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April 25, 1991

WILLIAM E. DUGAN, et al., Plaintiffs,

William T. Hart, United States District Judge.

The opinion of the court was delivered by: HART



 Defendant Arthur Nickla had emergency surgery performed on his left knee. Alleging failure to promptly diagnose his knee condition, defendant filed a lawsuit in state court for medical malpractice and, on March 28, 1990, a jury awarded him $ 140,750. *fn1" At the time of his surgery, Nickla was a participant in the Midwest Operating Engineers Welfare Fund (the "Fund"), which paid all of defendant's medical expenses. The Fund was, and still is, an employee welfare benefit plan governed by Employee Retirement Income Security Act of 1974 ("ERISA").

 Under the Fund's subrogation provision, Nickla is obligated to reimburse the Fund for any medical and disability payments that he recovers from a third party. *fn2" As a matter of policy, the Fund requires a participant, and the participant's spouse, to sign a "Subrogation Agreement" whenever it appears that injuries may have been caused by the conduct of a third party. Defendant and his wife signed such a subrogation agreement and acknowledged their obligation to reimburse the Fund for medical expenses and disability benefits resulting from defendant's knee surgery. *fn3" Pursuant to the subrogation provision, the Fund asserted a lien against Nickla's state court judgment in the amount of $ 60,690.10 for reimbursement of medical benefits and $ 8,632.51 for reimbursement of disability benefits.

 The parties disagreed as to the amount of money owed under the subrogation provision, and the Fund filed this suit claiming jurisdiction under 28 U.S.C. § 1331 -- federal question. Plaintiff now moves for summary judgment and, defendant moves for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Jurisdictional questions must be considered, even if not raised by the parties. Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"); see also Wilson v. Civil Town of Clayton, Indiana, 839 F.2d 375, 384 (7th Cir. 1988). Therefore, defendant's motion to dismiss will be resolved before reaching the merits of the summary judgment motion.


 Defendant argues plaintiffs' complaint is actually a state law contract claim that is only tangentially related to ERISA and, as such, federal jurisdiction does not exist under ERISA's jurisdictional provisions codified at 29 U.S.C. § 1132. Section 1132(e)(1) extends federal court jurisdiction to "civil actions under [ERISA] brought by the Secretary or by a participant, beneficiary, or fiduciary." 29 U.S.C.A. § 1132(e)(1) (West 1985 & Supp. 1990) (emphasis added). Furthermore, defendant argues, 29 U.S.C. § 1132(a)(3) is the only ERISA provision that extends jurisdiction to a fiduciary. Under § 1132(a)(3), a fiduciary may bring suit only for injunctive or equitable relief -- not to recover benefits or monies due.

 Plaintiff responds that its cause of action is not brought pursuant to § 1132, but is brought pursuant to 28 U.S.C. § 1331 -- federal question jurisdiction. Plaintiffs contend that jurisdiction is based upon federal common law, and a claim based upon federal common law can be properly brought under federal question jurisdiction. See Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (1972) (section 1331 supports claims brought pursuant to federal common law as well as statutory law). Under ERISA, Congress intended that federal courts create federal common law. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 110, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989) ("Given [ERISA's] language and history, we have held that courts are to develop a 'federal common law of rights and obligations under ERISA-regulated plans.'") (quoting Pilot Life Ins. v. Dedeaux, 481 U.S. 41, 56, 95 L. Ed. 2d 39, 107 S. Ct. 1549 (1987)). Thus, a litigant may properly bring a claim, which does not fall under 29 U.S.C. § 1132(a)'s grant of jurisdiction, pursuant to 28 U.S.C. § 1331. See Whitworth Bros. Storage v. Central States, S.E. & S.W. Areas Pension Fund, 794 F.2d 221, 233-36 (6th Cir. 1986); Soft Drink Industry Local Union No. 744 Pension Fund v. Coca-Cola Bottling, 679 F. Supp. 743, 744-45 (N.D. Ill. 1988) (claim asserting a right created by a federal statute presents a federal question).

 It must, therefore, be determined whether resolution of this dispute mandates application of federal law to plaintiffs' contract claim. If the answer is "yes," the claim arises under federal law and jurisdiction is proper under § 1331. The only issue involved in this case is the amount of money due to the Fund under the subrogation provision. *fn4" Defendant admits the validity of plaintiffs' claim. The sole issue presented is whether plaintiffs' claim for reimbursement of medical expenses and disability is limited to the jury's award of medical expenses or whether the Fund may be reimbursed from the total amount of the verdict regardless of how the jury apportioned the verdict. In short, the question is whether the subrogation provision covers amounts received from third parties for pain and suffering, disability and disfigurement, and lost earnings. At first blush, the controversy appears to be a state law contract dispute subject to state law rules of interpretation. The Fund, however, is an ERISA regulated plan, and ERISA preempts state laws that "relate to any employee benefit plan." 29 U.S.C. § 1144(a). State law contract claims are preempted by ERISA when the contract relates to employee benefit plans. See Maciosek v. Blue Cross & Blue Shield United, 930 F.2d 536, 539 (7th Cir. 1991); Degan v. Ford Motor, 869 F.2d 889 (5th Cir. 1989) (common-law contract claim based upon laws of general application preempted by ERISA); Anderson v. John Morrell & Co., 830 F.2d 872 (8th Cir. 1987); Jackson v. Martin Marietta Corp., 805 F.2d 1498 (11th Cir. 1986). Since this dispute involves interpretation of a provision of an ERISA benefit plan, ERISA preempts state contract law. Federal common law must be applied and, therefore, plaintiffs' cause of action arises under federal law. Consequently, subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331, federal question, and plaintiffs' motion for summary judgment will be considered.


 Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment is to determine whether a trial will be necessary. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original). Conversely, when confronted with a motion for summary judgment, the party who bears the burden of proof on a particular issue must affirmatively demonstrate that there is a genuine issue of material fact. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1363 (7th Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). When presented with a motion for summary judgment, a court must examine the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Bowyer v. United States Dept. of Air Force, 804 F.2d 428, 430 (7th Cir. 1986).

 The sole issue presented on summary judgment is the amount of reimbursement that defendant owes the Fund. Plaintiffs argue that defendant owes the Fund $ 69,322.61: $ 60,690.10 for medical payments and $ 8,632.51 for disability payments. Defendant admits owing $ 8,632.51 for disability payment since he recovered $ 55,000 for disability and disfigurement. On the amount of medical payments, however, defendant states that he recovered only $ 7,000, and plaintiffs are entitled only to that amount -- not the $ 60,690.10 claimed. Therefore, defendant argues, plaintiffs are entitled to $ 15,632.51 less one-third for attorney fees, or a grand total of $ 10,421.67 -- the amount that defendant actually recovered for medical and disability expenses.

 The Fund's subrogation provision is set forth at Part II, Article IV, Section 7 of the relevant Fund documents. ...

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