Seasons Hospice et al v. Aetna Inc.

Filing 13

MEMORANDUM ORDER Granting in part and Denying in Part 5 MOTION to Dismiss. Signed by Judge Richard G. Andrews on 3/4/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SEASONS HOSPICE, et al.,
Plaintiffs,
Civil Action No. 13-63-RGA

v.
AETNA INC.,
Defendant.

MEMORANDUM ORDER

According to the Complaint, the Defendant is an ERISA claims administrator, and the
Plaintiff is a provider of unskilled services to home-bound patients. Plaintiff alleges that for two
years, Defendant advised that these services were covered by the ERISA plan, and Plaintiff relied
upon these representations in providing about $800,000 of such services to sixteen plan
participants. Plaintiff says it is out $672,424, as it turns out that such services are not covered by
the plan. Plaintiff brings suit, alleging three Delaware law claims: promissory estoppel, negligent
misrepresentation, and equitable estoppel. Defendant has filed a motion to dismiss. (D.I. 5).
Defendant argues that the state law claims are "completely preempted," citing 29 U.S.C.

§ 1132(a)(l)(B). There is no Third Circuit authority directly on point. I do not believe the state
law claims are completely preempted. See Marin Gen 'I Hosp. v. Modesto & Empire Traction
Co., 581 F.3d 941, 947-50 (9th Cir. 2009); Franciscan Skemp Healthcare, Inc. v. Central States
Joint Board Health & Welfare Trust Fund, 538 F.3d 594 (7th Cir. 2008).

Defendant argues that the state law claims are "expressly preempted," citing 29 U.S.C. §
1144(a). Again, there is no Third Circuit authority directly on point. I do not believe the state

law claims are expressly preempted. See Access Mediquip L.L.C. v. UnitedHealthCare Ins. Co.,

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662 F.3d 376, 383-86 (5 1h Cir. 2011), aff'd en bane, 698 F.3d 229 (5 1h Cir. 2012); Oak Brook

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Surgical Centre, Inc. v. Aetna, Inc., 863 F.Supp.2d 724 (N.D. Ill. 2012).

In view of the above, the arguments about exhaustion of remedies and the right to a jury
trial are moot. Further, the request for a more definite statement is not well-taken, and is
therefore denied.
Defendant also argues that the "negligent misrepresentation" count is defective as it does
not allege a "pecuniary duty" on Defendant's part, is barred by the "economic loss doctrine," and,
as a tort, cannot be pursued when Plaintiffs claims arise from a contract. Plaintiffs Brief (D .I.
8, at 20) does not convince me that it has alleged a "pecuniary duty." Defendant's Briefs suggest
that "pecuniary duty" refers to the Defendant having some "skin in the game." If this is what is
meant by "pecuniary duty," then I do not think Plaintiff has so alleged. Neither party explores
what is meant by "pecuniary duty." Thus, while not entirely convinced by Defendant's argument
on "pecuniary duty," I think Defendant has the better of it, and therefore I will dismiss the
negligent misrepresentation count without prejudice. I do not state an opinion on the "economic
loss doctrine." I do not think the claims arise from the ERISA plan (that is, a contract) and thus I
do not think the Defendant's third ar~ent is well-taken.
In view of the above, this

{~y of March 2013, IT IS HEREBY ORDERED that the

Motion to Dismiss (D.I. 5) is GRANTED IN PART AND DENIED IN PART. Count II
(negligent misrepresentation) is DISMISSED WITHOUT PREJUDICE. The balance of the
Motion to Dismiss is DENIED.

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