Henrikson v. Choice Products USA, LLC et al
ORDER. IT IS HEREBY ORDERED: 1. The Court ADOPTS the Report and Recommendation of United States Magistrate Judge Leo I. Brisbois dated October 20, 2016 36 . 2. Defendants' Motion to Dismiss 8 is DENIED AS MOOT. 3. Defendant's Motion to Dismiss 21 is GRANTED IN PART and DENIED IN PART as set forth in the October 20, 2016 Report and Recommendation. (Written Opinion). Signed by Judge Michael J. Davis on 2/2/17. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JEFFREY JAY HENRIKSON,
Civil File No. 16-1317 (MJD/LIB)
CHOICE PRODUCTS USA, LLC, and
CHOICE PRODUCTS USA, LLC
EMPLOYEE BENEFIT PLAN,
Daniel J. Bellig and Joseph A. Gangi, Farrish Johnson Law Office, Chtd., Counsel
Noah G. Lipschultz, Littler Mendelson, PC, and Ryan L. Woody and Stephen A.
Smith, Matthiesen, Wickert & Lehrer, S.C., Counsel for Defendants.
The above-entitled matter comes before the Court upon the Report and
Recommendation of United States Magistrate Judge Leo I. Brisbois dated October
20, 2016. Plaintiff and Defendants filed objections to the Report and
Pursuant to statute, the Court has conducted a de novo review upon the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court adopts the Report and Recommendation of United States Magistrate Judge
Brisbois dated October 20, 2016.
With regard to Defendants’ objection that the Report and
Recommendation should have applied the last-antecedent rule to its
interpretation of 42 U.S.C. § 300gg-19a(b)(1)(D), the Court concludes that the
plain language of this provision is unambiguous. The provision at issue
If a group health plan . . . provides or covers any benefits with
respect to services in an emergency department of a hospital, the
plan or issuer shall cover emergency services (as defined in
(D) without regard to any other term or condition of such coverage
(other than exclusion or coordination of benefits, or an affiliation or
waiting period, permitted under section 2701 of this Act, section
1181 of Title 29, or section 9801 of Title 26, and other than applicable
The phrase “or an affiliation or waiting period” is set off by two commas.
“Under normal rules of grammar (which we assume Congress followed), a
phrase that is set off by commas can be excised from a sentence.” Chao v. Cmty.
Trust Co., 474 F.3d 75, 81 (3d Cir. 2007). Therefore, the phrase “permitted under
section 2701 of this Act, section 1181 of Title 29, or section 9801 of Title 26”
applies to “exclusion or coordination of benefits.” The exclusions of coverage for
emergency services are thus limited to certain pre-existing condition provisions.
The Court also makes the following minor modifications to the Report and
Recommendation: 1) in footnote 3, on page 3, in the second sentence, the Court
deletes the phrase “removed language asking ‘to clarify his rights to future
benefits under the Plan’ and;” and 2) on line 3 of the third paragraph on page 19,
the Court replaces the phrase “ERISA-governed life insurance policy” with the
phrase “ERISA-governed health insurance policy.”
Accordingly, based upon the files, records, and proceedings herein, IT IS
1. The Court ADOPTS the Report and Recommendation of United States
Magistrate Judge Leo I. Brisbois dated October 20, 2016 [Docket No. 36].
2. Defendants’ Motion to Dismiss [Docket No. 8] is DENIED AS
3. Defendant’s Motion to Dismiss [Docket No. 21] is GRANTED IN
PART and DENIED IN PART as set forth in the October 20, 2016
Report and Recommendation.
Dated: February 2, 2017
s/ Michael J. Davis
Michael J. Davis
United States District Court
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