Hendrickson v. United of Omaha Life Insurance Company

Filing 12

MEMORANDUM AND ORDER - Defendant's motion to dismiss 6 is granted. Plaintiff may file a motion for leave to amend his complaint on or before March 3, 2016. Failure to file a motion for leave to amend his complaint on or before March 3, 2016 may result in a final dismissal of the plaintiff's complaint without prejudice and without further notice. Ordered by Judge John M. Gerrard. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DON HENDRICKSON,
Plaintiff,

4:15CV3075
MEMORANDUM AND ORDER

vs.
UNITED OF OMAHA LIFE
INSURANCE COMPANY,
Defendant.

The plaintiff, Don Hendrickson, is suing the defendant, United of
Omaha Life Insurance Company, for breach of contract stemming from the
defendant’s denial of payment under a life insurance policy. The defendant
has moved to dismiss the complaint. Filing 6. For the reasons set forth below,
the motion to dismiss will be granted, but plaintiff will be given until March
3, 2016 to file a motion for leave to amend his complaint.
BACKGROUND
The plaintiff was married to the now deceased Susan Hendrickson, a
former employee of ConAgra, Inc. (“ConAgra”). ConAgra made life insurance
available to its employees to provide death benefits to its employees or the
employees’ beneficiaries. Through this program the defendant issued two life
insurance policies (the “Policies”) to Susan Hendrickson. ConAgra is the
listed owner of both policies.
After Susan Hendrickson’s death, Don Hendrickson made a claim for
benefits under the Policies. His claim was denied, and he appealed the
defendant’s decision through the administrative process established in the
Polices. The defendant overruled the appeal and affirmed the denial of the
claim.
Don Hendrickson filed a complaint in the District Court of Douglas
County, Nebraska on June 9, 2015. Filing 1-1. Plaintiff’s only claim was
based on an alleged breach of contract under state law. Defendant promptly
removed the action to this Court and moved to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, defendant argues plaintiff’s
state law claim for breach of contract is completely preempted by the

Employee Retirement Income Security Act (“ERISA”); therefore, it must be
dismissed.
STANDARD OF REVIEW
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6)1, a
complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. While the Court must
accept as true all facts pleaded by the nonmoving party and grant all
reasonable inferences from the pleadings in favor of the nonmoving party,
Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading
that offers labels and conclusions or a formulaic recitation of the elements of
a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a
complaint states a plausible claim for relief will require the reviewing court
to draw on its judicial experience and common sense. Id. at 679.
DISCUSSION
ERISA applies to an employee benefit plan which is established or
maintained:
(1)
(2)
(3)

by any employer engaged in commerce or in any industry or
activity affecting commerce; or
by any employee organization or organizations representing
employees engaged in commerce or in any industry or activity
affecting commerce; or
by both.

Pursuant to Fed. R. Civ. P. 12(d) if matters outside the pleading are presented to the
Court in conjunction with a motion brought under Rule 12(b), the motion must be treated
as one for summary judgment under Fed. R. Civ. P. 56. However, “documents necessarily
embraced by the complaint are not matters outside the pleading.” Ashanti v. City of Golden
Valley, 666 F.3d 1148, 1151 (8th Cir. 2012). Such documents encompassed by the pleadings
include the actual contracts upon which a claim rests. See Gorog v. Best Buy Co., Inc., 760
F.3d 787, 791 (8th Cir. 2014). In this case, the only additional documents considered by the
Court are the actual insurance policies upon which Hendrickson’s breach of contract claim
rests. The Policies are encompassed by the complaint, and the Court need not convert
defendant’s motion to dismiss into a motion for summary judgment.
1

2

29 U.S.C. § 1003(a).
"The purpose of ERISA is to provide a uniform regulatory regime over
employee benefit plans. To this end, ERISA includes expansive pre-emption
provisions, see ERISA § 514, 29 U.S.C. § 1144, which are intended to ensure
that employee benefit plan regulation would be 'exclusively a federal
concern.'" Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004) (quoting
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981)). ERISA
contains a civil enforcement remedy provision enabling plan a participant or
beneficiary “to recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his rights to future
benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). “It is wellestablished that ERISA’s civil enforcement provisions are the exclusive
remedies for participants seeking to recover benefits under an ERISA plan”
and any state law claims relating to a plan governed by ERISA are
preempted. Johnson v. U.S. Bancorp, 387 F.3d 939, 942 (8th Cir. 2004)
(internal citations omitted).
Plaintiff does not argue the Polices were not originally subject to
ERISA, and with good reason. The Policies were established and maintained
by Susan’s former employer, and provided benefits in the event of her death.
Such group life insurance policies are controlled by ERISA. See PhillipsFoster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 794 (8th Cir. 2002) (citing
29 U.S.C. §§ 1001-1461).
Rather, plaintiff asserts the parties contracted around ERISA by
including choice of law provisions which state: “This policy is issued in and is
subject to Nebraska law.” This argument is without merit. “[P]arties may not
contract to choose state law as the governing law of an ERISA-governed
benefit plan.” Prudential Ins. Co. of America v. Doe, 140 F.3d 785, 791 (8th
Cir. 1998). The Policies in this case are subject to ERISA and the inclusion of
a choice of law provision cannot serve as a waiver of ERISA’s broad
preemptive power. See In re Sears Retiree Grp. Life Ins. Litig., 90 F. Supp. 2d
940, 951 (N.D. Ill. 2000).
Next, Plaintiff argues that even if his complaint is subject to ERISA,
either his state law claim should be “converted” to a federal claim under
ERISA’s civil enforcement provision or he should be given leave to amend his
complaint to include an ERISA claim. The complaint makes no mention of
ERISA and the typical remedy in the Eighth Circuit is to dismiss state claims
unquestionably preempted by ERISA. See, e.g., Estes v. Federal Express
Corp., 417 F.3d 870 (8th Cir. 2005); Howard v. Coventry Health Care, Of
Iowa, Inc., 293 F.3d 442 (8th Cir. 2002). Additionally, the local rules of this
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Court required any motion to amend to be filed with a proposed amended
complaint for the Court to consider. NECivR 15.1(a). Accordingly, defendant's
motion to dismiss is granted. However, in the interests of justice, the plaintiff
may file a motion for leave to amend his complaint, if any, on or before March
3, 2016.
IT IS ORDERED:
1.

Defendant’s motion to dismiss (filing 6) is granted.

2.

Plaintiff may file a motion for leave to amend his complaint on or
before March 3, 2016.

3.

Failure to file a motion for leave to amend his complaint on or
before March 3, 2016 may result in a final dismissal of the
plaintiff’s complaint without prejudice and without further
notice.

Dated this 1st day of February, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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