HOLLAWAY v. UNUM LIFE INSURANCE CO. OF AMERICA

HOLLAWAY v. UNUM LIFE INSURANCE CO. OF AMERICA
2003 OK 90
89 P.3d 1022
Case Number: 98120
Decided: 10/28/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

ROD HOLLAWAY, M.D., an individual, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.

CERTIFIED QUESTION OF LAW
FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

Honorable Sven Erik Holms, Judge

¶0 Over the objection of the defendant, UNUM Life Insurance Company of America (UNUM), the United States District Court for the Northern District of Oklahoma certified a single question of law pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 2001 §1601 et seq.:

Does Oklahoma's cause of action for breach of the implied covenant of good faith and fair dealing allowing for recovery of consequential and (when appropriate) punitive damages, as adopted in Christian v. American Home Assurance Co.,

With the Supreme Court's establishment of a new and different test for ERISA preemption in Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the question is reformulated under

Is Oklahoma's cause of action for breach of the implied covenant of good faith and fair dealing a "law which regulates insurance" within the meaning of 29 U.S.C. §1144(b)(2)(A) and as that term is defined by Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003)?

QUESTION ANSWERED.

The test for pre-emption has altered with the Supreme Court's recent decision in Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003) making any previously promulgated Tenth Circuit decisions of little assistance. In the exercise of our authority to answer any question which may be determinative of an issue in a cause pursuant to

In Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the United States Supreme Court held that a law regulates insurance under 29 U.S. C. §1144(b)(2) if it: 1) substantially affects the risk pooling arrangement between the insurer and the insured; and 2) is specifically directed toward the insurance industry. Oklahoma's cause of action for breach of the implied covenant of good faith and fair dealing does not affect the risk pooling arrangement between insurers and insureds. Therefore, it does not meet the Miller-test as a law which regulates insurance under 29 U.S.C. §1144(b)(2).

Joseph F. Clark, Jr., Joseph F. Bufogle, Tulsa, Oklahoma, for Plaintiff.
Patrick M. Ryan, Phillip G. Whaley, Joe M. Hampton, Amy J. Pierce, Oklahoma City, Oklahoma, for Defendant.

KAUGER, J.:

¶1 As originally certified, the question certified provides:

Does Oklahoma's cause of action for breach of the implied covenant of good faith and fair dealing allowing for recovery of consequential and (when appropriate) punitive damages, as adopted in Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899, apply only to contracts of insurance such that it can be said to "regulate insurance" as that term is used in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) and Unum Life Ins. Co. of America v. Ward, 527 U.S. 358 (1999) (requiring that to "regulate insurance" a regulation must, as a matter of common sense, "home [] in on the insurance industry and [] not just have an impact on that industry"). If Oklahoma's cause of action for the breach of the implied obligation of good faith and fair dealing "regulates insurance," it avoids preemption pursuant to ERISA's saving clause under Unum and Lewis v. Aetna U.S. Healthcare, Inc., 78 F. Supp. 2d 1202 (N.D. Okla. 1999). If it does not "regulate insurance," the cause of action is no longer available in the ERISA context and Lewis is no longer good law.

¶2 In Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), the United States Supreme Court set forth a new and different test for determining when a law regulates insurance under 29 U.S. C. §1144(b)(2)1 to avoid federal preemption. Because the Miller opinion alters the test in causes previously considered by the Tenth Circuit and because pursuant to 20 O.S. 2001 §1602,2 this Court has authority to answer any question which may be determinative of an issue in the cause, we answer a single question, as reformulated:3

whether Oklahoma's cause of action for breach of the implied covenant of good faith and fair dealing is a "law which regulates insurance" within the mean of 29 U.S.C. §1144(b)(2)(A) and as that term is defined by Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003)?

¶3 Pursuant to Miller, a law which substantially affects the risk pooling arrangement between the insurer and the insured and which is specifically directed toward the insurance industry avoids the general rule of preemption under the Employee Retirement Income Security Act of 1974 (ERISA).4 Because Oklahoma's cause of action for bad faith breach of an insurance contract does not substantially affect the risk-pooling arrangement between insurers and insureds,5 it does not meet the test established in Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003) as a law which regulates insurance under 29 U.S.C. §1144(b)(2).6

FACTS

¶4 The plaintiff, Rod Holloway, M.D. (Holloway/insured), filed suit in the District Court of Tulsa to recover benefits funded through a group long term disability insurance policy issued by the defendant, UNUM Life Insurance Company of America (UNUM/insurer), to Holloway's former employer. Holloway also asserted a claim for bad faith breach of the implied covenant of good faith and fair dealing seeking consequential and punitive damages. Subsequently, the cause was removed to federal court.

¶5 It is undisputed that the insurance benefits arise out of and are related to an employee welfare benefit plan governed exclusively by ERISA. It is also agreed that any claim for benefits is preempted by ERISA and is governed by federal law. Nevertheless, Holloway claims that Oklahoma's common law cause of action for bad faith breach of an insurance contract is exempted from ERISA preemption as a state law which "regulates insurance" under 29 U.S.C. §1144(b)(2).7

¶6 Recognizing that state law is determinative of the preemption issue on the bad faith cause of action and that this Court has not addressed the precise issue presented, the federal court certified the question to this Court pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 2001 §1601 et seq. on August 9, 2002. We set a briefing cycle which was completed on October 21, 2002.

¶7 On February 25th and 28th, 2003, respectively, Holloway and UNUM filed a notice and response to recent authority following the Tenth Circuit's decision in Conover v. Aetna U.S. Health Care, Inc., 320 F.3d 1076, 1080 (10th Cir. 2003). In Conover, the federal court held that Oklahoma's bad faith law did not "regulate insurance" within the meaning of ERISA's savings clause and was thus preempted both because it related to an ERISA employment benefit plan and because it conflicted with the federal statute's civil enforcement scheme. On April 2, 2003, the United States Supreme Court decided Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), in which it established a new test for determining whether a state law "regulates insurance" and whether it is removed from the general rule of ERISA preemption under the savings clause, 29 U.S.C. §1144(b)(2).8 Holloway and UNUM addressed the Miller opinion in filings on April 10th and April 14th, 2003, respectively.

I.

¶8 THE TEST FOR ERISA PREEMPTION ALTERED WITH THE
SUPREME COURT'S DECISION IN Kentucky Ass'n of Health Plans,
Inc. v. Miller, MAKING ANY PREVIOUSLY PROMULGATED
TENTH CIRCUIT DECISIONS OF LITTLE ASSISTANCE.
UNDER THE AUTHORITY OF

¶9 The federal court recognized that Oklahoma law would govern the preemption issue. It certified the preemption question over the objections of the insurer. UNUM urges us to refrain from answering the certified question. The insurer opposed certification in the federal court on grounds that federal case law was determinative of the preemption issue and that any resolution we might provide to the dispute would not be determinative of a material issue in the cause. Although the answer to the question certified may not resolve the cause, we answer because no Oklahoma law exists on a determinative issue and because tests applied by the Tenth Circuit have been altered by a recent Supreme Court decision.

¶10 Pursuant to 20 O.S. 2001 §1602,9 this Court has the power to answer certified questions from federal courts, appellate courts of other states, federally recognized Indian tribes, and governmental entities of Canada and Mexico. Questions may be answered if our response may be determinative of an issue in the pending litigation and there is no controlling precedent established through judicial opinion, constitutional provision or legislative enactment.

¶11 UNUM objected to certification on grounds that under the Supreme Court's decision in Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 122 S. Ct. 2151, 2165, 153 L.E.2d. 375 (2002), a decision by this Court on the issue of preemption would not be determinative of a material issue in the cause. In Rush, the Supreme Court determined that state-law based pleas for damages not provided for under the ERISA scheme were preempted. UNUM argued that, even if we were to hold that Oklahoma's cause of action for bad faith breach of the covenant of good faith and fair dealing regulated insurance within the meaning of 29 U.S.C. §1144(b)(2)(A),10 ultimately ERISA would foreclose the possibility of an award of consequential or punitive damages as remedies foreclosed by the federal statute's remedy provision.11

¶12 The federal court was unconvinced that Rush was dispositive of the issue certified -- whether Oklahoma's law of bad faith breach of the covenant of good faith and fair dealing "regulates insurance" within the mean of ERISA. In dismissing UNUM's argument on this point, it cited to specific language from Unum providing:

"Although we have yet to encounter a forced choice between the congressional policies of exclusively federal remedies and the 'reservation of the business of insurance to the States,' . . . we have anticipated such a conflict, with the state insurance regulation losing out if it allows plan participants 'to obtain remedies . . . that Congress rejected in ERISA. . .'" [Citations to authority omitted.]

¶13 Apparently, the federal court was convinced that although the insured might not ultimately prevail, it remained in need of direction on state law relating to a material issue -- whether Oklahoma's law of bad faith regulates insurance within the meaning of 29 U.S.C. §1144(b)(2)(A).12 Title 20 O.S. 2001 §1602,13 does not foreclose an answer to a question simply because this Court's response may not be dispositive of the cause. All the statute requires for us to proffer an answer to a certified question is that the response be determinative of a single issue in the cause and that no controlling state law exist.

¶14 The Tenth Circuit has on three occasions addressed the issue of whether state-law bad faith claims were laws regulating insurance and thus avoiding preemption under 29 U.S.C. §1144(b)(2)(A). In a case decided before certification, Moffett v. Halliburton Energy Serv., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002), the federal court determined that Wyoming's tort of insurance bad faith did not "regulate insurance" within the meaning of ERISA's savings clause preemption provision. The decision in Conover v. Aetna US Health Care, Inc., 320 F.3d 1076, 1078 (10th Cir. 2003) was promulgated after certification and reaffirmed the appellate court's earlier holding in Gaylor v. John Hancock Mutual Life Ins. Co., 112 F.3d 460, 465-66 (10th Cir. 1997) that Oklahoma's bad faith law did not regulate insurance within the meaning of ERISA's savings clause preemption provision.14

¶17 The United States Supreme Court decided Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003) specifically rejecting the test applied by the Tenth Circuit in Conover. The Supreme Court stated in Miller:

". . . We believe that our use of the McCarran-Ferguson case law in the ERISA context has misdirected attention, failed to provide clear guidance to lower federal courts, and, as this case demonstrates, added little to the relevant analysis. . . .

. . . Today, we make a clean break from the McCarran-Ferguson factors and hold that for a state law to be deemed a 'law . . . which regulates insurance' under §1144(b)(2)(A), it must satisfy two requirements. First, the state law must be specifically directed toward entities engaged in insurance. . . . Second, as explained above, the state law must substantially affect the risk pooling arrangement between the insurer and the insured. . . ." [Citations omitted.]

It is with the Supreme Court's pronouncement in mind that we have reformulated the certified question. In answering the question, we will apply the test mandated by the high court in Miller.

II.

¶18 OKLAHOMA'S CAUSE OF ACTION
FOR THE BAD FAITH BREACH
OF THE IMPLIED COVENANT OF GOOD FAITH AND
FAIR DEALING DOES NOT AFFECT THE RISK POOLING
ARRANGEMENT BETWEEN INSURERS AND INSUREDS
SO AS TO AVOID ERISA PREEMPTION PURSUANT TO
29 U.S.C. §1144(b)(2) AND THE SUPREME COURT'S
PRONOUNCEMENT IN Kentucky Ass'n of Health Plans, Inc.
v. Miller.

¶19 Hollaway argues that Oklahoma's cause of action for bad faith breach of the covenant of good faith and fair dealing meets the two-part Miller test and is exempted from ERISA preemption. He asserts that actions based on a breach of the covenant of good faith and fair dealing affect the risk pooling arrangement between insurers and their insureds and that they are specifically directed towards the insurance industry. UNUM disagrees with both these contentions.

¶20 Under Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003), a state law must meet both prongs

¶21 "Risk" within the meaning of the insurance industry and as it relates to the insurer-insured relationship involves the event or happening for which the insurance company has specifically contracted to reimburse its insured -- the actual risk transferred from the insured to the insurer.

¶22 Risk pooling is an essential characteristic of the insurance industry.

¶23 The Supreme Court has previously determined that although bad faith actions may concern the policy relationship between the insurer and insured, they do not effect a spreading of policyholder risk.

¶25 We align ourselves with the jurisdictions which have applied the Miller test determining that state-law based bad faith claims are preempted under ERISA. Further, we note that the overwhelming majority of pre-Miller decisions considering the bad faith issue also determine the claims are subject to ERISA preemption.

CONCLUSION

¶26 Although this Court will not answer a certified question in the guise of appellate review,

OPALA, V.C.J., HODGES, J., WINCHESTER, J.J., dissent.

FOOTNOTES

1 Title 29 U.S.C. §1144 provides in pertinent part:

"(a) Supersedure; effective date

(1) 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

. . . (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. . . ."

2 Title 20 O.S. 2001 §1602 provides:

"Power to Answer. The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or Court of Criminal Appeals, constitutional provision, or statute of this state."

3 Following certification, the United States Supreme Court promulgated its decision in Kentucky Ass'n of Health Plans, Inc. v. Miller, ___ U.S. ___, 123 S. Ct. 1471, 155 L. Ed. 2d 468 (2003) which established a new test for the regulation of insurance in the ERISA context. Both parties have addressed the impact of Miller on the certified question in filings with this Court. Therefore, the question has been reformulated pursuant to 20 O.S. 2001 §1602.1.

4 ERISA, like the provisions of the Federal Railroad Safety Act of 1970, recently considered in Hightower v. Kansas City Southern Railway Co., 2003 OK 45, ___ P.3d ___ , contains an express provision governing preemption of state law claims and a savings provision relating to some state laws. In Hightower, this note, supra, we determined state law regulations relating to excessive speed and tort claims warnings did not survive under the savings clause. See, 29 U.S.C. §1144, note 1, supra.

5 The dissent charges that the majority has failed to garner a passing mark in Federalism 101 -- at the same time conceding that the answer provided to the question certified is correct. [¶1 of the dissenting opinion provides in pertinent part: ". . . Even though I do not dispute the soundness of the court's legal counsel to the certifying tribunal, I cannot countenance today's incursion into the orbit of exclusive federal forensic competence. . ."] Furthermore, the minority writing indicates that the opinion rendered can be nothing other than advisory. The allegation stems from an argument that we somehow have moved into the realm of providing "advice" to the federal court. The charge is interesting in light of an opinion recently released by the Court for publication.

In Delk v. Markel American Insurance Co., 2003 OK 88, ___ P.3d ___, we were asked to answer a certified question of law from the United States District Court. Delk determined that an insured cotenant who occupies the insured property as her home and who has insured the property for its full value may recover insurance benefits greater than the value of a fractional legal interest in the property. In so doing, the majority found it "our task to provide the federal court with a range of scenarios, if any, that would militate in favor of or against recovery."

The difference between Delk and the situation here is that we make no attempt to provide any advice to the certifying court on what scenarios might render an insured the ability to recoup against an insurer. Rather, we answer a pure question of law, applying Oklahoma law to the standards enunciated by the United States Supreme Court in Kentucky Ass'n of Health Plans, Inc. v. Miller, see note 3, supra, to determine whether this State's law is one which regulates insurance under 29 U.S.C. §1144(b) (2). See note 1, supra. We do not hypothecate on whether Oklahoma's law of bad faith meets the second prong of the test established in Kentucky -- a resolution of which might well be considered extra-judicial in that the Supreme Court has made it clear that both prongs must be satisfied to avoid preemption.

6 Title 29 U.S.C. §1144(b)(2), see note 1, supra. The cause differs significantly from McDermott v. Sentry Life Ins. Co., Inc., 2000 OK CIV APP 115, ¶10, 15 P.3d 508 (2001) in which the Court of Civil Appeals determined, in an opinion released for publication by that court, that a non-participant who was challenging conduct of an insurer did not implicate the relationship of traditional ERISA entities thus not implicating the preemption provisions of the federal law. Here, the plaintiff is an insured under the policy. Opinions released for publication by order of the Court of Civil Appeals, are persuasive only, and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1.

7 Title 29 U.S.C. §1144(b)(2), see note 1, supra.

8 Id.

9 Title 20 O.S. 2001 §1602, see note 2, supra.

10 See, 29 U.S.C. §1144(b)(2)(A), note 1, supra.

11 Various penalties for delay in payment are provided in 29 U.S.C. §1132(a), none of which include the award of punitive damages.

12 This cause differs significantly from Cray v. Dloitte Haskins & Sells, 1996 OK 102, 925 P.2d 60, in which we declined to answer a certified question. The Cray Court refused to consider the question certified because the question certified was answered by a ruling on the issue by the certifying court. Here, the federal court has not entered judgment on the preemption issue.

13 Title 20 O.S. 2001 §1602, see note 2, supra.

14 In Conover v. Aetna US Health Care, Inc., 320 F.3d 1076, 1078 (10th Cir. 2003), the Tenth Circuit affirmed a federal district court which specifically rejected the position taken by its sister court in Lewis v. Aetna U.S. Healthcare, Inc., 78 F. Supp. 2d 1202, 1208 (N.D.Okla. 1999), holding that Oklahoma's law of bad faith was applicable only in the insurance context and thus met the requirement of regulating insurance avoiding ERISA preemption.

15 See, Conover v. Aetna US Health Care, Inc., note 14, supra.

16 Bogart v. Caprock Communications Corp., 2003 OK 38, ¶13, 69 P.3d 266; Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶30, 977 P.2d 1040; United States v. Home Fed. S. & L. Ass'n of Tulsa, 1966 OK 135, ¶18, 418 P.2d 319.

17 Bogart v. Caprock Communications Corp., see note 16, supra; Akin v. Missouri Pacific Railroad Co., see note 16, supra.

18 Id.

19 See, Hathaway v. State ex rel. Medical Research & Technical Auth., 2002 OK 53, ¶13, 49 F.3d 740; Payne v. Dewitt, 1999 OK 93, ¶8, 995 P.2d 1088; McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶7, 979 P.2d 252; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶21, 958 P.2d 128.

20 Kentucky Ass'n of Health Plans, Inc. v. Miller, see note 3, supra, and quotation from the opinion in ¶17, supra.

21 Title 29 U.S.C. §1144(b)(2), see note 1, supra.

22 Cramer v. Association Life Ins. Co., see note 36, infra.

23 Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 130, 102 S. Ct. 3002, 73 L. Ed. 2d 647 (1992); Community Health Partners, Inc. v Comonwealth of Kentucky, 14 F. Supp. 2d 991, 1002 (W.D.Ky. 1998), aff'd, 230 F.3d 1357 (6th Cir. 2000), cert. denied, ___ U.S. ___, 123 S. Ct. 1779, 155 L.E.2d 571 (2003).

24 Securities & Exchange Comm'n v. Life Partners, Inc., 318 U.S.App.D.C. 302, 87 F.3d 536 541 (1996), rehearing denied, 322 U.S.App.D.C. 189, 102 F.3d 587 (1996); Delta Holdings, Inc. v. National Distillers & Chemical Corp., 945 F.2d 1226 (2nd Cir. 1991), cert. denied, 503 U.S. 985, 112 S. Ct. 1671, 118 L. Ed. 2d 390 (1992)..

25 Delta Holdings, Inc. v. National Distillers & Chemical Corp., see note 24, supra.

26 WR Enterprises, Inc. v. Department of Labor & Industries, 147 Wash. 2d 213, 53 P.3d 504, 510 (2002).

27 AIU Ins. Co. v. Superintendent of Ins., 600 A.2d 1115, 1117 (Me. 1991), cert. denied, 504 U.S. 986, 112 S. Ct. 2967, 119 L. Ed. 2d 587 (1992), rehearing denied, 505 U.S. 1238, 113 S. Ct. 9, 120 L. Ed. 2d 937 (1992).

28 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 1554, 93 L. Ed. 2d 39 (1987).

29 Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138, 1146 (9th Cir. 2003); Chapman v. Prudential Life Ins. Co. of America, 267 F. Supp. 2d 569, 580 (E.D.La. 2003); Revells v. Metropolitan Life Ins. Co., 261 F. Supp. 2d 1359 (M.D.Ala. 2003); McGuigan v. Reliance Standard Life Ins. Co., 256 F. Supp. 2d 345 (E.D. Pa. 2003); Leuthner v. Blue Cross & Blue Shield of Northeastern Oklahoma, 2003 WL 21660064 (M.D.Pa. 2003, slip opinion); Bank of Louisiana v. Aetna United States Healthcare, Inc., 2003 WL 21634306 (E.D.La. 2003, slip opinion); Anderson v. Businessmen's Assurance Co., 2003 WL 21305335 (E.D.La. 2003, slip opinion); Sundown Ranch, Inc. v. John Alden Life Ins. Co., 2003 WL 212812642 (N.D. Tex. 2003, slip opinion); Ercole v. Conective & Coventry Health Care of Delaware, Inc., 2003 WL 21104926 (D.Del. 2003, slip opinion). But see, Marks v. Newcourt Credit Group, Inc., 2003 WL 22052314, ___ F.3d ___ (6th Cir. 2003) [Breach of contract claims remanded for consideration to allow claims unrelated to the insurance plan.].

30 Title 29 U.S.C. §1144(b)(2), see note 1, supra.

31 McGuigan v. Reliance Standard Life Ins. Co., see note 29, supra; Ercole v. Conective & Coventry Health Care of Delaware, Inc., see note 29, supra.

32 Cramer v. Association Life Ins. Co., see note 36, infra; Morris v. Highmark Life Ins. Co., see note 36, infra; Erwin v. Texas Health Choice, see note 36, infra; Little v. Unumprovident Corp., see note 33, infra; Brandner v. Unum Life Ins. Co., see note 36, infra; Pomeroy v. Johns Hopkins Medical Servs., Inc., see note 36, infra; Camire v. Aetna Life Ins. Co., Inc., see note 36, infra; Ferry v. Mutual Life Ins. Co., see note 36, infra.

33 Little v. Unumprovident Corp., 196 F. Supp. 2d 659, 668 (S.D.Ohio 2002).

34 Brandner v. Unum Life Ins. Co., see note 36, infra.

35 Morris v. Highmark Life Ins. Co., see note 36, infra.

36 Title 29 U.S.C. §1144(b)(2), see note 1, supra. See, Pilot Life Ins. Co. v. Dedeaux, see note 28, supra; Howard v. Coventry Health Care of Iowa, Inc., 293 F.3d 442 (8th Cir. 2002); Walker v. Southern Co. Serv., Inc., 279 F.3d 1289, (11th Cir. 2002), rehearing en banc denied, 34 Fed. Appx. 393, ___ F.3d ___ (11th Cir. 2002), cert. denied, ___ U.S. ___, 123 S. Ct. 111, 154 L. Ed. 2d 34 (2002); Conover v. Aetna US Healthcare, Inc., see note 14, supra; Moffett v. Halliburton Energy Serv., Inc., 291 F.3d 1227, 1235 (10th Cir.); Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir. 1999); Bast v. Prudential Ins. Co., 150 F.3d 1003, 1007 (9th Cir. 1998), cert. denied, 528 U.S. 870, 120 S. Ct. 170, 145 L. Ed. 2d 144 (1994); Custer v. Pan American Life Ins. Co., 12 F.3d 410, 418 (4th Cir. 1993); Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 818 (9th Cir. 1992); Swerhum v. Guardian Life Ins. Co. of America, 979 F.2d 195 (11th Cir. 1992); Hogan v. Kraft Foods, 969 F.2d 142, 144 (5th Cir. 1992); Smith v. Blue Cross & Blue Shield United, 959 F.2d 655, 657 (7th Cir. 1992); Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1131 (9th Cir. 1992); International Resources, Inc. v. New York Life Ins. Co., 950 F.2d 294 (6th Cir. 1992), cert. denied, 504 U.S. 973, 112 S. Ct. 294l, 119 L. Ed. 2d 565 (1992); Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir. 1990); Bishop v. Provident Life & Casualty Ins. Co., 749 F. Supp. 176, 178 (E.D.Tenn. 1990); Kelley v. Sears, Roebuck & Co., 882 F.2d 453 (10th Cir. 1989); In re Life Ins. Co. of N. America, 857 F.2d 1190, 1193 (8th Cir. 1988); Shiffler v. Equitable Life Assurance Society, 838 F.2d 78 (3rd Cir. 1988); Ackerman v. Fortis Benefits Ins. Co., 2003 WL 1790750, ___ F.Supp.2d ___ (S.D.Ohio 2003); Alloco v. Metropolitan Life Ins. Co., 2003 WL 1821522, ___ F.Supp.2d ___ (D.Az. 2003); Morris v. Highmark Life Ins. Co., 2003 WL 1821512, ___ F.Supp.2d ___ (D.R.I. 2003); Snook v. Penn State Geisinger Health Plan, 241 F. Supp. 2d 485 (M.D.Penn. 2003); Pachuta v. Unumprovident Corp., 242 F. Supp. 2d 752, 761 (D.Haw. 2002); Bell v. Unumprovident Corp., 222 F. Supp. 2d 692 (E.D.Penn. 2002); Adams v. Unum Life Ins. Co., 200 F. Supp. 2d 796, 802 (N.D.Ohio 2002); Erwin v. Texas Health Choice, 187 F. Supp. 2d 661, 666 (N.D.Tex. 2002); Cencula v. John Alden Life Ins. Co., 174 F. Supp. 2d 794 (N.D.Ill. 2001); Majka v. Prudential Ins. Co. of America, 171 F. Supp. 2d 410, 413 (D.N.J. 2001); Chamblin v. Reliance Standard Life Ins. Co., 168 F. Supp. 2d 1168 (N.D.Cal. 2001); Jabour v. Cigna Healthcare of California, Inc., 162 F. Supp. 2d 1119, 1127 (C.D.Cal. 2001); Andrews-Clarke v. Lucent Technologies, Inc., 157 F. Supp. 2d 93, 105 (D.Mass. 2001); Brandner v. Unum Life Ins. Co., 152 F. Supp. 2d 1219, 1226 (D.Nev. 2001); Chiroff v. Life Ins. Co. of N. America, 142 F. Supp. 2d 1360 (S.D.Fla. 2000); Hardy v. Welch, 135 F. Supp. 2d 1171 (M.D.Ala. 2000); Foster v. Blue Cross & Blue Shield of Michigan, 969 F. Supp. 1020, 1024 (E.D.Mich. 1997); Schwartz v. FHP Int'l Corp., 947 F. Supp. 1354 (D.Ariz. 1996); Dials v. SMC Coal & Terminal Co., 891 F. Supp. 373, 375 (E.D.Ky. 1995), aff'd, 89 F.3d 833 (6th Cir. 1996); Ferry v. Mutual Life Ins. Co., 868 F. Supp. 764, 770 (W.D.Penn. 1994); Pomeroy v. Johns Hopkins Medical Servs., Inc., 868 F. Supp. 110, 115 (D.Md. 1994); Washington Nat'l Ins. Co. v. Hendricks, 855 F. Supp. 1542 (W.D.Wis. 1994); Hemphill v. Unisys Corp., 855 F. Supp. 1225, 1232 (D.Utah 1994); Suggs v. Pan American Life Ins. Co., 847 F. Supp. 1324, 1334 (S.D.Miss. 1994); Ludwig v. Nynex Serv. Co., 838 F. Supp. 769, 791 (S.D.N.Y. 1993); Camire v. Aetna Life Ins. Co., Inc., 822 F. Supp. 846, 850 (D.N.Hamp. 1993); Fischman v. Blue Cross & Blue Shield of Connecticut, 755 F. Supp. 528 (D.Conn. 1990); Martin v. Pate, 749 F. Supp. 242 (S.D. Ala. 1990), aff'd, 934 F.2d 1265 (11th Cir. 1990); McManus v. Travelers Health Network of Texas, 742 F. Supp. 377, 381 (W.D.Tex. 1990); Garred v. General American Life Ins. Co., 723 F. Supp. 1325 (W.D.Ark. 1989), appeal denied, 902 F.2d 1576 (8th Cir. 1990); Buehler, Ltd. v. Home Life Ins. Co., 722 F. Supp. 1554 (N.D.Ill. 1989); Denette v. Life of Indiana Ins. Co., 693 F.Supp. 959(D.Colo. 1988); Tucker v. Employers Life Ins. Co., 689 F. Supp. 1073 (N.D.Ala. 1988); Morales v. Pan American Life Ins. Co., 719 F. Supp. 1297, 1300 (E.D.La. 1989), aff'd, 914 F.2d 83 (3rd Cir. 1990); Connecticut General Ins. Co. v. Insurance Comm'r, 371 Md. 455, 810 A.2d 425, 472 (2002), cert. dismissed, ___ U.S. ___, 123 S. Ct. 1964, ___ L.Ed.2d ___ (2003); Midwest Security Life Ins. Co. v. Stroup, 730 N.E.2d 163, 167 (Ind. 2000); Weems v. Jefferson-Pilot Life Ins. Co., 663 So. 2d 905 (Ala. 1995); Duncan v. Provident Mutual Life Ins. Co., 310 S.C. 465, 427 S.E.2d 657 (1993); Cathey v. Metropolitan Life Ins. Co., 805 S.W.2d 387 (Tex. 1991), cert. denied, 501 U.S. 1232, 111 S. Ct. 2855, 115 L. Ed. 2d 1023 (1991); Elgin v. Great-West Life Assurance Co., 163 Ariz. 176, 789 P.2d 1027(1990); Cramer v. Association Life Ins. Co., 569 So. 2d 533 (La. 1990), cert. denied, 499 U.S. 938, 111 S. Ct. 1391, 113 L. Ed. 2d 447 (1991); Davis v. Ottumwa Young Men's Christian Ass'n, 438 N.W.2d 10 (Iowa 1989); Lake County Employers' Health & Welfare Benefit Plan & Trust, 90 Ohio App.3d 809, 630 N.E.2d 781, 785 (1993); Commercial Life Ins. Co. v. Superior Court, 47 Cal. 3d 473, 253 Cal. Rptr. 682, 764 P.2d 1059 (1988), cert. denied, 490 U.S. 1075, 109 S. Ct. 2087, 104 L. Ed. 2d 651 (1989); Yardley v. United States Healthcare, Inc., 698 A.2d 979 (Sup.Ct.Del. 1996), aff'd, 698 A.2d 1083 (Del. 1996); Matter of Estate of Damon, 892 P.2d 350(Ct.App.Colo. 1995), aff'd, 915 P.2d 1301 (Colo. 1996); Curry v. Cincinnati Equitable Ins. Co., 834 S.W.2d 701 (Ct.App.Ky. 1992). See also, "New Test Announced for ERISA Preemption Savings Clause," 11 No. 16 Legal Notes Ins. 1 (June 2003); "ERISA Preemption: ERISA Savings Clause Doesn't Rescue Bad Faith Claim, Del. Fed. Ct. Holds," 17 No. 22 Andrews Employment Litig. Rep. 16 (June 2003); Chemers & Franco, "The Preemption of State Claims Under ERISA, 78 Ill.B.J. 550 (Nov. 1990); Bishop & Denny, "Hello ERISA, Good-bye Bad Faith: Federal Pre-emption of DTPA, Insurance Code, & Common Law Bad Faith Claims," 41 Baylor L.Rev. 267 (1989); Clerin, Rosen & Stedman, "Pilot Life's Dramatic Impact-The Supreme Court Revolutionizes Insurance Bad Faith Law," L.A. Law, p. 37 (Oct. 1989). Nevertheless, we note that generally, where bad faith claims have been deemed to either arise out of general contract or tort law or where they have been found applicable in non-insurance causes, the courts are almost unanimous in determining that bad faith claims do not fall within ERISA's savings clause because such causes of action may lie outside the insurance relationship.

But see, Lewis v. Aetna U.S. Healthcare, Inc., note 14, supra; Ball v. Life Planning Serv., 187 W.Va. 682, 421 S.E.2d 223, 227 (1992); Graves v. Blue Cross of California, 688 F. Supp. 1405 (N.D.Cal. 1988).

37 Title 29 U.S.C. §1144(b)(2), see note 1, supra.

38 Cray v. Deloitte Haskins & Sells, see note 12, supra.

39 Title 20 O.S. 2001 §1602, see note 2, supra.

40 Greany v. Western Farm Bureau Life Ins. Co., see note 36, supra; PM Group Life Ins. v. Western Growers Assur. Trust, 953 F.2d 543, 545 (9th Cir. 1992).

41 Title 29 U.S.C. §1144, see note 1, supra.

42 Ludwig v. Nynex Serv. Co., see note 36, supra.

43 Tolton v. American Biodyne, Inc., 48 F.3d 937, 943 (6th Cir. 1995); Foster v. Blue Cross & Blue Shield of Michigan, see note 36, supra.

44 Title 29 U.S.C. §1144(b)(2), see note 1, supra.

45 Id.

OPALA, V.C.J., dissenting from today's compliance with the request to answer a certified question from a federal court.

I

¶1 The court flunks Federalism 101 by boosting its own expertise in federal law above that of a United States court exercising original jurisdiction over the very case in which the certified legal issue has arisen. Even though I do not dispute the soundness of the court's legal counsel to the certifying tribunal, I cannot countenance today's incursion into the orbit of exclusive federal forensic competence. I hence recede from what appears as nothing more than a tender of solicited advice which the recipient tribunal is utterly free to ignore - an exercise in pure supererogation.1 Advisory opinions - those which have no binding impact on a live controversy - are strongly disapproved by an uninterrupted line of Oklahoma jurisprudence.2

II

RESPONSE TO THE COURT'S CRITIQUE OF THE DISSENT

¶5 The court errs as a matter of law when it finds inconsistency between its pronouncement in Delk v. Markel American Insurance Co.

¶6 The court's critique of the dissent ignores and hence fails to address directly the critical point in dispute. This point is that judicial testing of state law by federal preemption standards presents and resolves a federal-law question.

FOOTNOTES

1 The term "supererogation" means "the act or process or an instance of performing more than is required by duty or obligation ... [or] more than is necessary to complete an undertaking." Webster's Third New International Dictionary at 2293 (1961). See Patterson v. Beall, 2000 OK 92, ¶2 n.3, 19 P.3d 839, 848 (Opala, J., dissenting).

2 Dank v. Benson, 2000 OK 40, ¶7, 5 P.3d 1088, 1091; Loffland Bros. Co. v. Overstreet, 1988 OK 60, ¶28, 758 P.2d 813, 819; Underside v. Lathrop, 1982 OK 57, ¶9, 645 P.2d 514, 517; City of Shawnee v. Taylor, 1943 OK 11, ¶4, 132 P.2d 950, 952.

3 The Supremacy Clause of Article VI of the United States Constitution provides Congress with the power to preempt state law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208-09, 105 S. Ct. 1904, 1909-10, 85 L. Ed. 2d 206 (1985) (citing Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23 (1824)). Whether state law is preempted by federal law is a question of federal law. Allis-Chalmers Corp., supra, 471 U.S. at 208-09, 105 S.Ct. at 1909-10; Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S. Ct. 1185, 1190, 55 L. Ed. 2d 443 (1978) (quoting Retail Clerks Int'l Ass'n v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 222, 11 L. Ed. 2d 179 (1963)). See also Smith Cogeneration Mgmt, Inc. v. Corporation Comm'n, 1993 OK 147, ¶21, 863 P.2d 1227, 1239.

4 As U.S. Supreme Court jurisprudence teaches, "state courts have inherent authority, and are thus presumptively competent, to adjudicate claims [and issues] arising under the laws of the United States." Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823, 110 S. Ct. 1566, 1568, 108 L. Ed. 2d 834 (1990) (quoting from Tafflin v. Levitt, 493 U.S. 455, 458-60, 110 S. Ct. 792, 795, 107 L. Ed. 2d 887 (1990)); see also Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 1994 OK 20, ¶15, 896 P.2d 503, 509-10.

5 We function as officious volunteers when answering (under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 § 1600 et seq.) a federal-law question. Our intrusion into the federal-court process would not offer a binding resolution of an unsettled issue but rather gratuitous advice. On the other hand, when we answer a state-law question, our response becomes binding on the federal court for application in the process of deciding the case for which the question was submitted. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938); Texas Industries, Inc. v. Radcliff Materials, 451 U.S. 630, 640, 101 S. Ct. 2061, 2067, 68 L. Ed. 2d 500 (1981); Salve Regina v. Russell, 499 U.S. 225, 226-27, 231-34, 111 S. Ct. 1217, 1218-19, 1221-23, 113 L. Ed. 2d 190 (1991).

Officious volunteers

Power to Answer. The Supreme Court . . . may answer a question of law certified to it by a court of the United States . . . if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court . . . constitutional provision, or statute of this state.

(emphasis added).

One treatise maintains that it is "clear that a federal court cannot compel a state court to answer questions in the absence of a state procedure." 17A C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure §4248, at 160 (2d ed. 1988). See also Planned Parenthood Ass'n v. Ashcroft,

Winchester, J., with whom Opala, V.C.J. and Hodges, J. join, dissenting

¶1 I dissent from the Court's opinion. I would decline to answer the question. Title

FOOTNOTES