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April 4, 2002


The opinion of the court was delivered by: Milton I. Shadur, S.U.S.D.J.

This portion of a state court probate proceeding, a "Petition for the Issuance of a Citation To Recover Assets" ("Petition") in Case No. 00 P. 3016 in the Probate Division of the Circuit Court of Cook County, has been removed to this federal court by Laborers' Pension Fund ("Fund") on federal question grounds — as posing an issue under ERISA, more specifically its 29 U.S.C. § 1132 (a).*fn2 Fund claims that the effort by Louis Apostal ("Apostal"), acting as Supervised Administrator of the Estate of presumptively adjudicated decedent Charles Slack ("Slack"), to recover pension benefits allegedly owed to Slack as a Fund participant is completely preempted by Section 1144.

At this Court's request the parties have submitted memoranda on what they agree is a question of first impression, not having been addressed in any reported decision anywhere. Here are the circumstances in brief summary:

1. Slack's brother-in-law Robert Marshall has tendered an affidavit stating that Slack dropped out of sight, so far as he and his wife (Slack's sister) were concerned, when Slack left their home in 1989.
2. On the other hand, Fund's Trustees regularly require all pensioners (on not less than an annual basis) to certify that they are currently receiving their monthly pension checks and are endorsing them personally for their own use. Ex. B to Fund's Notice of Removal (a photocopy of which is attached to this opinion as Ex. 1) reflects that on February 8, 1992 Slack signed and returned a notarized certificate to Trustees confirming those things.
3. When Slack's sister advised Fund later in 1992 that Slack was missing, Fund had investigators try to trace him or alternatively to seek evidence of his death. When that search turned up nothing, Fund stopped mailing any further monthly benefit checks.
4. In 2000 an estate was opened for purposes of seeking a declaration of Slack's presumptive death under Illinois law, as exemplified by Estate of Morrison v. Rosewell, 92 Ill.2d 207, 212, 441 N.E.2d 68, 71 (1982) (citations to a host of cases are omitted from this quotation):
The presumption of death is raised where (1) a person has disappeared or is continuously absent for seven years from his home without explanation, (2) those persons with whom he would likely communicate have not heard anything from him or about him, and (3) a diligent search has been made at his last known place of abode without obtaining information that he is alive. The presumption of death needs to be established only by a preponderance of the evidence, although it is a rebuttable presumption that can be disproved by evidence showing the person presumed to be dead is alive.
That resulted in an August 24, 2000 order by a judge of the Probate Court (a photocopy is attached to this opinion as Ex. 2) that declared Slack's presumed date of death to have been August 31, 1996.*fn3

As Apostal would have it, the Probate Court order is conclusive: Because the order says that Slack was presumed dead as of August 31, 1996, Apostal as administrator assertedly stands in his shoes (wherever they may be) and is therefore entitled to the 50 months of pension payments that purportedly accrued after the last one signed for by Slack in June 1992. For its part, Fund responds by urging the preemptive force of Section 1144 as assertedly trumping any effect to be ascribed to the state's common law doctrine of presumed death. From Fund's perspective, Apostal "seeks to create a new survivor's benefit not available under the Plan, a benefit payable to an estate." This Court finds neither of those positions persuasive as framed, but it is nonetheless clear (1) that the removal is well-founded because ERISA is squarely implicated and (2) that familiar ERISA principles spell doom for Apostal's effort.

Section 1144(a) states a sweeping rule of ERISA preemption:

Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.

And that provision has consistently been given an expansive reading by the United States Supreme Court and all lower courts — see, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), which upheld the removal of an action that was framed in state common law terms but was still found to "relate to [an] employee benefit plan." Just as was true in Metropolitan Life, then, the effect of Section 1144(a) here is that Apostal's Petition must be viewed as an action — here purportedly on behalf and in the stead of a plan beneficiary — to recover benefits as authorized by Section 1132(a), so that Fund's removal of the Petition to this federal court was solidly grounded.

But that does not answer the question before this Court, for Section 1144(a) does not necessarily mean that there is no room for the application of state common law doctrines that do not run afoul of ERISA — see, e.g., Yarde v. Pan Am. Life Ins. Co., reported in table at 67 F.3d 298 (4th Cir. 1995), cited at Apostal Mem. 3.*fn4 And neither side has thought the problem through.

What Fund's counsel has plainly overlooked is that his argument — that Section 1144(a) provides the conclusive answer because Apostal is seeking payment of a death benefit not provided by the terms of the Plan (rather than seeking to recover unpaid pension benefits) — has to be bottomed on the premise of Slack's death back in 1992. And of course that has not been established in factual terms, either by the Probate Court order or in any other way. As for Apostal's counsel, what he has plainly overlooked (even apart from the dubious effect of a Probate Court order that speaks only of Slack's presumed date of death in 1996, and that appears to have been entered without notice to Fund, which could have offered evidence to rebut the presumption and presumably thus to prevent entry of the order — see n. 3)*fn5 is that Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111, 115 (1989) and its host ...

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