# Briscoe v. Fine > Court of Appeals for the Sixth Circuit · April 13, 2006 · 444 F.3d 478 URL: https://www.frixlaw.com/law-library/cases/9813846 ## Case - **Full name:** William BRISCOE; Laura Farley; Harold Smith; Lawrence Smith; Michael R. Straka, Plaintiffs-Appellants (05-5097)/Cross-Appellees, v. Allan H. FINE; Martin L. Fine; Steven R. Fine (05-5104); Miriam Fine Gellar; Steven L. Fine (05-5101); Preferred Health Plan, Inc. (05-5103), Defendants-Appellees/Cross-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** April 13, 2006 - **Citations:** 444 F.3d 478; 2006 WL 947189 - **Precedential status:** Published - **Opinion:** Concurrence by Ryan - **Judges:** Ryan, Clay, Gilman - **Cited by:** 106 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/9813846 ## How later opinions describe it (automated extraction) - finding, where a TPA "operated pursuant to an administrative services agreement that conferred upon it the responsibility for determining eligibility for benefits, processing claims, and assisting the plan administrator in producing reports required by federal and state law," … - holding that third-party administrator of company’s health plan was a fiduciary of the plan where it “both had the power to write checks on the plan account (which was partially in [the third-party administrator’s] name) and exercised that power before and after its contractua… - finding complete preemption because “[a]ny duty to disclose the financial condition of the plan that the [defendant] might have owed to the plan beneficiaries arose not out of an independent source of law, but out of the existence and nature of the [ERISA] plan itself ...”” - stating that third-party administrator, which “still controlled plan assets after the formal conclusion of its relationship with the Company and with the plan participants,” was a fiduciary - noting that an entity was a fiduciary because it “still controlled plan assets after the formal conclusion of its relationship with the Company and the plan participants” and because it acted unilaterally, noting the absence of the word “discretionary” in § 1002(21)(A)(iii), a… ## Opinion text RYAN, Circuit Judge, concurring. I agree that the Fines bear no fiduciary responsibility with respect to the plan because they did not exercise “any discretionary authority or discretionary control respecting management of such plan” or “any authority or control respecting management or disposition of its assets.” See 29 U.S.C. § 1002 (21)(A). The record shows that PHP exercised control over plan assets, and therefore, it had a fiduciary duty to plan participants to the extent that it exercised such control. See id.; Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir.1999). I also agree that the plaintiffs’ state law tort claim against the Fines for failure to disclose to the plaintiff employees the desperate financial condition of the company is not preempted by ERISA because the Fines may have had a duty to disclose that information independent of ERISA and the terms of the plan, and therefore, failure to disclose that information may constitute a state law tort irrespective of the ERISA plan. See Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 453 (6th Cir .2003). *502 Finally, the district court erred when it dismissed without prejudice the plaintiffs’ other state law claims. The court had original jurisdiction over those claims because they are preempted by ERISA § 514(a), 29 U.S.C. § 1144 (a), and they could have been brought under ERISA § 502(a), 29 U.S.C. § 1132 (a). See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66 , 107 S.Ct. 1542 , 95 L.Ed.2d 55 (1987). I write separately only because my brother’s very scholarly opinion says a good deal more than I wish to say. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9813846. Public record. Not legal advice.