The opinion
JOHNSON, J., Concurring and Dissenting.—I
concur in the judgment as to the affirmance of summary judgment in favor of Great Republic. I respectfully dissent, however, from the affirmance of summary judgment in favor of Nagler.
The majority opinion uncritically accepts respondent’s position and rationale on all issues, including the question of ERISA preemption of all causes of action against the insurance agent. I am unable to do so. In particular, I find the recent Fifth Circuit opinion, Perkins v. Time Ins. Co. (5th Cir. 1990) 898 F.2d 470 , more persuasive and more relevant to the instant case than the two earlier, apparently contrary, Eleventh Circuit decisions—Farlow v. Union Cent. Life Ins. Co. (11th Cir. 1989) 874 F.2d 791 and Belasco v. W.K.P. Wilson & Sons, Inc. (11th Cir. 1987) 833 F.2d 277 .
According to the allegations of the complaint and the evidence before the court on summary judgment, here as in Perkins the defendant was an insurance agent. Here, as in Perkins , before the medical plan went into effect and while the plaintiffs were considering whether to participate, the defendant misled the plaintiffs about the extent of coverage under the plan he was selling. Here, as in Perkins , the plaintiffs thus accepted a medical plan which did not cover their needs and, accordingly, gave up consideration of medical plans, individual or otherwise, which would have given them appropriate coverage.
I agree with the Perkins court—the insurance agent’s alleged misconduct was not “related to” the group medical plan in any meaningful sense. It had *1284 nothing to do with the ongoing administration or performance of the plan itself. Rather what the insurance agent did occurred before the plan was established and involved steering plaintiffs to that plan and away from insurance which may have provided them the coverage they needed.
As the Perkins court recognized, the language of ERISA’s preemption clause does not encompass conduct so remote from the operation of the plan itself. There is a limit to the concept “related to” and the insurance salesman’s “steering” activities fall beyond that limit. Moreover, the policies behind ERISA’s preemption clause are not furthered by extending its reach to immunize from ordinary common law civil liability the insurance agent’s misleading sales pitch which, incidentally, occurred before the plan went into effect. In no way does this insurance salesman’s misrepresentations implicate the “careful balanc[e]” between “the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans” which the Supreme Court found to be the policy rationale for the preemption clause. (Pilot Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 54 [ 95 L.Ed.2d 39, 52 , 107 S.Ct. 1549 ].) Nagler’s alleged actions have nothing to do with claims settlement or anything else related to the administration of the plan or its benefits. This insurance salesman could be held liable for the conduct alleged in the causes of action against him without in anyway disturbing or otherwise affecting the “careful balance” described in Pilot Life. Conversely, to exempt Nagler from his ordinary responsibilities to tell the truth when selling insurance policies merely because the policy involved may become structured to qualify as an “employee benefit plan” in no way furthers this “careful balance” nor any other policy embodied in ERISA.
For these reasons, I would reverse the summary judgment which the trial court entered in favor of respondent Nagler.