Fox v. Metromail of Delaware, Inc.

• Decision Date: 15 March 1996
• Docket Number: No. S-94-379,S-94-379
• Citation: 249 Neb. 610,544 N.W.2d 833
• Parties: Sandra K. FOX, Appellant, v. METROMAIL OF DELAWARE, INC., a Delaware corporation, and R.R. Donnelley & Sons Company, Appellees.
• Court: Nebraska Supreme Court

Page 833

544 N.W.2d 833

249 Neb. 610

Sandra K. FOX, Appellant, v. METROMAIL OF DELAWARE, INC., a Delaware corporation, and R.R. Donnelley & Sons Company, Appellees.

No. S-94-379.

Supreme Court of Nebraska.

March 15, 1996.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. In an appellate court's review of a ruling on a general demurrer, the court is required to accept as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.

2. Demurrer: Pleadings: Appeal and Error. In reviewing a ruling on a general demurrer, an appellate court cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

3. Demurrer: Pleadings. If from the facts stated in the petition it appears that the plaintiff is entitled to any relief, a general demurrer will not lie.

4. Judgments: Demurrer: Appeal and Error. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken.

5. Demurrer: Final Orders: Appeal and Error. The sustaining of a general demurrer, not followed by a judgment of dismissal terminating the litigation, does not constitute a reviewable final order.

6. Federal Acts: Insurance: Actions. The Employee Retirement Income Security Act of 1974 has preempted state law with respect to actions brought to clarify rights to benefits or to enforce rights arising under a plan coming within the purview of the act.

7. Federal Acts: Insurance: Actions: Courts. A participant in, or beneficiary of, a plan regulated under the Employee Retirement Income Security Act of 1974 may seek to enforce her or his benefits and rights thereunder by instituting a civil action in either the state or federal courts.

8. Federal Acts: Insurance: Jurisdiction. Concurrent jurisdiction under the Employee Retirement Income Security Act of 1974 is vested in the state courts only with respect to a civil action commenced by a participant or beneficiary seeking to recover or clarify rights to benefits "under the terms of the plan," or to enforce rights "under the terms of the plan."

9. Demurrer: Pleadings. When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect.

10. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

Appeal from the District Court for Lancaster County: JEFFRE CHEUVRONT, Judge. Affirmed.

Darrell K. Stock, of Snyder & Stock, Lincoln, for appellant.

Richard L. Spangler, Jr., of Woods & Aitken Law Firm, Lincoln, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

LANPHIER, Justice.

Sandra K. Fox, plaintiff-appellant, and her then fiance, Bret E. Fox, allegedly executed change of beneficiary forms at their place of employment, Metromail of Delaware, Inc., naming each other as beneficiary on certain life insurance policies. After their marriage, Bret Fox died and appellant discovered that her spouse's life insurance was still payable to his father. This action was brought in Lancaster County District Court by appellant, claiming that Metromail breached its fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (1994) (specifically, § 1132(a)(1)(B)), by not properly processing the change of beneficiary forms. The insurance was paid into her husband's estate. Appellant paid a portion of the benefits to her father-in-law in return for his disclaiming any interest in the benefits. Appellant claims Metromail's breach of duty under ERISA resulted in her not receiving all of the benefits due her as a result of her husband's death. A demurrer was sustained in the district court on appellant's seventh amended petition. The court dismissed, finding that it did not have subject matter jurisdiction of the action under ERISA. We affirm.

BACKGROUND

Appellant stated in her seventh amended petition:

FIRST CAUSE OF ACTION:

Comes now the plaintiff, Sandra K. Fox, and for her first cause of action against the defendant, alleges as follows:

1. That plaintiff is a resident of Lincoln, Lancaster County, Nebraska; the defendants are Delaware Corporations authorized to do business in the State of Nebraska.

2. That all times pertinent hereto the plaintiff and her late ... husband, Bret E. Fox, were employees of the defendant Metromail and entitled to, and qualified for, all benefits available to other employees in similar employment positions with the defendant. That in the month of January 1991 the defendant offered to its employees a new health and life benefit program which operated under the name "Choices".

3. That the defendant MetroMail [sic], as a benefit for its employees, undertook to act as agent for the employees in the handling and processing of insurance benefits with the insurer of the employees, John Hancock Insurance Company; that the defendant MetroMail [sic] undertook to handle, on behalf [of] the employees, all changes in the employees['] insurance program which were available to the employees and could be made by said employees.

4. That at all times pertinent hereto "Choices" was a duly organized and existing welfare benefit plan as defined by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

5. That the Defendant R.R. Donnelley [ & ] Sons Company is Plan Administrator for "Choices" and that the defendant MetroMail [sic] of Delaware, Inc. is a solely owned subsidiary of R.R. Donnelley [ & ] Sons Company and at all times pertinent hereto acting as an agent, and on behalf of, the R.R. Donnelley [ & ] Sons Company as Plan Administrator.

6. That R.R. Donnelley & Sons Company is a fiduciary as defined by the Employment [sic] Retirement Income Security Act of 1974, 19 [sic] U.S.C. § 1001 et seq. for the following reasons:

A) That R.R. Donnelley & Sons Company designated itself as the Plan Administrator which, pursuant to 29 U.S.C[.] § 1002(14)(A), defines any administrator as a fiduciary, and/or;

B) R.R. Donnelley & Sons Company, through the defendant Metromail of Delaware, Inc. exercised discretionary authority or discretionary control respecting the management of the "Choices" plan, particularly 7. That the plaintiff has exhausted her administrative remedies for the following reasons:

by reason of its employees receiving, handling and processing all paper work regarding changes of benefits and beneficiaries with the employees of Metromail of Delaware, Inc.

A. The defendants['] representatives were made aware of the facts set forth in this petition and refused to take any action;

B. The relevant portions of the "Choices" handbook ... allow the plaintiff to pursue her remedies in Court without proceeding administratively;

C. That any further administrative proceedings would be futile.

8. That in ... November 1990, the plaintiff, then known as Sandra K. Nuss, and her then fiance, Bret E. Fox, as employees of the defendant Metromail of Delaware, Inc. presented themselves at the Human Resources Department for Metromail of Delaware, Inc. and properly and completely filled out new beneficiary cards in relation to the benefits to be paid under the "Choices" Insurance Program and named each other the beneficiary of those benefits; said completed beneficiary cards were delivered to employees of Metromail of Delaware, Inc. who were assigned to the Human Resources Department;

9. That in March of 1991, at the request of the Human Resources Department of Metromail of Delaware, Inc., Sandra K. Nuss and Bret E. Fox again presented themselves at the Human Resources Department and again fully and properly completed new beneficiary cards designating each other as the beneficiary of those benefits to be paid under the "Choices" insurance program, which included the life insurance benefits; that said completed beneficiary cards were delivered and presented to the employees of Metromail of Delaware, Inc. at the Human Resources Department;

10. That Sandra K. Nuss and Bret E. Fox were informed that the employees of the Human Resources Department would take the necessary steps to process such beneficiary cards in a manner which would result in the change of the named beneficiary of their respective benefit programs.

11. That on October 20, 1991, Bret E. Fox died, leaving the plaintiff as his widow.

12. That subsequent to October 20, 1991, the defendant informed the plaintiff that the only beneficiary documentation on file with the company was a beneficiary card, dated prior to 1990, naming Bret E. Fox's father, William E. Fox, as the beneficiary of the life insurance benefits provided by John Hancock Insurance Company, the insurer for the Choices program.

13. That there was payable under the applicable life insurance benefit to their employee Bret E. Fox, a life insurance benefit of Seventy-four Thousand Dollars ($74,000.00).

14. That William E. Fox disclaimed his interest in the aforementioned life insurance benefits but, in consideration of said disclaimer, the plaintiff was required to agree to pay a total of Twenty-four Thousand and No/100 ($24,000.00) of said benefits to William E. Fox and two other members of Bret E. Fox's family ...; that plaintiff received the remaining life insurance proceeds.

15. That the defendants breached, through the actions of [their] employees, their fiduciary duty of care pursuant to the Employment [sic] [Retirement] Income Security Act of 1974, 19[sic] U.S.C[.] § 1001 et seq. to process the insurance benefit program of the employee Bret E. Fox in losing or failing to properly process the beneficiary cards completed by ...