# Prologue — Levine v. United Healthcare Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0252%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Prologue - **Published:** January 1, 2005 - **Citation:** 546 U.S. 1054 ## Text Supreme Court, U.S. FILED No. 05-_05 -3 87 SEP 22 2005 Sn The Supreme Court of the Anited States * JEAN LEVINE and NOREEN BOGURSKI, Petitioners, v. UNITED HEALTHCARE CORP. and HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, Respondents. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit eo o—--- PETITION FOR A WRIT OF CERTIORARI + FRANKLIN P-SODOMON, NATALIE FINKELMAN BENNETT, ESQUIRE ESQUIRE (Counsel of Record) SHEPHERD FINKELMAN WEITZ & LUXENBERG, PC MILLER & SHAH, LLC 210 Lake Drive East, 475 White Horse Pike Suite 101 Collingswood, NJ 08107 Cherry Hill, NJ 08002 (856) 858-1770 (856) 755-1115 DONNA SIEGEL MOFFA, ESQUIRE TRUJILLO RODRIGUEZ & RICHARDS, LLC 8 Kings Highway West Haddonfield, NJ 08033 (856) 795-90027- —-—-— ~— COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED FOR REVIEW Whether the New Jersey collateral source statute, N.J.S.A. 2A:15-97, which was enacted to eliminate “double recoverics” of insured losses in civil actions and to relieve liability insurers of responsibility for costs covered by health and disability payers, is a State law which regulates insurance and is therefore saved from Federal preemption pursuant to ERISA § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)A)? Whether plaintiffs’ State-law unjust enrichment claims for recovery of monies taken by their health insurers pursuant to unlawful subrogation and reim- bursement provisions in their employer-provided health insurance plans should be re-characterized as claims for “benefits due” from the plans within the meaning of ERISA § 502(a\1)(B), 29 U.S.C. § 1132(aX1)(B), resulting in Federal jurisdiction over the matters? ‘i LIST OF PARTIES The parties to the proceedings in the United States Court of Appeals for the Third Circuit are: Plaintiff-Cross-Appellant-Petitioner Jean Levine; Defendant-Appellant-Respondent United Healthcare Corp. Plaintiff-Cross-Appellant-Petitioner Noreen Bogurski; Defendant-Appellant-Respondent Horizon Blue Cross Blue Shield of New Jersey. Plaintiff-Cross-Appellant-Petitioner Benjamin Ed- monson; Defendant-Appellant-Respondent Horizon Blue Cross Blue Shield of New Jersey. The matter captioned Edmonson v. Horizon Blue Cross Blue Shield of New Jersey was dismissed pursuant to an Order of the Court of Appeals for the Third Circuit on November 17, 2004. TABLE OF CONTENTS | ee OPINIONS AND ORDERS ENTERED IN THE COURTS BELOW........ Dhoréshivevosaienstntniseconsesetoqsoorees 1 STATEMENT OF JURISDICTION ....................ceeeeees 1 STATUTES INVOLVED IN THE CASE..................5. 2 STATEMENT OF THE CASE ..............0csseccesceeeeeeeeees 5 IEEE corisecdtitonnciatinnsccctpatesicinenmnctousneiiadbesanincasin 9 I. THE THIRD CIRCUIT COURT OF APPEALS HAS DECIDED AN IMPORTANT FEDERAL QUESTION IN A WAY THAT CONFLICTS WITH A DECISION BY THE NEW JERSEY ee I GAAP OIIEEE ccnnioviguoiisniniiniitinemnmapciaiaiagnbene 9 Ii. THE THIRD CIRCUIT COURT OF APPEALS HAS ENTERED A DECISION IN CONFLICT WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEALS ON THE SAME IMPORTANT MATTER. .................::00000 13 Ill. 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The Third Circuit’s June 24, 2005 order denying plaintiffs’ petition for rehearing or rehearing en banc is reprinted in the Appendix at pages App. 146 through App. 148. The May 28, 2002 opinion and order of the United States District Court for the District of New Jersey, reported at 204 F.Supp.2d 796, 27 Employee Benefits Cas. 2955, is reprinted in the Appendix at pages App. 128 through App. 145. The District Court’s opinion and order of July 24, 2002 was not ofSicially reported, but may be found at 2002 WL 31262100 (D.N.J.), 28 Employee Bene- fits Cas. 2460, and is reprinted in the Appendix at pages App. 118 through App. 127. The District Court’s opinion and order of March 4, 2003, reported at 247 F.Supp.2d 596, 30. Employee Benefits Cas. 1014, is reprinted in the Appendix at pages App. 64 through App. 117. The District Court’s opinion and order of Octeber 6, 2003, reported at 285 F.Supp.2d 552, 32 Employee Benefits Cas. 1169, is reprinted in the Appendix at pages App. 34 through App. 63. ¢ STATEMENT OF JURISDICTION Petitioners seek a writ of certiorari to review the March 16, 2005 decision of the United States Court of Appeals for the Third Circuit in Levine v. United Health- care Corp., 402 F.3d 156 (3d Cir. 2005), rehearing denied, June 24, 2005. This Court has jurisdiction to review the 2 decision of the Court of Appeals pursuant to 28 U.S.C. § 1254(1) on grant of a writ of certiorari upon the petition of any party to the case. ry ‘ STATUTES INVOLVED IN THE CASE The New Jersey collateral source statute, N.J.S.A. 2A:15-97, provides: Deduction of duplicate benefits In any civil action brought for personal in- jury or death, except actions brought pursuant to the provisions of P.L.1972, c. 70 (C. 39:6A-l et W_ seq.), if a plaintiff receives or is entitled to re- ceive benefits for the injuries allegedly incurred from any other source other than a joint tortfea- sor, the benefits, other than workers’ compensa- tion benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit con- tained in the award shall be deducted from any award recovered by the plaintiff, less any pre- mium paid to an insurer directly by the plaintiff or by any member of the plaintiff’s family on be- half of the plaintiff for the policy period during which the benefits are payable. Any party to the action shall be permitted to introduce evidence regarding any of the matters described in this act.’ * The statute's citation of “P.L.1972, c. 70 (C. 39:6A-1 et seq.)” refers to the New Jersey Automobile Reparation Reform Act, which provides for, inter alia, “no-fault” medical benefits in the event of a motor vehicle accident and for insurers’ inter-company arbitration of related subrogation claims. 3 Section 514 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1144, provides: Other laws a (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 this title. This section shall take effect on January 1, 1975. (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. (2A) 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 de- scribed in section 1003(a) of this title, which is not exempt under section 1003(b) of this title (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other in- sumer, bank, trust company, or investment com- pany or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance 4 companies, insurance contracts, banks, trust companies, or investment companies. Section 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132, provides, in relevant part: 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 sub- section (c) of this section, or (B) to recover bénefits due to him un- der 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, beneficiary or fiduciary for appropriate relief un- der section 1109 of this title; (3) by a participant, beneficiary, or fiduci- ary (A) to enjoin any act or practice which vio- lates any provision of this subchapter or the terms of the plan, or (B) to obtain other appro- priate equitable relief (i) to redress such viola- tions or (ii) to enforce any provisions of this subchapter or the terms of the plan|.] , v --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0252%3A0. Public record. Not legal advice.