United States District Court, N.D. California
October 11, 2005.
RICHARD P. WELLS, et al., Plaintiff,
CALIFORNIA PHYSICIANS' SERVICE, dba BLUE SHIELD OF CALIFORNIA, Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
Now pending before the Court is defendants' motion to dismiss
the First Amended Complaint. After carefully reviewing the papers
filed by the parties, the Court GRANTS the motion in part, and
DENIES the motion in part.
Plaintiffs' second, third and fourth claims for relief are
DISMISSED with prejudice. These claims seek compensatory damages
that are not recoverable under ERISA. See Bast v. Prudential
Ins. Co. of America, 150 F.3d 1003, 1008 (9th Cir. 1998);
McLeod v. Lithoprint Inc., 102 F.3d 376, 377 (9th Cir. 1996).
Plaintiffs' characterization of their claims as seeking equitable
relief is immaterial. "In determining whether an action for
equitable relief is properly brought under ERISA, [courts] look
to the substance of the remedy sought . . . rather than the label
placed on that remedy." Westaff (USA) v. Arce, 298 F.3d 1164,
1166 (9th Cir. 2002). Defendant's motion to dismiss the first claim for injunctive
relief is DENIED. Defendant concedes that plaintiffs can seek
injunctive relief under section 502(a)(3). See McLeod,
102 F.3d at 377-78.
Defendant has not established that plaintiffs do not have
standing as a matter of law. Section 502(a)(3) provides that "A
civil action may be brought by a participant, beneficiary or
fiduciary (A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan, or (B) to
obtain other appropriate equitable relief (i) to redress such
violations or (ii) to enforce any provisions of this subchapter
or the terms of the plan. Plaintiffs are themselves beneficiaries
of the plan and they are seeking to enjoin acts that they allege
violate ERISA; thus, under the language of the statute they
appear to have standing. None of the cases cited by defendant are
ERISA cases. Further, defendant has not addressed the other
injunctive relief sought by plaintiffs; namely, requiring
defendant to provide beneficiaries with certain information when
it denies claims that it has previously approved.
Defendant has also not established that plaintiffs have not and
cannot allege that defendant has a policy of denying coverage for
the Taxol protocal. The First Amended Complaint alleges that
defendant continues to deny coverage for such treatment by
misrepresenting that such treatment is "experimental" and by
failing to expeditiously process claims for the Taxol protocal.
That defendant eventually reversed its decision (although its
reversal was too late) does not mean that it does not have a
policy of initially denying such claims on the ground that it is
an experimental procedure.
IT IS SO ORDERED.
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