Porter v. Buckeye Cellulose Corp.

Decision Date11 January 1989
Docket NumberNo. 77398,77398
Citation377 S.E.2d 901,189 Ga.App. 818
CourtGeorgia Court of Appeals

James N. Finkelstein, Albany, for appellant.

John G. Skinner, Dan T. Carter, Atlanta, for appellee.


William Morgan Porter brought suit against Buckeye Cellulose Corporation for wrongful discharge from employment and wrongful failure to pay disability benefits. The trial court granted Buckeye's motion for summary judgment and Porter appeals.

The record reveals that appellant was employed by appellee, a subsidiary of the Procter & Gamble Company, from December 3, 1979, until his discharge on July 3, 1986. Appellant was not employed pursuant to a written employment contract or a contract for a definite term. Appellant was a participant in the Procter & Gamble Disability Benefit Plan (the Plan), an employee benefit plan funded by employee contributions and administered by a Board of Trustees (the Trustees) appointed pursuant to Plan provisions. On December 5, 1985, appellant was injured in an automobile accident not related to his job and was unable to work for some period of time thereafter. Appellant applied for and received Plan disability benefits for the period of December 5, 1985 through March 30, 1986, but his request for benefits from that time until the date of his discharge was denied by the Trustees on the ground that he was not totally disabled after March 30th. He was terminated by appellee for "excessive absenteeism" and failure to return to work after prior notice.

1. Appellant contends the trial court erred by granting summary judgment to appellee on his state law claim for wrongful discharge because material fact questions remain as to whether appellant was discharged without cause in violation of an oral contract of employment or was discharged because he applied for disability benefits.

"An indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination. [Cits.]" Meeks v. Pfizer, Inc., 166 Ga.App. 815, 816, 305 S.E.2d 497 (1983); see OCGA § 34-7-1. Appellant does not allege that his employment with appellee was for a definite period. Even assuming, without deciding, that appellant's allegations that statements of his supervisors or the Buckeye employee manual created a contract of employment are correct, he has produced no evidence that such a contract established a definite period of employment. Thus, as a matter of law appellant's employment was terminable at will, and appellee could discharge him with or without cause and regardless of motive, Bendix Corp. v. Flowers, 174 Ga.App. 620, 330 S.E.2d 769 (1985), and accordingly summary judgment was properly granted to appellee on this claim.

2. Appellant also enumerates as error the trial court's grant of summary judgment to appellee on claims raised in his original and amended complaints concerning alleged violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Appellant argues the trial court erroneously concluded it lacked subject matter jurisdiction to entertain appellant's ERISA claims because ERISA preempts any state law action.

(a) Liberally construed, appellant's original complaint states a claim against appellee for failure to pay Plan disability benefits. The parties agree the Plan is covered by ERISA, and therefore, we must determine whether the claim for denial of benefits is preempted by ERISA, and if so whether the trial court retained concurrent jurisdiction.

With the exception of four narrow exclusions not relevant to this action, Congress has mandated that 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); Whitaker v. Texaco, Inc., 566 F.Supp. 745, 748 (N.D.Ga.1983). "The term 'State law' includes all laws, decisions, rules, regulations, or other State action having the effect of law," 29 U.S.C. § 1144(c)(1), and any state law having "a connection with or a reference to" an employee benefit plan covered by ERISA is preempted. Shaw v. Delta Air Lines, 463 U.S. 85, 97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Federal district courts have exclusive jurisdiction over all ERISA claims except those brought by a plan participant or beneficiary "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); see 29 U.S.C. § 1132(e)(1).

Appellant seeks to recover disability benefits he contends were due pursuant to the Plan provisions but wrongfully denied by appellee. This claim clearly relates to an employee benefit plan and thus is preempted by ERISA. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Belasco v. W.K.P. Wilson & Sons, 833 F.2d 277 (11th Cir.1987). However, concurrent jurisdiction for state courts is expressly retained for actions to recover plan benefits, 29 U.S.C. § 1132(a)(1)(B); § 1132(e)(1), and accordingly the trial court erred by concluding it had no subject matter jurisdiction over appellant's claim to recover disability benefits. See Bittner v. Sadoff, etc., Indus., 728 F.2d 820, 825 (7th Cir.1984).

Nonetheless, the trial court also found that appellee was not a proper party to an action to recover disability benefits because appellee was neither a party to nor a fiduciary of the Plan. The undisputed evidence reveals that appellant's request for benefits was denied by the Trustees, and appellee is not a Trustee under the Plan. There is no evidence appellee had any responsibility for or control over the Trustees' decision. Consequently, summary judgment in favor of appellee on this claim was proper because it made a prima facie showing of entitlement to judgment unrebutted by appellant, see Leonaitis v. State Farm, etc., Ins. Co., 186 Ga.App. 854, 856, 368 S.E.2d 775 (1988), and a correct trial court judgment will not be reversed regardless of the reasoning employed. Coren v. Puritan Ins. Co., 184 Ga.App. 667, 669(1), 362 S.E.2d 380 (1987).

(b) The original complaint included only the claims for wrongful discharge and failure to pay disability benefits. Appellant later amended his complaint to assert claims against the Trustees for breach of Plan obligations by failing to pay benefits, wrongful discharge in violation of Plan rights, and breach of fiduciary duties, all of which were based on ERISA. Although appellee observes in its brief before this court that the amendment did not expressly include appellee as a defendant, appellee did move for summary judgment on the claims alleged in the amended complaint, and evidence was presented relating to those issues. The trial court apparently construed the complaint as amended to add the additional claims against appellee, which it was authorized to do pursuant to OCGA § 9-11-15(b), and as a result "the pleadings are deemed amended to conform to the evidence presented...." DeLoach v. Foremost Ins. Co., 147 Ga.App. 124, 125(1A), 248 S.E.2d 193 (1978). Accordingly, we must determine whether the trial court properly granted summary judgment to appellee on those claims.

We do agree with appellee that the trial court did not have subject matter jurisdiction over the remaining ERISA claims asserted by appellant which are applicable to appellee. The allegation that appellant was unlawfully discharged "for exercising his rights pursuant to the plan" falls squarely within the parameters of 29 U.S.C. § 1140, which proscribes discharge of a plan participant "for exercising any right to which he is entitled under the provisions of an employee benefit plan," and thus is preempted by ERISA. 29 U.S.C. § 1144(a); see Kelly v. IBM Corp., 573 F.Supp. 366, 370-371 (E.D.Pa.1983), aff'd mem., 746 F.2d 1467 (3rd Cir.1984); Johnson v. Transworld Airlines, 149 Cal.App.3d 518, 196 Cal.Rptr. 896, 900-902 (1983); Witkowski v. St. Anne's Hosp., 113 Ill.App.3d 745, 69 Ill.Dec. 581, 584-585, 447 N.E.2d 1016, 1019-1020 (1983). Unlike appellant's claim for recovery of plan benefits, this unlawful discharge claim arises under 29 U.S.C. § 1132(a)(3), and consequently does not fall within the category of claims for which concurrent jurisdiction is authorized. See 29 U.S.C. § 1132(a)(1)(B); § 1132(a)(3); § 1132(e)(1); see also Johnson, supra 196 Cal.Rptr. at 904; Witkowski, supra 69 Ill.Dec. at 585-586, 447 N.E.2d at 1020-1021; see generally Kross v. Western Elec. Co., 534 F.Supp. 251, 252-254 (N.D.Ill.1982). Similarly, the breach of fiduciary duty claim is preempted by 29 U.S.C. § 1109, which imposes personal liability upon plan fiduciaries for breach of "any of the responsibilities, obligations, or duties imposed upon fiduciaries by [ERISA]," see Iron Workers Local v. Bowen, 624 F.2d 1255, 1259 (5th Cir.1980); Thomas v. Best, 482 N.Y.S.2d 368, 371, 104 A.D.2d 37 (1984), and federal courts have exclusive jurisdiction because such a claim falls within Section 1132(a)(3) of Title 29 rather than within Section 1132(a)(1)(B). See Thomas, supra.

However, though the trial court was correct in concluding that it had no subject matter jurisdiction, the court was incorrect insofar as the judgment was styled as a grant of summary judgment rather than a grant of a motion to dismiss. Although this point was not raised by either party, we are constrained to note that a motion for summary judgment is designed to test the merits of a cause of action and cannot be granted on a matter in abatement. C.W. Matthews, etc., Co. v. Capital Ford, 149 Ga.App. 354, 357, 254 S.E.2d 426 (1979). Because subject matter jurisdiction is such a matter, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974), it must be resolved on a motion pursuant to OCGA § 9-11-12(b), not by a ...

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