Ruth Ellen Belasco (dupree), et al., Plaintiffs-appellees, v. W.k.p. Wilson & Sons, Inc., Defendant-appellant,connecticut General Life Insurance Company, et al., Defendants.ruth Ellen Belasco (dupree), et al., Plaintiffs-appellees, v. W.k.p. Wilson & Sons, Inc., et al., Defendants,connecticut General Life Insurance Company, Defendant-appellant, 833 F.2d 277 (11th Cir. 1987)

This case is an interlocutory appeal from the District Court for the Southern District of Alabama, Southern Division. Appellees Ruth Ellen Belasco (Dupree) and Michael Edward Dupree ("plaintiffs"), individually and as next friends of their two minor children, sued Connecticut General Life Insurance Company ("CIGNA") and insurance broker W.K.P. Wilson & Son, Inc. ("Wilson") upon claims for medical and surgical benefits said to be due to them from CIGNA and claims based upon alleged bad faith and fraud by CIGNA. The complaint was later amended to make claims against Peter Steckler ("Steckler"), who had acted for Wilson.

The Dupree parents are beneficiaries of CIGNA insurance programs provided to each at their separate places of employment. The insurer asserts that under one program, the parents elected that the minor dependents not be covered and that, under the other, coverage for the minor dependents does not extend to pre-existing conditions. The claims now asserted arise out of illness, and related treatment, of a minor dependent.

CIGNA removed the case to the district court; plaintiffs' motions to remand were denied. Wilson and CIGNA filed motions for summary judgment, claiming that plaintiffs' claims were pre-empted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"); the district court denied those motions, but subsequently amended its order to allow the parties to petition for an interlocutory appeal to this Court pursuant to 28 U.S.C. § 1292(b). We granted permission to appeal.

At oral argument it was noted that three cases were pending in the United States Supreme Court which involved the issues in this case. Those cases (two of which were consolidated) were decided on April 6, 1987. Metropolitan Life Insurance Company v. Taylor, --- U.S. ----, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987); Pilot Life Insurance Company v. Dedeaux, --- U.S. ----, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987).

We first consider the substantive question of whether ERISA pre-empts the plaintiffs' state law claims. We then turn to the procedural issues of whether the federal courts have subject matter jurisdiction and whether the case was properly removed to federal court.

The central substantive issue in this case is whether the Plaintiffs' state law claims are pre-empted by ERISA. Pre-emption of state law claims under ERISA is governed by ERISA section 514, 29 U.S.C. § 1144.¹ 

The ERISA preemption provision is specifically directed to "employee benefit plan [s]," 29 U.S.C. § 1144(a), which are defined in 29 U.S.C. § 1002(3). Dedeaux involved a claim for long term disability benefits, --- U.S. at ----, 107 S. Ct. at 1551, and the existence of a "plan" was not disputed.²  Taylor also involved a claim for disability benefits, --- U.S. at ----, 107 S. Ct. at 1545, and there was no discussion in that case of whether a "plan" was involved. In the present case, the district court noted that it "ha [d] not been shown any document from which a plan could be ascertained, other than the insurance policy." The district court also observed that "the existence of a plan is irrelevant to the question of preemption." We conclude that the insurance policies in this case constitute a "plan" as defined by ERISA,³  although we note with concern that this portends a dramatic increase in the federal court system's case load.⁴ 

We hold that, since the insurance policies involved in this suit constitute an "employee benefit plan" as defined in ERISA, 29 U.S.C. § 1002(3), the analysis in Dedeaux compels the conclusion that the plaintiffs' claims against CIGNA are pre-empted. This analysis proceeds in two steps.

First, we must use the "broad common-sense meaning" of the term "relate to" to determine whether common law causes of action fall under the ERISA pre-emption clause found in 29 U.S.C. § 1144(a). Dedeaux, --- U.S. at ----, 107 S. Ct. at 1553. Using this formulation we conclude that plaintiffs' claims "relate to" their plan.

Second, we must check for any exception to pre-emption, which would be governed by the ERISA saving clause, 29 U.S.C. § 1144(b) (2) (A). Plaintiffs argue that the Alabama law of bad faith, which forms the basis of one of their claims,⁵  is a "law ... which regulates insurance," 29 U.S.C. 1144(b) (2) (A), and therefore falls under the saving clause. However, the Alabama law of bad faith appears to us to have the same roots "in the general principles of ... tort and contract law" as was the case in Dedeaux. --- U.S. at ----, 107 S. Ct. at 1554. The other factors considered by the Supreme Court in its analysis of the saving clause in Dedeaux are not disputed by plaintiffs and would apply to this case in the same manner as they applied to the facts in Dedeaux. --- U.S. at ----, 107 S. Ct. at 1553-58. We conclude that the saving clause does not apply in this case.

It is, initially, less certain that plaintiffs' claims against Wilson are pre-empted. Dedeaux and Taylor involved suits against an insurance company, but neither was against an agency. Dedeaux dealt only with an employee's claims against the insurance company that issued the group insurance policy. --- U.S. at ----, 107 S. Ct. at 1551. Taylor, however, does provide some guidance. In that case, the plaintiff/employee not only sued the insurance company that issued the group insurance policy, but also sued his employer "for wrongful termination of his employment and for wrongfully failing to promote him." --- U.S. at ----, 107 S. Ct. at 1545. The Supreme Court concluded that the employee's claims " 'relate [d] to [an] employee benefit plan' " and were pre-empted by ERISA under the rule of Dedeaux, without distinguishing between the claims against the insurer and the related, but distinct, claims against the employer. --- U.S. at ----, 107 S. Ct. at 1546. This indicates that the "broad common-sense meaning" of the term "relate to," Dedeaux, --- U.S. at ----, 107 S. Ct. at 1553, is quite broad indeed. We therefore conclude that the reach of ERISA preemption extends not only to the claims against CIGNA, but to the claims against Wilson as well.

The ERISA saving clause does not apply to the claims against Wilson for the same reasons as discussed above for CIGNA.

In summary, we conclude that ERISA pre-empted plaintiffs' state law claims against both CIGNA and Wilson.

Plaintiffs contend that the federal courts lack subject matter jurisdiction, so that removal was improper. These questions are also resolved by our conclusion that the insurance policies in this case are part of an ERISA "plan."

Removal is permitted of " [a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1441(b). Whether a claim "arises under" federal law is governed by whether the plaintiff's "well-pleaded complaint" raises federal issues. Gully v. First National Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908). In this case, plaintiffs' complaint raised only claims provided by state law. CIGNA and Wilson, in supplemental briefs, claim federal question jurisdiction based upon ERISA's having pre-empted the state law claims. As federal pre-emption is normally a defense, it does not appear in a well-pleaded complaint, so the usual rule would indicate that federal subject matter jurisdiction is lacking. However, Taylor holds that the special rule used for claims pre-empted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, should also be applied to cases covered by ERISA's civil enforcement provisions, section 502(a) (1) (B), 29 U.S.C. section 1132(a) (1) (B).⁶  --- U.S. ----, 107 S. Ct. at 1546-48. As a result, ERISA pre-emption does not act as a defense to a state-law claim, which is the usual effect of federal preemption; instead, ERISA pre-emption converts the related claim into a federal question. Id. We conclude that federal question jurisdiction is present and removal was available under 28 U.S.C. § 1441(b), following the rule of Taylor, --- U.S. at ----, 107 S. Ct. at 1548.

Plaintiffs argue that removal was improper due to the failure of Wilson to join in the petition for removal. Brief of Appellees at 7-9. CIGNA and Wilson respond that the statutory basis for removal in this case was 28 U.S.C. section 1441(c),⁷  not section 1441(b). Following the rule of American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L. Ed. 702 (1951), which significantly restricts the definition of "separate and independent claims" for the purpose of section 1441(c), we believe that removal under section 1441(c) is not available in this case. This case, like Finn, appears to involve a "single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, [so that] there is no separate and independent claim or cause of action under section 1441(c)." 341 U.S. at 14, 71 S. Ct. at 540. Therefore, removal is only available under section 1441(b).

While we are impressed by the authorities cited by plaintiffs in support of their argument that Wilson's failure to join in the removal petition made it defective, we must agree with Wilson and Steckler that given the novelty, complexity, and technicality of this question, the ends of justice and judicial efficiency are best served by treating the removal petition as if it had been amended to include Wilson. See 28 U.S.C. § 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."); Fed. R. Civ. P. 15(a) (" [L]eave [to amend] shall be freely given when justice so requires.").

We thus conclude that the federal courts have subject matter jurisdiction and removal was proper.

For the foregoing reasons, the district court's order of November 27, 1985 is REVERSED.