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CENTRAL STATES

September 29, 1994

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, and HOWARD McDOUGALL, Trustee, Plaintiffs,
v.
COMPREHENSIVE CARE CORPORATION, a Delaware corporation, Defendants.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Plaintiffs Central States, Southeast and Southwest Areas Health and Welfare Fund ("Central States") and Howard McDougall, trustee for the Fund, have brought suit against defendant Comprehensive Care Corporation ("CompCare") under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., and federal common law to recover benefits Central States allegedly paid CompCare in error. Defendant now moves to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief can be granted under Fed. R Civ. P. 12(b)(6). For the reasons stated below, the motion to dismiss is granted in part and denied in part.

 Background1

 Central States is an Illinois-based multiemployer ERISA health and welfare plan. Howard McDougal is a trustee of Central States. Defendant CompCare is a health care provider, offering a variety of health services, including inpatient treatment of alcoholism, to its patients.

 At all relevant times, Lawrence Reister was a participant in the Central States Health and Welfare Plan. Under the terms of the Plan, Central States provides coverage to a participant's spouse as a covered dependent. This coverage ends on the last day of the week in which the spouse ceases to be legally married to the covered participant. Lawrence Reister and his wife, Deanna Reister, were divorced on April 10, 1989. As a result, her coverage under the plan ceased April 15, 1989.

 Shortly after her divorce, Deanna Reister received inpatient treatment for alcoholism at CompCare. The treatment lasted from April 21, to May 15, 1989. It cost $ 9,766.55. In lieu of payment in full, Deanna Reister assigned CompCare any rights she had to receive payment for the treatment from the Central States Plan.

 At the time CompCare provided Deanna Reister with treatment, CompCare knew Reister had recently been divorced and that she was not eligible for benefits. Despite this knowledge, CompCare sent Central States a bill for the treatment. Unaware that Deanna Reister and her husband Lawrence Reister had divorced, Central States paid CompCare benefits of $ 9,766.55 in violation of the express terms of the Plan.

 On June 27, 1989, Central States learned that Lawrence and Deanna Reister had divorced prior to her treatment at CompCare. In a letter, dated July 19, 1992, Central States demanded return of the overpaid funds. CompCare refused, and this suit followed.

 Discussion

 I. Count I - The ERISA Claim

 A. Subject Matter Jurisdiction

 Plaintiffs claim that the court has subject matter jurisdiction over this case under 29 U.S.C. § 1132. This section provides in relevant part:

 
A civil action may be brought . . . (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;

 29 U.S.C. § 1132(a)(3). Under a plain reading of the statute, this case appears to fall well within the scope of subsection (3)(B). It is a civil action brought by a fiduciary (trustee McDougal) to obtain appropriate equitable relief (restitution) to redress a violation of the plan (the mistaken payment to a non-beneficiary) and to enforce the terms of the plan ...


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