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Conway v. Louisiana Health Service & Indemnity Co.

United States District Court, M.D. Louisiana

March 25, 2015

GARY CONWAY, JOSHUA CONWAY, AND CHERISH CONWAY,
v.
LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, D/B/A BLUE CROSS AND BLUE SHIELD

ORDER

JOHN W. deGRAVELLES, District Judge.

Before the Court is Defendant, The Shaw Group, Inc.'s (hereinafter "Shaw") Motion for Summary Judgment (Doc. 10), Defendant Louisiana Health Services & Indemnity Company d/b/a Blue Cross and Blue Shield's (hereinafter "Blue Cross") Motion for Summary Judgment (Doc. 17), and Shaw's Second Motion for Summary Judgment. (Doc. 19.)

Plaintiff filed an "Opposition to Motion for Summary Judgment" on September 16, 2014. (Doc. 25.) It is unclear which Motion(s) Plaintiff intended to oppose. As this was the only Opposition filed by Plaintiff, and as Plaintiff addresses issues raised by all of the Motions for Summary Judgment, and as the three Motions for Summary Judgment present very similar issues and arguments, the Court treats Plaintiff's Opposition as applicable to all three Motions and addresses them all herein. No oral argument is necessary.

Considering the foregoing and for the reasons set forth below, Defendants' Motions for Summary Judgment (Docs. 17, 19 and 25) are granted.

I. Background and Arguments of the Parties

Gary Conway, then-husband of the now deceased Mittie Conway, was employed by The Shaw Group, Inc. prior to his termination. (Doc. 10-1, ¶ 1). Pursuant to his termination, the Conways' health insurance policy was terminated on November 30, 2011. (Doc. 1-4, ¶ 3). The Conways applied for a health insurance policy under The Consolidated Omnibus Budget Reconciliation Act (hereinafter "COBRA") through The Shaw Group, Inc. (Doc. 10-1, ¶ 1). The Shaw Group was the Conway's Plan Administrator and retained Louisiana Health Service & Indemnity Company, d/b/a/ Blue Cross and Blue Shield of Louisiana ("Blue Cross") to perform all functions in its stead as claims administrator. (Doc. 19-1, p. 2).

Blue Cross and Blue Shield of Louisiana ("Blue Cross") issued a COBRA health insurance policy providing coverage to the Conways. (Doc. 1-4, ¶4.) The record is unclear regarding the date the policy was issued. (Doc. 1-4, ¶ 4).

On May 9, 2012, Mittie Conway, using her Blue Cross insurance, attended an appointment with her doctor in which she complained of a bruise and small knot. (Doc. 1-4, ¶ 5). After an MRI and consultation with a surgeon, it was determined that the knot was cancerous and required removal. Dr. Jonathan Taylor, the examining surgeon, recommended and scheduled surgery for May 20, 2012. (Doc. 1-4, ¶ 5). Despite the urging of Dr. Taylor, Blue Cross refused to approve the surgery he deemed necessary to resect and biopsy the mass. (Doc. 23-3, ¶ 1).

After a few weeks, the mass doubled in size. (Doc. 25, p. 2). Dr. Taylor advised Ms. Conway to report to the nearest emergency room for emergency surgery. (Doc. 25, p. 2).[1] By this time, the cancer had already spread to Ms. Conway's skin and to other parts of her body. (Doc. 25, p. 2). Sadly, Mittie Conway died on November 27, 2012, as a result of her condition. (Doc. 10-1, ¶ 2).

On January 17, 2013, Gary Conway filed a Petition for Damages against Blue Cross including as Plaintiffs Joshua and Cherish Conway, Mittie and Gary's natural children. (Doc. 1-4, ¶ 2). The action was filed in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, under Louisiana Civil Code Articles 2315.1 and 2315.2, Louisiana's survival and wrongful death actions. (Doc. 1-4, ¶ 14, 15). Plaintiffs allege that Ms. Conway died because Blue Cross failed to timely afford her the benefits to which she was entitled under the Plan.[2]

Blue Cross removed the action to this Court January 15, 2014 pursuant to 28 U.S.C. §§1441(a) and (b) and 1446. (Doc. 1, p. 1, 5). The district courts of the United States have original jurisdiction over claims brought under Employee Retirement Income Security Act ("ERISA") . See ERISA §502(e), 29 U.S.C. §1132(e); 28 U.S.C. §1331. Because ERISA pre-emption is comprehensive, pre-emption defense provides sufficient basis for removal to federal court notwithstanding the "well-pleaded complaint" rule. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 1547, 95 L.Ed.2d 55 (1987). Thus, this action is properly before this Court.

Following removal, Blue Cross submitted one Motion for Summary Judgment (Doc. 17) and Shaw Group submitted two Motions for Summary Judgment. (Doc. 10, 19). Plaintiff opposes these motions. (Doc. 25). Each of the three Motions assert that Ms. Conway's benefit plan was an ERISA plan, that her state law actions for wrongful death and survival are related to her plan, and that by virtue of their relation to an ERISA plan, the actions are pre-empted and barred by ERISA. (Doc. 10, 17, 19).

II. Standard on Motion for Summary Judgment

Summary judgment shall be granted when there are no genuine issues of material facts and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56; Celotex v. Carrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. at 248-49, 106 S.Ct. 2505. In order to grant a motion for summary judgment, the Court must be satisfied "that the evidence favoring the nonmoving party is ...


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