The opinion of the court was delivered by: McCUSKEY, District Judge.
On September 3, 1998, Plaintiff, Kelly A. Crum, individually
and as administrator of the Estate of Gary L. Crum, filed a
nine-count Complaint against Defendant, Health Alliance-Midwest,
Inc., in the circuit court of Vermilion County. On October 13,
1998, Defendant filed a Notice of Removal (# 1) to this court.
Defendant argued that the action was removable because
Plaintiff's claims were completely preempted by the Employee
Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1001
et seq.). Also on October 13, 1998, Defendant filed a Motion to
Dismiss (# 3) Plaintiff's Complaint and a supporting Memorandum
of Law (# 4). On November 13, 1998, Plaintiff filed an Objection
to Removal and Motion to Remand or, in the Alternative, Motion
for Leave to Amend the Complaint and Motion to Remand (# 6).
Defendant filed a Response (# 7) and Memorandum of Law (# 8) on
November 30, 1998. On December 23, 1998, the Magistrate Judge
filed a Report and Recommendation (# 9) recommending that
Defendant's Motion to Dismiss (# 3) be granted and Plaintiff's
Motion (# 6) be denied. On January 11, 1999, Plaintiff filed an
Objection to the Report and Recommendation (# 10). This court
agrees with Plaintiff's Objection. Accordingly, Plaintiff's
alternative Motion for Leave to Amend the Complaint and Motion to
Remand (# 6) is GRANTED. Therefore, Defendant's Motion to Dismiss
(# 3) is DENIED as moot.
In her Complaint, Plaintiff alleged that she was the spouse of
the deceased, Gary Crum (Gary). Gary was an insured under a
policy of health care insurance provided by Defendant. During the
evening hours of December 19, 1996, Gary began experiencing
symptoms "including feeling agitated and upset, nausea, and an
urgent need, but inability, to vomit." At that time, Gary was 42
years old. According to the Complaint, the terms of the contract
of insurance with Defendant required Gary to contact Defendant at
a specified telephone number and consult with an advisory nurse
prior to seeking medical attention. Plaintiff alleged that the
advisory nurses were employees of Defendant or acted as
Defendant's agents. Plaintiff alleged that, at approximately
10:50 p.m., she contacted an advisory nurse on Gary's behalf and
informed the nurse of Gary's symptoms and the history of heart
trouble in Gary's family. Plaintiff told the nurse she wanted to
make sure Gary was not having a heart attack. The advisory nurse
told Plaintiff that Gary's symptoms were probably due to excess
stomach acids and that he should be fine. Plaintiff again
telephoned an advisory nurse at approximately 11:34 p.m.
Plaintiff informed the nurse of Gary's continued symptoms and
also that he was experiencing pain in the middle of his chest.
According to Plaintiff's Complaint:
The advisory nurse indicated that GARY L. CRUM
should sit at a 40 degree angle, that he should drink
some milk and that this would allow the stomach acids
to recede and would help with the discomfort, and
that he would be fine in the morning, and that he did
not need to go to an emergency room.
In Count I, Plaintiff alleged that Defendant was liable under
Illinois' Wrongful Death Act (740 Ill.Comp.Stat. 180/1 et seq.
(West 1996)). Specifically, she alleged that Defendant, "by and
through its agents and/or employees, was guilty of one or more
[of] the following acts and/or omissions:
a. The advisory nurse or nurses undertook to render
a medical diagnosis of GARY L. CRUM's condition, even
though they were not trained, qualified nor licensed
to practice medicine in the State of Illinois;
b. The advisory nurse or nurses rendered medical
diagnoses of GARY L. CRUM's condition, even though
they were not trained, qualified nor licensed to
practice medicine in the State of Illinois; and
c. The advisory nurse or nurses failed to instruct
GARY L. CRUM immediately to seek medical attention at
a hospital emergency room."
In Count II, Plaintiff alleged a cause of action based upon
Illinois' Survival Act (755 Ill.Comp.Stat. 5/27-6 (West 1996)).
This court notes, however, that the Survival Act creates no cause
of action, but is merely the conduit through which a cause of
action is transferred to the estate representative. Owens v.
Archer-Daniels-Midland Co., 30 F. Supp.2d 1082, 1083-84 (C.D.Ill.
1999). In Count III, Plaintiff alleged that, because of
Defendant's negligent acts and omissions, she "was compelled to
expend and become liable for large sums of money for medical,
hospital, funeral, burial and other expenses." She sought
recovery for these expenses pursuant to the Family Expense Act
(750 Ill.Comp.Stat. 65/15 (West 1996)).
In Count IV, Plaintiff alleged that Defendant was liable under
the Wrongful Death Act for its own negligence in imposing "the
requirement that its clients submit to a medical diagnosis by an
advisory nurse prior to seeking emergency medical care and
treatment." In Counts V and VI, Plaintiff asserted actions
pursuant to the Survival Act and the Family Expense Act based
upon the allegations set out in Count V. In Counts VII, VIII and
XI, Plaintiff alleged that Defendant was liable pursuant to the
Wrongful Death Act, the Survival Act and the Family Expense Act
based upon Defendant's breach of contract.
Defendant asserted in its Notice of Removal and Motion to
Dismiss that all of Plaintiff's claims are completely preempted
by ERISA, giving this court jurisdiction over Plaintiff's cause
of action. Defendant also argued that, because Plaintiff's
Complaint contains no claim for damages authorized by ERISA,
Plaintiff's Complaint must be dismissed with prejudice. Plaintiff
objected to the removal of her cause of action against Defendant
and sought remand to the Illinois court. As noted, the Magistrate
Judge agreed with Defendant that the cause of action was
completely preempted by ERISA and was removable to this court.
The Magistrate Judge also recommended granting Defendant's Motion
to Dismiss. In her Objection to the Report and Recommendation,
Plaintiff argues only that Counts I through ...