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Johnson v. Security Mutual Life Insurance Company of New York

January 14, 2010

CRAIG M. JOHNSON; MARCIA L. JOHNSON; AND GALESBURG ELECTRIC INDUSTRIAL SUPPLY, INC., AN ILLINOIS CORPORATION, PLAINTIFFS,
v.
SECURITY MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, A NEW YORK CORPORATION; DAVID K. FENSLER, NOT PERSONALLY, BUT AS TRUSTEE OF THE UNITED EMPLOYEE BENEFIT FUND; UNITED EMPLOYEE BENEFIT FUND, AN ILLINOIS NONPROFIT; HERBERT O. MCDOWELL III, NOT PERSONALLY, BUT AS DIRECTOR OF THE PROFESSIONAL WORKERS MASTER CONTRACT GROUP; GERALD KOENNING, PERSONALLY, AND AS DIRECTOR OF EMPLOYERS BENEFITS, INC.; LOU DELPIERRE, PERSONALLY, AND AS OWNER OF EMPLOYERS BENEFITS, INC.; AND EMPLOYERS BENEFITS, INC., AN ILLINOIS CORPORATION, DEFENDANTS.
SECURITY MUTUAL LIFE INSURANCE ) COMPANY OF NEW YORK, THIRD-PARTY PLAINTIFF,
v.
MARSHALL DAVID KATZMAN AND KOENNING INSURANCE AGENCY, INC., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

ORDER & OPINION

This matter is before the Court on motions to dismiss by various Defendants and upon a motion for partial voluntary dismissal by Plaintiffs. Plaintiffs' motion to voluntarily dismiss the Amended Complaint against United Employee Benefit Fund and David K. Fensler (Doc. 72) is GRANTED. The motion to dismiss by Security Mutual Life Insurance Company of New York (Doc. 60) is GRANTED in relevant part. The motion to dismiss by Gerald Koenning, Lou Delpierre, and Employer Benefits, Inc. (Doc. 65) is GRANTED in relevant part. The remaining pending motions are moot.

BACKGROUND

The following facts are taken from Plaintiffs' Amended Complaint. Craig Johnson is the owner of Galesburg Electric/Industrial Supply, Inc., a supplier of electrical products. In 1996, Gerald Koenning and Lou Delpierre, the director and owner, respectively, of Employers Benefits, Inc., approached Johnson with the suggestion that he unionize the employees of Galesburg Electric for the purpose of providing life insurance to the employees (including himself) under an arrangement that would yield favorable tax consequences. Koenning and Delpierre apparently told Johnson that establishing a union as a vehicle through which to procure life insurance for the employees -- specifically, by way of a death benefits employee welfare plan -- would ensure that the insurance premium payments would be tax deductible.*fn1 Specifically, Koenning and Delpierre promoted a death benefits plan that, they claimed, was organized as a tax-exempt voluntary employees' benefit association (VEBA) under 26 U.S.C. § 501(c)(9). Additionally, Koenning and Delpierre either supplied to Johnson or arranged for him to receive marketing materials pertaining to the death benefits plan. These materials were produced by the "Master Contract Group" (a multi-employer association formed for purposes of collective bargaining), and the documents purportedly paralleled Koenning's and Delpierre's representations. The marketing documents represented that the plan was approved by the IRS as a tax-exempt VEBA and that employer contributions to the plan were tax deductible. (Exh. 3 to Am. Compl., at pp. 4, 6). According to the summary plan description ("SPD," which is attached to the Amended Complaint) the "Plan" is defined as the "United Employee Benefit Fund" and the Plan Administrator is listed as David K. Fensler (Exh. 2 to Am. Compl., at pp. 1, 4-5). The SPD states that the Plan Administrator is responsible for construing and interpreting the Plan, as well as day-to-day Plan administration. (Exh. 2 to Am. Compl., at p. 4).

Based on Koenning's and Delpierre's advice, as well as the corresponding marketing materials, Johnson decided to establish a union at Galesburg Electric: UNITE Local 2411. The Amended Complaint alleges that Herbert McDowell, a director with the Master Contract Group, assisted or guided Johnson in creating the union and in implementing a collective bargaining agreement.*fn2 Around the same time, according to the Amended Complaint, Johnson arranged for life insurance coverage (presumably by way of the death benefits Plan) for the unionized Galesburg Electric employees by "purchas[ing] the life insurance through Koenning." (Am. Compl. ¶ 11). Security Mutual Life Insurance Company of New York allegedly underwrote the insurance policies.

In 2007, the IRS determined that Galesburg Electric's enrollment in the Plan was not the product of good faith collective bargaining with a bona fide labor union but, rather, was a sham arrangement designed primarily as a tax shelter that benefitted Johnson and his family members. The specific type of arrangement to which Johnson and Galesburg Electric had subscribed was specifically disavowed by the IRS in a notice published in April 2001. See IRS Notice 2003-24 (April 11, 2003). As such, the IRS did not allow the income tax deductions taken by Johnson (or Galesburg Electric -- the Amended Complaint and the attached IRS documents seem to conflict as to the person/entity that took the deductions) related to the life insurance premium payments. According to the Amended Complaint, the IRS assessed "penalties" against Craig Johnson and Marcia Johnson (who is presumably Craig's wife), which the Johnsons settled by paying $123,457.51 to the IRS and $11,754.42 to the Illinois Department of Revenue.

In October 2008, Craig Johnson, Marcia Johnson, and Galesburg Electric ("Plaintiffs") filed a four-count complaint against Security Mutual, David Fensler, United Employee Benefit Fund, Herbert McDowell, Gerald Koenning, Lou Delpierre, and Employers Benefits, Inc. ("Defendants") alleging the following: fraud; breach of fiduciary duty under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"); "disgorgement" of insurance policy proceeds under ERISA; and civil liability under 26 U.S.C. § 6700 for promotion of an abusive tax shelter.*fn3

On May 28, 2009, the Court dismissed Counts II (breach of fiduciary duty under ERISA) and IV (liability for promotion of abusive tax shelter) of the original Complaint with prejudice; and Count III (disgorgement) was dismissed without prejudice. In dismissing Count II, the Court held that Plaintiffs' ERISA claim failed primarily because the core wrongful act that Plaintiffs challenged -- i.e. Defendants' bad advice regarding tax deductibility of Plan contributions -- was alleged to have occurred prior to the onset of any fiduciary relationship between Plaintiffs and Defendants. The Court also recognized that, in their initial Complaint, Plaintiffs did not allege that they had been denied any benefit under the Plan, nor were they attempting to enforce Plan terms or clarify future Plan benefits. In addition, the Court pointed out that Plaintiffs did not allege that the Plan itself had suffered any losses -- the alleged losses were unpaid taxes that Plaintiffs were forced to pay governmental agencies. The Court dismissed Plaintiffs' Count III disgorgement claim because Plaintiffs did not allege that Defendants attempted to appropriate Plan assets in a risky fashion for self-interested purposes. The Court further noted that disgorgement, generally, is a type of remedy, not a stand-alone claim. The Court dismissed Plaintiffs' claim for promotion of an abusive tax shelter because Plaintiffs agreed there was no basis for the claim. The Court then granted Plaintiffs leave to file an Amended Complaint.

On June 10, 2009, Plaintiffs filed a First Amended Complaint against Defendants, alleging the following claims: fraud against Koenning, Delpierre, and Employer Benefits, Inc.; fraud and fraudulent concealment against McDowell, Fensler, and United Employee Benefit Fund; clarification of Plan rights and recovery of benefits due under the Plan, pursuant to 29 U.S.C. § 1132(a)(1)(B), against United Employee Benefit Fund, Fensler, McDowell, and Security Mutual; negligence against all Defendants; professional negligence against Fensler, Delpierre, Koenning, McDowell, and Employers Benefits, Inc.; breach of contract against Fensler, United Employee Benefit Fund, and McDowell; and unjust enrichment, under 29 U.S.C. § 1132(a)(3), against all Defendants. The various Defendants have filed motions to dismiss.

LEGAL STANDARD

A motion under Rule 12(b)(6) is designed to test the availability of legal relief under the alleged facts. See Maple Lanes, Inc. v. Messer, 186 F.3d 823, 824-25 (7th Cir. 1999). When ruling on a motion to dismiss under Rule 12(b)(6), a federal court must view the complaint in the light most favorable to the plaintiff, and the complaint's well-pleaded factual allegations must be accepted as true. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). To survive a Rule 12(b)(6) motion, a plaintiff must show, through allegations, that his entitlement to relief is plausible. Windy City Metal Fabricators & Supply, Inc. v. CIT Technical Fin., 536 F.3d 663, 667 (7th Cir. 2008). A plaintiff meets this burden by alleging a general factual basis which, if true, would warrant relief under a specified legal theory. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081-85 (7th Cir. 2008).

ANALYSIS

Plaintiffs have moved to voluntarily dismiss, without prejudice, United Employee Benefit Fund (the Plan) and David Fensler (the Plan Administrator) from the case. (Doc. 72). There being no objections, the motion is granted, and these Defendants are dismissed.

Plaintiffs' only federal claims are brought pursuant to ERISA. Specifically, Plaintiffs have brought the following ERISA claims: a claim for clarification of plan rights under 29 U.S.C. § 1132(a)(1)(B) and a claim for equitable relief under 29 U.S.C.§ 1132(a)(3). As to the § 1132(a)(1)(B) claim in Count III of the Amended Complaint, the remaining Defendants named by Plaintiffs are Security Mutual and Herbert McDowell. Security Mutual has moved to dismiss the § 1132(a)(1)(B) claim, among other claims, as against it. As to the § 1132(a)(3) claim in Count VII, the remaining Defendants named by Plaintiffs are Security Mutual, McDowell, Koenning, Delpierre, and Employers Benefits, Inc. These Defendants -- except for McDowell, who has not appeared -- have moved to dismiss ...


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