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)

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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., l 662 F.3d 376, 383-86 (5 1h Cir. 2011), aff'd en bane, 698 F.3d 229 (5 1h Cir. 2012); Oak Brook t i 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. I i f f I I

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