Quaresma v. Bc Life & Health Ins. Co.
| Decision Date | 26 October 2007 |
| Docket Number | No. CV-F-07-323 OWW/NEW.,CV-F-07-323 OWW/NEW. |
| Citation | 623 F.Supp.2d 1110 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Maria QUARESMA, an individual and Successor in Interest of Leonel DaRosa, a deceased individual, and Marshal S. Flam, M.D., an individual, Plaintiffs, v. BC LIFE & HEALTH INSURANCE COMPANY, a corporation, and Does 1 through 10, inclusive, Defendants. |
Mary F. Lerner, Campagne and Campagne, Sanger, CA, Thomas Elmer Campagne, Thomas E. Campagne & Associates, Travis Ray Stokes, Campagne & Campagne, Fresno, CA, for Plaintiffs.
Erica S. Arouesty, Ronald R. Odom, Blue Cross of California, Legal Department, Woodland Hills, CA, for Defendants.
Before the Court are Plaintiffs' motion to remand and Defendant's motion to dismiss the First Amended Complaint.
On January 30, 2007, Plaintiffs Maria Quaresma, an individual and successor in interest of Leonel DaRosa, a deceased individual, and Marshal S. Flam, M.D., filed a Complaint in the Fresno County Superior Court. Defendants are BC Life & Health Insurance Company and Does 1-10. The Complaint alleged seventeen causes of action.1 In pertinent part, the Complaint alleged:
IV. STATE COURT HAS `CONCURRENT' JURISDICTION
28. Section 1132(a)(1)(B) of Title 29, U.S.Code, Labor, read, `(a) A civil action may be brought—(1) by a participant or beneficiary—(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan . . .' In this regard, subsection (e) of section 1132 of Title 29, U.S.Code, Labor, adds, `State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section (1132).' [emphasis added.]
29. As such, because participant DaRosa's successor-in-interest Maria Quaresma and third-party beneficiary Dr. Flam bring the present civil action in order to recover benefits due them under the terms of DaRosa's plan with BC Life and/or to enforce their rights under the terms of DaRosa's insurance policy with BC Life, the Superior Court of California, County of Fresno, has concurrent jurisdiction over this action.
V. FEDERAL LAW CLAIMS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)
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31. As alleged above, DaRosa and BC Life entered into a contract of insurance, whereby BC Life agreed to provide DaRosa with health insurance in consideration for DaRosa paying premiums.
32. Throughout the period of said insurance policy, DaRosa regularly paid premiums when due and performed each act, obligation and/or condition on his part to be performed under the parties' agreements and policy of insurance to keep the policy in full force and effect. DaRosa intended and expected thereby to receive the health insurance he had contracted to receive. Notwithstanding BC Life's obligation to do so, BC Life has failed and refused, and continues to fail and refuse, to perform its obligations as agreed and as set forth in the policy of insurance. Despite DaRosa's demands, BC Life has failed and refused to approve coverage for treatment, which is part of the health insurance policy. Such failure and refusal constitutes a material breach of the contract requested by the insurance policy as well as the covenant of good faith and fair dealing implied into the insurance contract by law.
33. Also, implied within the above-described contract (insurance policy) entered into with DaRosa, BC Life further agreed (as a matter of implication by law) to act in good faith and to deal fairly with DaRosa in carrying out its responsibilities under the agreement and policy of insurance. Upon entering into the agreement and policy of insurance, and accepting premiums from DaRosa, BC Life agreed to provide DaRosa with health insurance. Implicit in BC Life's obligations to act fairly and in good faith toward DaRosa was its duty to timely and properly reconsider its denial of DaRosa's claim upon receiving DaRosa's valid appeal with supporting documents and/or consulting with DaRosa's physicians.
34. BC Life breached its express obligations under the policy and breached its implied obligations and duties to act fairly and in good faith toward DaRosa by failing to timely and properly reconsider its denial of DaRosa's claim upon receiving DaRosa's valid appeal with supporting documents and/or failing to consult DaRosa's physicians.
35. BC Life also breached its duties in light of the fact that California law is clear that an insurance company cannot deny the use of a particular drug treatment when the following criteria are satisfied: (a) the drug is approved by the federal Food and Drug Administration (`FDA'); (b) the drug is prescribed by a participating licensed health care professional for the treatment of a lifethreatening condition; and (c) the drug has been recognized for treatment of that condition by two articles from major peer reviewed medical journals that present data supporting the proposed off-label use or uses as generally safe and effective unless there is clear and convincing contradictory evidence presented in a major peer reviewed medical journal. (See, Cal. Health & Safety Code § 1367.21; and Cal. Ins.Code § 10123.195.) Here, Alimta has been approved by the FDA, Alimta was prescribed by Dr. Flam (a participating licensed health care professional), Alimta was prescribed for DaRosa's life-threatening cancer condition, Alimta has been recognized for treatment of medical conditions such as DaRosa's by at least two articles from major peer reviewed medical journals that present data supporting the proposed off-label use of Alimta as generally safe and effective, and there is no clear and convincing contradictory evidence presented in a major reviewed [sic] medical journal regarding the fact that Alimta should not be used to treat medical conditions such as DaRosa's.
[Emphasis deleted].
36. Applicable federal law, namely the Employee Retirement Income Security Act of 1974, as amended (hereinafter `ERISA') provides that this civil action may be brought against these defendants. (See, ERISA Section 502(a)(1)(B); Title 29 U.S.Code § 1132(a)(1)(B).) Said provision provides in pertinent part as follows; [sic] `... (a) A civil action may be brought— (1) by a participant of [sic] beneficiary—(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of his plan or to clarify his rights to future benefits under the terms of the plan ...'
37. As a direct and proximate result of BC Life's breach of its express and implied contractual duties and obligations, DaRosa was deprived of the benefits of the insurance coverage for which he paid substantial premiums, and suffered damages that exceed the jurisdictional minimum of the Superior Court, in an amount that will be determined at trial. DaRosa's damages include attorneys' fees and costs necessarily incurred in bringing the instant lawsuit to require BC Life to perform its obligations under the contract of insurance at issue. Applicable federal law specifically allows for the award of attorneys' fees under subsection (g) of section 1132 of Title 29, U.S.Code (ERISA): [`(1) In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.'].
On February 27, 2007, Blue Cross of California, contending that it was erroneously sued as BC Life & Health Insurance Company, removed the Complaint to this Court. The Notice of Removal asserts in pertinent part:
5. The District Court of the United States, Eastern District of California has original jurisdiction under 29 U.S.C. Section 1132(e)(1) and 28 U.S.C. § 1331 and the Action is one that may be removed to this Court by Defendant pursuant to 28 U.S.C. Section 1441(a)(b) and (c), for the following reasons:
(a) Plaintiffs allege that in or about November 2005, Blue Cross denied payment for the use of Alimta to treat decedent Leonel DaRosa's (`Decedent') cancer, and, in or about August 2006, denied payment for the use of Avastin to treat Decedent's cancer, contending that both treatments were investigational and, therefore, excluded from coverage by the health plan issued by Blue Cross.
(b) The health plan issued to Decedent on which plaintiff's [sic] claim is based was a group health policy issued to the Decedent's employer, Contente Dairy, and constitutes an employee welfare benefit plan within the meaning of 29 U.S.C. Section 1332(e)(1). The enforcement of rights under the plan is governed exclusively by federal law under ERISA. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 [107 S.Ct. 1549, 95 L.Ed.2d 39] (1987). Removal of such cases to federal court is proper. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 [107 S.Ct. 1542, 95 L.Ed.2d 55] (1987).
6. This Court has original jurisdiction over ERISA claims under the provisions of 28 U.S.C. Section 1331. Thus, this Action may be removed to this Court by Defendant pursuant to the provisions of 28 U.S.C. Section 1441(a) as an action arising under the Constitution, laws or treaties of the United States.
On March 2, 2007, Defendant filed a motion to dismiss the Complaint. Plaintiffs filed a First Amended Complaint (FAC) on March 23, 2007. (Doc. 10). Defendant's motion to dismiss the Complaint was denied as moot by Order filed on March 30, 2007. (Doc. 11).
The FAC still names the Defendant as BC Life & Health Insurance Company. The FAC alleges twenty-three causes of action, grouped as...
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