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December 8, 2000


The opinion of the court was delivered by: Fogel, District Judge.


Defendant Cigna Healthcare of California ("Cigna") moves for dismissal of Plaintiff's complaint. Plaintiff Jeffrey Van Hulle ("Van Hulle") opposes the motion and alternatively asks the Court for leave to amend his complaint in order to assert a cause of action under the Employment Retirement Income Securities Act ("ERISA"). The Court has read the moving and responding papers and has considered the oral arguments of counsel. For the reasons set forth below, Cigna's motion to dismiss will be granted without leave to amend as to Van Hulle's claims under the American with Disability Act ("ADA")*fn1 and with leave to amend as to Van Hulle's proposed ERISA claim.


The complaint asserts that Defendants Cigna, Prudential Healthcare, and Pacific Telesis violated the ADA. Van Hulle works for Pacific Telesis, which contracted with Cigna and Prudential Healthcare for administration of its employee insurance health benefits. Van Hulle alleges that Defendants administered the insurance policy in a discriminatory manner by refusing him services and treating him differently because of his disability. Specifically, the complaint alleges, inter alia, that Cigna repeatedly delayed paying Van Hulle's claims and otherwise denied him benefits provided by the insurance policy. Van Hulle further alleges that Defendants retaliated against him for filing a charge of discrimination against them with the Equal Employment Opportunity Commission ("EEOC"). Van Hulle now asserts two distinct theories of liability under the ADA: (1) discrimination and failure to modify policies and procedures by a place of public accommodation in violation of 42 U.S.C. § 12182 ("Title III" or "Subchapter III"); and (2) retaliation in violation of 42 U.S.C. § 12203.*fn2 Cigna contends that the claims asserted against it should be dismissed because Cigna does not fall within the ambit of the ADA as an "employer" under Subchapter I or as "a place of public accommodation" under Subchapter III.*fn3


Generally, the issue to be decided on a motion to dismiss is not whether a plaintiff's claims have merit but whether the moving defendant has shown beyond doubt that the plaintiff can prove no set of facts entitling him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court's review is limited to the face of the complaint, documents referenced by the complaint and matters of which the court may take judicial notice. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Ordinarily, a complaint may be dismissed as a matter of law for only two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984) (citing 2A J. Moore, Moore's Fed. Practice ¶ 12.08 at 2271 (2d ed. 1982)). When a court considers a motion to dismiss, all allegations of the complaint are construed in the plaintiff's favor. Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987). For a motion to dismiss to be granted, it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved. Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987).


The dispositive question before the Court is whether Cigna is subject to either Subchapter III or Section 12203 ("retaliation provision") of the ADA.*fn4 Because these statutory provisions arguably have different application, the Court will address them separately.

A. Subchapter III

Subchapter III of the ADA expressly provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). The threshold issue is whether an insurance provider such as Cigna is a place of public accommodation within the meaning of Subchapter III. The Ninth Circuit addressed precisely this issue in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).

In Weyer, an employee alleged, inter alia, that the employer-provided insurance carrier violated Subchapter III of the ADA because it provided greater benefits for persons with physical disabilities than for persons with mental disabilities. Id. The court agreed with the plaintiff that an insurance office is a public accommodation as expressly set forth in § 12181(7), but also concluded that the term "place of public accommodation" requires a "connection between the good or service complained of and an actual physical place." Id. at 1114 (citation omitted).*fn5 The court thus went on to hold that the benefit plan itself is not a good or service offered by a place of public accommodation, Id. at 1115 (citing, Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997) (en banc)), and that therefore an insurance company in its capacity as administrator of an employer-provided insurance plan is not a "place of public accommodation" within the meaning of Subchapter III. Id. [citing, Parker, 121 F.3d at 1010 ("A benefit plan offered by an employer is not a good offered by a place of public accommodation."); Ford v. Schering-Plough Corp., 145 F.3d 601 (3rd Cir. 1998) (same)]; see also, Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000).

Based on the facts alleged here, Ninth Circuit precedent clearly precludes Van Hulle's Subchapter III claim against Cigna. The relationship between Van Hulle and Cigna came about only because Van Hulle's employer, Pacific Telesis, contracted with Cigna for the provision of health insurance benefits to Pacific Telesis employees. In its capacity as an employer-provided insurance carrier, Cigna is not a "place of public accommodation" under Subchapter III. Accordingly, Van Hulle's Subchapter III claim against Cigna will be dismissed without leave to amend.

B. 42 U.S.C. § 12203

The ADA prohibits discrimination in three areas: employment ("Subchapter I"); public services ("Subchapter II"); and public accommodations ("Subchapter III"). Subchapter IV sets forth miscellaneous provisions, some of which apply to each of the proceeding subchapters. See, e.g., 42 U.S.C. ยง 12202, 12205, 12203. The retaliation ...

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