d 1013
• Decision Date: 06 May 1999
• Docket Number: No. 98-CV-2241.,98-CV-2241.
• Parties: Kelly A. CRUM, as administrator, of the Estate of Gary L. Crum, Deceased, and Kelly A. Crum, individually, Plaintiff, v. HEALTH ALLIANCE-MIDWEST, INC., Defendant.
• Court: U.S. District Court — Central District of Illinois

47 F.Supp.2d 1013

Kelly A. CRUM, as administrator, of the Estate of Gary L. Crum, Deceased, and Kelly A. Crum, individually, Plaintiff, v. HEALTH ALLIANCE-MIDWEST, INC., Defendant.

No. 98-CV-2241.

United States District Court, C.D. Illinois, Danville/Urbana Division.

May 6, 1999.

COPYRIGHT MATERIAL OMITTED

David A. Tuggle, Tuggle & Schiro, Danville, IL, for plaintiff.

David L. Drake, Drake, Narup & Mead, P.C., Springfield, IL, for defendant.

ORDER

McCUSKEY, District Judge.

On September 3, 1998, Plaintiff, Kelly A. Crum, individually and as administrator of the Estate of Gary L. Crum, filed a nine-count Complaint against Defendant, Health Alliance-Midwest, Inc., in the circuit court of Vermilion County. On October 13, 1998, Defendant filed a Notice of Removal (# 1) to this court. Defendant argued that the action was removable because Plaintiff's claims were completely preempted by the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §§ 1001 et seq.). Also on October 13, 1998, Defendant filed a Motion to Dismiss (# 3) Plaintiff's Complaint and a supporting Memorandum of Law (# 4). On November 13, 1998, Plaintiff filed an Objection to Removal and Motion to Remand or, in the Alternative, Motion for Leave to Amend the Complaint and Motion to Remand (# 6). Defendant filed a Response (# 7) and Memorandum of Law (# 8) on November 30, 1998. On December 23, 1998, the Magistrate Judge filed a Report and Recommendation (# 9) recommending that Defendant's Motion to Dismiss (# 3) be granted and Plaintiff's Motion (# 6) be denied. On January 11, 1999, Plaintiff filed an Objection to the Report and Recommendation (# 10). This court agrees with Plaintiff's Objection. Accordingly, Plaintiff's alternative Motion for Leave to Amend the Complaint and Motion to Remand (# 6) is GRANTED. Therefore, Defendant's Motion to Dismiss (# 3) is DENIED as moot.

FACTS

In her Complaint, Plaintiff alleged that she was the spouse of the deceased, Gary Crum (Gary). Gary was an insured under a policy of health care insurance provided by Defendant. During the evening hours of December 19, 1996, Gary began experiencing symptoms "including feeling agitated and upset, nausea, and an urgent need, but inability, to vomit." At that time, Gary was 42 years old. According to the Complaint, the terms of the contract of insurance with Defendant required Gary to contact Defendant at a specified telephone number and consult with an advisory nurse prior to seeking medical attention. Plaintiff alleged that the advisory nurses were employees of Defendant or acted as Defendant's agents. Plaintiff alleged that, at approximately 10:50 p.m., she contacted an advisory nurse on Gary's behalf and informed the nurse of Gary's symptoms and the history of heart trouble in Gary's family. Plaintiff told the nurse she wanted to make sure Gary was not having a heart attack. The advisory nurse told Plaintiff that Gary's symptoms were probably due to excess stomach acids and that he should be fine. Plaintiff again telephoned an advisory nurse at approximately 11:34 p.m. Plaintiff informed the nurse of Gary's continued symptoms and also that he was experiencing pain in the middle of his chest. According to Plaintiff's Complaint:

The advisory nurse indicated that GARY L. CRUM should sit at a 40 degree angle, that he should drink some milk and that this would allow the stomach acids to recede and would help with the discomfort, and that he would be fine in the morning, and that he did not need to go to an emergency room.

At 11:55 p.m., Gary's symptoms had not ceased, and Plaintiff decided to drive Gary to a Medical Center. On the way, Gary became unresponsive. Cardiopulmonary resuscitation was performed when Gary arrived at the Medical Center at 12:05 a.m. The efforts were not successful, and Gary was pronounced dead at 12:29 a.m. The cause of death was later determined to be acute myocardial infarction.

In Count I, Plaintiff alleged that Defendant was liable under Illinois' Wrongful Death Act (740 Ill.Comp.Stat. 180/1 et seq. (West 1996)). Specifically, she alleged that Defendant, "by and through its agents and/or employees, was guilty of one or more [of] the following acts and/or omissions:

a. The advisory nurse or nurses undertook to render a medical diagnosis of GARY L. CRUM's condition, even though they were not trained, qualified nor licensed to practice medicine in the State of Illinois;

b. The advisory nurse or nurses rendered medical diagnoses of GARY L. CRUM's condition, even though they were not trained, qualified nor licensed to practice medicine in the State of Illinois; and

c. The advisory nurse or nurses failed to instruct GARY L. CRUM immediately to seek medical attention at a hospital emergency room."

In Count II, Plaintiff alleged a cause of action based upon Illinois' Survival Act (755 Ill.Comp.Stat. 5/27-6 (West 1996)). This court notes, however, that the Survival Act creates no cause of action, but is merely the conduit through which a cause of action is transferred to the estate representative. Owens v. Archer-Daniels-Midland Co., 30 F.Supp.2d 1082, 1083-84 (C.D.Ill.1999). In Count III, Plaintiff alleged that, because of Defendant's negligent acts and omissions, she "was compelled to expend and become liable for large sums of money for medical, hospital, funeral, burial and other expenses." She sought recovery for these expenses pursuant to the Family Expense Act (750 Ill.Comp.Stat. 65/15 (West 1996)).

In Count IV, Plaintiff alleged that Defendant was liable under the Wrongful Death Act for its own negligence in imposing "the requirement that its clients submit to a medical diagnosis by an advisory nurse prior to seeking emergency medical care and treatment." In Counts V and VI, Plaintiff asserted actions pursuant to the Survival Act and the Family Expense Act based upon the allegations set out in Count V. In Counts VII, VIII and XI, Plaintiff alleged that Defendant was liable pursuant to the Wrongful Death Act, the Survival Act and the Family Expense Act based upon Defendant's breach of contract.

Defendant asserted in its Notice of Removal and Motion to Dismiss that all of Plaintiff's claims are completely preempted by ERISA, giving this court jurisdiction over Plaintiff's cause of action. Defendant also argued that, because Plaintiff's Complaint contains no claim for damages authorized by ERISA, Plaintiff's Complaint must be dismissed with prejudice. Plaintiff objected to the removal of her cause of action against Defendant and sought remand to the Illinois court. As noted, the Magistrate Judge agreed with Defendant that the cause of action was completely preempted by ERISA and was removable to this court. The Magistrate Judge also recommended granting Defendant's Motion to Dismiss. In her Objection to the Report and Recommendation, Plaintiff argues only that Counts I through III of her Complaint are not preempted by ERISA. Accordingly, this court accepts the Magistrate Judge's determination that Counts IV through IX of Plaintiff's Complaint are completely preempted by ERISA.

ANALYSIS

I. Removal

This court must determine whether Counts I through III of Plaintiff's Complaint are completely preempted by ERISA and were properly removed to this court. If not, this court lacks subject matter jurisdiction over these Counts of Plaintiff's Complaint and the cause must be remanded to the state court. This court notes that Defendant, the party seeking removal, has the burden of establishing the jurisdiction of the district court. In re Application of County Collector, 96 F.3d 890, 895 (7th Cir.1996); Bromenn Healthcare v. Northwestern Nat'l Life Ins. Co., 806 F.Supp. 799, 803 (C.D.Ill.1992).

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States...." 28 U.S.C. § 1441(a). Whether removal was proper in this case depends upon whether this court has "federal question" jurisdiction under 28 U.S.C. § 1331, which gives federal courts original jurisdiction over cases "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331; Rice v. Panchal, 65 F.3d 637, 639 (7th Cir.1995).

In Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), the Supreme Court held that state law claims which fall under ERISA's § 502(a) civil enforcement provisions (29 U.S.C. § 1132(a)(1)(B)) are completely preempted. Section 502(a)(1)(B) provides that a plan beneficiary may bring suit in federal court "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). Section 502(a) evidences Congress' intent for this section to be the exclusive remedy for rights guaranteed under ERISA. Taylor, 481 U.S. at 65-66, 107 S.Ct. 1542; City of Rockford v. Raymond, 1999 WL 218549, at *1 (N.D.Ill. 1999).

II. Distinction between "complete" preemption and "conflict" preemption

It is important to note that only claims which may be characterized as falling under § 502(a)(1)(B) are completely preempted and may properly be removed to federal court. In fact, the Seventh Circuit has noted that the "complete preemption doctrine" is actually a misnomer because it is not a preemption doctrine but, rather, a federal jurisdiction doctrine. Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1486-87 (7th Cir.1996). Claims may also be preempted under § 514(a) of ERISA, which provides that state law claims which "relate to" matters governed by ERISA are preempted. See 29 U.S.C. § 1144(a). Claims preempted under § 514(a) are not removable to federal court. Jass, 88 F.3d at 1487-88; Raymond, 1999 WL 218549, at *2. Rather, § 514(a) preemption is considered "conflict preemption" and...