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Myers v. Blue Cross & Blue Shield of Mississippi

United States District Court, S.D. Mississippi, Western Division

February 21, 2019

MARVIN MYERS PLAINTIFF
v.
BLUE CROSS & BLUE SHIELD OF MISSISSIPPI, A MUTUAL INSURANCE COMPANY DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID BRAMLETTE, UNITED STATES DISTRICT JUDGE

         This cause is before the Court on the plaintiff Marvin Myers (on behalf of Pattie M. Myers, deceased)'s Motion to Remand to State Court, i.e. the Circuit Court of Franklin County, Mississippi (docket entry 13). Myers asserts that the health insurance plan at issue in this case gives him the unrestricted right to litigate his claim in state court.

         In support of his motion, Myers shows that Pattie M. Myers was employed by United Mississippi Bank in Franklin County, Mississippi, and was insured under a health insurance policy or plan obtained through her employment. The plan was captioned “Mississippi Bankers Association Plan III” and was underwritten, issued, insured, and administered by Blue Cross & Blue Shield of Mississippi (“BCBS”).

         Mrs. Myers was hospitalized at New Iberia Medical Center in New Iberia, Louisiana, from February 10, 2015, until her death on March 14, 2015. The hospital submitted a bill to BCBS for Mrs. Myers' final medical expenses in the total amount of $556, 682. BCBS denied payment of the hospital bill on the basis that it was “not a covered service” under the plan in question.

         Mrs. Myers's husband, Marvin Myers, filed suit against BCBS in the Circuit Court of Franklin County, Mississippi for recovery of benefits due under the plan and for bad faith denial of benefits. BCBS removed the case to this Court, invoking federal question jurisdiction under 28 U.S.C. § 1331. BCBS contends that the health plan is governed by ERISA, 29 U.S.C. § 1001 et seq, and that enforcement of ERISA raises a federal question.

         During the telephonic case management conference, plaintiff's counsel raised the issue that the plan gave the plaintiff the choice of filing the case in state or federal court. Counsel for plaintiff told Magistrate Judge Parker that the plaintiff anticipated filing a motion to remand to enforce his right to choose state court as a forum. Magistrate Judge Parker, therefore, entered an order deferring entry of a case management order and directed the plaintiff to file a motion regarding the appropriate forum for this action.

         Plaintiff's counsel argues that the health plan in question is not subject to ERISA and does not implicate a federal question. Moreover, counsel insists that this Court is without subject matter jurisdiction. On November 19, 2018, the plaintiff filed a Motion to Remand (docket entry 13).

         BCBS insists that its removal to this Court was proper, and that the Plan language relied upon by the plaintiff merely informs beneficiaries of their right under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., to file suit in state or federal court, a disclosure required by ERISA. It does not constitute a waiver of BCBS's statutory right to remove this action to federal court.

         On February 9, 2015, Mrs. Myers was admitted to New Iberia Surgery Center in New Iberia, Louisiana, to undergo a laparoscopic sleeve gastrectomy, a type of bariatric or weight loss surgery for treatment of morbid obesity. (Docket entry 1-1, Complaint at ¶13). On February 10, 2015, following the surgery and after being discharged, Mrs. Myers began experiencing complications and was admitted to Iberia Medical Center, where she continued to suffer complications from the initial surgery until her death on March 14, 2015 (the “Hospitalization”). (Docket entry 1-1, Complaint at ¶8). Mrs. Myers had health care coverage under a health and wellness benefit plan (“the Plan”) with BCBS through her employer, United Mississippi Bank. (Docket entry 1-1, Complaint at ¶ 5). Under the Plan, “[w]eight reduction programs and treatments for obesity including any Surgery for morbid obesity” and complications from such treatments are not covered, regardless of the reasons for and/or medical necessity of the surgery or services. See Ex. A, Plan Excerpt, Article XIV, Paragraphs (A)(30) and (A)(61), at BCBSMS 67, 69. Therefore, claims for Mrs. Myers's Hospitalization were denied. See id.[1]

         The plaintiff filed this lawsuit on May 17, 2018, asserting claims against BCBS arising from the denial of hospital benefits for Mrs. Myers's Hospitalization. [Dkt. 1-1]. Blue Cross was served with process on June 26, 2018, and timely removed the case on July 24, 2018, on the basis of federal question jurisdiction under ERISA. Mrs. Myers's health care coverage under the Plan through her employer is an “employee welfare benefit plan” as defined under and subject to ERISA.[2] Thus, the plaintiff's claim for benefits arises under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), and is completely preempted by that act.[3]

         On November 19, 2018, the plaintiff filed his Motion to Remand and supporting memorandum, asserting that under the terms of the Plan he was permitted to choose between state and federal court, and asserting that Blue Cross waived its right to remove claims arising out of the Plan. (See Docket entries 13 and 14).

         BCBS responded, contending that the plaintiff's arguments are without merit and that the Motion to Remand should be denied. (See Docket entries 16, 17 and 20). Myers has filed a rebuttal, insisting that he has the right to select the state court forum. (See Docket entry 21).

         State and federal courts have concurrent jurisdiction over ERISA claims brought by employees to recover benefits, enforce rights, or clarify rights under employee benefit plans. See 29 U.S.C. § 1132(e)(1). Thus, the plaintiff's suit to recover benefits from Mrs. Myers's Plan is the type of suit that may be filed in either state or federal court. It is also the type of suit that can be removed from state court to federal court at the defendant's request. See 28 U.S.C. § 1441(a)(stating defendants may remove civil actions filed in state court to federal district court if the district court had original jurisdiction over the cause of action).

         In support of his Motion to Remand, the plaintiff argues that BCBS waived its right to remove this case to federal court because the summary plan description in the Plan states, in part: “Under ERISA, there are steps you can take to enforce the above [ERISA] rights. ... If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court. See Exhibit A, Plan Excerpt at BCBSMS 6-7. Numerous courts have rejected the plaintiff's argument, holding that the phrase “you may file suit in a state or federal court” is a statutorily mandated disclosure of ERISA rights rather than a forum selection clause, and that “[t]he right to file suit in a particular forum is not equivalent to the right to avoid removal from that forum.” See, e.g., Cruthis v. Metro. Life Ins. Co., 356 F.3d 816, 818-19 (7th Cir. 2004). The Fifth Circuit has indicated that it agrees. See Ballew v. Cont'l Airlines, Inc., 668 F.3d 777, 786 n.8 ...


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