Petition for Writ of Certiorari — Marshall v. Bankers Life & Casualty Co.

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7 eS Court, U.S,

9 9°. se =

o 8 0 OCT 6 1992

SIE CLERK

IN THE

Siypwreme Court of the United States

OCTOBER TERM, 1992

LINDA BROWN MARSHALL and DONALD MARSHALL,

. Petitioners,

BANKERS LIFE AND CASUALTY COMPANY, an Illinois

Corporation, FRANK B. HALL AND COMPANY OF

CALIFORNIA, a California Corporation, and MIA

ADMINISTRATORS, a California Corporation,

: Respondents.

Petition for Writ of Certiorari to the

Supreme Court of California

PETITION FOR WRIT OF CERTIORARI

MICHAEL L. GOLDBERG *

MANDELL, LEWIS & GOLDBERG,

A Professional Corporation

2000 Corporate Ridge, Suite 1075

McLean, Virginia 22102-7858

(703) 734-9622

TIMOTHY J. WHEELER

GREENE, BROILLET, TAYLOR & WHEELER

100 Wilshire Blvd., 21st Floor

Santa Monica, California 90401

(310) 576-1200

Attorneys for Petitioners

* Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® So 60

QUESTION PRESENTED

Does an employer establish and maintain an “employee

benefit plan” pursuant to ERISA (29 U.S.C. $$ 1001

et seq.), SO as to preempt an employee’s state law claim

for insurance bad faith, when the employer merely pur-

chases a health benefits insurance policy and the em-

ployer’s activity relating to that policy is limited to

paying premiums for employee coverage and withholding

the cost of dependent coverage from employees’ pay, for-

warding premiums to the carrier and distributing claims

forms and information to employees, and when the em-

ployer never intended to establish a “plan” under ERISA

and was under no obligation to provide the benefits and

retained the right (which it ultimately exercised) to

cancel the insurance at any time?

(i)

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Supreme Court of

California were Linda Brown Marshall and Donald

Marshall, Petitioners in this Court, and Bankers Life

and Casualty Company and Frank B. Hall and Company

of California, who are Respondents in this Court.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 0ooooooooooecccccocccoccoceeceee eee. i

PARTIES TO THE PROCEEDING .......... ii

TABLE OF AUTHORITIES 000... ..ococoecccoccecccececceeeee iv

ATT 1

hi ey 9 i, ee sientesncsarshtedenaiinhesiaedaasbanhediis 2

STATUTORY AND REGULATORY PROVISIONS

SEES EAE Os a 2

STATEMENT OF THE CASE ooo cceccccceceeeeee 2

REASONS FOR GRANTING THE WRIT... 7

I eh iictesiniiadch adedccscrtoeninesicicuiabicciinsstssanimnsteas 16

(iii)

_— en

iv

TABLE OF AUTHORITIES

Cases Page

Brundage-Peterson Vv. Compcare Health Services

Insurance Corp., 877 F.2d 509 (7th Cir. 1989).. 8

Donovan V. Dillingham, 688 F.2d 1367 (1982) ....... 6, 8, 10

Fletcher v. Western Nat. Life Ins. Co., 10 Cal.App.

oa S76, SP CaLmete. Te (ESTO) ........-...................., 9

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

SI acne i ee ea 4, 6, 11-12

Fugarino V. Hartford Life and Acc. Ins. Co., 969

et Be Bt a + Ree emo 8

Gahn V. Allstate Life Ins. Co., 926 F.2d 1449 (5th

Ce I Goteeen anise eee ee ee 8,14

International Resources Vv. New York Life Ins.

Co., 950 F.2d 294 (6th Cir. 1991) -.......00000000.. 8,13

Kanne v. Connecticut General Life Insurance Co.,

867 F.2d 489 (9th Cir. 1988), cert. denied, 492

is a a 8

Memorial Hosp. System v. Northbrook Life Ins.

Co., 904 F.2d 286 (5th Cir. 1990) -.....0.00.00.. 13

Silberg v. California Life Ins. Co., 11 Cal.3d 452,

113 Cal.Rptr. 711, 521 P.2d 1108 (1974) ............ 9

Taggert Corporation Vv. Life and Health Adminis-

tration, Inc., 671 F.2d 1208 (5th Cir. 1980), cert.

denied, 459 U.S. 851, reh’g denied, 459 U.S. 1059

CI panic oot PEA Lene) en aera ETE 8,10

Turnbow V. Pacific Mutual Life Ins. Co., 765 P.2d

1160 (Nev. 1988), cert. denied, 490 U.S. 1102

fe eee ieee Ce A ae orce Pre © APS Pd 8,15

Statutes

et I ID icici innrssticunieisinnssasuanceoosecantcencioonecien 2

Be I cierechisscd gmassncrieousepncescsntanns etnias ihiiadsaies i, 3

NT TD ic heseireisccsdcsaonissnnanmatoiinininemneciawasnascnn 2

tk Eth BE) | |) ar selec taageaeaaeloliacas 2,9

29 U.S.C. § 1144 (a) .................... ceubiilaheiaosiiadaeicsiasicasiebint 2,4

Other

29 C.F.R. § 2510.38-1(j) ........ aE EERE IT LE OE SE 2,4

SOURCE BOOK OF HEALTH INSURANCE DATA: 1991,

Health Insurance Association of America .......... 8

TF

v

TABLE OF AUTHORITIES—Continued

Page

POVERTY IN THE UNITED STATES: 1991, Series p.

60, No. 181, U.S. Bureau of the Census

Insurer’s Liability for Consequential or Punitive

Damage for Wrongful Delay or Refusal to Make

Payments Under Contract, 47 A.L.R.38d 314

(1973).

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No.

LINDA BROWN MARSHALL and DONALD MARSHALL,

m Petitioners,

BANKERS LIFE AND CASUALTY COMPANY, an Illinois

Corporation, FRANK B. HALL AND COMPANY OF

CALIFORNIA, a California Corporation, and MIA

ADMINISTRATORS, a California Corporation,

Respondents.

Petition for Writ of Certiorari to the

Supreme Court of California

PETITION FOR WRIT OF CERTIORARI

Petitioners Linda Brown Marshall and Donald Marshall

respectfully pray that a writ of certiorari issue to review

the judgment and opinion of the Supreme Court of Cali-

fornia, entered in this matter on July 9, 1992.

OPINIONS BELOW

The opinion of the Supreme Court of California is

reported at 2 Cal.4th 1045, and is reprinted at Appendix

A, hereto.

The Supreme Court of California reversed a decision

of the California Court of Appeal for the Second Appel-

late District, Division Three, which decision had been

filed on June 10, 1991, and modified on July 10, 1991.

2

That decision as modified, is reprinted at Appendix B,

hereto.

The Court of Appeal had reversed an April 5, 1990

judgment of the Superior Court for the County of Los

Angeles, dismissing the action, which judgment is re-

printed at Appendix C, hereto.

JURISDICTION

The judgment of the Supreme Court of California was

entered on July 9, 1992. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257(a).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

29 U.S.C. § 1002(1), defining “employee welfare bene-

fit plan’; 29 U.S.C. § 1182(a), describing private civil

enforcement actions under ERISA; 29 U.S.C. § 1144(a)

and (b) describing the preemption of state laws relating

to employee benefits plans, and 29 C.F.R. § 2510.3-1(j),

the Secretary of Labor’s regulation suggesting criteria

under which an insurance policy should not be considered

to be an employee benefit plan, are all set forth at

Appendix D, hereto.

STATEMENT OF THE CASE

Linda Marshall’s claim for payment of hospitalization

expenses was denied by her health insurance carrier,

Bankers Life. Bankers claimed that she was suffering

from a preexisting condition, sickle cell anemia, even

though, as alleged in the complaint, the carrier knew at

that time that she was being treated for the aftereffects

of an aneurysm and brain surgery. Fourth Amended

Complaint at 7/11, 13. As a result, Linda Marshall was

prematurely discharged from the hospital. Jd. at § 11.

Bankers Life resisted the Marshalls’ repeated requests

for payment of the hospitalization expenses over a period

of some twenty months, until the Marshalls retained a

3

lawyer, at which time, Bankers Life paid the disputed

claim. /d. at § 13. 16. This insurance bad faith action,

under the Jaws of California, followed.

Linda Marshall was an insured under a medical bene-

fits insurance policy to which her husband, Donald Mar-

shall, subscribed at his place of employment, Miller Im-

ports, an automobile dealer. As an affirmative defense,

Bankers Life asserted that all causes of action were pre-

empted by the federal Employees’ Benefits Income Security

Act (29 U.S.C. §§ 1001 et seg.) (“ERISA”). Both sides

moved, unsuccessfully, for summary judgment on the

issue of ERISA preemption, and ultimately, that issue

was separated out and tried in the superior court on

stipulated facts. (The Stipulation is reprinted at Appen-

dix E, hereto. )

The Bankers Life policy was effective from March 1,

1983 to October 1, 1983. Through a separate contract

with Bankers, Frank B. Hall Company and MIA Adq-

ministrators administered the health insurance program,

for which they received a monthly fee from Bankers for

each covered employee. Hall/MIA billed the employer,

Miller Imports, monthly. Miller paid the employees’

premiums, including Donald Marshall’s, and deducted

premiums for dependent coverage from the paychecks of

employees who had elected dependent coverage. Thus,

Donald paid for Linda’s health insurance coverage.

Miller did not set aside a separate account to pay these

premiums; rather, it paid them from its operating

account.

Miller provided Bankers and Hall/MIA with current

lists of employees and passed on enrollment cards which

were filled out by employees, but Bankers and Hall/MIA

exclusively determined whether employees and dependents

were eligible for benefits. Miller was provided with claims

forms which it passed on to employees, but all completed

forms were submitted directly to Hall/MIA by the em-

ployee or the health care provider; Miller did not review

4

claims forms and had no responsibility for evaluating

claims. Miller passed along to employees a booklet and

a letter provided by Hall/MIA explaining the policy and

how to file claims; and while Miller would attempt to

answer employee questions, Hall/MIA had _ instructed

Miller to have employees direct all questions to it. All

decisions on claims payment were made by Bankers and

Hail MIA which paid benefits directly to employees or

providers.

Miller never handled funds used for the payments of

benefits, and had no opportunity to misappropriate or

improvidently invest those funds, nor did it have responsi-

bility for monitoring those funds. Miller never intended

to create an ERISA Plan. Miller reserved the right to

cancel the insurance at any time, and it did cancel the

Bankers policy, which was in effect for only seven months.

The superior court concluded that the employer’s in-

volvement in the program was not extensive, and that the

employer did not specifically intend to establish a pro-

gram which would be covered by ERISA. Relying, in

part, upon the Secretary of Labor’s so-called “safe har-

bor” regulation (29 C.F.R. § 2510.3-1(j), the superior

court found that the insurance policy provided benefits

of the type typically covered by ERISA and was an

employee benefit plan within the meaning of ERISA,

and accordingly, that all of the Plaintiffs’ causes of action

were preempted. See, 29 U.S.C. § 1144(a).

The California Court of Appeal reversed. Relying on

the distinction which this Court drew in Fort Halifax

Packing Co. v. Coyne, 482 U.S. 1 (1987), the court of

appeal’s underlying premise was that ERISA preempts

only state laws relating to employee benefit plans, not

state laws relating merely to employee benefits. The Act

does not define “plan” and the court of appeal examined

the employer’s involvement in the administrative aspects

of the insurance policy to determine whether that involve-

ment was of the nature which implicated the concerns

5

which gave rise both to ERISA and to ERISA’s preemp-

tion provisions.

The court of appeal concluded that Miller Import’s

involvement in the Bankers Life policy did not implicate

those concerns. Noting that Miller was not obligated to

provide the insurance benefit for its employees, and that

it could, and ultimately did, cancel the policy, the court

concluded that Miller had no “commitment systematically

to pay [these] benefits... .” and that what was involved

was “‘a bare purchase of insurance’ [citation deleted]

and a temporary one at that.” Court of Appeal Decision,

App. B at 40a. Finding that Bankers and Hall/MIA (not

Miller) determined the eligibility of claimants for bene-

fits, calculated benefits, and paid them, and that Hall/MIA

(and not Miller) was responsible for keeping records and

monitoring the availability of funds to pay claims, the

court concluded that Miller’s role was limited to paying

the premiums and performing ministerial tasks, and ac-

cordingly, that an employee benefit plan had not been

established and that Plaintiffs’ state law-based causes of

action were not preempted.

The court of appeal noted that neither Hall/MIA nor

Miller had complied with any of the ERISA reporting

requirements, nor with the regulations requiring that

employees be provided with a statement of their rights

under ERISA. The court of appeal noted the context of

the issue before it; that the employer, without intent to

create an ERISA plan, had purchased an insurance policy,

and the insurer sought to elevate that fact to the level

which would permit it to avoid liability for its bad faith

in handling claims under the policy.

In short, the insurer seeks the protection of a federal

regulatory scheme without any evidence that any of

the purposes or concerns, which Congress had when it

enacted that regulatory scheme, were in any way im-

plicated. Although Miller’s employees had none of the

protections or benefits or a bona fide ERISA plan, the

6

insurer now seeks to use the illusion of such a plan

to deprive them of the benefits of state laws regulat-

ing insurer misconduct. /d., App. B at 43a.

The Supreme Court of California, with one justice

dissenting, reversed, holding that ‘despite the employer’s

minimal involvement in plan administration and complete

noninvolvement in claims processing” an employee benefit

plan was established, and accordingly, that the state law

actions were preempted. California Supreme Court De-

cision, App. A at la-2a.

The court viewed Fort Halifax v. Coyne as distinguish-

able because in that case the payments were to be made

direct'y by the employer. Determining that in cases where

the benefits are secured through an insurance policy, the

extent of employer involvement in plan administration is

not a relevant consideration in determining the existence

of an employee benefit plan (California Supreme Court

Decision, App. A at 8a), the court instead focused on

the test articulated by the llth Circuit in Donovan v.

Dillingham (688 F.2d 1367, 1873 (11th Cir. 1982)

(en banc)): a plan exists if the court may determine

“ ‘whether from the surrounding circumstances a reason-

able person could ascertain the intended benefits, bene-

ficiaries, source of financing, and procedures for receiving

benefits.’ California Supreme Court Decision, App. A at

9a. The court concluded that these criteria were easily

met in this case: the intended benefits were the payment

of health benefits; the beneficiaries were Miller’s em-

ployees and their dependents; the source of financing was

the premiums; and the procedure for securing benefits

was to submit a claim to Hall/MIA on a form secured

from Miller. Jd., App. A at 9a-10a."

1In his dissenting opinion, Justice Mosk pointed out that any

employer purchase of insurance would perforce meet these criteria

(California Supreme Court Decision, App. A. at 22a (Mosk Dis-

senting) ) thus blurring the distinction between an employee benefit

and an employee benefit plan, where the benefit was secured through

purchase of insurance.

7

The court determined that the Plan was an ERISA

plan because it provided benefits of the type specified in

the ERISA statute, and because it was established and

maintained by the employer. With respect to this latter,

the court noted that while the four criteria in the Secre-

tary of Labor’s safe habor regulations were not met in

this case, that regulation was not intended to be conclu-

sive on the issue. The court reasoned that while the

“hare purchase’ of insurance . . . with no employer

endorsement or involvement other than deducting premi-

ums from employees’ paychecks and forwarding them to

the insurer—does not conclusively establish the existence

of an ERISA plan” the fact that Miller actually paid

employees’ premiums is “evidence” that an ERISA plan

was established and maintained and “the purchase of a

policy covering a class of employees offers substantial

evidence that the employer has established a plan.” Jd.,

App. A at lla.

REASONS FOR GRANTING THE WRIT

In its decision, Division Three of the Second Appellate

District styled the Miller Imports/Bankers Life arrange-

ment as a “garden variety employee health insurance

benefit”. Court of Appeal Decision, App. B at 37a.

In its amicus brief to the Supreme Court of California,

the Association of California Life Insurance Companies

asserted that “[olf the estimated 4.5 million employer-

sponsored health care plans the overwhelming majority

are established simply by the employer’s purchase of

insurance.” Amicus Brief in Supreme Court of California

at p. 7. Indeed, this is the most common arrangement of

insuring for health care costs in the United States;

150,073,000 persons in the United States are covered by

health insurance related to the current or past employ-

ment of themselves or a relative. Poverty in the United

8

States: 1991, Series P60, Number 181, U.S. Bureau of

the Census, p. 149.*

Notwithstanding the significance of the question, there

remains a split in authority among both federal and state

courts as to whether an employer’s purchase of a health

insurance policy with little more constitutes the establish-

ment of an ERISA plan. The Sixth, Seventh, Ninth and

Eleventh Circuits would say that such a purchase of

insurance established a “plan”,* while authority in the

Fifth Circuit * would say that no “plan” was established.

The instant case places the Supreme Court of California

directly in conflict with the Nevada Supreme Court deci-

sion in Turnbow v. Pacific Mutual Life Ins. Co., 765 P.2d

1160 (Nev. 1988), cert. denied, 490 U.S. 1102 (1989).

Thus, a clear determination of whether such routine

insurance policies are ERISA Plans will define for tens

of millions of insureds in these types of insurance ar-

rangements their remedies for egregious bad faith. The

insured’s remedy under ERISA is most generally limited

to compelling the carrier to pay the benefits called for in

the insurance contract. If the insureds question these

denials of coverage, if they can secure legal assistance, if

2 The health insurance industry reports, similarly, that the num-

ber of individuals whose health insurance is provided through an

employment relationship is 153,800,000 in 1989. Source Book of

Health Insurance Data: 1991, Health Insurance Association of

America, Table 1.1.

3 International Resources V. New York Life Ins. Co., 950 F.2d 294

(6th Cir. 1991); Fugarino v. Hartford Life and Acc. Ins. Co., 969

F.2d 178 (6th Cir. 1992); Brundage-Peterson v. Compcare Health

Services Insurance Corp., 877 F.2d 509 (7th Cir. 1989); Kanne v.

Connecticut General Life Insurance Co., 867 F.2d 489 (9th Cir.

1988), cert. denied, 492 U.S. 906 (1989); Donovan v. Dillingham,

688 F.2d 1367.

4 Taggert Corporation Vv. Life and Health Benefits Administration,

Inc., 617 F.2d 1208 (5th Cir. 1980), cert. denied, 459 U.S. 851, reh’g

denied, 459 U.S. 1059 (1982); Gahn v. Allstate Life Ins. Co., 926

F.2d 1449 (5th Cir. 1991).

9

they can attract the attention of the Secretary of Labor,

if they don’t lose heart first or die first, if they prevail

and secure their remedy under ERISA, they win only

what they were entitled to all along under the contract of

insurance—the payment of the claim. Thus, if state bad

faith law® is preempted under 29 U.S.C. § 1132, there is

nothing under this scheme to discourage insurance car-

riers from denying potentially expensive claims such as

chronic disease, cancer and AIDS, and attempting to pass

the burden of these claims off on other health care sys-

tems, generally those supported by the taxpayers. With

this much at stake, the distinction which Congress so

carefully drew between employee “benefits” and employee

benefit “plans” in setting forth the scope of ERISA

preemption should not be readily blurred.

Since Congress intended that ERISA only preempt state

laws relating to employee benefit plans and not those with

relate merely to employee benefits (Fort Halifax, 482

U.S. at 7), distinguishing between the two becomes criti-

cal to implementing the intention of the Congress. In the

view of these Petitioners, the Court has already defined

the basis for such a distinction in Fort Halifax. Cer-

tainly prior to this Court’s decision in Fort Halifax, there

was some considerable confusion in distinguishing between

the two when the employee benefit was provided by means

of an insurance policy.

5 Well established law in California provides a cause of action in

tort, permitting consequential damages, against an insurer which

in bad faith denies an insured’s claim under a policy. Fletcher V.

Western Nat. Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78

(1970) ; Silberg v. California Life Ins. Co., 11 Cal.38d 452, 113 Cal.

Rptr. 711, 521 P.2d 1103 (1974). At least 33 states recognize an

insured’s right to consequential damages (and in some circum-

stances, punitive damages) in an action at law on account of an

insurer’s wrongful delay or refusal to pay claims. Jnsurer’s Lia-

bility for Consequential or Punitive Damage for Wrongful Delay

or Refusal to Make Payments Under Contract, 47 A.L.R.3d 314

(1973).

10

Early on, the Fifth Circuit had focused in such a

situation on the employer’s relationship with the insur-

ance program to determine whether an employer estab-

lished or maintained a plan when it provided benefits by

means of insurance; specifically, it focused on the em-

ployer’s commitment to the ongoing provision of the

benefit. Zaggert Corporation v. Life and Health Admin-

istration, Inc., 671 F.2d 1208. In that case, Taggert Cor-

poration purchased a health insurance policy for its sole

employee from a multi-employer trust. The Fifth Circuit

held that the trust itself, a for-profit, proprietary enter-

prise established for the purpose of marketing the insur-

ance policies to employers, was not an appropriate party

to confer ERISA jurisdiction. Jd. at 1210. The court

specifically rejected a suggestion by the Secretary of

Labor that Taggert’s subscription to the trust by itself

established an ERISA plan. “Considering the history,

structure and purposes of ERISA, we cannot believe that

that Act regulates bare purchases of health insurance

where, as here, the purchasing employer neither directly

not directly owns, controls, administers or assumes re-

sponsibility for the policy or its benefits.” Jd. at 1211.

Subsequently, but still before this Court’s decision in

Fort Halifax, the 11th Circuit, decided that the appropri-

ate focus should be on the provisions of the insurance

policy itself. The Eleventh Circuit also rejected as “sweep-

ing too broadly” the Secretary of Labor’s suggestion that

an employer’s decision to provide the type of benefits de-

scribed in the ERISA legislation is sufficient to establish

an employee benefit plan. Donovan v. Dillingham, 688

F.8d at 1873. “{T]he purchase of insurance does not con-

clusively establish a plan . .. but the purchase is evidence

of the establishment of a plan... .” Jd. Rather, the court

ruled that in determining whether the purchase of an in-

surance policy constituted establishing and maintaining

an employee benefit plan, it should focus on the policy it-

self, and “whether from the surrounding circumstances a

reasonable person could ascertain the intended benefits,

beneficiaries, source of financing, and procedures for re-

ee

11

ceiving benefits.” Jd. As Justice Mosk pointed out in

the California Supreme Court, this can hardly be a basis

for differentiation as it is difficult to conceive of an insur-

ance policy that would not meet this test. See App. A at 22a.

This Court’s decision in Fort Halifax established that

the focus properly belongs on the nature of the employer’s

activity in connection with the insurance program, not on

the policy. In Fort Halifax, as noted, the Court drew a

distinction between an employee benefit and an employee

benefit plan, and demonstrated that because of the plain

language of the ERISA preemption provision, the purpose

of that provision, and the overall objectives of ERISA it-

self, state laws could only be preempted where they related

to an employee benefit plan. Fort Halifax, 482 U.S. at 7.

The Court reasoned that this is so because ERISA’s pre-

emption provisions were intended to insulate employers

from inconsistent regulation of the complex administra-

tive activities associated with employee benefit plans. /d.

at 11.

An employer that makes a commitment systemati-

cally to pay certain benefits undertakes a host of ob-

ligations, such as determining the eligibility of claim-

ants, calculating benefit levels, making disbursements,

monitoring the availability of funds for benefit pay-

ments, and keeping appropriate records. The most

efficient way to meet these responsibilities is to estab-

lish a uniform administrative scheme, which provides

a set of standard procedures to guide processing of

claims and disbursement of benefits. Jd. at 9.

On the other hand, the Court observed, where the em-

ployer engages in none of these activities in connection

with providing an employee benefit (as was the case with

Miller Imports in the instant matter) none of the con-

cerns which the ERISA preemption was intended to

address are present, and therefore there is no preemption.

In the Court’s view, it was the assumption by an employer

of these myriad responsibilities which defines an employee

benefit plan.

12

Congress intended pre-emption to afford employers

the advantages of a uniform set of administrative

procedures governed by a single set of regulations.

This concern only arises, however, with respect to

benefits whose provision by nature requires an on-

going administrative program to meet the employer’s

obligation. It is for this reason that Congress pre-

empted state laws relating to plans, rather than sim-

ply to benefits. Only a plan embodies a set of admin-

istrative practices vulnerable to the burden that

would be imposed by a_ patchwork scheme of

regulation.

Id. at 11-12.

Regrettably, confusion remains: does any program

which provides benefits of the type described in ERISA

and which requires ongoing administrative activity con-

stitute a “plan” or does only a program of benefits de-

scribed in ERISA which requires ongoing administrative

activity by an employer constitute a “plan”? The answer

is the latter. “Only ‘plans’ involve administrative ac-

tivity potentially subject to employer abuse.” Jd. at 16.

Certainly, the dissenting justices in Fort Halifax read

the majority decision that way. “I dissent because it is

incredible to believe that Congress intended that the broad

preemption provision contained in ERISA would depend

upon the extent to which an employer exercised adminis-

trative foresight in preparing for the eventual payment

of employee benefits.” Jd. at 23 (White, J., dissenting).

Thus, in Fort Halifax, this Court established that the

appropriate way to determine whether an employer

established and maintained an employee benefit plan is

to focus on the degree and nature of the employer’s

activity and commitment in the provision of that bene-

fit. However, Fort Halifax has not found consistent

application in cases in which the employee benefit is pro-

vided by means of an insurance policy. Because Fort

Halifax did not involve insurance, and because it involved

obligations for one-time, rather than ongoing, payment of

13

benefits, application of this Court’s holding to the most

common types of insurance arrangements, such as that

exemplified in the instant case, remains inconsistent. Con-

flict remains among the federal Circuits in applying the

holding of Fort Halifax where employers provide benefits

through insurance. Similarly, the two highest state courts

which have addressed the issue have reached conflicting

results.

Notwithstanding this Court’s guidance in Fort Halifax,

several circuits have adopted the approach of the

Eleventh Circuit in Donovan v. Dillingham and continue

to examine the issue from the perspective of the insurance

policy rather than from the perspective of the employer’s

relationship to the benefit program. The Dillingham ap-

proach was endorsed by the Sixth Circuit in International

Resources v. New York Life, 950 F.2d 294.

The Fifth Circuit, however, continues to focus on the

employer’s role. In Memorial Hosp. System v. Northbrook

Life Ins. Co., 904 F.2d 236 (5th Cir. 1990), the court

held that the purchase of insurance by an employer which

paid one-half of employees’ premiums was more than a

“bare bones” purchase of insurance because the employer

assumed sole responsibility for paying premiums monthly,

and thus showed the “intent to provide its employees

with a welfare benefit program through the purchase

and maintenance of a group health insurance policy.”

Id. at 241. The court noted that the complaint had alleged

that the employer had “administered and maintained”

the policy and had engaged in conduct constituting the

handling of insurance matters in connection with the

policy pursuant to Texas insurance law. Id. at 243 n.&.

The court distinguished its earlier decision in Taggert

on the basis that Taggert involved only a bare purchase

of insurance, while in Memorial Hosp., the employer had

engaged in activities consistent with an intent to “admin-

ister the plan as well as insure it.” Jd. at 242-243.

14

The Fifth Circuit subsequently underscored its view

that the determination of the issue should be from the

perspective of the employer’s role in providing the insur-

ance benefit rather than from the perspective of whether

the elements of the statutory definition of an employee

benefit plan could be gleaned from the insurance policy

itself in Gahn v. Allstate Life Ins. Co., 926 F.2d 1449.

There, the Fifth Circuit, reversing the district court,

found that the purchase from a multi-employer trust of

a health insurance policy by a gift shop owner to cover

himself and his employees (who were his wife and chil-

dren) did not constitute the establishment of an employee

benefit plan. The Fifth Circuit held that the district

court had improperly focused on the activity of the multi-

employer trust, and that to determine whether the pur-

chase of the policy constituted the establishment and

maintenance of a “plan” the court “should have focused

on the employer... and his involvement with the admin-

istration of the plan.” Jd. at 1452. The court remanded

the matter for factual determinations relevant to this

examination, noting that the only factual record (the

employer’s affidavit that he played no part in formulation

of policy, held no monies in trust, but merely forwarded

premiums to the carrier and did not own, control or

administer the policy and had no responsibility for bene-

fits) suggested that the policy was not an ERISA plan.

Id. at 1452-1453. Thus, while in both the Memorial Hosp.

and Gahn decisions the Fifth Circuit, paying lip service

to Dillingham, said the determination should involve ex-

amination of the circumstances to see if the elements of

an ERISA plan are present, it is clear from both decisions

that the Fifth Circuit’s examination of the question re-

mains focussed on the employer’s activities in relation to

the provision of the benefit.

Thus, two threads of reasoning have been established

in the federal circuit courts in determining whether an

employer establishes and maintains an employee benefit

15

plan when it provides benefits of the type described in

ERISA by purchasing an insurance policy. Some circuits

follow the lead of the Eleventh Circuit and focus on the

insurance policy itself, to determine whether the “ele-

ments” of an employee benefit can be read from the policy.

The Fifth Circuit has followed the lead of this Court, and

focuses on the activities of the employer and its relation

to the provision of and continuation of benefits. The same

indecision has been demonstrated by the state courts.

While the Supreme Court of California has following

the Dillingham approach, the Supreme Court of Nevada

has reached the opposite result in a substantively iden-

tical case. Turnbow v. Pacific Mutual Life Ins. Co., 765

P.2d 1160. In Turnbow, the employer purchased health

benefits insurance from a multi-employer trust, paying

the premiums for herself and her three full-time em-

ployees. Starting from the premise that more than the

mere purchase of insurance is necessary to establish a

“plan”, the Nevada Supreme Court determined that no

ERISA plan was created because there was no indication

of employer commitment to continue such benefits.

This uncertainty in how to determine if an employer

establishes an employee benefit plan by purchasing an

insurance policy and performing, at best, ministerial

functions in connection with that policy, as reflected by

the conflict in decisional authority both in the federal

courts of appeal and among the state supreme courts

which have considered the issue, complicates the assertion

and protection of the rights of insured employees. The

rights of millions of insureds are at stake. And because,

as noted, the remedies under ERISA for bad faith by

carriers are so limited, and correspondingly, the potential

for abuse so great, at stake, ultimately, is the question of

who will pay potentially billions of dollars of health care

costs.

16

CONCLUSION

For these various reasons, the Petition for Certiorari

should be granted.

Respectfully submitted,

MICHAEL L. GOLDBERG *

MANDELL, LEWIS & GOLDBERG,

A Professional Corporation

2000 Corporate Ridge, Suite 1075

McLean, Virginia 22102-7858

(703) 734-9622

TIMOTHY J. WHEELER

GREENE, BROILLET, TAYLOR & WHEELER

100 Wilshire Blvd., 21st Floor

Santa Monica, California 90401

(310) 576-1200

Attorneys for Petitioners

* Counsel of Record

APPENDICES

la

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

$022055

(Ct. of Appeal No. B050259)

(Sup. Ct. No. C544301 )

LINDA BROWN MARSHALL et al.,

Plaintiffs and Appellants,

Ve

BANKERS LIFE AND CASUALTY COMPANY et al.,

Defendants and Respondents.

[Filed July 9, 1992]

We granted review in this case to determine whether

an employer that purchases a group health insurance

policy to cover its employees and their dependents, but

whose involvement in administration of benefits under

the policy is minimal, thereby establishes an “employee

benefit plan’ within the meaning of the Employee Retire-

ment Income Security Act of 1974 (ERISA) (29 U.S.C.

§ 1001 et seq.), so that an action seeking damages under

state law for the denial of a claim for policy benefits is

preempted by federal law.' We conclude that an em-

ployee benefit plan is established on these facts despite

1 See 29 United States Code sections 1002(1) (definition of “em-

ployee welfare benefit plan’’), 1144(a) (supersedure of state laws

relating to employee benefit plans).

2a

the employer’s minimal involvement in plan administra-

tion and complete noninvolvement in claims processing.

An action seeking remedies under state law for an im-

proper denial of benefits is, therefore, preempted. (Pilot

Life Ins. Co. v. Dedeaux (1987) 481 U.S. 41, 47-57;

Commercial Life Ins. Co. Vv. Superior Court (1988), 47

Cal.3d 473, 484-485. )

BACKGROUND

In 1983 Donald Marshall was employed by Miller Im-

port Datsun, Ine. (Miller Import). Miller Import’s em-

ployee manual stated that all employees would be pro-

vided with group health insurance coverage. From March

1, 1983, to October 1, 1983, Miller Import provided its

employees with health insurance coverage under a group

health, life, and disability insurance policy issued by

Bankers Life and Casualty Company (Bankers) and ad-

ministered by Frank B. Hall & Company of California,

MIA Administrators (Hall/MIA). All of Miller Import’s

employees were covered under the policy. Miller Import

allowed its employees to enroll their dependents for cover-

age under the group policy, and Donald Marshall enrolled

his wife, Linda. Miller Import paid the entire cost of

premiums for its employees. It also paid the cost of

premiums for covered dependents and then deducted those

amounts from employees’ paychecks. Hall/MIA billed

Miller Import for premiums on a monthly basis.

Miller Import’s role in administration of the policy

was minor. It directed its employees to fill out enrollment

ecards and forms for changes of beneficiaries and depend-

ent coverage; it then submitted the completed cards to

Hall/MIA. Miller Import received, and distributed to its

employees, booklets entitled “Your Group Insurance Plan,”

containing information about the policy and procedures

for filing claims. Additionally, Miller Import gave its

employees copies of a three-page letter, prepared by Hall /

MIA, explaining coverage under the policy. Miller Import

provided its employees with claim forms, which they

|

3a

or their health care providers submitted directly to Hall,

MIA. Miller Import neither reviewed nor evaluated

claim forms; Hall/MIA made all determinations regard-

ing eligibility for medical benefits. Miller Import em-

ployees were asked to contact Hall/MIA with any ques-

tions regarding the policy. However, when employees

occasionally asked questions regarding enrollment, cover-

age changes, and claims, Miller Import personnel would

try to respond before contacting Hall/MIA.

Miller Import did not intend to create an ERISA-gov-

erned benefit plan, and never filed any reports with the

United States Department of Labor with respect to its

group insurance policy.

The present suit arose out of the denial of Linda

Marshall’s claim for medical benefits. The operative

pleading (the fourth amended complaint) alleged that

Linda Marshall suffered aftereffects of an aneurysm and

brain surgery, requiring hospitalization, during the term

of the Bankers policy. Although Hall/MIA confirmed

coverage under the policy at the time of her hopitaliza-

tion, coverage was later revoked and her claims for bene-

fits were denied on the basis that her claim related to a

preexisting condition, sickle-cell anemia. The Marshalls

sued Bankers and Hall/MIA, alleging breach of the duty

of good faith and fair dealing, fraud, intentional inflic-

tion of emotional distress, negligence, and violation of

Insurance Code section 790.038. Defendants denied lia-

bility. Both sides moved unsuccessfully for summary

judgment on the issue of whether ERISA preempted the

Marshalls’ action. (29 U.S.C. § 1144(a).) That issue was

bifurcated for trial on stipulated facts as set forth in

the preceding three paragraphs.

The trial court ruled that Miller Import’s insurance

program constituted an “employee welfare benefit plan”

within the meaning of ERISA, so that the Marshalls’

claims were preempted. Accordingly, it entered judgment

for defendants. The Court of Appeal reversed, holding

4a

that because there was no administrative activity poten-

tially subject to employer abuse, ERISA was not impli-

eated. For the reasons that follow, we conclude the

Court of Appeal erred in focusing on the employer’s in-

volvement in administration of policy benefits.

ANALYSIS

ERISA is a comprehensive federal law designed to

promote the interests of employees and their beneficiaries

in employee pension and benefit plans. (Shaw V. Delta

Air Lines, Inc. (1983) 463 U.S. 85, 90.) As a part of

this integrated regulatory system, Congress enacted var-

ious safeguards to preclude abuse and to secure the

rights and expectations that ERISA brought into being.

(29 U.S.C. $1001; see also Sen. Rep. No. 93-127, Ist

Sess., p. 36 (1973).) Prominent among these safeguards

is an expansive preemption provision, found at section

514 of ERISA (29 U.S.C. § 1144; Ingersoll-Rand v. Mc-

Clendon (1990) 498 U.S. ' [112 L.Ed.2d 474,

482-483]; Carpenters So. Cal. Admin. Corp. v. El Capi-

tan Development Co. (1991) 53 Cal.3d 1041, 1047.)

ERISA’s preemption clause is conspicuous for its

breadth, establishing as an area of exclusive federal con-

cern the subject of every State law that “relates to” an

employee benefit plan governed by ERISA. (FMC Corp.

v. Holliday (1990) 498 U.S. ' [112 L.Ed.2d

356, 364].) ERISA preempts “any and all State laws in-

sofar as they . .. relate to any employee benefit plan,”

except laws “which regulate insurance... .” (29 U.S.C.

§1144(a), (b) (2) (A).) An employee benefit plan is not

deemed to be an insurance company or other insurer, or

to be engaged in the business of insurance, for purposes

of any state law purporting to regulate insurance com-

panies or insurance contracts. (29 U.S.C. § 1144(b) (2)

(B).)

In Pilot Life Ins. Co. v. Dedeaux, supra, 481 U.S. 41,

the high court held that ERISA preempts state common

>a

5a

law tort and contract actions based on an insurer’s im-

proper processing of a claim for benefits under an in-

sured employee benefit plan because such actions “re-

late to”’ an employee benefit plan, and because the state

common law of tort and contract does not “regulate in-

surance” within the intent of ERISA. (/d. at pp. 47-57.)

In Commercial Life Ins. Co. v. Superior Court, supra, 47

Cal.3d 473, we held that ERISA preempts a surviving

private cause of action brought under California Insur-

ance Code section 790.03, subdivision (h), when the ac-

tion asserts a claim arising from an employee benefit

plan. (47 Cal.3d at p. 484; see Moradi-Shalal v. Fire-

men’s Fund Ins. Companies (1988) 46 Cal.3d 287 [pros-

pectively eliminating private causes of action under Ins.

Code, § 790.03, subd. (h)].) Clearly, Pilot Life and Com-

mercial Life require us to conclude that all of the Mar-

shalls’ causes of action are preempted if the group health

plan under which Linda Marshall filed a claim for bene-

fits is an employee benefit plan governed by ERISA.

We turn accordingly to that question.”

* Although the United States Supreme Court has not addressed

the question expressly, it has assumed that employer-sponsored

group insurance plans are ERISA plans. In Pilot Life, as in this

case, the employer purchased a group disability insurance policy,

collected and matched its employees’ contributions to the plan and

forwarded premiums to the insurer; the employer also provided

claim forms to its employees and forwarded the completed forms

to the insurer, which bore the responsibility of determining who

would receive benefits. (Pilot Life Ins. Co. v. Dedeaux, supra, 481

U.S. at p. 43.) Similarly, in Commercial Life the employer spon-

sored an insured medical benefit plan for its employees; the plaintiff

employee forwarded his medical bills to the insurer for payment;

and the insurer refused payment, denying coverage. (Commercial

Life Ins. Co. Vv. Superior Court, supra, 47 Cal.3d at p. 475.) In

neither case is there any indication that the employer took a role

in the processing of claims. The Marshalls do not attempt to draw

any factual distinctions between this case, on one hand, and Pilot

Life and Commercial Life, on the other. However, Pilot Life did

not explicitly address the requirements of an ERISA plan, and in

Commercial Life the parties did not dispute that the plan was of

3

|

a

6a

ERISA governs any employee benefit plan established

or maintained by an employer engaged in commerce or in

an industry or activity affecting commerce. (29 U.S.C.

§ 1003(a).) An “employee welfare benefit plan,” within

the meaning of ERISA, is “any plan, fund, or program

. established 0: maintained by an employer . . . to the

extent that such plan, fund, or program was established

or is maintained for the purpose of providing for its par-

ticipants or their beneficiaries, through the purchase of

insurance or otherwise, (A) medical, surgical, or hosm-

tal care or benefits, or benefits in the event of sickness,

accident, disability, death or unemployment, or vacation

benefits, apprenticeship or other training programs, or

day care centers, scholarship funds, or prepaid legal serv-

ices... .”’ (29 U.S.C. § 1002(1), emphasis added. )

The existence of an ERISA plan is a question of fact,

to be answered in light of all of the surrounding cir-

cumstances as viewed by a reasonable person. (Kanne V.

Connecticut General Life Ins. Co. (9th Cir. 1988) 867

F.2d 489, 492.) The burden is on defendants to prove

facts necessary to establish the defense of ERISA pre-

emption. (/d. at p. 492, fn. 4.)

The Marshalls contend that Miller Import did not es-

tablish an employee benefit plan under ERISA when it

purchased the Bankers policy, arguing that there is no

employee benefit plan unless the employer is involved in

the plan’s administration. Initially, we must observe that

the statutory language does not support such a require-

ment. Instead, ERISA applies when an employer “es-

tablishes or maintains” a plan for the purpose of provid-

ing its employees and their dependents with medical

benefits. (29 U.S.C. § 1002(1), emphasis added.) The

the type regulated by ERISA. Appellate courts in this state and in

the federal system have in a number of cases articulated tests for

determining whether a given arrangement constitutes an employee

benefit plan within the contemplation of ERISA. We are now called

upon to do the same.

sill

7a

statute expressly contemplates the purchase of insurance

as a possible means of providing those benefits. (Jbid.)

ERISA’s definition of “administrator” covers a person

so designated by the terms of the instrument under

which the plan is operated, who may be someone other

than the employer sponsoring the plan. (29 U.S.C. § 1002

(16) (A); see also 29 U.S.C. §§ 1102(b) (2) [plan must

describe any procedure for allocation of responsibilities

for operation and administration of plan], 1105(c) [plan

instrument may provide for procedures to allocate fidu-

ciary responsibilities among named fiduciaries and may

provide for named fiduciaires to designate others to carry.

out fiduciary responsibilities under plan].) In addition,

the United States Department of Labor’s regulations im-

plementing ERISA contemplate that benefits under an

insured employee-welfare-benefit plan may be adminis-

tered by an insurance company or service. (29 C.F.R.

§ 2560.503-1(¢c), (g) (2) (1984).) Finally, we note that

holders of group insurance policies commonly do not bear

primary responsibility for processing claims. That func-

tion is generally either retained by the insurer of dele-

gated to a third party administrator, as in this case.

Thus, considerations founded in the statute, implementing

regulations, and common practice militate against the

argument advanced by the Marshalls.

Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1

(Fort Halifax), on which the Marshalls rely, does not

support a contrary conclusion. Fort Halifax was an ac-

tion to enforce rights under a Maine statute requiring

employers to make a one-time severance payment to em-

ployees in the event of a plant closing. (Me. Rev. Stat.

Ann., tit. 26, §625-B.) The employer asserted ERISA

preemption as a defense against the action. The high

court held that the Maine statute was not preempted

by ERISA “because the statute neither establishes, nor

requires an employer to maintain, an employee welfare

benefit ‘plan’ under that federal statute.” (Fort Halifax,

supra, 482 U.S. at p. 6.) The high court reasoned that

} |

8a

“(t]he requirement of a one-time, lump-sum payment

triggered by a single event requires no administrative

scheme whatsoever to meet the employer’s obligation... .

The theoretical possibility of a one-time obligation in the

future simply creates no need for an ongoing administra-

tive program for processing claims and paying benefits.”

(Id. at p. 12.) ERISA’s regulatory concerns are impli-

cated only when there is ongoing administrative activity

subject to abuse. When delivery of a benefit requires no

administrative scheme—as with the nonrecurring sever-

ance payment at issue in Fort Halifaw—then ERISA’s

interest in ensuring national uniformity of regulation is

not implicated. When a continuing administrative scheme

is required, on the other hand, ERISA’s preemption pro-

vision eliminates the threat of conflicting and inconsistent

state and local regulation. (Jd. at p. 9.)

Fort Halifax, supra, 482 U.S. 1, dealt with a benefit

payable directly by an employer, not pursuant to an in-

surance policy. Consequently, the high court had no

occasion to address the situation of an employer that

chooses to provide its employees with a benefit through

the mechanism of a group insurance policy administered

by the insurer or another person so designated. Its

reference to the “employer’s obligation” must he read

in the light of its facts. Properly understood, Fort Hali-

fax requires us to consider not the level of the employer’s

participation in an ongoing administrative program, but

rather whether such a program exists at ail.*

3 The Marshalls urge that Gahn v. Allstate Life Ins. Co. (5th

Cir. 1991) 926 F.2d 1449 dictates a contrary rule. We cannot

agree. Gahn was a suit arising out of an alleged wrongful termina-

tion of coverage under a group health insurance policy. The plain-

tiff was an employee of her husband’s business; he purchased the

insurance to cover himself and his employees (his wife and their

two sons). Defendant Allstate provided the insurance through a

multiple employer trust. In determining whether an employee wel-

fare benefit plan was established on these facts, the district court

focused on the relationship between Allstate and the trust. The

court of appeals held that focus to be erroneous, noting that the

9a

While a plan is not established merely by the em-

ployer’s deciding to have one, the plan need not be in

writing in order to exist. (James v. National Business

Systems, Inc. (7th Cir. 1991) 924 F.2d 718, 720.) To

hold that a plan exists, the court must be able to deter-

mine ‘whether from the surrounding circumstances a

reasonable person could ascertain the intended benefits,

beneficiaries, source of financing, and procedures for re-

ceiving benefits.” (Donovan v. Dillingham, supra, 688

F.2d 1367, 1373 [en banc]; see also Brown v. Ampco-

Pittsburgh Corp. (6th Cir. 1989) 876 F.2d 546, 551

[adopting Dillingham test]; Ed. Miniat, Inc. v. Globe Life

Ins. Group, Inc. (7th Cir. 1986) 805 F.2d 732, 739

[same]; Harris v. Arkansas Book Co. (8th Cir. 1986)

794 F.2d 358, 360 [same]; Scott v. Gulf Oil Corp. (9th

Cir. 1985) 754 F.2d 1499, 1503-1504 [same].) These

criteria are easily met in this case. A reasonable person

would conclude that the intended benefits were the pay-

ment of medical and hospitalization expenses under the

group insurance policy Miller Import purchased; the bene-

ficiaries were Miller Import’s employees and covered de-

pendents; the source of financing was the premiums paid

by Miller Import and the employees; and the procedure

trust itself was not established or maintained by an employer and

was therefore not an employee welfare benefit plan. (/d. at p. 1452.)

In the case before us, the Marshalls focus on the Gahn court’s

statement that the district court should have looked to “the em-

ployer, Mr. Gahn, and his involvement with the administration of

the plan.” (Gahn vy. Allstate Life Ins. Co., supra, 926 F.2d at

p. 1452.) Despite the quoted language, the court of appeals did not

consider whether it was Mr. Gahn’s responsibility to process claims

under the policy. Rather, the court employed the tests formulated

in Donovan vy. Dillingham (11th Cir. 1982) 688 F.2d 1367, 1373,

and in the Department of Labor’s safe-harbor regulation (29

C.F.R. § 2510.3-1(j)), discussed post at pages —— - (typed

maj. opn. at pp. 12-13), and concluded the record was insufficient

to enable it to determine whether Mr. Gahn’s group health plan was

an employee benefit plan. Gahn does not, therefore, stand for the

proposition that an employer must administer a benefit plan in

order for ERISA to apply.

ao

10a

for receiving benefits was the submission to Hall/MIA

of claim forms procured from Miller Import. (Hansen V.

Continental Ins. Co. (5th Cir. 1991) 940 F.2d 971, 977.)

Having concluded that a “plan” exists, we must de-

termine whether it is an ERISA plan. (Hansen v. Con-

tinental Ins. Co., supra, 940 F.2d at p. 977.) An ERISA

plan is one established or maintained by the employer

with the purpose of providing its employees with any of

the types of benefits specified in ERISA. (See 29 U.S.C.

£ 1002(1) [‘medical, surgical, or hospital care or bene-

fits’ ].) There is no dispute that the hospitalization bene-

fits Linda Marshall sought fall within the enumerated

categories of benefits.

The remaining question, then, is whether Miller Import

“established or maintained” the plan in order to provide

its employees with medical or hospitalization benefits. No

single act in itself necessarily constitutes the establish-

ment of a plan (Donovan v. Dillingham, supra, 688 F.2d

at p. 1373), but an employer can establish an ERISA

plan “rather easily.” (Credit Managers Ass’n v. Kenne-

saw Life & Acc. Ins. (9th Cir. 1987) 809 F.2d 617, 625.)

The Court of Appeals for the Ninth Circuit has noted in

dicta that “[e]ven if an employer does no more than

arrange for a ‘group-type insurance program,’ it can

establish an ERISA plan, unless it is a mere advertiser

who makes no contributions on behalf of its employees.”

(Jbid., citing 29 C.F.R. § 2510.3-1(j) (1975).) The

United States Department of Labor has promulgated a

regulation excluding group insurance programs from

ERISA’s definition of “employee benefit plan” when: (1)

the employer makes no contributions toward premiums;

(2) participation is completely voluntary for employees;

(3) the employer’s sole functions are, without endorsing

the program, to allow the insurer to publicize it to em-

ployees, to collect premiums through payroll deductions,

and to remit them to the insurer; and (4) the employer

receives no consideration in connection with the program

anata aaa

lla

other than reasonable compensation for administrative

services rendered in connection with the payroll deduc-

tions. (29 C.F.R. § 2510.3-1(j).) All four conditions must

be present in order for the plan to fall outside ERISA

(Kidder v. H & B Marine, Inc. (5th Cir. 1991) 9382 F.2d

347, 351), although as the Court of Appeals for the

Seventh Circuit has pointed out, “in creating a safe

harbor [the regulation] does not automatically invali-

date all arrangements on the high seas.” (Brundage-

Peterson Vv. Compcare Health Services Ins. (7th Cir. 1989)

877 F.2d 509, 511; see also 29 C.F.R. § 2510.3-1(a) (4)

(1975) [safe-harbor regulation should not be read as

indicating Department of Labor’s view of possible scope

of “employee welfare plan” under ERISA].) Because

Miller Import paid the premiums for its employees’ cov-

erage, the regulation undercuts rather than supports

the Marshalls’ position.

A “bare purchase” of insurance—one meeting the con-

ditions set forth in the Depatment of Labor’s regulation,

with no employer endorsement or involvement other than

deducting premiums from employees’ paychecks and for-

warding them to the insurer—does not conclusively

establish the existence of an ERISA plan. (Kanne v. Con-

necticut General Life Ins. Co., supra, 867 F.2d at p. 492.)

However, a purchase of insurance is evidence of the

establishment of a plan, and the purchase of a_ policy

covering a class of employees offers substantial evidence

that the employer has established a plan. (Donovan v.

Dillingham, supra, 688 F.2d at p. 1373.)

The Marshalls rely on Taggart Corp. v. Life & Health

Benefits Admin. (5th Cir. 1980) 617 F.2d 1208, 1211,

certiorari denied 450 U.S. 1030, for the proposition that

an employer must administer benefits under a group in-

surance policy in order for ERISA to apply. However,

in a case decided after Taggart, the Court of Appeals for

the Fifth Circuit rejected the contention that Taggart

held an employer’s purchase of an insurance policy to be

x

ieaiieteieeenee eee

12a

outside the scope of ERISA. (Memorial Hosp. System v.

Northbrook Life Ins. Co. (5th Cir. 1990) 904 F.2d 236,

241-242.) The court emphasized that Taggart involved

a claim by a corporation and its only employee that a mul-

tiple employer trust (MET) constituted an ERISA plan;

the corporation, through its president and sole employee,

subscribed to the MET in order to obtain health care for

the president and his family at reduced premiums. The

corporation and its president sued under ERISA to re-

cover benefits allegedly owing the president’s wife. The

United States District Court dismissed for lack of sub-

ject matter jurisdiction, concluding the evidence showed

the transaction simply involved a purchase of insurance

by the plaintiff for himself and his family. (See Tagger?

Corp. Vv. Efros (S.D.Tex. 1979) 475 F.Supp. 124, 127.)

The Court of Appeals affirmed, holding that neither the

MET nor the corporation’s subscription to its constituted

an ERISA plan. The court reasoned that the corporation

did no more than make payments to a purveyor of insur-

ance, evidently for tax reasons. (Taggart Corp. v. Life

& Health Benefits Admin., supra, 617 F.2d at p. 1211;

cf. 29 C.F.R. § 2510.8-3(b), (¢) (1) [plans without em-

ployees are not governed by ERISA; an individual and

his or her spouse shall not be deemed employees of a

business, whether incorporated or unincorporated, that is

wholly owned by the individual or by the individual and

the spouse].) Taggart, therefore, does not avail the Mar-

shalls.

Miller Import did more than make a “bare purchase”

of insurance. It selected the Bankers policy from among

other available policies, choosing to provide health care

benefits to all of its employees at its own cost, and to

provide the opportunity for its employees to enroll their

dependents in the group plan. Miller Import paid monthly

premiums, submitted enrollment cards and forms for

changes of beneficiary to Hall/MIA, and cancelled the

Bankers policy after six months’ time, substituting

(einen

13a

another group policy purchased from a different insurer.

Miller Import’s actions demonstrated beyond peradventure

that it established and maintained the policy. The fact

that Miller Import’s administrative functions under the

policy are minimal is perfectly in keeping with its intent

that Hall/MIA administer the plan that Bankers insured.

(See Memorial Hosp. System v. Northbrook Life Ins. Co.,

supra, 904 F.2d at pp. 242-243.) Delegation of plan ad-

ministration is a common feature of employee benefit

plans, one contemplated, as we have seen, by ERISA.

(Brundage-Peterson v. Compcare Health Services Ins.,

supra, 877 F.2d at p. 511; see 29 U'S.C. $$ 1002(16) (A),

1102(b) (2), 1105(¢) ; see also 29 C.F.R. § 2560.508-1(c),

(g)(2).) Such a delegation in no way precludes the

establishment or maintenance of an ERISA plan.

We conclude that an employer that—in order to pro-

vide its employees with any of the benefits specified in

ERISA—purchases a group insurance policy, contributes

toward premiums and remits them to the insurer, and

retains authority to terminate the policy or change its

terms has “established or maintained” an ERISA plan

regardless of whether it also processes claims or otherwise

administers the policy. (See also International Resources

v. New York Life Ins. (6th Cir. 1991) 950 F.2d 294, 297-

298 [applying Donovan and Brundage analyses to find

ERISA plan on similar facts].)

Our conclusion is consistent with the views of the

United States Department of Labor. In a 1976 interpre-

tive opinion, the department took the position that an

ERISA plan is created in an arrangement whereby the

employer purchases a group insurance policy providing

life, accident, and health benefits and contributes the en-

tire cost of premiums for employees, with employees con-

tributing the cost of premiums for covered dependents

through payroll deductions. (U.S. Dept. Labor, ERISA

Opn. Letter 76-06 (April 30, 1976).) The department’s

reasonable views, while not binding on us, are entitled

l4a

to deference. (Massachusetts v. Morash (1989) 490 U.S.

107, 116.)

Language in several decisions by California Courts

of Appeal can be read to suggest that employer involve-

ment in the administration of policy benefits is necessary

in order to trigger the application of ERISA. In Rizzi v.

Blue Cross of So. California (1988) 206 Cal.App.3d 380

(Rizzi), the first of these decisions, the court relied on

Fort Halifax, supra, 482 U.S. 1, to declare that ERISA’s

concern with regulating the administrative integrity of a

program arises when an employer provides benefits in a

way that requires the employer’s administration of funds.

The Rizzi court stated that “|[t]he ultimate determination

depends on an evaluation of all the circumstances, keeping

in mind ERISA’s purpose of regulating an employer’s ad-

ministration of benefit plans.” (206 Cal.App.3d at p. 390,

emphasis in original; see also Lambert v. Pacific Mutual

Life Ins. Co. (1989) 211 Cal.App.38d 456, 463-465 [ap-

plying similar analysis}.)

As the court in Hughes v. Blue Cross of Northern Cali-

fornia (1989) 215 Cal.App.8d 832 recognized, however,

Rizzi’s language must be read in light of its actual hold-

ing: affirmance of summary judgment dismissing an

action on the ground of ERISA preemption “on a showing

only that the employer procured the group insurance policy

for the benefit of its employees, maintained control over

amendment or termination of the policy, and performed

certain incidental services, such as transmission of sub-

scription charges and notices.” (Jd. at pp. 854-855.)

Rizzi, supra, 206 Cal.App.3d 380, as the court below

and the parties seem to agree, involved facts virtually

indistinguishable from those in this case. Unlike the court

below, we believe Rizzi correctly held the employee’s action

preempted. Rizzi’s emphasis on the employer’s adminis-

tration of the program, however, predicated on an over-

expansive reading of Fort Halifax, supra, 482 U.S. 1,

does not accurately reflect the law.

a

l5a

Our conclusion that Miller Import established and

maintained a plan under ERISA is not altered by the

fact that Miller Import neither complied with ERISA’s

requirements nor intend to create an ERISA plan. (Scott

Vv. Gulf Ow Corp., supra, 754 F.2d at pp. 1503-1504;

see also Firestone Tire & Rubber Co. v. Bruch (1989) 489

U.S. 101, 105 [claims under termination pay plan, estab-

lished by employer unaware of ERISA’s applicability and

requirements, adjudicated under ERISA].) The test of

whether a benefit plan is exempt from ERISA is not one

of the employer’s motivation. (Shaw v. Delta Air Lines,

Inc., supra, 463 U.S. at p. 107.) An employer cannot “opt

out” of ERISA by noneompliance.

For the first time on appeal, the Marshalls assert that

defendants are equitably estopped to raise preemption as

a defense. Assuming, without deciding, that the doctrine

of estoppel might in an appropriate case be applied to

avoid ERISA preemption, we decline to address the issue

in the absence of a fully developed record. Although the

Marshalls refer to evidence that the defendants failed to

disclose that the plan was governed by ERISA, they cite

no evidence establishing that defendants were aware

either that the policy was subject to ERISA or that

ERISA would preclude the Marshalls from asserting state

law causes of action. Nor do they cite evidence to support

their contention that they relied on defendants’ conduct

to their injury. (See Ellenburg v. Brockway (9th Cir.

1985) 763 F.2d 1091, 1096 [prerequisites to application

of equitable estoppel].) Additionally, defendants suggest

*The Marshalls cite a number of cases in support of their estop-

pel argument, but none is apposite; the cases hold that a defend-

ant may be estopped to deny coverage under ERISA of benefits

promised in a plan, not that a defendant may be estopped to raise

the defense of ERISA preemption in an action under state law.

(Davidian v. Southern California Meat Cutters Union (9th Cir.

1988) 859 F.2d 134, 186; Dockray v. Phelps Dodge Corp. (9th Cir.

1986) 801 F.2d 1149, 1155; see also Black v. TIC Investment Corp.

(7th Cir. 1990) 900 F.2d 112, 114-115.)

16a

that it was Miller Import’s conduct, if anyone’s that might

give rise to an estoppel. (See 29 U.S.C. §§ 1002 (16) (A),

(B) [plan “administrator” defined as person so desig-

nated under plan’s governing instrument; absent specific

designation, administrator is plan’s sponsor, the em-

ployer], 1021, 1024 [administrator’s filing, reporting, and

disclosure duties].) These unsettled factual issues and

insufficiently briefed legal arguments render this an in-

appropriate case in which to depart from the ordinary

rule limiting an appellate decision to issues the parties

raised below. (See Panopluos v. Maderis (1956) 47 Cal.

2d 337, 340-341; Blatt v. Farley (1990) 226 Cal.App.3d

621, 627.)

The Marshalls urge that when neither the employer

purchasing the group insurance policy covering its em-

ployees nor the insurer or administrator of the policy

complies with ERISA requirements, ERISA’s objectives

are not served by preemption of state law remedies. We

cannot agree. Although failure to comply with ERISA’s

reporting requirements may subject the responsible fidu-

ciaries to statutory penalties and liability for relief (see

29 U.S.C. $$ 1109, 1132(c) (2)), it does not deprive em-

ployees of their right to sue under ERISA to secure their

benefits. (Blau v. Del Monte Corp. (9th Cir. 1984) 748

F.2d 1348, 1352; 29 U.S.C. §1132(a)(1)(B).) Con-

gress has clearly expressed its intent that the civil en-

forcement provisions of ERISA be the exclusive vehicle

for actions by ERISA-plan participants and beneficiaries

asserting improper processing of claims for benefits.

(Commercial Life Ins. Co. v. Superior Court, supra, 47

Cal.3d at p. 480.) ERISA’s enforcement scheme care-

fully balances the need for prompt and fair claims settle-

ment procedures against the public interest in encour-

aging the formation of employee benefit plans. The policy

choices reflected in the inclusion of certain remedies and

the exclusion of others under the federal scheme would be

completely undermined if ERISA-plan participants and

beneficiaries were free to obtain remedies under state law

17a

that Congress rejected in ERISA. (Pilot Life Ins. Co. Vv.

Dedeaux, supra, 481 U.S. at p. 54.)

DISPOSITION

The judgment of the Court of Appeal is reversed.

PANELLI, J.

WE CONCUR:

Lucas, C.J.

KENNARD, J.

ARABIAN, J.

BAXTER, J.

GEORGE, J. ~

18a

DISSENTING OPINION BY MOSK, J.

I dissent. The majority misinterpret the holding of

Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1

(hereinafter Fort Halifax), as well as other cases per-

mitting preemption of state law by the Employee Retire-

ment Income Security Act (ERISA) only if the employer

takes a substantial role in administering an insurance

policy. Moreover, their conclusion that the employer in

this case “established and maintained” an “employee bene-

fit plan” is based on reasoning inconsistent on the face

of the opinion.

In analyzing the preemption issue, it must be kept

in mind the “basic assumption [is] that Congress did not

intend to displace state law.” (Maryland v. Louisiana

(1981) 451 U.S. 725, 746.) The presumption applies

most strongly where, as here, Congress legislates in an

area traditionally occupied by the states (Rice v. Santa Fe

Elevator Corp. (1947) 331 U.S. 218, 230), such as tort

law. Since there is a strong presumption against pre-

emption, we should not, as the majority do, read the pro-

visions of ERISA expansively, so as to enlarge the scope

of its preemption language.

Fort Halifax (supra, 482 U.S. 1) is directly contrary

to the majority’s holding. In distinguishing that case, the

majority rely on the fact that the severance payment

there involved was made directly by the employer to the

employee, rather than pursuant to an insurance policy.

However, the rationale of that case cannot be so easily

dismissed. Almost the entire analysis in the opinion re-

lates to the purpose served by the preemption provisions

of ERISA and the reason why that purpose is not vio-

lated unless the employer performs such administrative

tasks as the calculation and payment of benefits pursuant

to an “employee benefit plan.”

The opinion in Fort Halifax provides three reasons in

support of its conclusion that the Maine statute requiring

RRR 0

\

19a

payment of severance benefits in that case was not pre-

empted by ERISA. First, ERISA does not preempt state

laws that grant employee benefits, but only those that

relate to an “employee benefit plan.” (482 U.S. at p. &.)

A payment to an employee that does not require ongoing

administrative activity by the employer is not such a plan.

Second, one reason only an “employee benefit plan” is

Subject to preemption is that an employer who adminis-

ters such a plan would be subject to state regulation, rais-

ing the prospect of a conflict between ERISA and state

regulation. That is, an employer-administered plan would

require the employer to perform functions like determin-

ing the eligibility of claimants and calculating benefit

levels. The most efficient way to meet these obligations is

to provide a set of standard procedures to guide the

processing of claims and disbursement of benefits. This

conduct would be subject to state regulatory requirements,

thereby interfering with ERISA’s goal of assuring that

administrative practices of a benefit plan will be gov-

erned by a single set of regulations. (Fort Halifax,

Supra, 482 U.S. at pp. 8-14.)

Third, the statute was not preempted by ERISA be-

cause the severance payment did not implicate a second

concern of the preemption provision, namely, the regula-

tory purposes of ERISA. The fiduciary standards con-

tained in the federal legislation were designed to safe-

guard employees who were the beneficiaries of an “em-

ployee benefit plan” from such abuses by an employer as

self-dealing, imprudent investment, and misappropriation

of plan funds. “Only ‘plans’ involve administrative ac-

tivity potentially subject to employer abuse.” (Fort Hali-

fax, supra, 482 U.S. at p. 16.) Without such activity

by the employer, “[i]t would make no sense for pre-

emption to clear the way for exclusive federal] regulation,

for there would be nothing to regulate.” (Ibid.)

In sum, Fort Halifax holds that state laws are not

preempted by ERISA unless the employer administers an

. 20a

“employee benefit plan,” because it is only such adminis-

tration that would violate the dual purpose of the pre-

emption provision, i.e., the avoidance of conflict between

state and federal regulations governing administration

of the plan, and the danger that the employer might

abuse its administrative function.

The dissenting opinion in Fort Halifax also under-

stands the majority as holding that the issue of preemp-

tion turns on whether the employer has established an

“administrative scheme” for paying benefits. (“I dis-

sent because it is incredible to believe that Congress

intended that the broad preemption provision contained

in ERISA would depend upon the extent to which an

employer exercised administrative foresight in preparing

for the eventual payment of employee benefits.” (Fort

Halifax, supra, 482 U.S. 1, 23, dis. opn. of White, J.)

The majority in the instant case barely mention the

high court’s reasoning in Fort Halifax. Instead, they

attempt to distinguish the decision on the ground that the

employer there paid the severance benefit directly to the

employee. This attempted distinction is patently invalid.

The reason the severance payment in that case did not

invoke preemption, as the court expressly stated, was be-

cause it did not require administration by the employer;

it was not, as the majority here claim, because the pay-

ment was made directly to the employee by the employer.

(“Some severance benefit obligations by their nature

necessitate an ongoing administrative scheme, but others

do not. Those that do not, such as the obligation imposed

in this case, simply do not involve a state law that ‘re-

late[s] to’ an employee benefit ‘plan.’” (Fort Halifax,

supra, 482 U.S. at p. 18.)

If anything, direct payment by the employer is more

likely to indicate preemption under the Supreme Court’s

rationale than indirect payment, such as payment-by an

insurer. The court describes the type of activities of an

employer that will invoke federal preemption, as follows:

neem

2la

Preemption occurs if the employer “makes a commitment

systematically to pay certain benefits” by undertaking

such activities as “determining the eligibility of claim-

ants, calculating benefit levels, making disbursements . . .

and keeping appropriate records in order to comply with

applicable reporting requirements.” (Fort Halifax, supra,

482 U.S. at p. 9, italics added.) Thus, the employer who

pays the employee directly is, under the Supreme Court’s

analysis, more involved in administration of a_ benefit

- plan and therefore more likely to invoke preemption than

one who pays a benefit only by purchasing a policy of

insurance.

No case, so far as I am aware, has interpreted the

holding of Fort Halifax as being confined merely to cases

in which the employer made direct payment to the em-

ployee, nor is there any authority for the proposition that

employer administration of a policy is irrelevant to the

issue of preemption. A number of cases following the

high court’s decisiun have properly viewed it as standing

for the proposition that an employer’s involvement in plan

administration is the touchstone of the preemption analy-

sis. (Gahn v. Allstate Life Ins. Co. (5th Cir. 1991) 926

F.2d 1449, 1452 [although the court ultimately concluded

that the record was insufficient to enable it to decide

whether a benefit plan was involved, the principle that

the employer’s “involvement with the administration of

the plan” is the determining factor in the preemption

analysis was clearly stated]; Taggart Corp. v. Life &

Health Benefits Admin. (5th Cir. 1980) 617 F.2d 1208,

1210-1211; Turnbow v. Pacific Mut. Life Ins. Co. (Nev.

1988) 765 P.2d 1160, 1161; Lambert v. Pacific Mutual

Life Ins. Co. (1989) 211 Cal.App.3d 456, 463-465; Rizzi

v. Blue Cross of So. California (1988) 206 Cal.App.3d

380, 389 [“the line of demarcation between ERISA plans

and non-ERISA plans depends on the level of involvement

by the employer in the program so as to warrant federal

regulation of the administrative integrity of the pro-

gram’’}.)

|

22a

Furthermore, the majority’s reasoning is inconsistent

on its face. While it concedes that the mere purchase of

insurance does not establish a plan, it effectively holds

that preemption occurs if the employer does no more than

make such a purchase. Thus, it concludes that a plan

exists if a “reasonable person could ascertain the intended

benefits, beneficiaries, source of financing, and procedures

for receiving benefits.” I fail to see how an employer can

purchase any insurance without the specification of- these

details.

The majority’s conclusion that the employer in this case

did more than merely purchase insurance suffers from

the same defect. Its conclusion is based on the following

factors: The employer (1) selected the policy from among

other available policies, (2) chose to provide health care

benefits to all of its employees at its own cost and to

provide the opportunity for dependent coverage, (3) paid

the monthly premiums, (4) submitted enrollment cards

and forms for changes of beneficiary to the administrator,

and (5) cancelled the policy after six months and sub-

stituted another policy from a different insurer. Aside

from number 4 on this list, an employer who makes a

“bare purchase” of insurance must perform all these

tasks, assuming that it has the power to cancel the policy,

as the employer had in this case.' That is, the employer

cannot purchase insurance without choosing a policy and

paying the premiums. Only the fact that the employer

submitted enrollment and change of beneficiary forms to

the insurer’s administrator goes beyond “mere purchase.”

The notion that an insurer is totally immunized from

liability under state law because the employer rather

than the employee transmits these routine forms to the

insurer is incomprehensible.

The same problem with the majority’s reasoning is

evident in its conclusion that the employer “established

1The fact that the employer was not obligated to continue to

provide health benefits weighs against preemption. (Donovan Vv.

Dillingham (11th Cir. 1982) 684 F.2d 1367, 1374-1375.)

23a

and maintained” an ERISA plan because it purchased a

group insurance policy, contributed to premiums and re-

mitted them to the insurer, and retained the authority to

terminate it. How can an employer purchase a _ policy

without complying with these requirements?

Today’s decision deprives countless Californians de-

frauded by insurers of the protection afforded by state

law. It is ironic indeed that a federal statute designed

to defend the interests of insured employees is construed

to sanction such a result. Sadly, it bears repeating, as

stated in my dissent in Garvey v. State Farm Fire &

Casualty Co. (1989) 48 Cal.3d 395, 416, “in this court,

the insurer wins and the insureds lose.”

I would affirm the judgment of the Court of Appeal.

Mosk, J.

24a

APPENDIX B

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

2d Civil No. B050259

(Super. Ct. No. C544301)

LINDA BROWN MARSHALL,

DONALD MARSHALL,

Plaintiffs and

Appellants,

Ve

BANKERS LIFE AND CASUALTY COMPANY, et al.,

Defendants and

Respondents.

[Filed June 10, 1991]

APPEAL from a judgment of the Superior Court of

Los Angeles County. Norman L. Epstein, Judge. Re-

versed.

Greene, Broillet, Taylor & Wheeler, Randy McMurray

and Timothy J. Wheeler; Mandell, Lewis & Goldberg and

Michael L. Goldberg, for Plaintiffs and Appellants.

O’Neal & Wodin and Mare J. Wodin, for Defendants

and Respondents.

25a

Plaintiffs and appellants Linda Brown Marshall and

Donald Marshall appeal a judgment in favor of defend-

ants and respondents Bankers Life and Casualty Com-

pany (Bankers) and Frank B. Hall and Company of

California (EBH), (collectively, defendants).

The issue presented is whether the Marshalls’ action

arising out of an employment-based group health insur-

ance program is preempted by ERISA.’

SUMMARY STATEMENT

The purpose of ERISA is to protect employees from

potential abuses as a result of employer involvement in

the administration of benefit plans. Employee insurance

benefits which are not provided through such plans are

outside the contemplation of ERISA and are governed by

California common law and statutory law. Insurance

companies which merely contract with employers for em-

ployee health benefits cannot hide behind nonexistent

ERISA plans to avoid California bad faith actions.

Due to the focus of ERISA, preemption thereunder

turns on the extent to which the employer is involved in

the administration of a benefit program so as to impli-

cate the concerns which gave rise to ERISA. Here, there

was no administrative activity potentially subject to em-

ployer abuse so that ERISA’s concern with regulating

the administrative integrity of the program was not im-

plicated. The judgment is therefore reversed.

FACTUAL AND PROCEDURAL BACKGROUND

After commencing the action on April 23, 1985, the

Marshalls filed the operative pleading, a fourth amended

complaint, on May 23, 1986, naming Bankers; FBH; and

MIA Administrators, a subsidiary of FBH.

The plaintiffs alleged: Defendants had failed and re-

fused to pay certain medical benefits allegedly due them

1 Employment Retirement Income Security Act (29 U.S.C. section

1001 et seq.).

26a

under a group health insurance policy issued by Bankers

to Donald Marshall’s employer, Miller Import Datsun,

Inc. (Miller), with respeet to the hospitalization and

treatment of Donald Marshall’s wife, Linda Marshall,

from May 5, 1983 to June 26, 1983. Defendants had

denied the claim on the ground her hospitalization was

for preexisting sickle-cell anemia, and under the policy,

preexisting conditions were allowed a maximum benefit of

$1,000. However, Linda Marshall was not being treated

for sickle-cell anemia but for aftereffects of an aneurysm

and brain surgery, and these facts were known to de-

fendants.

The Marshalls pled six causes of action against Bank-

ers, the insurer, as well as FBH, the administrator ap-

pointed by Bankers, as follows: (1) breach of the duty

of good faith and fair dealing; (2) fraud (against

Bankers); (3) fraud (against FBH); (4) breach of

statutory duties (Ins. Code, § 790.03); (5) intentional

infliction of emotional distress and willful and wanton

misconduct; and (6) negligence.

The thirteenth affirmative defense of defendants’ an-

swer asserted that all causes of action were preempted

by ERISA. Thereafter, both sides unsuccessfully sought

summary judgment on the preemption issue, and the

matter proceeded to trial before the court without a jury.

The trial court birfurcated the issue of ERISA pre-

emption and tried the matter on stipulated facts.

a. Contents of the stipulation.

The stipulation consisted of 24 defendants’ facts and

25 plaintiffs’ facts. It established the following:

Bankers approved Miller’s application for a group

health insurance policy, and coverage was in effect from

March 1, 19838, to October 1, 1983. Miller received no-

compensation or consideration from Bankers for the sub-

ject insurance policy. Miller provided this coverage,

27a

which included health, life and disability insurance, to

all its employees as part of an employee benefit package.

Donald Marshall, as a Miller employee, was enrolled as

an insured, while Linda Marshall was enrolled for de-

pendent coverage.

While Miller’s employee manual stated all employees

would be provided with group health insurance coverage,

Miller was not required to provide any health insurance

to its employees pursuant to any written contract or col-

lective bargaining agreement. Miller had the authority

and the right at any time to cancel the subject group

insurance policy and eventually it did so.

While the policy was in effect, Miller was billed by

FBH and paid the premiums on a monthly basis out of

Miller’s own account. Miller did not set aside a separate

fund for payment of the premiums. Miller paid the

premiums for its employees in their entirety. Miller also

paid the premiums for covered dependents, such as Linda

Marshall, but deducted the amount of dependents’ pre-

miums from the employees’ paychecks.

Miller was provided with enrollment cards and change

forms, which it provided to its employees, and then sent

the completed forms to FBH. Miller did nothing with

completed enrollment cards or change forms, other than

to forward them to FBH and to insert a copy in the em-

ployees’ files.

Miller added or deleted names or employees who were

hired or terminated and sent those changes to FBH.

FBH or Bankers had all responsibility for determining

whether an employee or dependents were eligible for cov-

erage. FBH calculated and made all adjustments to Mil-

ler’s premiums.

Miller also was provided with claim forms which it

passed on to its employees. All completed claim forms

were submitted directly by the employee or health care

provider to FBH. FBH had been appointed by Bankers

28a

as its agent to administer the plan and FBH processed

all claims. Miller did not review the completed claim

forms and had no responsibility for evaluating claims

which had been submitted. Nor was Miller responsible

for monitoring how much money was available for pay-

ing claims. Miller could not deny any benefits under the

policy. Benefits were paid directly to the employee or to

the health care provider at the employee’s request. Miller

never handled the funds used to pay benefits and had no

opportunity to misappropriate or improvidently invest

those funds.

Miller also was provided with informational booklets,

as well as a three-page explanatory letter, which it dis-

tributed to its employees. FBH sometimes sent informa-

tion to Miller’s employees via Miller. Occasionally, FBH

requested Miller to have employees complete various

forms, and Miller provided the employees with the forms.

Personnel at Miller would attempt to respond to em-

ployees’ insurance questions which arose. If Miller could

not resolve the problem, it would contact FBH or place

the employee in contact with FBH. FBH directed Miller

to have its employees contact FBH regarding benefits

or claims. Donald Marshall spoke with FBH personnel

regarding policy questions. He never spoke with any-

one at Miller regarding the subject insurance.

Miller did not intend to create an ERISA plan. Donald

Marshall was never informed his rights and obligations

under the policy were governed by ERISA, and he was

never told the insurance was to be an ERISA plan.

Miller never filed any reports with the Department of

Labor with respect to the subject insurance policy. Miller

had no offices or employees outside California.

b. Trial court’s ruling.

Following argument by counsel, the matter was taken

under submission. Thereafter, the trial court held:

QO

29a

The employer’s involvement in the program was “not

extensive.” There was no evidence Miller specifically in-

tended to establish a program that would be covered by

ERISA. But, the program which was established was for

ongoing benefits of the type typically covered by ERISA.

The employer paid employees’ premiums, although the

employees paid the cost of dependent coverage. The em-

ployer had the power to terminate the plan. The em-

ployer collected dependent premiums and transmitted those

funds. The employer also performed various administra-

tive duties such as disseminating insurance pamphlets

to employees, handling enrollment forms and changes,

answering questions and forwarding some questions to

FBH and assisting in claims processing.2 The employer

did not handle money received by FBH, nor disburse bene-

fits, nor make decisions regarding coverage or benefit pay-

ments on claims.

Despite the employer’s limited involvement, the trial

court felt bound by California authority to hold the Mar-

shalls’ action was barred. It concluded: “While the em-

ployer’s involvement is not extensive, application of the

ERISA standards to these facts, under established prece-

dent (see Rizzi v. Blue Cross of So. California... and

cases cited; Hughes v. Blue Cross of No. California .. .

leads to the conclusion that the involvement is sufficient

to establish the benefit program as an ERISA plan. [{]

: [P]laintiffs’ causes of action are therefore pre-

empted[.]”

The Marshalls appealed.

CONTENTIONS

The Marshalls contend there is insufficient evidence to

support the finding the subject health insurance policy

was an ERISA “plan.” The employer’s involvement in

2 The finding that the employer assisted in claims processing is

unsupported by the stipulation.

|

30a

administering the program was limited and ministerial

and therefore did not implicate the purpose of ERISA.

DISCUSSION

1. General ERISA principles.

ERISA, which is found at 29 United States Code sec-

tion 1001 et seq., in the chapter entitled Employee Retire-

ment Income Security Program, “comprehensively regu-

lates employee pension and welfare plans.” (Metropolitan

Life Ins. Co. Vv. Massachusetts (1985) 471 U.S. 724, 732

[85 L.Ed.2d 728]; 29 U.S.C. §§ 1002, 1003.)

The congressional findings and declaration of policy

underlying ERISA are set forth in 29 United States Code

section 1001. This section recognizes the proliferation of

employee benefit plans, certain abuses resulting in em-

ployee loss of retirement benefits, and the need for Con-

gress to establish certain minimal standards to assure

“the equitable character of such plans and their financial

soundness.” (29 U.S.C. § 1001, subd. (a).)

The general objective of this legislation was to increase

the number of individuals in employer-financed benefit

plans and to “ ‘assure that those who do participate

actually receive benefits and do not lose benefits as a

result of unduly restrictive forfeiture provisions or fail-

ure of the pension plan to retain sufficient funds to meet

its obligations.’ [1974] U.S.Code Cong. & Admin.News

pp. 4676-77.” (In re C. D. Moyer Co. Trust Fund (E.D.

Pa. 1977) 441 F.Supp. 1128, 1131, affd. without pub.

opn. (3d Cir. 1978) 582 F.2d 1273, 1275.)

The act “protects interstate commerce and the partici-

pants of employee benefit plans by requiring disclosure

to participants, establishing standards of conduct and fi-

duciary duties, and providing for remedies, sanctions, and

ready access to federal courts. (29 U.S.C. § 1001(b).)”

(Commercial Life Ins. Co. v. Superior Court (1988) 47

———

3la

Cal.3d 473, 476; see Pilot Life Ins. Co. v. Dedeaux (1987)

481 U.S. 41, 44 [95 L.Ed.2d 39].)

ERISA contains a broad preemption provision which

States that with certain exceptions, its provisions “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).)* The preemptive aspect of ERISA

protects employers from conflicting and inconsistent state

and local regulation of employee benefit plans. (Shaw v.

Delta Air Lines, Inc. (1983) 463 U.S. 85, 99 [77 L.Ed.2d

490]; Fort Halifax Packing Co. v. Coyne (1987) 482

US. 1, 10 [96 L.Ed.2d 1].) “In analyzing whether

ERISA’s preemption is applicable... , ‘ “the purpose of

Congress is the ultimate touchstone.”’” (Fort Halifax

Packing Co., supra, at p. 8.)

ERISA only preempts state laws relating to “employee

benefit plans”, not all state legislation regarding employee

benefits. (Fort Halifax Packing Co. v. Coyne, supra, 482

U.S. at pp. 7-8.) 29 United States Code section 1002 (1)

defines an “‘ ‘employee welfare benefit plan’” as “any

plan, fund, or program which was heretofore or is here-

after established or maintained by an employer or by an

employee organization, or by both, to the extent that such

plan, fund, or program was established or is maintained

for the purpose of providing for its participants or their

beneficiaries, through the purchase of insurance or other-

wise, (A) medical, surgical, or hospital care or benefits,

or benefits in the event of sickness, accident, disability,

[or] death ....” The Act “does not further define ‘plan,

fund, or program.’” (Massachusetts v. Morash (1989)

490 U.S. 107, 114 [104 L.Ed.2d 98].)

% ERISA preempts private causes of action under Insurance Code

section 790.03, subdivision (h), as to those cases which survive

Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d

287. (Commercial Life Ins. Co., supra, 47 Cal.3d at pp. 484-485. )

32a

a. ERISA plan is a question of fact.

The existence of an ERISA plan “is a question of fact,

to be answered in light of all the surrounding facts and

circumstances from the point of view of a reasonable

person.” (Kanne v. Connecticut General Life Ins. Co.

(9th Cir. 1988) 867 F.2d 489, 492.)

The presumption is against preemption and it is a de-

fendant’s burden to prove the facts necessary to estab-

lishing an ERISA defense. (Elsworth v. Beech Aircraft

Corp. (1984) 87 Cal.8d 540, 548; Kanne, supra, 867

F.2d at p. 492, fn. 4; Metropolitan Life Ins. Co. Vv. Mas-

sachusetts, swpra, 471 U.S. at p. 741.)

Here, defendants argue Miller’s plan is an ERISA

plan within the meaning of section 1002 because it is (1)

a plan, fund or program, (2) established or maintained

(3) by an employer (4) for the purpose of providing

medical, surgical or hospital care benefits (5) to partici-

pants or their beneficiaries. (Donovan v. Dillingham

(11th Cir. 1982) 688 F.2d 1867, 1871.) However, merely

to repeat the language of the statute in its application to

this fact situation begs the question.

2. The administrative scheme test as to what consti-

tutes a plan.

Section 2510.3-1(j), 29 Code of Federal Regulations, a

Department of Labor regulation, states an ERISA plan

does not exist if, inter alia, no contributions are made by

the employer.‘ However, it does not necessarily follow

4The regulation states no ERISA plan exists if: “(1) No con-

tributions are made by an employer or employee organization;

[{] (2) Participation [sic] the program is completely voluntary

for employees or members; [{] (3) The sole functions of the em-

ployer or employee organization with respect to the program are,

without endorsing the program, to permit the insurer to publicize

the program to employees or members, to collect premiums through

payroll deductions or dues checkoffs and to remit them to the

insurer; and [{%}] (4) The employer or employee organization re-

33a

that the mere payment of premiums by an employer is

sufficient to give rise to an ERISA plan. (Lambert Vv.

Pacific Mutual Life Ins. Co. (1989) 211 Cal.App.3d 456,

464.) “A bare purchase of insurance, ... , does not by

itself constitute an ERISA plan (although it may be

evidence of the existence of an ERISA plan).” (Kanne

v. Connecticut General Life Ins. Co., supra, 867 F.2d at

p. 492.)

In Fort Halifax Packing Co. v. Coyne, supra, 482 U.S.

1, the United States Supreme Court considered whether a

Maine statute requiring an employer to provide a one-

time severance payment to employees in the event of a

plant closing was preempted by ERISA. .

Fort Halifax observed: “It is... clear that ERISA’s

pre-emption provision was prompted by recognition that

employers establishing and maintaining employee benefit

plans are faced with the task of coordinating complex

administrative activities.” (Fort Halifax Packing Co.,

supra, 482 U.S. at p. 11.) An employer that ‘makes a

commitment systematically to pay certain benefits under-

takes a host of obligations, such as determining the eligi-

bility of claimants, calculating benefit levels, making dis-

bursements, monitoring the availability of funds for ben-

efit payments, and keeping appropriate records in order

to comply with applicable reporting requirements. The

most efficient way to meet these responsibilities is to

establish a uniform administrative scheme, which provides

a set of standard procedures to guide processing of claims

and disbursement of benefits. Such a system is difficult to

achieve, however, if a benefit plan is subject to differing

regulatory requirements in different States.” (/d., at p.

9.)

ceives no consideration in the form of cash or otherwise in connec-

tion with the program, other than reasonable compensation, ex-

cluding any profit, for administrative services actually rendered in

connection with payroll deductions or dues checkoffs.” (29 C.F.R.

§ 2510-3-1(j) (1990).)

34a

The court held the Maine statute was not preempted

because it “‘neither establishes, nor requires an employer

to maintain, an employee benefit plan” under ERISA.

(Fort Halifax Packing Co., supra, 482 U.S. at p. 12.)

The requirement of a one-time severance payment did not

create a “need for an ongoing administrative program for

processing claims and paying benefits.” (/bid.) As a re-

sult, the Maine statute did not “[create] the potential

for the type of conflicting regulation of benefit plans that

ERISA pre-emption was intended to prevent. [Fn.

omitted.]”’ (Jd., at p. 14.)

Further, not only did the Maine statute fail to impli-

cate the concerns of ERISA’s preemption provision, but

it also failed to implicate the regulatory concerns of

ERISA itself. (Fort Halifax Packing Co., supra, 482

U.S. at p. 15.) As indicated, ERISA was enacted because

Congress found it desirable that disclosure be made and

safeguards be provided with respect to the establishment,

operation, and administration of employee benefit plans.

(Ibid.) ERISA’s fiduciary standards were intended to

prevent abuses of the special responsibilities borne by

those dealing with such plans, and to shield employees

from employer self-dealing, imprudent investing, and mis-

appropriation of plan funds. (Jbid.) “The focus of

[ERISA] thus is on the administrative integrity of bene-

fit plans—which presumes that some type of administra-

tive activity is taking place.” (Jbid.) Where there is no

“plan” involving administrative activity potentially sub-

ject to employer abuse, preemption does not serve the

overall purpose of ERISA. (/d., at p. 16.)°°

5 The dissenting opinion in Fort Halifax criticized the majority’s

rule making preemption turn on the existence of an administra-

tive scheme. (Fort Halifax Packing Co., supra, 482 U.S. at p. 23.)

It urged the characterization of certain employee benefits as non-

administrative would undermine Congress’ intent to make em-

ployee benefit plans a matter of exclusive federal regulation. (/bid.)

® See also the pre-Fort Halifax case of Drummond v. McDonald

Corp. (1985) 167 Cal.App.3d 428, 432, wherein an ERISA plan

|

35a

Since Fort Halifax, the United States Supreme Court

again has addressed the issue of employer involvement in

benefit administration. In Massachusetts v. Morash,

supra, 490 U.S. at page 109, the court considered the

application of ERISA to a company’s policy of paying

discharged employees for their unused vacation time. It

observed the distinguishing feature of most benefit plans

is that “they accumulate over a period of time and are

payable only upon the occurrence of a contingency out-

side of the control of the employee.” (Jd., at pp. 115-

116.) The court held the company’s policy did not con-

stitute an employee welfare benefit plan, noting “Con-

gress’ primary concern [in enacting ERISA] was with

the mismanagement of funds accumulated to finance em-

ployee benefits and the failure to pay employees benefits

from accumulated funds.” (/d., at p. 115.)

Thus, under federal statutory and decisional law, the

existence of an employee benefit plan subject to preemp-

tion under ERISA depends on the extent to which an

employer is involved in the administration of the benefit

program so as to implicate the concerns which gave rise

to ERISA.’

existed where the employer processed claims and performed other

administrative functions.

‘ Although the employer in Pilot Life paid disability insurance

premiums and forwarded completed claim forms to the insurer,

which processed the claims, the issue addressed in that case was

whether ERISA preempts state common law tort and contract ac-

tions asserting improper processing of claims made under an in-

sured employee benefit plan. (Pilot Life Ins. Co., supra, 481 U:S.

at p. 43.) The existence of an ERISA-regulated plan was not ad-

dressed and apparently, simply was assumed.

Similarly, in Metropolitan Life Ins. Co. v. Taylor (1987) 481

U.S. 58, 60 [95 L.Ed.2d 55], the first paragraph of Part I simply

states the employer “set up an employee benefit plan subject to

the provisions of ERISA for its salaried employees.”

36a

3. California appellate developments.

a. The Rizzi decision.

In Rizzi v. Blue Cross of So. California (1988) 206

Cal.App.3d 380, 382, an employee insured under his em-

ployer’s group health policy brought an action against the

insurer, alleging, inter alia, violation of Insurance Code

section 790.03 in the denial of his claim for benefits.

Rizzi affirmed a grant of summary judgment in favor of

the insurer due to ERISA preemption.

While acknowledging that Fort Halifax arose in a dif-

ferent factual context, the Rizzi court recognized the

import of that decision. Rizzi stated: “Applying by

analogy the Fort Halifax analysis here, the line of de-

mareation between ERISA plans and non-ERISA plans

depends on the level of involvement by the employer in

the program so as to warrant federal regulation of the

administrative integrity of the program. That is, when

employers provide benefits to employees in a manner

which involves the employer’s administration of funds

to be used for the employees, ERISA’s concern with regu-

lating the administrative integrity of the program arises.

This in turn supports characterizing [a] program as an

ERISA ‘plan.’” (Rizzi v. Blue Cross of So. California,

supra, 206 Cal.App.3d at p. 389.)

After summarizing the evidence presented in the case

before it, Rizzi concluded: “We are satisfied . . . that

the employer contributed to the insurance premiums. In

light of that fact in context with the form of the Blue

Cross plan showing other employer controls over opera-

tion of the program, Blue Cross carried its burden at the

summary judgment hearing to establish the existence of

an ERISA plan.” (Rizzi, supra, 206 Cal.App.3d at p.

391, italics added. )

The plan under consideration in Rizzi required the

employer to pay monthly to Blue Cross, in advance, all

subscription charges of its subscribers, i.e. eligible em-

37a

ployees. If the employer failed to pay any installment,

the agreement would terminate without notice. If the

subscriber ceased to be employed by the employer, his or

her certificate would terminate, but the the subscriber

was entitled to apply for a conversion privilege. If Blue

Cross or the employer terminated the agreement, then

individual certificates would be terminated without any

conversion privilege. Blue Cross could not cancel any

individual certificate, and, any notice required of Blue

Cross would be deemed sufficient if mailed to the employer.

(Rizzi, supra, 206 Cal.App.3d at pp. 390-391.)

Nothing in the recitation of this evidence supports

Rizzi’s conclusion of “other employer controls over opera-

tion of the program” in addition to payment of subscrip-

tion charges. (Rizzi, supra, 206 Cal.App.3d at p. 391.)

The employer’s role in Rizzi essentially was limited to

paying the monthly premiums. The fact the employer

purchased the policy, could control the termination of the

policy, and passed along various notices, does not amount

to employer administration of a benefit plan.

If such slight involvement were sufficient to invoke

ERISA, every garden variety employee health insurance

benefit program would fall within ERISA and would

subject the paying employer, large or small, to ERISA’s

regulatory burdens. Rizzi’s overbroad reading would re-

quire all these employers to choose between the statute’s

detailed requirements for reporting and disclosure or dis-

continuing their health insurance benefits. (See Massa-

chusetts v. Morash, supra, 490 U.S. at p. 118.)

While the Fort Halifax dissent would support Rizzi’s

sweeping approach to preemption (Fort Halifax Packing

Co., supra, 482 U.S. at p. 23), the controlling opinion

in Fort Halifax rejected such an approach in favor of an

administrative scheme test based upon actual employer

involvement (id., at p. 12). The Rizzi court could not en-

large the scope of preemption under federal law. Thus,

while Rizzi’s recitation of Fort Halifax is accurate,

38a

Rizzi’s application of those principles to its fact situa-

tion is wrong and we respectfully decline to follow it.*

b. Further relevant cases.

Lambert v. Pacific Mutual Life Ins. Co., supra, 211

Cal.App.3d 456, similarly involved the issue of employer

administration of a health insurance program. In Lam-

bert, the employer secured medical insurance coverage

for its employees by subscribing to the Multi-Protection

Trust which provided a group insurance plan underwrit-

ten by Pacific Mutual. The employees did not pay pre-

miums for employee coverage but did contribute for de-

pendent coverage. The agreement and application form

indicated the Pacific Mutual plan was subject to ERISA,

and that the undersigned employer was the named fiduci-

ary for the plan. The employer provided the employee

with a certificate booklet which complied with ERISA

summary plan description requirements, including a state-

ment of the employee’s rights under ERISA, and identi-

fied the employer as the plan administrator. (/d., at pp.

458-460. )

Thus, in addition to employer payment of premiums,

evidence established the Multi-Protection Trust intended

to create an ERISA plan and promoted it as such, and

the employer, as the designated plan administrator and

fiduciary, had endorsed the plan, The fact the employer’s

president was unfamiliar with ERISA or its obligations

under ERISA incident to the plan, did not refute the

endorsement. Based thereon, Lambert found “sufficient

employer involvement and administration under Fort

Halifax to bring the... plan within [ERISA]... .”

(Lambert, swpra, 211 Cal.App.3d at p. 465.)

Similarly, in Faria v. Northwestern National Life Ins.

Co. (1989) 216 Cal.App.3d 1129, 1135-1137, contribu-

8 Rizzi also erroneously refers to the substantial evidence stand-

ard in reviewing a summary judgment. (Rizzi, supra, 206 Cal.

App.3d at p. 382; Stratton v. First Nat. Life Ins. Co. (1989) 210

Cal.App.3d 1071, 1083.)

caine aaa ieeaeiaamemaniiiaiail

39a

tions were made by the employer toward group medical

coverage, the employer tacitly endorsed the plan, and the

booklet given to employees named a plan administrator

and described the insured’s rights under ERISA, so as to

bring the plan within ERISA.’

Hughes v. Blue Cross of Northern California (1989)

215 Cal.App.3d 832, likewise was presented with the

issue of employer involvement in the administration of

group health insurance so as to implicate ERISA. (/d.,

at pp. 854-855.) An insured brought an action against

her insurer for denial of benefits for her son’s hospitali-

zation and obtained an $850,000 verdict. (Jd., at p. 838.)

The insurer raised the issue of federal preemption under

ERISA for the first time on appeal. (/d., at p. 848.)

After reviewing Fort Halifax and Rizzi, Hughes “sur-

mise[d] from the sparse record that the agreement very

probably is a welfare benefit plan[.]” (Hughes, supra,

215 Cal.App.3d at p. 859.) However, that portion of the

decision is mere dictum because Hughes affirmed the

judgment on procedural grounds. Hughes observed the

insured had lacked notice of the preemption defense and

an opportunity to refute it at trial, and because the issue

did not involve subject matter jurisdiction but merely

raised a choice of law question, a remand for a further

hearing on the issue was unwarranted. (/d., at p. 859.)

With this overview, we examine the facts of the instant

case.

4. Miller did not establish an administrative scheme

so as to implicate ERISA.

a. Standard of appellate review.

As indicated, the existence of an ERISA plan is a

factual question, to be determined in light of all the sur-

® See also Rogers v. Prudential Ins. Co. (1990) 218 Cal.App.3d

1132, 1137-1139, wherein summary judgment was precluded due to

a factual dispute as to whether the employer paid the group insur-

; ance plan premiums.

|

40a

rounding facts and circumstances from the point of view

of a reasonable person. (Kanne v. Connecticut General

Life Ins. Co., supra, 867 F.2d at p. 492.)

Where a judgment is founded upon stipulated facts,

with no conflict in the evidence or question of credibility

of witnesses, the issue becomes one of law which can be

resolved by an appellate court as well as a trial court.

(Oliver & Williams Elevator Corp. v. State Bd. of Equali-

zation (1975) 48 Cal.App.3d 890, 894; 9 Witkin, Cal.

Procedure (3d ed. 1985) Appeal, § 291, p. 303.)

This principle is limited by the rule of conflicting in-

ferences. Even where the facts are undisputed, if con-

flicting inferences reasonably may be drawn therefrom,

the trier of fact’s conclusion must be accepted by the

reviewing court. (Mah See v. North American Acc. Ins.

Co. (1923) 190 Cal. 421, 426, overruled on other grounds

in Zuckerman v. Underwriters at Lloyd’s (1954) 42

Cal.2d 460, 474; McKinney v. Kull (1981) 118 Cal.App.

3d 951, 955-956; Fullerton Union High School Dist. v.

Riles (1983) 139 Cal.App.3d 369, 383; 9 Witkin, supra,

§ 288, p. 300.) However, if only one reasonable inference

can be drawn from the evidence, the question is one of

law and the appellate court is not bound by the trial

court’s determination. (State of California v. Superior

Court (1962) 208 Cal.App.2d 659, 665; Fullerton Union

High School Dist., supra, 139 Cal.App.3d at p. 383; 9

Witkin, supra, § 289, pp. 301-302.)

These principles govern our review of this case.

b. Only reasonable inference to be drawn from

uncontroverted evidence is that Miller did not

establish a “plan.”

The uncontroverted evidence establishes none of the

Fort Halifax criteria for an ERISA plan are present.

What we have here is a “bare purchase of insurance”

(Kanne, supra, 867 F.2d at p. 492), and a temporary

one at that.

4la

As indicated, while Miller’s employee manual stated

that all employees would be provided with group health

insurance coverage, Miller was not required to provide

any health insurance to its employees by any written

contract or collective bargaining agreement. Further,

Miller had the authority and the right to cancel the

subject group insurance policy and eventually it did so.

Thus, it cannot be said that Miller had made a “commit-

ment systematically to pay [these] benefits... .” (Fort

Halifax Packing Co. v. Coyne, supra, 482 U.S. at p. 9.)

In addition, the eligibility of claimants was determined

by FBH or Bankers, not by Miller. (See Fort Halifax

Packing Co., supra, 482 U.S. at p. 9.) Similarly, FBH

processed all claims—Miller was not positioned to calcu-

late benefit levels or to deny benefits under the policy.

(Ibid.) Further, all funds were disbursed directly from

the insurer to the employee or the employee’s health care

provider, without any handling by Miller. (Jbid.) Also,

Miller had no responsibility for monitoring the availabil-

ity of funds for benefit payments. (/bid.) Lastly, it does

not appear that Miller assumed the burden of keeping

appropriate records in order to comply with any applica-

ble reporting requirements. (Jbid.)

In sum, Miller’s role was limited to paying the policy

premiums and performing ministerial tasks such as dis-

pensing enrollment and change forms, claim forms and

informational material. Admittedly, Fort Halifax is dis-

tinguishable in that only a single set of severance pay-

ments was involved, while here, Miller regularly paid

premiums over a period of months. Nonetheless, as the

_ United States Supreme Court held in Fort Halifax Pack-

ing Co., supra, 482 U.S. at page 12: “To do little more

than write a check hardly constitutes the operation of a

benefit plan. [Fn. omitted.]”’

Further, due to the lack here of any compliance with

forme] ERISA requirements, Lambert and Faria are

unavailing to defendants. In those cases, there was an

42a

intent to create an ERISA plan, and the plan was pro-

moted or endorsed as such. In Lambert, the participating

employer was designated the plan administrator, and the

certificate booklet complied with ERISA summary plan

description requirements and included a statement of the

employee’s rights under ERISA. (Lambert, supra, 211

Cal.App.3d at pp. 460, 465.) Similarly, in Faria, there

was an in-house plan administrator, and the summary

plan description apprised the employees of their ERISA

rights. (Faria, supra, 216 Cal.App.3d at pp. 1135-1137.)

Here, in contrast, Miller did not intend to create an

ERISA plan, no reports were filed with the Department

of Labor regarding Miller’s health insurance benefit pro-

gram, and Donald Marshall was never advised his rights

and obligations under the policy were governed by ERISA

or that this was to be an ERISA plan.

We recognize an employer’s failure to meet ERISA’s

requirements for establishing a plan (i.e., written instru-

ment, named fiduciaries, public reports), does not exempt

a benefit plan from coverage by ERISA. Were it other-

wise, employers could escape ERISA’s coverage merely

by failing to comply with its formal administrative and

reporting requirements. (Scott v. Gulf Oil Corp. (9th

Cir. 1985) 754 F.2d 1499, 1508, disagreed with on other

grounds by Lee v. E.J. DuPont de Nemours and Co. (5th

Cir. 1990) 894 F.2d 755, 757.)

Here, however, not only is there no formal compliance

with ERISA, there is not even employer involvement in

benefit administration. Without employer means of af-

fecting “the equitable character of [ERISA] plans and

their financial soundness” (29 U.S.C. § 1001, subd. (a) ),

the ERISA scheme cannot be invoked by insurance com-

panies solely as a means of resisting an employee’s state

law claims.

Finally, we cannot avoid the context in which this issue

comes before us. An employer which, without any intent

to create an ERISA plan, simply purchased a- group

43a

health policy for its employees. Yet the insurer now seeks

to elevate that fact to a level sufficient to enable the in-

surer to avoid liability for its alleged bad faith conduct

in the handling of claims arising under that policy. In

short, the insurer seeks the protection of a federal regula-

tory scheme without any evidence that any of the pur-

poses or concerns, which Congress had when it enacted

that regulatory scheme, were in any way implicated.

Although Miller’s employees had none of the protections

or benefits of a bona-fide ERISA plan, the insurer now

seeks to use the illusion of such a plan to deprive them

of the benefits of state laws regulating insurer misconduct.

CONCLUSION

The purpose of Congress is the “ ‘ “ultimate touch-

stone”’” in determining preemption under ERISA

(Fort Halifax Packing Co., supra, 482 U.S. at p. 8),

and ERISA’s focus is on the “administrative integrity

of benefit plans” (id., at p. 15).

ERISA’s essential purpose is to protect employees from

potential abuses, such as misappropriation of funds, stem-

ming from employer administration of benefit plans. The

purpose of the preemption provision is to protect em-

ployers from potentially inconsistent state regulations.

(Fort Halifax Packing Co., supra, 482 U.S. at pp. 11,

15.) Where there is neither an employer administrative

scheme, nor any accumulation of benefits, nor any intent

to create a plan under ERISA, neither concern of ERISA

is implicated. Thus, ERISA does not preempt California

common law and statutory law with respect to ordinary

employee insurance benefits.

The mere payment by an employer of premiums for

employee health insurance is insufficient to constitute a

plan governed by ERISA. Otherwise, all employer-paid

health benefits would fall within ERISA’s ambit, contrary

44a

to Congress’ intent to preempt solely the regulation of

benefit plans, and not all employee benefits."

Here, defendants failed to meet their burden of estab-

lishing the facts to show preemption. The uncontroverted

evidence reveals there was no uniformed “plan” subject to

ERISA, and the employer’s role essentially was limited

to paying the policy premiums and taking care of minor

ministerial details. This limited obligation of the em-

ployer did not generate administrative activity potentially

subject to employer abuse. Accordingly, none of the

Marshalls’ causes of action is preempted by ERISA.

DISPOSITION

The judgment is reversed. The Marshalls to recover

costs on appeal.

CERTIFIED FOR PUBLICATION

KLEIN, P.J.

We concur:

DANIELSON, J.

CROSKEY, J.

10 While overburdened California’s courts may be willing to be

relieved of employee insureds’ tort actions, with over 100 million

Americans covered by employer group health insurance, the fed-

eral courts are not eager to assume a vastly expanded jurisdiction

over all disputes involving employee health insurance. (See Massa-

chusetts v. Morash, supra, 490 U.S. at pp. 118-119).

45a

APPENDIX C

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Case No: C 544 301

LINDA BROWN MARSHALL, DONALD MARSHALL,

Plaintiffs,

VS.

BANKERS LIFE AND CASUALTY COMPANY, an_ Illinois

corporation; FRANK B. HALL AND COMPANY OF CALI-

FORNIA, a California corporation, MIA ADMINISTRATORS,

a California corporation; and Dogs 1 through 50,

Inclusive,

Defendants.

JUDGMENT

[Filed Apr. 6, 1990]

' 1. This is a judgment upon the bifurcated trial of the

thirteenth affirmative defense of the First Amended An-

swer of defendants, BANKERS LIFE AND CASUALTY

COMPANY and FRANK B. HALL AND COMPANY

OF CALIFORNIA to the Fourth Amended Complaint of

plaintiffs, LINDA BROWN MARSHALL and DONALD

MARSHALL.

2. Said affirmative defense states:

“The First, Second, Third, Fourth, Fifth and Sixth

Causes of Action of plaintiffs’ Forth Amended Com-

plaint are preempted by the Employee Retirement

Income Security Act of 1974 (ERISA) 88 Stat. 829

as amended 29 U.S.C. Sections 1001 et seq.”

46a

3. Said bifurcated trial came on for trial on February

13, 1990, February 23, 1990 and March 2, 1990, in

Department “44” of the Los Angeles Superior Court,

located at 111 North Hill Street, Los Angeles, California,

before Judge Norman Epstein, Greene, Broillet, Paul,

Simon & Wheeler, by Timothy Wheeler and Randy Mc-

Murray appearing for plaintiffs, O’Neal & Wodin by

Mare J. Wodin appearing for defendants.

4. Said trial was conducted upon a stipulation as to

facts and evidence filed with the Court on February 28,

1990.

5. Said trial was taken under submission by the Court

on March 2, 1990, following argument of counsel.

6. On March 8, 1990, the Court issued its decision on

submitted matter, filed March 8, 1990, finding as follows:

“The Court determines that the insurance program

in this case is an ‘employee welfare benefit plan’

within the meaning of the Employee Retirement In-

come Security Act (ERISA; 29 U.S.C. Sections 1001

et seq.). Since it is, plaintiffs’ causes of action are

preempted by the federal statute. Pilot Life Insur-

ance Co. v. Dedeaux (1987) 107 S.Ct. 1549; Com-

mercial Life Insurance Co. v. Superior Court (1988)

47 C.3d 473.

The employer’s involvement in the program was

not extensive. There is no evidence that it specifi-

cally intended to establish a program that would be

covered by ERISA (cf. Lambert v. Pacific Mutual

Life Ins. Co. (1989) 211 C.A.3d 456, 463). But the

program that it did establish was for ongoing benefits

of the kind typically covered by ERISA (cf. Fort

Halifax Parking Co. v. Coyne (1989) 109 S.Ct. 1668

[lump sum payment of unused vacation time] ).

Here, the stipulated statement of facts establishes

that the employer established the plan. It paid

premiums for its employees, although the cost of

, eee

47a

dependent coverage (involved in this case) was borne

by the employee. (Lambert indicates that such pay-

ment brings the employer within the ‘benefit cover-

age’ aspect of the federal guidelines, 29 C.F.R. Sec-

tions 2510.3-1(j) (1); Lambert, 211 C.A.8d at p.

465).) The employer had the power to terminate

the plan and collected dependent premiums from the

employees and transmitted those funds, together with

its own funds for employee insurance to pay cover-

age premiums. The employer also performed a num-

ber of administrative duties under the program such

as disseminating insurance pamphlets to employees,

handling enrollment forms and changes, answering

questions about coverage and forwarding some ques-

tions to the plan administrator and assisting in

claims processing. The employer did not handle

money received by the administrator disburse benefits

or make decisions about coverage or benefit payments

on particular claims.

While the employer’s involvement is not extensive,

application of the ERISA standards to these facts,

under established precedent (see Rizzi v. Blue Cross

of So. California (1988) 206 C.A.3d 380 and cases

cited; Hughes v. Blue Cross of No. California (1989)

215 C.A.3d 832, 853) leads to the conclusion that the

involvement is sufficient to establish the benefit pro-

gram as an ERISA plan.

Since plaintiffs’ causes of action are therefore pre-

empted, judgment must be for defendants. Counsel

for defendants shall prepare the judgment and sub-

mit it to the Court.

The Clerk is directed to mail a copy of their

memorandum to counsel of record.”

7. Now therefore the Court orders that judgment be

entered in favor of defendants, BANKERS LIFE AND

CASUALTY COMPANY and FRANK B. HALL AND

48a

COMPANY OF CALIFORNIA and against plaintiffs,

LINDA BROWN MARSHALL and DONALD MAR-

SHALL, with respect to the thirteenth affirmative de-

fense of defendants’ First Amended Answer to plaintiffs’

Fourth Amended Complaint as aforesaid.

DATED: April 5, 1990

/s/ NLE

NORMAN L. EPSTEIN

Judge of the Superior Court

49a

APPENDIX D

STATUTORY PROVISIONS

29 U.S.C. § 1002. Definitions

For purposes of this subchapter:

(1) The terms “employee welfare benefit plan’ and

“welfare plan” mean any plan, fund, or program which

was heretofore or is hereafter established or maintained

by an employer or by an employee organization, or by

both, to the extent that such plan, fund, or program was

established or is maintained for the purpose of providing

for its participants or their beneficiaries, through the

purchase of insurance or otherwise, (A) medical, surgi-

cal, or hospital care or benefits, or benefits in the event

of sickness, accident, disability, death or unemployment,

or vacation benefits, apprenticeship or other training

programs or day care centers, scholarship funds, or pre-

paid legal services, or (B) any benefit described in sec-

tion 186(c) of this title (other than pensions on retire-

ment or death, and insurance to provide such pensions).

* * * *

(5) The term “employer” means any person acting

directly as an employer, or indirectly in the interest of

an employer, in relation to an employee benefit plan; and

includes a group or association of employers acting for

an employer in such capacity.

29 U.S.C. § 1132. Civil enforcement

(a) Persons empowered to bring a civil action

A civil action may be brought—

(1) by a participant or beneficiary—

(A) for the relief provided for in subsection

(ce) of this section, or

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(B) 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;

(2) by the Secretary, or by a participant, bene-

ficiary or fiduciary for appropriate relief under sec-

tion 1109 of this title;

(3) by a participant, beneficiary, or fiduciary (A)

to enjoin any act or practice which violates any pro-

vision of this subchapter or the terms of the plan, or

(B) to obtain other appropriate equitable relief (i)

to redress such violations or (ii) to enforce any

provisions of this subchapter or the terms of the

plan;

(4) by the Secretary, or by a participant, or bene-

ficiary for appropriate relief in the case of a viola-

tion of 1025(c) of this title;

(5) except as otherwise provided in subsection

(b) of this section, by the Secretary (A) to enjoin

any act or practice which violates any provision of

this subchapter, or (B) to obtain other appropriate

equitable relief (i) to redress such violation or (ii)

to enforce any provision of this subchapter; or

(6) by the Secretary to collect any civil penalty

under subsection (c) (2) or (i) or (l) of this section.

* * * *

29 U.S.C. § 1144. Other laws

(a) Supersedure ; effective date

Except as provided in subsection (b) of this section,

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 described in section 1003(a) of this title and

not exempt under section 1003(b) of thir title. This

section shall take effect on January 1, 1975.

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#

,

5la

(b) Construction and application

(1) This section shall not apply with respect to any

cause of action which arose, or any act or omission which

occurred, before January 1, 1975.

(2) (A) Except as provided in subparagraph (B),

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.

(B) Neither an employee benefit plan described in

section 1003(a) of this title, which is not exempt under

section 1003(b) of this title (other than a plan estab-

lished primarily for the purpose of providing death bene-

fits), 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, or investment companies.

(3) Nothing in this section shall be construed to pro-

hibit use by the Secretary of services or facilities of a

State agency as permitted under section 1136 of this title.

” * * *

(ce) Definitions

For purposes of this section:

(1) The term “State law” includes all laws, deci-

sions, rules, regulations, or other State action having

the effect of law, of any State. A law of the United

States applicable only to the District of Columbia

shall be treated as a State law rather than a law

of the United States.

(2) The term “State” includes a State, any politi-

cal subdivisions thereof, or any agency or instru-

mentality of either, which purports to regulate, di-

52a

rectly or indirectly, the terms and conditions of

employee benefit plans covered by this subchapter.

29 C.F.R. § 2510.3-2

(j) Certain group or group-type insurance programs.

For purposes of title I of the Act and this chapter, the

terms “employee welfare benefit plan” and ‘welfare plan”

shall not include a group or group-type insurance pro-

gram offered by an insurer to employees or members of

an employee organization, under which

(1) No contributions are made by an employer or

employee organization;

(2) Participation the program is completely voluntary

for employees or members;

(3) The sole functions of the employer or employee

organization with respect to the program are, without

endorsing the program, to permit the insurer to publicize

the program to employees or members, to collect premi-

ums through payroll deductions or dues checkoffs and to

remit them to the insurer; and

(4) The employer or employee organization receives

no consideration in the form of cash or otherwise in

connection with the program, other than reasonable com-

pensation, excluding any profit, for administrative serv-

ices actually rendered in connection with payroll deduc-

tions or dues checkoffs.

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APPENDIX E

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Case No: C 544 301

LINDA BROWN MARSHALL, DONALD MARSHALL,

Plaintiffs,

Vs. .

BANKERS LIFE AND CASUALTY COMPANY, an Illinois

corporation; FRANK B. HALL AND COMPANY OF CALI-

FORNIA, a California corporation, MIA ADMINISTRATORS,

a California corporation; and Dogs 1 through 50,

Inclusive,

Defendants.

STIPULATION

[Filed Mar. 1, 1990]

TO: THE INTERESTED PARTIES AND TO THEIR

ATTORNEYS OF RECORD:

The parties to the instant matter, by and through their

attorneys of record, hereby stipulate to the following

facts as evidence in the bifurcated trial of the thirteenth

affirmative defense of defendants’ answer to plaintiffs’

fourth amended complaint in the instant matter, to wit:

“The first, second, third, fourth, fifth and sixth causes

of action of plaintiffs’ fourth amended complaint are

pre-empted by the Employee Retirement Income Security

Act of 1974 (ERISA) 88 Stat. 829, as amended 29

U.S.C., sections 1001, et seq.”

54a

DEFENDANTS’ FACTS

1. Plaintiffs alleged that BANKERS LIFE AND

CASUALTY COMPANY (hereinafter BANKERS), as

insurer, and FRANK B. HALL & COMPANY OF

CALIFORNIA/MIA ADMINISTRATORS (hereinafter

HALL/MIA), as third party administrator, breached the

common law duty of good faith and fair dealing and

breached certain provisions of California Insurance Code,

section 790.08, in failing and refusing to pay certain

medical benefits allegedly due plaintiffs under a group

health insurance policy issued by BANKERS to plaintiff

DONALD MARSHALL’s employer, MILLER IMPORT

DATSUN, INC. (hereinafter MILLER), with respect to

a certain hospitalization of plaintiff, LINDA MARSHALL,

an insured under the subject policy, at Queen of Angels

Hospital between May 5, 1983, and June 20, 1983.

2. BANKERS is an insurance company and was the

insurance company which issued the subject insurance

policy.

3. HALL/MIA is an administrator and acted in that

capacity with respect to the subject insurance policy.

4. On or about February 18, 1983, MILLER applied

to BANKERS for the subject insurance policy. On or

about March 25, 19838, MILLER was advised by BANK-

ERS that coverage was approved effective March 1, 1983.

5. The subject insurance policy, #3091, was in effect

from March 1, 1983, to October 1, 1983.

6. MILLER provided this health insurance coverage to

its employees as part of an employee benefit package.

7. The subject insurance policy was a policy which

provided group, health, life and disability insurance cov-

erage to employees of MILLER and their covered

dependents.

8. All employees of MILLER were covered under the

subject group insurance policy.

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9. Plaintiff, DONALD MARSHALL, was an employee

of MILLER and was enrolled as an insured under the

subject insurance policy. Plaintiff, LINDA MARSHALL,

the wife of plaintiff, DONALD MARSHALL, was en-

rolled for dependent coverage under the subject insur-

ance policy.

10. MILLER purchased the subject insurance policy.

11. MILLER was billed for insurance premiums by

HALL/MIA on a monthly basis and paid the premiums

on a monthly basis.

12. MILLER paid the premiums out of its own ac-

count. MILLER had control over that account. It had

the power to use (or misuse) the monies in that account.

It had the power to use those monies to pay premiums

or not.

13. The payment of these premiums were items which

were recorded in MILLER’S financial records, including

tax returns and monthly and annual financial reports.

14. MILLER paid the premium for employees, such

as DONALD MARSHALL. MILLER paid these premi-

ums in their entirety and did not deduct any sums for

the payment of employee premiums from employees’

paychecks.

15. MILLER paid the premiums for covered depend-

ents, such as LINDA MARSHALL. It then deducted the

amount of the premiums from the employees’, e.g.,

DONALD MARSHALL’s, paycheck.

16. MILLER added or deleted names of employees

who were employed or terminated with dates of such

employment or termination on monthly premium state-

ments received from HALL/MIA and sent those changes

to HALL/MIA to reflect new persons coming under the

coverage and persons leaving the coverage for the purpose

of adjusting premium payments under the subject insur-

ance policy.

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17. MILLER was provided with enrollment cards to

enroll employees under the subject insurance policy.

MILLER put the names of the employees on these ecards,

or some of them, and provided them to employees, who

filled out the remaining portions and returned them to

MILLER. MILLER sent the completed cards to HALL/

MIA.

18. MILLER was provided with change forms which

it provided to employees to fill out for the purpose of

changing beneficiaries and adding or dropping dependent

coverage under the subject insurance policy. MILLER

sent the completed forms to HALL/MIA.

19. MILLER was provided with claim forms for em-

ployees to make claims under the subject insurance policy.

MILLER provided these claim forms to employees to

make claims under the subject insurance policy.

90. Sometimes, employees would have questions and/or

problems with regard to enrollment, coverage changes and

claims, or other matters relating to the insurance. In

such case, persons at MILLER would attempt to answer

such questions or resolve such problems. If they could

not do so, they would contact persons at HALL/MIA or

others, or place the employee in such contact.

21. MILLER was provided with booklets, “Your Group

Insurance Plan,” to provide to employees. Said booklet

contained information with respect to the subject group

insurance policy, including information as to “How to

file claims for disability and medical expense benefits.”

MILLER provided these booklets to employees, including

DONALD MARSHALL.

22. MILLER requested and obtained from HALL/MIA

copies of a three page letter to employees with a brief

explanation of the insurance coverage under this group

insurance policy. MILLER provided this document to

employees.

23. On one occasion, MILLER was asked by HALL/

MIA to have an employee’s beneficiary complete and sub-

57a

mit a certain claimant’s statement. MILLER gave the

form to the employee. On another occasion, MILLER was

asked by HALL/MIA to have an employee submit a

waiver card for dependent coverage. MILLER gave the

card to the employee to fill out. On another occasion,

MILLER was asked by HALL/MIA to have an employee

complete a health declaration to obtain dependent cover-

age. MILLER gave the form to the employee. On certain

occasions, HALL/MIA sent information to employees

with regard to their claims and sent this information

through MILLER, who handed this information to its

employees.

24. MILLER had the authority and right to cancel

the subject group insurance policy and did so.

PLAINTIFFS’ FACTS

1. BANKERS had a contract with HALL/MIA. The

contract states, among other things, “Sec. 1. The agent

hereby accepts appointment by the carrier to act as its

agent in the administration of a plan underwritten by

the above contract (policy), herein referred to as the

plan. Sec. 2. The agent will perform duties in connection

with the administration of the plan as directed by the

COPTN 66."

2. HALL/MIA provided a document to MILLER to be

provided to its employees, which states, among other

things, “All claims will be processed by MIA Admin-

istrators.”

3. HALL/MIA provided a document to MILLER to

be provided to its employees, which states, among other

things, “If there are any questions regarding benefits or

the processing of your claims, be feel free to call (Francie

at MIA Administrators) .”

4._ MILLER was not required to provide any health

insurance to its employees by any written contract or any

collective bargaining agreement. The employee manual

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did state that all employees would be provided with group

health insurance coverage.

5. All claim forms were submitted to HALL/MIA.

These claim forms were submitted directly by the em-

ployee or health care provider to HALL/MIA.

6. MILLER did not review any claim forms submitted

to obtain benefits under the subject insurance policy.

7. MILLER had no responsibility for evaluating claims

submitted under the subject insurance policy.

8. HALL/MIA or BANKERS had all of the responsi-

bility for determining whether an employee or an employ-

ee’s dependents were eligible for medical benefits under

the subject insurance policy.

9. MILLER could not deny any niet under the

subject insurance policy.

10. MILLER never filed any reports with the Depart-

ment of Labor with respect to the subject insurance

policy.

11. Benefits under the subject insurance policy were

paid directly to the employee or, at his direction, to the

health care provider.

12. MILLER never handled any of the funds used

to pay benefits under the subject insurance policy.

13. MILLER never had any opportunity to mis-

appropriate or improvidently invest the funds used to

pay benefits under the subject insurance policy.

14. MILLER did not intend to create an ERISA plan.

15. MILLER had no responsibility for monitoring how

much money was available for paying claims under the

subject insurance policy.

16. MILLER had no offices or employees outside of the

State of California.

17. MILLER did nothing with enrollment cards or

change forms filled out by employees other than sending

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them to HALL/MIA, and, sometimes, putting a copy in

the employees’ files.

18. MILLER received no compensation or considera-

tion from BANKERS for the subject insurance policy.

19. MILLER did not set aside a separate fund for the

payment of insurance premiums.

20. DONALD MARSHALL was never told that this

was to be an ERISA-plan.

21. DONALD MARSHALL was never informed that

any rights or obligations he had under the subject insur-

ance policy were rights or obligations under ERISA.

22. Employees of MILLER were also directed to con-

tact HALL/MIA with any questions with regard to the

subject insurance policy.

23. DONALD MARSHALL did call Francie Perez of

HALL/MIA with questions about the subject insurance

policy.

24. DONALD MARSHALL never spoke to anyone at

MILLER with questions about the subject insurance

policy.

25. HALL/MIA calculated and made all adjustments

to the premiums to be paid by MILLER.

The parties to the instant matter, by and through their

attorneys of record, further stipulate that the exhibits

attached to this stipulation (defendants’ exhibits ‘A’

through ‘X’ and plaintiffs’ exhibit 1) are marked, as set

forth in defendants’ list of exhibits and plaintiffs’ list of

exhibits attached, anc are admitted into evidence for and

at the trial of the instant matter.

The parties to the instant matter, by and through their

attorneys of record, further stipulate that the following

depositions, the originals, of which, are attached hereto

and lodged with the court, are admitted into evidence for

and at the trial of the instant matter:

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1. Robert LaVigne;

2. DONALD MARSHALL;

3. Francie Perez.

DATED: February 28, 1990

O’NEAL & WODIN

By /s/ Mare J. Wodin

MARC J. WODIN

Attorneys for Defendants

BANKERS LIFE AND CASUALTY

COMPANY and FRANK B. HALL AND

COMPANY OF CALIFORNIA

DATED: February 28, 1990

By /s/ Randy H. McMurray

RANDY MCMURRAY

Attorney for Plaintiffs,

DONALD MARSHALL and

LINDA MARSHALL

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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