# Kolenich v. Highmark West Virginia, Inc.

> District Court, N.D. West Virginia · January 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10725589

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** January 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10725589

## How later opinions describe it (automated extraction)

- applying the Twombly standard and emphasizing the necessity of plausibility
- applying the Twombly standard and emphasizing the necessity of plausibility

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

KARL J. KOLENICH and
ERIKA KOLENICH,
Plaintiffs,
Vv. CIVIL ACTION NO. 2:19-CV-38
(BAILEY)
HIGHMARK WEST VIRGINIA, INC.,
d/b/a Highmark Blue Cross Blue Shield
West Virginia,
Defendant.

ORDER GRANTING MOTION TO DISMISS NON-ERISA CLAIMS AND DAMAGES
Currently pending before this Court is defendant's Motion to Dismiss Non-ERISA
Claims and Damages [Doc. 8], filed November 1, 2019. Having been fully briefed, this
matter is now ripe for decision. For the reasons set forth below, the Motion will be granted.
BACKGROUND
Plaintiff, Karl Kolenich, is enrolled in a Health Benefit Plan (“the Plan”) provided by
his employer, Klie Law Offices, PLLC [Doc. 7 at 2]. Defendant is the administrator of the
Plan [Id.]. On September 24, 2018, Mr. Kolenich was transported via helicopter from St.
Joseph’s Hospital in Buckhannon, West Virginia, to J.W. Ruby Memorial Hospital in
Morgantown, West Virginia, after being diagnosed with an aortic dissection [Id.J. On or
about October 28, 2018, approximately three weeks post open-heart surgery, Mr. Kolenich
reported to St. Joseph's Hospital with complaints of lightheadedness, shortness of breath,
and heart palpitations [Id. at 7]. The next morning, Mr. Kolenich was transported to the

Cleveland Clinic in Cleveland, Ohio, via fixed wing aircraft fld. at 8). Mr. Kolenich submitted
bills for these air transportation services to defendant under the Plan, but alleges that his
claims were denied [Id. at 2-14]. Defendant states that “[nJeither air ambulance service
that Mr. Kolenich used was in [defendant's] provider network. [Defendant] paid the Plan
Allowance for Mr. Kolenich’s air transportation bills, but those payments were not the entire
amounts billed by the air ambulance services.” [Doc. 9 at 2].
On July 10, 2019, Mr. Kolenich brought this action against defendant under the
private action provisions included in the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 ef seq. (“ERISA”), claiming that defendant “failled] to provide
coverage and benefits,” “failed to comply with each and every request for information,” and
seeking an award of attorneys’ fees and costs (“the ERISA claims”) [Docs. 1 at 14-16; 7
at 14-17]. On October 1, 2019, Mr. Kolenich amended his Complaint to add non-ERISA
claims [Doc. 7]. Specifically, causes of action titled “Common Law Claim Misconduct and
Violations of the Unfair Settlement Practices Act” and “Breach of Implied Covenant of Good
Faith and Fair Dealing” were added [Id. at 17-19}. Mr. Kolenich now seeks a host of tort
damages, including damages for “sustained aggravation and inconvenience, emotional
distress, anger, anguish, chagrin, depression, disappointment, embarrassment, fear,
frights, grief, horror, loss of use of insurance benefits, annoyance, inconvenience and/or
humiliation,” and also punitive damages [Id. at 20]. Furthermore, although not set out as
its own claim, Mr. Kolenich appears to add a claim for his wife’s loss of consortium □□□□□□
Accordingly, Mr. Kolenich's wife, Erika Kolenich, is now also a plaintiff in this action.
On November 1, 2019, defendant brought the instant Motion, arguing that the “newly
added State Law Claims are not viable and should be dismissed, because they are

completely pre-empted by the terms of ERISA itself [Doc. 9 at 3]. Specifically, defendant
argues the state law claims asserted by plaintiffs are subject to the 29 U.S.C. § 1144(a)
pre-emption clause because they “relate to” the Plan. See [Id. at 4-7]. In response,
plaintiffs argue that “[djefendant improperly asserts a blanketed immunity under...
[ERISA] for Plaintiffs’ newly added claims in the Amended Complaint although the same
are not related to Defendant's duties under the administration of the ERISA plan at issue
in this case” (Doc. 14 at 1]. Further, plaintiffs argue that “the Defendant's motion is not ripe
until the end of discovery, at the summary judgment phase. Therefore, the Defendant's
motion is also premature and should be denied.” [Id.]. In reply, defendant argues that
“Plaintiffs' response argument amounts to a post hoc attempt to distance themselves from
their own allegations in their First Amended Complaini. The allegations of the First
Amended Complaint leave no doubt that each and every act by [defendant] about which
Plaintiffs complain relates to [defendant's] administration of the Plan.” [Doc. 16 at 2].
LEGAL STANDARD
A complaint must be dismissed if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (applying the
Twombly standard and emphasizing the necessity of plausibility). When reviewing a
motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
Court must assume all of the allegations to be true, must resolve all doubts and inferences
in favor of the plaintiff, and must view the allegations in a light most favorable to the
plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).

When rendering its decision, the Court should consider only the allegations
contained in the Complaint, the exhibits to the Complaint, matters of public record, and
other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206
(1996). In Twombly, the Supreme Court, noting that “a plaintiff's obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do,” fd. at 1964—65, upheld
the dismissal of a complaint where the plaintiffs did not “nudge[ ] their claims across the
line from conceivable to plausible.” fd. at 1974.
APPLICABLE LAW
ERISA “comprehensively regulates, among other things, employee welfare benefit
plans that, ‘through the purchase of insurance or otherwise,’ provide medical, surgical, or
hospital care, or benefits in the event of sickness, accident, disability, or death.” Pilot Life
ins. Co. v. Dedeaux, 481 U.S. 41, 44(1987). ERISA contains civil enforcement provisions
under which “a plan participant or beneficiary may sue to recover benefits due under the
plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits.
Relief may take the form of accrued benefits due, a declaratory judgment on entitlement
to benefits, or an injunction against a plan administrator's improper refusal to pay benefits.”
id. at 53. “A participant or beneficiary may also bring a cause of action for breach of
fiduciary duty, and under this cause of action may seek removal of the fiduciary.” /d.
ERISA’s “civil enforcement remedies were intended to be exclusive,” fd. at 54, and thus
ERISA contains “express pre-emption provisions” that are “deliberately expansive, and

designed to ‘establish pension [and welfare] plan regulation as exclusively a federal
concern.” /d. at 45-46 (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523
(1981)).
The Supreme Court of the United States has explained these pre-emption
provisions as follows:
Congress capped off the massive undertaking of ERISA with three provisions
relating to the pre-emptive effect of the federal legislation:
“Except as provided in subsection (b) of this section [the saving
clause], the provisions of this subchapter and subchapter III of
this chapter shall supersede any and all State laws insofar as
they may now or hereafter relate to any employee benefit plan.
... §5714(a), as set forth in 29 U.S.C. § 1144(a) (pre-emption
clause).
“Except as provided in subparagraph (B) [the deemer clause],
nothing in this subchapter shall be construed to exempt or
relieve any person from any law of any State which regulates
insurance, banking, or securities.” § 514{b)(2)(A), as set forth
in 29 U.S.C. § 1144(b){2)(A) (saving clause).
“Neither an employee benefit plan . . . nor any trust established
under such a plan, shall be deemed to be an insurance
company or other insurer, bank, trust company, or investment
company or to be engaged in the business of insurance or
banking for purposes of any law of any State purporting to
regulate insurance companies, insurance contracts, banks,
trust companies, orinvestment companies.” § 514(b)(2)(B), 29
U.S.C. § 1144(b)(2)(B) (deemer clause).
To summarize the pure mechanics of the provisions quoted above: If a state
law “relate[s] to . . . employee benefit plan[s],” it is pre-empted. § 514(a).
The saving clause excepts from the pre-emption clause laws that “regulat[e]
insurance.” § 514(b)(2)(A). The deemer clause makes clear that a state law
that “purpori[s] to regulate insurance” cannot deem an employee benefit plan
to be an insurance company. § 514{b)(2)(B).
Pilot Life Ins. Co., 481 U.S. at 44-45,
With regard to the pre-emption clause, “[t]ne term ‘State law’ encompasses not only

statutes but also common law causes of action.” Gresham v. Lumbermen's Mut. Cas.
Co., 404 F.3d 253, 258 (4th Cir. 2005). Furthermore, the phrase “relate to” is “given its
broad common-sense meaning, such that a state law ‘relate[s] to’ a benefit plan ‘in the
normal sense of the phrase, if it has a connection with or reference to such a plan.” Pilot
Life ins. Co., 481 U.S. at 47 (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471
U.S. 724, 739 (1985)). Thus,
[wjhile the scope of preemption is thus quite broad, it is not unlimited. See
ingersoll~Rand [Co. v. McClendon], 498 U.S. [133, 139 (1990)]. “What
triggers ERISA preemption is not just any indirect effect on administrative
procedures but rather an effect on the primary administrative functions of
benefit plans, such as determining an employee's eligibility for a benefit and
the amount of that benefit.” Aetna Life ins. Co. v. Borges, 869 F.2d 142,
146-47 (2d Cir. 1989). Generally, when a state law claim may fairly be
viewed as an alternative means of recovering benefits allegedly due under
ERISA, there will be preemption. See Aetna Health Inc. v. Davila, 542 U.S.
200, 124 S.Ct. 2488, 2495, 159 L.Ed.2d 312 (2004) (“[A]ny state-law cause
of action that duplicates, supplements, or supplants the ERISA civil
enforcement remedy conflicts with the clear congressional intent to make the
ERISA remedy exclusive and is therefore pre-empted.”); Monarch Cement
Co. v. Lone Star Indus., 982 F.2d 1448, 1452 (10th Cir. 1992).
Gresham, 404 F.3d at 258.
DISCUSSION
Defendant argues that each of plaintiffs’ state law claims “relate to” Mr. Kolenich’s
Plan and are not based on laws “regulat[ing] insurance.” Thus, defendant argues each
must be dismissed as pre-empted by ERISA. Plaintiffs, on the other hand, argue that the
“Non-ERISA claims in the amended complaint do not arise in the course of administrative
duties related to the pian, and are not related to plaintiff Karl Kolenich’s claim for benefits.
Therefore, the state law claims are not preempted by ERISA.” [Doc. 14 at 2].
Upon consideration, this Court agrees with defendant. Each of plaintiffs’ state law

claims “relate to” the Plan and are not based on laws “regulat[ing] insurance.” Thus, these
state law claims are subject to ERISA's pre-emption clause and cannot avoid pre-emption
by way of the saving clause. Accordingly, each of plaintiffs’ state law claims must be
dismissed as pre-empted by ERISA.
The first of plaintiffs’ state law claims is their Fourth Cause of Action titled “Common
Law Misconduct and Violations of the Unfair Settlement Practices Act,” which states the
following:
FOURTH CAUSE OF ACTION
COMMON LAW CLAIM MISCONDUCT AND VIOLATIONS OF THE
UNFAIR SETTLEMENT PRACTICES ACT
50. _—‘ Plaintiffs incorporates those allegations of the General Allegations,
Jurisdiction, Parties, and Factual Background sections along with the
First, Second and Third Causes of Action as though set forth in full in
this cause of action.
51. The actions of Defendant Highmark including but not limited to:
delaying payment of a clearly covered claim, paying claims at
less than full value with no justifiable reason or basis, unlawfully
denying coverage, failure to act reasonably and timely on
communications, and misrepresenting pertinent terms of the policy
of the Plaintiffs, wrongful withholding of payment for Plaintiff
Kolenich’s covered damages and losses and/or valid claim under
his Highmark insurance policy.
52. Plaintiffs and their medical providers advised Defendant Highmark
that Plaintiff Kolenich’s claim was covered under his Highmark
insurance policy under West Virginia law, and that the policy
contractually obligated Defendant Highmark to properly pay the
claims.
53. Defendant Highmark had possession of documents, materials and/or
evidence indicating that Plaintiffs claim was a covered loss under
the Highmark insurance policy at the time said denials were made.
54. Defendant Highmark’'s, acts and omissions of, included but not limited

to[:] failing to adopt and implement reasonable standards for the
prompt investigation and payment of claims arising under
insurance policies; unreasonably refusing to acknowledge that
plaintiffs claim was a covered loss; and failing to negotiate in good
faith.
55. Defendant Highmark’s acts and omissions as described herein, upon
information and belief, constitute breaches of the applicable
insurance contract lawfully entered into by the Parties.
56. Defendant Highmark, its agents, servants and employees, violated
the West Virginia Unfair Claims Settlement Practices Act, West
Virginia Code § 33-11-4(9), the Unfair Trade Practices Act, as well as
the West Virginia Insurance Regulations promulgated there under,
including, but not limited to, the following:
a. Failed to adopt and implement reasonable standards for
the prompt acknowledgment and investigation of claims
arising under insurance policies;
b. Failed in good faith to effectuate prompt, fair and
equitable settlement of claims;
Cc. Misrepresenting pertinent facts or insurance policy
provisions relating to coverage’s at issue;
d. Failing to acknowledge and act reasonably promptly
upon communications with respect to claims arising
under insurance policies;
e. Refusing to pay claims without conducting a reasonable
investigation based upon all available information;
f. Failing to promptly provide a reasonable explanation of
the basis in the insurance policy in relation to the facts
or applicable law for denial of a claim or for the offer of
a compromise settlement and;
g. Other acts and omissions as disclosed by discovery.
57. Defendant Highmark, by and through its agents, servants, and
employees has committed violations fo the West Virginia Unfair
Claims Settlement Practices Act with such frequency as to indicate a
general business practice.

58. As a direct and proximate result of the acts alleged in this count,
Plaintiffs were damaged as is hereinafter set forth.
[Doc. 7 at 17-19] (emphasis added).
Plaintiffs’ second state law claim is their Fifth Cause of Action titled “Breach of
Implied Covenant of Good Faith and Fair Dealing,” which states the following:
FIFTH CAUSE OF ACTION
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING
59. Plaintiffs incorporates those allegations of the General Allegations,
Jurisdiction, Parties, and Factual Background sections along with the
First, Second, Third and Fourth Causes of Action as though set forth
in full in this cause of action.
60. Defendant Highmark breached its implied covenant of good faith and
fair dealing with Plaintiff including, but not limited to:
A: Failing to accord the interest and rights of Plaintiff
Kolenich at least as great a respect as its own;
B: Failing to conduct a proper investigation and evaluation
of the relevant claims based upon the objective and
cogent evidence; and
C: Failing to timely and fully pay Plaintiff's claim when it
became reasonably clear the claim was covered.
61. Asadirect and proximate result of the acts of Defendant Highmark as
alleged in this Count of the Complaint, Plaintiffs were damaged and
injured as is hereinafter set forth.
[Id. at 19] (emphasis added).
This Court bolded several words and phrases in these Causes of Action to highlight
that, despite plaintiffs’ argument to the contrary, in each of these allegations plaintiffs claim
that defendant did something wrong in the administration of the Pian, even explicitly

claiming that defendant breached its duties pursuant to the Plan. Accordingly, each of
these allegations “relate to" an ERISA plan, and are subject to ERISA's pre-emption
clause.
Plaintiffs’ arguments to the contrary are simply unavailing. Plaintiffs rely on
Darcangelo v. Verizon Communications, Inc., 292 F.3d 181 (4th Cir. 2002), to argue
that “[hJere, like{] the plaintiff in Darcangelo, Plaintiffs have asserted claims that are not
related to the fiduciary obligations in the administration of the Plan, and have absolutely
nothing to do with the payment of the benefits owed to Plaintiff Karl Kolenich under the
Plan. Plaintiffs’ claims, similar to some of those upheld in Darcangelo, allege that the
Defendant committed fraud, violated unfair settlement practices, and violated good faith
and fair dealing practices, all of which fall outside the practices of the Defendant to
administer the Plan.” (Doc. 14 at 4]. This Court disagrees.
Darcangeio stands for the proposition that “the simple fact that a defendant is an
ERISA plan administrator does not automatically insulate it from state law liability for
alleged wrongdoing against a plan participant or beneficiary.” fd. at 191. In determining
that some of plaintiffs claims were not pre-empted by ERISA, the Darcangelo court
explained as follows:
As explained above, however, Darcangelo’s complaint alleges that Verizon
and CORE did nof obtain this information in pursuit of a legitimate or
appropriate end. This amounts to an allegation that Verizon and CORE
undertook conduct that was entirely unrelated to and outside of the scope of
their duties under the plan or in carrying out the terms of the plan.
Darcangelo does not allege that CORE improperly performed some
traditional fiduciary function, such as “managing assets” or “distributing
property” under the plan. Nor does Darcangelo allege that CORE negligently
“discharge[d its] duties,” § 404(a)(1), or negligently carried out the terms of
the plan. Rather, Darcangelo alleges conduct by CORE that is completely

10

unauthorized—conduct that was not undertaken in the course of carrying out
its plan responsibilities. The complaint, in other words, does not simply
allege “faulty plan administration,” rather, it alleges improper conduct so
unrelated to the plan that it cannot be termed “plan administration” of any
sort. lf, as Darcangelo alleges, CORE obtained her private medical
information solely at the behest of Verizon to assist Verizon in its attempt to
find a reason to discharge her, CORE was not acting in the course of making
a benefits determination or performing any other plan function. The clear
implication of these allegations is that CORE was not performing a fiduciary
function, but was simply behaving as a rogue administrator, acting entirely
outside the scope of its duties under the plan.
fd. at 193 (internal citations omitted} (emphasis added).
This is simply not the case here. Though plaintiffs argue such in their Response,
plaintiffs’ Amended Complaint does not allege anywhere that defendant “undertook
conduct that was entirely unrelated to and outside of the scope of their duties under the
plan or in carrying out the terms of the plan.” /d. Instead, as highlighted above, plaintiffs’
Amended Complaint continually alleges defendant wrongfully administered the Plan. This
Court tends to agree with defendant that “[p]laintiffs’ response argument amounts to a post
hoc attempt to distance themselves from their own allegations in their First Amended
Complaint” (Doc. 16 at 2]. Though plaintiffs’ Response mentions allegations of fraud, the
word “fraud” does not appear once in plaintiffs’ Amended Complaint. Nor does the
allegation in plaintiffs’ Response that defendant “committed fraud by intentionally not
having an in-network provider of emergency air transportation so that Defendant can,
across the board for all policy holders, avoid coverage of claims,” [Doc. 14 at 4—5], appear
anywhere in plaintiffs’ Amended Complaint. Simply, plaintiffs’ state law claims do not
allege “improper conduct so unrelated to the plan that it cannot be termed ‘plan
administration’ of any sort.” Dareangelo, 292 F.3d at 193. To the contrary, plaintiffs’ state

11

law claims relate entirely to defendant's plan administration.
Furthermore, this Court notes that in the very first paragraph of the Amended
Complaint, plaintiffs articulate that their claims “relate to” an ERISA plan. This paragraph
states as follows:
1. Plaintiffs alleges [sic] that Plaintiffs’ claims “relate to” an “employee
welfare benefit plan” as defined by ERISA, 29 U.S.C. section 1001 et
seq. and that the subject Medical Expense Plan instituted by Klie Law
Offices, PLLC constitutes a “plan under ERISA.” Therefore, Plaintiffs
allege that this Court's jurisdiction is invoked pursuant to 28 U.S.C.
Section 1337 and 29 U.S.C. Section 1132(e).
[Doc. 7 at 1]. This paragraph does not say “some of plaintiffs’ claims ‘relate to’ an ERISA
plan,” it says “[p]laintiffs’ claims ‘relate to” an ERISA plan. This is just further support for
what is evident from the face of plaintiffs’ Amended Complaint—plaintiffs’ state law claims
all “relate to” Mr. Kolenich’s ERISA Plan and therefore fall within ERISA’s pre-emption
clause.
Having found these state law claims subject to the ERISA pre-emption clause, this
Court must next determine if any of them are exempt from pre-emption by the saving
clause because they “regulate insurance.” § 514(b)(2)(A), as set forth in 29 U.S.C.
§ 1144(b)(2)(A) (saving clause). Upon consideration, this Court finds that none of these
state claims regulate insurance, and thus the saving clause does not apply.
Itis clear that plaintiffs’ common law claims—"common law misconduct” and “breach
of implied covenant of good faith and fair dealing’—are based on laws that do not “regulate
insurance.” “[SJuch actions are not directed at the insurance industry alone and do not
relate to the spreading of risk.” Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 420 (4th
Cir. 1993). Further, while certainly a closer question on its face, all pertinent courts to have

12

considered the issue have found that claims under the West Virginia Unfair Trade
Practices Act, W.Va. Code §§ 33-11-1 through 33-11-10, including claims for unfair claim
settlement practices under W.Va. Code § 33-11-4(9) such as those brought by plaintiffs
here, are not subject to ERISA'’s saving clause as “regulat[ing] insurance.” See Ball v. Life
Planning Servs., inc., 187 W.Va. 682, 686, 421 S.E. 2d 223, 227 (1992) (“[W]ith respect
to [plaintiffs] claim under W.Va. Code § 33-11-4(9)[, t]his claim relates to unfair claim
settlement practices and is clearly the same type of claim that the United States Supreme
Court found to be pre-empted by § 514(a) of ERISA in Pilot Life Insurance Co. v.
Dedeaux.”); Custer, 12 F.3d at 420 (“[W]e hold that [plaintiff's] claims under West Virginia
law[, brought pursuant to W.Va. Code § 33-1 1-4(9),] relating to improper claims processing
or administration are not saved from preemption by the savings clause.”); Tri-State Mach.,
inc. v. Nationwide Life ins. Co., 33 F.3d 309 (4th Cir. 1994) (holding that claims for
violation of the insurance chapter of the West Virginia Unfair Trade Practices Act are not
saved from pre-emption); Coffman v. Metro. Life Ins. Co., 138 F.Supp.2d 764 (S.D.
W.Va. 2001) (Haden, C.J.) (dismissing plaintiff's claims brought pursuant to the West
Virginia Unfair Trade Practices Act as pre-empted based on the Fourth Circuit's rulings in
Custer and Nationwide); Copley v. Liberty Life Assurance Co. of Boston, 2006 WL
8438618, at*3 (S.D. W.Va. Apr. 24, 2006) (Copenhaver, J.) (“Claims seeking relief under
the West Virginia Unfair Trade Practices Act (“WVUTPA’) are also preempted when they
‘relate to’ the processing of benefits pursuant to an ERISA plan.”) (citing Nationwide, 33
F.3d at 315; Coffman, 138 F.Supp.2d at 766-67). Accordingly, this Court finds that the
saving clause does not apply to plaintiffs’ state law claims. Thus, plaintiffs’ state law

13

claims—their Fourth and Fifth Causes of Action—are pre-empted and will be dismissed.
Dismissing plaintiffs’ Fourth and Fifth Causes of Action also necessitates dismissal
of plaintiff Erika Kolenich’s loss of consortium claim. As Erika Kolenich was not a party in
the original Complaint and no loss of consortium claim was made in the original Complaint,
this Court assumes that Mrs. Kolenich’s loss of consortium claim is based on the state law
Causes of Action raised in plaintiffs’ Amended Complaint. “In West Virginia, loss of
consortium claims are ‘derivative of the underlying tort claim with which they are brought’
and recovery depends upon the success of the underlying tort claim.” Councell v. Homer
Laughlin China Co., 2012 WL 907086, at *18 (N.D. W.Va. Mar. 15, 2012) (Stamp, J.)
(citing Dupont v. United States, 980 F.Supp. 192, 195-96 (S.D. W.Va. 1997) (Goodwin,
J.)}. Thus, having dismissed the underlying tort claims, Mrs. Kolenich’s loss of consortium
claim must also be dismissed.’
Additionally, as only ERISA claims remain, this Court will strike plaintiffs’ demands
for compensatory and punitive damages. It is “clear that compensatory and punitive
damages are not available under ERISA.” Copley, 2006 WL 8438618, at *4 (citing Griggs
v. E.l. DuPont de Nemours & Co., 237 F.3d 371, 384 (4th Cir. 2001) (ERISA civil
enforcement provision does not encompass compensatory damages)); see a/so Bast v.
Prudential ins. Co. of Am., 150 F.3d 1003, 1009 (9th Cir. 1998) (“Extracontractual,

‘This Court notes Mrs. Kolenich’s loss of consortium claim would also be dismissed
if it derives from Mr. Kolenich’s ERISA claims. “If the loss of consortium claim is derived
from the ERISA claim, then the loss of consortium claim is best characterized as a state
law claim preempted by ERISA.” Kidneigh v. UNUM Life Ins. Co. of Am., 345 F.3d 1182,
1189 (10th Cir. 2003) (citing Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1009-10
(9th Cir. 1998); Pacificare of Oklahoma, Inc. v. Burrage, 59 F.3d 151, 155 (10th Cir.
1995) (“A loss of consortium claim against an [insurer] alleging negligent or fraudulent
administration of the plan is preempted by ERISA.”)).
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compensatory, and punitive damages are not available under ERISA.”).
Finally, this Court will address plaintiffs’ alternative arguments presented in their
Response to defendant’s Motion. First, plaintiffs argue that they “should be allowed to
conduct discovery and then have the Court rule whether or not, based on the factual record
that develops, these claims were undertaken in the performance of the plan's
administrator's fiduciary duties” [Doc. 14 at 5]. Plaintiffs again rely on Darcangefo, which
stated that plaintiffs claims “relating to confidentiality of medical records, unfair trade
practices, privacy, and negligence, cannot be disposed of on preemption grounds at the
motion to dismiss stage.” Darcangelo, 292 F.3d at 186. The problem with this argument
is that in the very next sentence the court explained that “[t]his is because the complaint,
in setting forth these four claims, charges [defendant] with conduct that is entirely unrelated
to its duties under the ERISA plan.” fd. (emphasis added). As explained in detail above,
that is not the case here. Plaintiffs did not allege any conduct by defendant that was
entirely unrelated to its duties under the Plan, and thus there is no need to let the factual
record develop on claims that are not presented.
Next, plaintiffs argue that “[a]lternatively, should the Court be inclined to grant
Defendant's motion, the same should not be granted with prejudice, and the Plaintiffs
should be granted leave to amend the pleading” [Doc. 14 at 5]. This request will be
granted in part. This Court cannot simply grant plaintiffs leave to amend, as plaintiffs have
not made a formal motion to amend and this Court has not been presented with a
proposed second amended complaint as required by Loca! Rule of Civil Procedure 15.01.
Without any argument regarding amendment or a proposed second amended complaint

15

to consider, this Court cannot determine whether some reason exists to deny amendment,
“such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of the amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962). However, this Court will grant plaintiffs’
request for a dismissal without prejudice, and will allow plaintiffs the opportunity to move
for amendment, should they so choose. Any such motion to amend shall be filed by the
February 17, 2020, Joinder & Amendments Deadline set forth in this Court’s Scheduling
Order [Doc. 19]. Should plaintiff not file a motion to amend by that time, or should this
Court deny plaintiffs’ motion to amend, then the dismissal of plaintiffs’ state law claims shall
be with prejudice.
CONCLUSION
Based upon the foregoing, this Court hereby GRANTS defendant's Motion to
Dismiss Non-ERISA Claims and Damages [Doc. 8]. Accordingly, plaintiffs’ Fourth Cause
of Action, Fifth Cause of Action, loss of consortium claim, request for compensatory
damages, and request for punitive damages are hereby DISMISSED WITHOUT
PREJUDICE. Any motion for leave to file a second amended complaint shail be filed no
later than February 17, 2020.
lt is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.

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DATED: January 21, 2020.

PRESTON BAILEY
D STATES DISTRICT JUDG

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725589. Public record. Not legal advice.