2nd Circuit Weakens ERISA Preemption

A recent 2nd Circuit Court of Appeals decision interpreted New York’s General Obligations Law § 5-335, which provides that personal injury settlements “shall be conclusively presumed” not to include “any compensation for the cost of health care services, loss of earnings, or other economic loss[es]” that “have been or are obligated to be paid or reimbursed by an insurer.” Arnone v. Aetna Life Ins. Co., 2017 WL 2675293 (2nd Cir. June 22, 2017). When § 5-335 is applied, it effectively bars an insurer from reducing the benefits owed to an insured by the amounts the insured receives from a personal injury settlement. In this appeal, the 2nd Circuit considered whether § 5-335 applied to payments made in settlement of a personal injury suit brought in New York by a New York resident injured in New York, even though the governing benefit Plan provides that the law of Connecticut controlled the Plan’s construction.

Salvatore Arnone, a New York resident, sustained serious injuries while working in New York at the site of a customer of his employer. He filed for, and received, long-term disability benefits related to the injury through his employer’s benefit Plan, which was governed by ERISA. Aetna Life Insurance Company, a Connecticut company registered to do business in New York, is both the Plan’s insurer and its claims administrator.

Arnone filed a third-party action in New York federal court and settled the suit for $850,000. As a result, Aetna reduced Arnone’s disability benefits by a portion of the settlement proceeds. Aetna determined that Arnone netted $551,100 from the personal injury settlement, which they calculated included compensation duplicative of Arnone’s disability benefits. Citing a Plan provision regarding offsetting payments from other sources, Aetna maintained that the Plan permitted it to reduce its benefit payment obligation.

Arnone sued Aetna to recover the offset benefits, and filed a Motion for Summary Judgment invoking § 5-335. The trial court denied summary judgment for Arnone, but granted summary judgment for Aetna, reasoning that § 5-335 had no bearing on the amount of Arnone’s benefit entitlement in light of the Plan’s choice-of-law provision designating Connecticut law as controlling the Plan’s construction. Arnone appealed this determination to the 2nd Circuit Court of Appeals. On appeal, Aetna argued that § 5-335 was not applicable to the Connecticut Plan and that, even if it was, ERISA preempts the statute as an impermissible state regulation of the Plan. Aetna also contended that Arnone forfeited his right to invoke § 5-335 by failing to rely on it during Aetna’s claims administration process.

The 2nd Circuit Court of Appeals ruled that § 5-335 prohibits Aetna’s reduction in Arnone’s disability benefits. It also held that neither ERISA’s preemptive force nor the Plan’s choice-of-law provision compels a different conclusion. It held that the trial court erred in granting Aetna’s motion for summary judgment and denying Arnone’s Motion for Summary Judgment, and reversed and remanded the case back to the trial court.

In explaining its decision, the appellate court confirmed that § 5-335 not only applies to subrogation and reimbursement, but also to a Plan’s ability to “offset” future benefits per Plan language, in the amount of a third-party recovery.

Notwithstanding the applicability of § 5-335 to offsets, the court also announced that the statute is not preempted by ERISA, noting that its own recent decision confirms that the statute “regulates insurance.” Wurtz v. Rawlings Co., 761 F.3d 232 (2nd Cir. 2014).

ERISA preemption is provided for in 29 U.S.C. § 1144 as follows:

Preemption Clause – 29 U.S.C. § 1144(a) (1988). All state law is preempted insofar as it “relates to employee benefit Plans.”

Except as provided in subsection (b) of this section, the provisions of this subchapter III of this chapter shall supersede any and all State laws in so far as they may now or hereafter relate to any employee benefit Plan…

Saving Clause – 29 U.S.C. § 1144(b)(2)(A) (2000). “Saves” from preemption those state laws which regulate insurance.

Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.

Deemer Clause – 29 U.S.C. § 1144(b)(2)(B) (2000). Prevents states from “opting out” of federal preemption of employee benefit law by “deeming” Plans to be the subject of the saving clause. States may not deem self-funded employee benefit Plans to be insurance companies or engaged in business of insurance for purposes of direct state regulation.

Neither an employee benefit Plan described in § 1003(a) of this title, which is not exempt under § 1003(b) of this title, (other than a Plan established primarily for the purpose of providing death benefits), nor any trust established under such a Plan, shall be deemed to be an insurance company or other insurer…or to be engaged in the business of insurance…for purposes of any law of any state purporting to regulate insurance companies, [or] insurance contracts.

The “preemption clause” establishes as an area of exclusive federal concern the subject of every state law that “relates to” a Plan. The “saving clause” returns to the State the power to enforce state laws which “regulate insurance,” except as provided in the “deemer clause,” under which a Plan may not be “deemed” an insurer for the purpose of state laws “purporting to regulate” insurance companies or contracts. The 2nd Circuit held that the need for uniformity in the administration of ERISA Plans in every jurisdiction is not a “novel, avoidable, or dispositive concern.” It is the inevitable result of the congressional decision to “save” local insurance regulation from preemption. It held that Wurtz controls and ERISA does not preempt § 5-335.

Lastly, the 2nd Circuit held that the fact that the Plan required Connecticut law to construe the Plan was not controlling. Although choice-of-law provisions are generally enforceable, the court held that Connecticut law was not applicable to the specific question posed by this appeal – whether Aetna could reduce benefits by the net recovery of the beneficiary. It held that § 5-335 did not fall under the express terms of the Plan’s choice-of-law provision, because the choice-of-law provision in the Plan referred only to how the Plan is “construed”, and § 5-335 does not modify how Plans are “construed.” Instead, the statute is a “limitation of reimbursement and subrogation claims.” It provides a rule to which all contracts between an insurer and an insured must adhere, and says nothing about the construction of the language in a Plan. The court justified its strained interpretation by suggesting that Aetna’s position that any law resulting in a change in a Plan participant’s benefit level necessarily “construes” that Plan stretches the definition of “construe” to the breaking point. They further justified the decision with the irrelevant consideration that “Aetna can hardly be ‘surprised’ by the emergence of § 5-335 in its dispute with a New York resident who settled a personal injury claim arising in New York.” The court recognized that:

Aetna’s concern that administrative burdens involved in becoming familiar with the anti-subrogation laws of each state, we do not deal here with a local business tripped up by an unusual law from another state on an obscure topic. Aetna is a well-established and sophisticated insurer that operates nationwide, is subject to varying state laws in other aspects of its business, and cannot but be aware that anti-subrogation laws are a subject of division among the states.

In short, the plaintiff-friendly 2nd Circuit weakened ERISA because it felt that (1) the need for uniformity in the administration of ERISA Plans in every jurisdiction is not a “novel, avoidable, or dispositive concern”, and (2) Aetna shouldn’t be “surprised” that New York had an anti-subrogation statute. Neither justification appears to be legitimate given the Congressional intent behind ERISA’s preemption provision, which was intended to establish a uniform administrative scheme which provides a set of standard procedures to guide processing of claims and disbursement of benefits. A uniform administrative scheme serves to minimize administrative and financial burdens by avoiding the need to tailor Plans to the peculiarities of the law of each state. It remains to be seen if this questionable decision is appealed to the U.S. Supreme Court.

If you have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has 35 years of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.