Opinion
CIVIL ACTION NO. 03-T-731-N
October 24, 2003
Kenneth W. Hooks and David Hodge, Pittman Hooks Dutton Kirby Hellums, Jeffrey S. Daniel, Birmingham, AL, for Plaintiff.
Stephen E. Whitehead, Mark E. Tindal and Erin Elizabeth, May, Lloyd Gray Whitehead, Birmingham, AL, for Defendant JAMES E. "SAM" JOHNSTON
Stephen E. Whitehead, Mark E. Tindal and Erin Elizabeth May, for Defendant PIKE COUNTY TITLE AND ABSTRACTCOMPANY, INC.
James S. Christie and Stacey T. Bradford, Bradley Arant Rose White LLPOne Federal Place, Birmingham, AL, for Defendant MONY LIFE INSURANCE COMPANY
OPINION
Plaintiff Betty Adair filed this lawsuit in an Alabama state court against defendants James E. "Sam" Johnston, Pike County Title and Abstract Company, Inc., and MONY Life Insurance Company of New York, asserting state-law claims of fraud, suppression, breach of contract, conversion, breach of fiduciary duty, and negligence. MONY, with the consent of Pike County Title and Johnston, removed the case to this court under 28 U.S.C.A. § 1441, alleging that Adair's claims are `completely preempted' by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001- 1461, and that the court thus has jurisdiction under 28 U.S.C.A. § 1331 and 29 U.S.C.A. §§ 1132(e) and (f). The case is currently before the court on Adair's motion to remand.
I. REMAND STANDARD
The party seeking removal has the burden of establishing federal jurisdiction. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349 (1997). Removal statutes should be construed narrowly, and all doubts about removal should be resolved in favor of remand. Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003). A defendant may submit affidavits, depositions, or other evidence to support removal. Hardy v. Welch, 135 F. Supp.2d 1171, 1177, (M.D. Ala. 2000) (Thompson, J.).
A lawsuit filed in state court may be removed to federal court based on either diversity or federal-question jurisdiction. Pacheco. De Perez v. ATT Co. , 139 F.3d 1368, 1373 (11th Cir. 1998). Federal-question jurisdiction exists if the plaintiff's suit arises under "the Constitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331 ; see also Pacheco , 139 F.3d at 1373. Whether a complaint `arises under' federal law — or, put another way, presents a `federal question' — must be determined from the face of a plaintiff's complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust , 463 U.S. 1, 9-11, 103 S.Ct. 2841, 2846-47 (1983). This requirement, which is known as the `well-pleaded complaint' rule, applies to a defendant's right to removal, with the determining factor being whether the plaintiff's complaint, not the removal petition, presents a federal question. id . at 10 n. 9, 103 S.Ct. at 2847 n. 9. Moreover, the plaintiff "is master to decide what law he will rely upon," The Fair v. Kohler Die Specialty Co. , 228 U.S. 22, 25, 33 S.Ct. 410, 411 (1913), and thus has the prerogative to rely on state law alone, although both state and federal law may give him a cause of action. Caterpillar, Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987) (stating that a plaintiff may "avoid federal jurisdiction by exclusive reliance on state law."). Therefore, the fact that the plaintiff has elected to pursue his claim under state law alone does not justify removal, even if the plaintiff has also an unpursued claim under federal law.
The evidence before the court is disputed by the parties, but is only in the form of affidavits and documents. In resolving these disputed factual matters, the court has therefore not had the benefit of live testimony. In view of the posture in which the evidence has been presented and in view of the principle that "where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand," Burns v. Windson Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); cf. Taylor, 381 U.S. at 67, 107 S.Ct. at 1548 (Brennan, J., concurring) ("the prudent course for a federal court that does not find clear congressional intent to create removal jurisdiction will be to remand to state court") (emphasis in original), the court finds the facts in favor of the plaintiff, that is, Adair.
II. BACKGROUND
Prior to 1989, Adair worked first for J.B. Wiley, an attorney, and then for Keith Watkins who acquired Wiley's practice. Both Wiley and Watkins paid the premiums on a $15,000 New York Life whole-life insurance policy of which Adair was the owner and her children were the beneficiaries. In 1989, Adair went to work for Johnston. According to Adair, before she went to work for him, Johnston made two representations to her that are relevant to this matter. First, Johnston stated that he would continue to pay the premiums on her New York Life whole-life insurance policy. Second, Johnston stated that he would provide Adair with a retirement package.
Motion to remand, filed August 8, 2003 (Doc. No. 5) (motion to remand), ¶ 2.
Id.
Id. at ¶ 3.
Id.
Id.
A. The First MONY Policy
After Adair began working for Johnston at Pike County Title, he required that Adair transfer her whole-life insurance policy from New York Life to MONY because Johnston was an agent for MONY. The application for this MONY life insurance policy listed the beneficiary as "Pike County Title and Abstract Company, Inc. and its successors," and also assigned all rights to Pike County Title. Johnston in his capacity as president of Pike County Title is also listed on the application as the applicant. At some time prior to 2002, Adair was made the owner of this policy, because, in 2002, she filed a form with MONY changing the policy's beneficiaries to her two children; that form lists Adair as the policy's owner.The policy history for the first MONY policy lists two cash-premium payments. The first was made at the time of the application for the policy in the amount of $3397.94, and it was funded by cashing out Adair's New York Life life insurance policy. The second was an annual premium payment of $439.80, paid on April 13, 1990. From 1991 until 1996, the premiums on Adair's policy were paid from the policy's dividends; in 1997, the premium was paid by an automatic premium loan; in 1998 and 1999, the premiums were waived; and, since 2000, the premiums have been paid by automatic premium loans.
Affidavit of Betty Adair, filed September 12, 2003 (Doc. No. 17) (Adair Aff.), ¶ 7; Affidavit of James E. "Sam" Johnston, filed August 29, 2003 (Doc. No. 13) (Johnston Aff.), ¶ 11.
Johnston Aff. at ¶ 11.
D'Arrigo Aff., Exh. D, policy history for policy number 13291406, p. MONY 0006-0008.
B. The Second MONY Policy
Adair and Johnston differ in their accounts of their agreement with respect to Adair's retirement benefits. Adair alleges that Johnston simply promised her that he would provide retirement benefits for her near her after-tax income. She asserts that no paperwork was provided to her; that no projections as to her benefits were made; and that she knew neither the amount of her benefits nor the way in which they would be calculated. Johnston, on the other hand, asserts that at the time she came to work for him, he and Adair agreed that Pike County Title would provide Adair with retirement benefits through deferred compensation and that this deferred compensation would be funded through a second MONY life insurance policy. Pike County Title paid the premiums on the second MONY policy from 1989 until Adair retired in 1997. According to Johnston, Adair approached him in 1997 about retiring, at which time she told Johnston that she required $1,200 a month to pay her bills. Johnston asserts that he explained to Adair that retiring early would deplete the cash value of the second MONY life insurance policy used to fund her retirement. After Adair's retirement, Pike County Title paid Adair's monthly benefit from its own funds and then reimbursed itself with a loan from the second MONY policy. From 1998 until 2000, the premiums on the second MONY policy were waived; in 2000 and 2001, the premiums were paid by loans on the policy. In 2000, Pike County Title reduced Adair's benefits to $800 per month, and then reduced her further to $500 per month in March 2002; in October 2002, Pike County Title stopped paying her benefits. In 2002, the second MONY policy lapsed.III. DISCUSSION A. Introduction
The resolution of the issue before the court turns on the characterization of the benefits promised and provided to Adair. Defendants contend that Adair's complaint "references a `retirement package' and payment of `retirement benefits,'" that Adair "complains about `retirement benefits and life insurance,'" and that Adair "requests retirement and life insurance benefits that she believes she is entitled to receive." As a result, defendants assert, Adair's "allegations, involving deferred compensation and life insurance, are exactly the type of claim that Congress intended to be completely preempted by ERISA." Adair disputes the characterization or her retirement benefits as a plan covered by ERISA. As to the first MONY policy, Adair argues that no ERISA plan existed because Pike County Title possessed all rights under the policy and was the policy's beneficiary. With respect to the second MONY policy, plaintiff argues that "[t]here was no `plan'; there was just Sam Johnston's undefined promise to pay Betty Adair some thing each month after she retired." Congress enacted ERISA to protect "the interests of participants in employee benefit plans and their beneficiaries." 29 U.S.C.A. § 1001(b). Preemption based on ERISA may take one of two forms. Butero v. Royal Maccabees Life Ins. Co. , 174 F.3d 1207, 1211 (11th Cir. 1999); Whitt v. Sherman Int'l Corp. , 147 F.3d 1325, 1329 (11th Cir. 1998). The first is known as `defensive' preemption. Butero , 174 F.3d at 1212. Defensive preemption originates in ERISA's express preemption provision, 29 U.S.C.A. § 1144(a) . id . "Defensive preemption provides only an affirmative defense to certain state-law claims." Id . As an affirmative defense, defensive preemption does not appear on the face of a well-pleaded complaint. Metropolitan Life Ins. Co. v. Taylor , 481 U.S. 58, 63, 107 S.Ct. 1542 , 1546 (1987); Brown v. Connecticut Gen. Life Ins. Co. , 934 F.2d 1193, 1196 (11th Cir. 1991). Therefore, defensive preemption does not arise under the laws of the United States and cannot authorize removal to federal court. Taylor , 481 U.S. at 63, 107 S.Ct. at 1546 ; Whitt , 147 F.3d at 1329. In the instant case, because Adair alleged only state-law claims, defendants do not argue defensive preemption as a basis for removal.The second form of ERISA preemption is known as `complete preemption' or `superpreemption.' Butero , 174 F.3d at 1211; Whitt , 147 F.3d at 1329. Superpreemption qualifies the well-pleaded complaint rule. Whitt , 147 F.3d at 1329. "Where Congress preempts an area of law so completely that any complaint raising claims in that area is necessarily federal in character, super preemption applies, and federal jurisdiction exists, even if the face of the complaint does not plead federal claims." Id . Therefore, federal courts have subject-matter jurisdiction over state-law claims that have been completely preempted, and defendants may remove to federal court those actions that contain such claims. Butero , 174 F.3d at 1212; Whitt , 147 F.3d at 1329. ERISA complete preemption arises from Congress's creation of a comprehensive remedial scheme in 29 U.S.C.A. § 1132 for loss or denial of employee benefits. Butero , 174 F.3d at 1211.
In Butero , the Court of Appeals for the Eleventh Circuit held that "ERISA superpreemption exists only when the `plaintiff is seeking relief that is available under . . . § 1132(a) .'" Id . at 1212 (quoting Whitt , 147 F.3d at 1330). More specifically, the Butero court articulated a four-part test to determine whether ERISA complete preemption exists. First, there must be a relevant ERISA plan. Id . Second, the plaintiff must have standing to sue under the plan. Id . Third, the defendant must be an ERISA entity. Id . And, fourth, the complaint must seek compensatory relief akin to that available under § 1132(a), which will often be a claim for benefits due under the plan. Id . Whether the court has removal jurisdiction over Adair's lawsuit depends on whether each of these four elements is satisfied.
In relevant part, § 1132(a) allows a civil action to be brought by a plan 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.A. § 1132(a)(1)(B).
B. Existence of an ERISA Plan
The first element of the Butero test asks whether an ERISA plan exists. An ERISA plan means either an `employee welfare benefit plan' or an `employee pension benefit plan.' 29 U.S.C.A. § 1002(3) ; Whitt , 147 F.3d at 1330. An `employee welfare benefit plan,' is defined as "any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions)." 29 U.S.C.A. § 1002(1) .
In Donovan v. Dillingham , 688 F.2d 1367 (1982) (en banc), the Eleventh Circuit separated this statutory definition of `employee welfare benefit plan' into the following five requisite elements: (1) a `plan, fund, or program,' (2) established or maintained, (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits, (5) to participants or their beneficiaries. 688 F.2d at 1371 ; see also Slamen v. Paul Revere Life Ins. Co. , 166 F.3d 1102, 1104 (11th Cir. 1999).
An `employee pension benefit plan' under ERISA is similarly defined as "any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond, regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan." 29 U.S.C.A. § 1002(2)(A) .
The Eleventh Circuit has applied a streamlined version of the Donovan five-part test to determine whether retirement benefits qualify as `employee pension benefit plans,' focusing on the first element, the existence of a plan. Whitt , 147 F.3d at 1330; Williams v. Wright , 927 F.2d 1540, 1543 (11th Cir. 1991).
For clarity, the court will discuss the two alleged ERISA plans at issue in this matter separately.
1. The First MONY Policy
The first element of the statutory definition of `employee welfare benefit plan' is the existence of a `plan, fund, or program.' An ERISA plan, fund, or program "exists whenever there are `intended benefits, intended beneficiaries, a source of financing, and a procedure to apply for and collect benefits.'" Butero , 174 F.3d at 1214 (quoting Donovan , 688 F.2d at 1372). Here, the intended benefit of the first MONY policy was the $15,000 death benefit under the policy. The intended beneficiaries were the beneficiaries that Adair had designated under her previous life insurance policy with New York Life. The source of financing was the cash value of Adair's New York life policy and the premium paid by Pike County Title. Finally, the procedure for applying for the benefit was the procedure prescribed by MONY. Randol v. Mid-West Life Ins. Co. of Tenn. , 987 F.2d 1547, 1550 n. 5 (11th Cir. 1993) ("[A] commercially purchased insurance policy under which the procedures for receiving benefits are all dictated by the insurance carrier can constitute a plan for ERISA purposes.").
Adair argues that, because Pike County Title owned the rights to the policy and made itself the beneficiary on the initial application, there were no benefits to Adair under the policy, and thus there was no `employee welfare benefit plan.' This argument is not persuasive. First, Adair's argument proves too much because nearly every dispute arising out of benefits coverage is going to involve allegations that a benefit was improperly denied. If the alleged failure of a policy to provide a benefit brought a policy outside of ERISA's coverage, few welfare benefits policies would be covered. Second, the Donovan court's use of the modifier "intended" is instructive. Donovan , 688 F.2d at 1372. For an ERISA `plan' to exist, there need not be actual benefits paid to actual beneficiaries, but rather benefits and beneficiaries need only be intended. Finally, the Eleventh Circuit has repeatedly admonished that an employer or administrator's failure to follow ERISA regulations or to meet "fiduciary standards" should not bring a benefits policy outside of ERISA's coverage. See e.g., Donovan , 688 F.3d at 1372. Adair's argument would permit employer's to circumvent ERISA's coverage by improperly designating a policy's beneficiary. Thus, the court finds that the MONY life insurance policy constituted an ERISA `plan.' The second element is that the plan, fund, or program is established or maintained. "A plan is `established' when there has been some degree of implementation by the employer going beyond a mere intent to confer a benefit." Butero , 174 F.3d at 1214. In Butero , the Eleventh Circuit found that a plan was `established' when the plaintiff's employer consulted an insurance agent, selected the terms of the group policy it wished to purchase for its employees, completed an application form for the policy, solicited enrollments from its employees, collected money through payroll deductions, and remitted premium checks to the insurer. Id . Similarly, Johnston, acting as the president of Pike County Title, selected a life insurance policy, completed the application on Adair's behalf, and arranged for the initial payment and one premium payment. Because Johnston's actions go beyond the "mere intent to confer a benefit," id ., the court finds that an ERISA plan was `established.' The third requirement is that the plan be established or maintained by an employer or by an employee organization, or by both. An `employer' is "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity." 29 U.S.C.A. § 1002(5). Adair does not dispute that Pike County Title and Johnston were her employers.
Adair Aff. at ¶ 6; Johnston Aff. at ¶ 11.
The court also finds that the fourth and fifth Donovan elements are satisfied: the purpose of the first MONY policy was to provide life insurance to a participant, namely Adair, or her beneficiaries.
A `participant' is "any employee or former employee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer . . . or whose beneficiaries may be eligible to receive any such benefit." 29 U.S.C.A. § 1002(7).
For these reasons, the court concludes that the $15,000 MONY whole-life insurance policy purchased by Pike County Title was an ERISA `plan' with the meaning of 29 U.S.C.A. § 1002(1) .
2. The Second MONY Policy
As discussed above, the Eleventh Circuit has applied a streamlined version of the Donovan five-part test to determine whether a retirement benefit qualifies as an `employee pension benefit plan' under 29 U.S.C.A. § 1002(2)(A) . Whitt , 147 F.3d at 1330; Williams v. Wright , 927 F.2d 1540, 1543 (11th Cir. 1991). In both Whitt and Williams , the court, rather than applying each of the five steps outlined in Donovan , focused on the first step, the four-part definition of a `plan.' An ERISA plan, fund, or program "exists whenever there are `intended benefits, intended beneficiaries, a source of financing, and a procedure to apply for and collect benefits.'" Butero , 174 F.3d at 1214 (quoting Donovan , 688 F.2d at 1372). In this case, the intended benefit of the second MONY policy was the monthly payments Adair was to receive after her retirement; the intended beneficiary was Adair. The source of financing was the premiums paid by Pike County Title during the years prior to Adair's retirement. The procedure to apply for and collect the benefits was that Pike County Title would send Adair a monthly check.
Adair argues that "[t]here was no `plan;' there was just Sam Johnston's undefined promise to pay Betty Adair some thing [sic] each month after she retired." Relying on Whitt , 147 F.3d at 1330-31, Adair argues that, because she and Johnston never agreed on the exact benefits she was to receive, there was no plan. Adair and Pike County Title's arrangement, however, is closer to the facts in Williams , 927 F.2d at 1544-45. In Williams , the defendant — plaintiff's employer — had made a written promise to provide the plaintiff with $500 per month upon his retirement. 927 F.2d at 1542. After making the payments for a period of time, the defendant unilaterally terminated payment. Id . The Eleventh Circuit held that the letter created an ERISA `plan' because the letter set the level of benefits that the plaintiff was to receive and created a "simple" but "sufficiently ascertainable" procedure for obtaining benefits. Id . at 1545-46. In Whitt , the plaintiff received a termination letter that provided that he would receive retirement benefits pursuant to an executive incentive program that his employer had not yet adopted. 147 F.3d at 1328. The court held that there was no ERISA `plan' in place at the time of the plaintiff's termination because the company had not decided which — if any — executive incentive program to adopt. Id . at 1330-31.
Motion to remand memo. at 8.
In this case, Adair and Johnston verbally agreed that Adair would receive retirement benefits close to her after-tax salary during her employment. While this benefit is not as "ascertainable" as the $500 monthly payment in Williams , it is more "ascertainable" than the completely undefined benefit contained in the termination letter in Whitt . Further, in one regard, Pike County Title has a stronger claim to the existence of a plan than the employer in Williams because Johnston discussed Adair's retirement with her and purchased a life insurance policy to fund it at the time of her hiring. See Donovan , 688 F.2d at 1373 (purchasing insurance is evidence of establishing ERISA `plan'). For these reasons, the court finds that under Williams , the retirement benefits arrangement between Pike County Title and Adair was an `employee pension benefit plan' under 29 U.S.C.A. § 1002(2)(A) .
C. Adair's Standing to Sue
Satisfaction of the second element of the Butero test requires that the plaintiff have standing to sue. ERISA's civil-enforcement section allows two categories of individuals to sue for benefits under an ERISA plan — plan beneficiaries and plan participants. Engelhardt v. Paul Revere Life Ins. Co. , 139 F.3d 1346, 1351 (11th Cir. 1998). A `beneficiary' is "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." 29 U.S.C.A. § 1002(8). As discussed above, both the first MONY policy and the second MONY policy were ERISA plans, and as one entitled to benefits under the plans, Adair has standing to sue.
D. Existence of an ERISA Entity
The third Butero element — the existence of an ERISA entity — is also satisfied. "ERISA entities are the employer, the plan, the plan fiduciaries, and the beneficiaries under the plan." Mortstein v. National Ins. Servs., Inc. , 93 F.3d 715, 723 (11th Cir. 1996) (en banc). Here, Pike County Title was Adair's employer, and MONY issued the two insurance policies that constitute the ERISA plans. While Johnston himself is not an ERISA entity, his presence in the suit does not defeat complete preemption. See Butero , 174 F.3d at 1213 n. 2 ("We decline to hold that claims against an ERISA entity's employee escape the preemption that would doom state-claims against the entity itself."). Thus, the defendants here are ERISA entities.
E. Relation of Damages Sought to Relief Under ERISA
Finally, regarding the fourth element, the court finds that the damages Adair seeks are akin to relief available under § 1132(a). In her state-court action, Adair asserted causes of action for fraud, suppression, and breach of contract against Pike County Title and Johnston, and claims for conversion, breach of fiduciary duty, negligence, and fraud against all defendants. The test for whether a complaint seeks compensatory relief akin to that available under § 1132(a) is whether the complaint seeks to recover plan benefits and the costs of bringing the claim. Butero , 174 F.3d at 1213; Engelhardt v. Paul Revere Life Ins. Co. , 139 F.3d 1346, 1354 (11th Cir. 1998).
Complaint, filed on June 18, 2003, in the Circuit Court of Pike County, Alabama, at ¶¶ 15-41, attached to Notice of Removal, filed July 10, 2003 (Doc. No. 1).
In Butero , the Eleventh Circuit held that claims for fraud and for breach of contract are essentially claims to recover benefits due to the beneficiary under the terms of the plan, and are thus superpreempted under § 1132(a). 174 F.3d at 1213 (citing Engelhardt , 139 F.3d at 1353; Franklin v. QHG of Gadsden, Inc. , 127 F.3d 1024, 1029 (11th Cir. 1997)). Here, Adair's fraud claims allege that Johnston promised her benefits as an inducement to work for Pike County Title and then failed to provide these benefits. Similarly, Adair's breach-of-contract claim alleges that she "entered into an employment agreement whereby in return for her employment, Defendant Johnston promised her retirement benefits and life insurance" and that these benefits were not provided. As in Butero , Adair seeks to recover benefits she believes she is due under an ERISA plan.
Id. at ¶ 24.
Adair's claims for suppression, breach-of-fiduciary-duty, and negligence claims can similarly be "properly recast as claims for benefits due under [the] plan." See Butero , 174 F.3d at 1213. Adair's suppression claim alleges that Johnston suppressed the fact that she would not receive benefits under the first MONY policy. Adair's breach-of-fiduciary-duty cause of action asserts that Pike County Title, Johnston, and MONY breached their duties of "loyalty, good faith, and fair dealing" ; although Adair's complaint does not explain the nature of this breach, it is fair to conclude that the alleged breach occurred as a result of Pike County Title's failure to provide benefits under either the first or second MONY policy. Similarly, Adair's negligence cause of action concerns the allegedly negligent failure to provide Adair with benefits. Finally, Adair's conversion cause of action is also a claim for benefits under the ERISA plans discussed above. Adair alleges that Johnston, "while serving as an agent of defendant [MONY], wrongfully converted ownership of Betty Adair's life insurance policy to his company, [Pike County Title,] and also wrongfully converted the benefits of said policy from Betty Adair's children to his company." Here again, Adair's cause of action relates to the recovery of benefits, in this case benefits she alleges she is owed under the MONY life insurance policy that was meant to replace her New York Life policy. For these reasons, the fourth element of the Butero test is satisfied.
Id. at ¶ 20.
Id. at ¶ 30.
Id. at ¶ 27.