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June 10, 1996


The opinion of the court was delivered by: SHADUR

 This action has been brought to this District Court from its place of origin, the Circuit Court of the Eighteenth Judicial District, DuPage County, via removal proceedings instituted by Blue Cross and Blue Shield of Illinois ("Blue Cross"). In response plaintiff Michael Musinski ("Musinski") has moved to remand for lack of subject matter jurisdiction. Both litigants have had their say, and the matter is ripe for decision.

 This action presents a familiar scenario: Musinski, a participant under an employee benefit plan ("Plan") established by his employer Spiegel, Inc., has received full payment by Blue Cross of the Plan-covered medical expenses resulting from an automobile accident that then led Musinski to sue defendant Harold Staudacher ("Staudacher") in tort. Thus Musinski urges that his effort to limit the amount of those expenses that Blue Cross now wishes to recapture does not constitute an attempt by Musinski "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan" (the types of ERISA claims that a participant may advance under 29 U.S.C. § 1132(a)(1)(B) *fn1" ). Instead, having settled his separate litigation against Staudacher, the tortfeasor who caused the injuries that gave rise to those medical expenses, Musinski moved in the Circuit Court for adjudication of the lien asserted by Blue Cross under a contractual subrogation/indemnification provision in the Plan. Blue Cross countered by transferring the action here to urge that the Illinois common fund concept on which Musinski seeks to rely for that lien adjudication is preempted by Section 1144(a)(ERISA § 514(a)) and displaced by Section 1132(a)(1)(B) (ERISA § 502(a)(1)(B)).

 That problem most often arises in conjunction with the attorneys' fees and other expenses incurred in the underlying litigation. Although the pleadings here do not contain all of the information needed to provide a precise illustration (Musinski's motion to adjudicate the lien has reflected his receipt of total Plan benefits in excess of $ 37,000, but he does not disclose the amount of his settlement with Staudacher), suppose for example a settlement or verdict of $ 120,000 in a case in which the medical expenses paid by a plan had aggregated $ 30,000. If the plaintiff's lawyer had a one-third contingency fee arrangement, payment of the attorney's fee of $ 40,000 together with the plan reimbursement of $ 30,000 would leave the plaintiff with $ 50,000 in pocket. But under the Illinois common fund approach, the plaintiff would contend (as Musinski does) that because the $ 40,000 lawyer's fee was incurred in order to obtain the entire $ 120,000 recovery and not just the portion retained by the plaintiff, each sharer in that recovery should equitably bear a proportionate part of the fee. In the hypothetical example, the plan's $ 30,000 share--25% of the $ 120,000 recovery--would then be responsible for $ 10,000 of the $ 40,000 lawyer's fee, so that the plan would receive a net amount of $ 20,000 and plaintiff would be left with $ 60,000.

 For its part, Blue Cross retorts by arguing that the claim advanced by Musinski is preempted by Section 1144(a), ERISA § 514(a). Although there are a number of Illinois appellate court decisions that hold otherwise (see, e.g., Scholtens v. Schneider, 274 Ill. App. 3d 102, 653 N.E.2d 775, 210 Ill. Dec. 580 (1st Dist. 1995) and cases cited there), our own Court of Appeals--in a lawsuit brought by an employee benefit plan participant to challenge the constitutionality of ERISA--prefaced its discussion of that constitutional issue with this explanation and pronouncement ( Land v. Chicago Truck Drivers Union, 25 F.3d 509, 511 (7th Cir. 1994)) *fn2"

Land alleged that he had been involved in an automobile accident, that he had sued the other party to the accident in the Circuit Court of Cook County, Illinois, and that he had received $ 182,500.00 in a settlement of that suit. Land maintained that the settlement did not fully compensate for his injuries, although he conceded that a portion of the settlement was intended to cover $ 42,604.92 that the Fund had advanced for Land's medical expenses. The ERISA plan under which those benefits were paid obligates Land to reimburse the Fund for covered expenses if he is subsequently compensated by a third party. Land acknowledged the Fund's right to reimbursement but maintained that its recovery should be discounted to reflect the legal fees he incurred in procuring the settlement. Specifically, Land contended that under Illinois subrogation law, he would be entitled to reduce the Fund's reimbursement by one-third. *fn1" See, e.g., Baier v. State Farm Ins. Co., 66 Ill. 2d 119, 5 Ill. Dec. 572, 361 N.E.2d 1100, 1102-03 (1977). Because ERISA supersedes any and all state laws relating to covered plans, however (see 29 U.S.C. § 1144(a)), this Illinois doctrine is not available to Land, and the terms of the plan require reimbursement of the entire amount without the deduction of any attorney's fees.
*fn1" Land's state court counsel apparently received one-third of the settlement fund.

 But of course the jurisdiction of the District Court and of the Court of Appeals to decide that question in Land was clear: Land's challenge to the constitutionality of ERISA was a paradigmatic federal question (framed, as his counsel unwisely believed, under 42 U.S.C. § 1983), so that federal-question jurisdiction could not be disputed there. By contrast, the posture of the case here (which was asserted under state law in the state court) is such that this Court must address the subject matter jurisdictional issue before it can turn to the merits of Blue Cross' preemption argument (after all, the state court would be equally capable of ruling on the substantive merits of that argument if the case were returned to it).

 What makes the jurisdictional problem more intricate here is that ERISA is one of the limited exceptions to Justice Holmes' now-famous aphorism in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913):

Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a "suit arising under" the patent or other law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense, even when anticipated and replied to in the bill.

 And of course the well-known corollary of that general principle is that even a defense based on federal law cannot make the plaintiff's state-law action removable--as Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10-11, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983) (citations omitted) states that rule:

Thus, a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, or that a federal defense the defendant may raise is not sufficient to defeat the claim. "Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution." For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case "arises under" federal law. "[A] right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action."

 ERISA § 502(a)(1)(B), like Labor Management Relations Act § 301 (29 U.S.C. § 185) (in the latter respect, see Franchise Tax Bd., 463 U.S. at 23-24), poses an exception to The Fair's plaintiff-in-total-control principle: the so-called "artful pleader doctrine." Under that doctrine some fields of law are viewed as having been so pervasively occupied by federal law that any plaintiff's complaint in that field (even though it carefully eschews any reference to federal law) is considered as "arising under" federal law (the Article III language) and is hence removable to a federal court ( Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)).

 As Blue Cross would have it, the very existence of the Section 1144 preemption provision provides the total answer to the question of removability here. That, however, is wrong, and it is shown to be wrong by the plain language of the Supreme Court in dealing with the ERISA preemption statute in the ...

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