{
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  "name": "MARGARET A. FREEMAN, PARENT OF MINOR CHILD MARK FREEMAN v. BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, A NORTH CAROLINA CORPORATION",
  "name_abbreviation": "Freeman v. Blue Cross & Blue Shield of North Carolina",
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  "docket_number": "No. COA95-1203",
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    "judges": [
      "Judges MARTIN, John C., and WALKER concur."
    ],
    "parties": [
      "MARGARET A. FREEMAN, PARENT OF MINOR CHILD MARK FREEMAN v. BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, A NORTH CAROLINA CORPORATION"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nMargaret A. Freeman (plaintiff) appeals an Order dismissing plaintiffs claims against Blue Cross and Blue Shield of North Carolina (defendant) for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\nFor purposes of ruling on a motion to dismiss pursuant to Rule 12(b)(6) the allegations contained in plaintiffs complaint and amended complaint are taken as true. Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987).\nPlaintiff alleges that her minor son sustained injuries to his person which required emergency treatment and medical services at a cost of $39,779.28. Such medical services \u201cwere covered under a group insurance benefits policy for employees of Carolina Beauty Systems,\u201d where plaintiff works. The insurance policy is through defendant, and defendant failed to pay for plaintiffs son\u2019s medical treatment despite repeated requests by plaintiff. As a result of defendant\u2019s failure to pay, plaintiff alleges that she has \u201csuffered a mental strain and a heart condition and has been accused by the Carolina Beauty Systems of wrongdoing in order to cause her a job separation.\u201d Plaintiff requested compensatory damages in the amount of $39,779.28, punitive damages of $100,000.00 and a jury trial.\nDefendant moved to dismiss plaintiffs claims pursuant to Rule 12(b)(6) on the basis that the plaintiffs claims \u201care pre-empted by the Employee Retirement Income Security Act of 1974 [ERISA].\u201d The trial court granted defendant\u2019s motion \u201cbecause the claims asserted by plaintiff are preempted by . . . [ERISA], 29 U.S.C. \u00a7 1001, et seq.\u201d\nThe dispositive issue is whether the contract of insurance referred to in the complaint is governed by ERISA.\nTo determine the appropriateness of the dismissal of the complaint on the basis that the plaintiffs claims are preempted by ERISA first requires a determination of whether the \u201c \u2018contract of insurance\u2019 referred to in [plaintiff\u2019s] complaint is governed by ERISA.\u201d Hemphill v. Unisys Corp., 855 F. Supp. 1225, 1230 (D. Utah 1994). ERISA governs employee welfare benefit plans. To qualify under ERISA the plan must have three components: \u201c(1) a contractual arrangement between the employer and the insurance company for the provision of insurance to the employer\u2019s employees; (2) an eligibility requirement of being an employee . . . ; (3) the employer\u2019s contribution of some [or] all of the insurance premiums on behalf of its employees.\u201d Id. at 1230-31 (quoting Hollister v. Molander, 744 F. Supp. 846, 847 (N.D. Ill. 1990)); see also 29 U.S.C.A. \u00a7 1002(1) (1985) (defining employee welfare benefit plan).\nIn this case the \u201ccontract of insurance\u201d is not part of the record and there are no allegations asserting who paid the insurance premiums. It is thus impossible to determine from the pleadings whether the contract qualifies under ERISA and it was error for the trial court to dismiss the complaint on the basis that the plan did qualify under ERISA.\nThe defendant argues that the order of dismissal must be sustained for a reason not given by the trial court, namely that the plaintiff has not alleged that the defendant \u201cdid not have the discretion to deny the claim for benefits or that [it] abused its discretion in denying the claim.\u201d We disagree. Assuming the plan to be governed by ERISA, the complaint need only give fair notice that the plaintiff is a participant in the plan seeking to recover benefits under the plan. Hemphill, 855 F. Supp. at 1233. It is true that the court\u2019s standard of review of the administrator\u2019s decision to grant or deny benefits is governed by the discretion, if any, given to the administrator to determine benefits eligibility. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80, 95 (1989). \u201cIf sufficient discretion is granted to the fiduciary by the relevant plan language, the fiduciary\u2019s interpretation of the plan will be upheld if it is reasonable.\u201d Martin Wald & David E. Kenty, ERISA: A Comprehensive Guide \u00a7 7.12, at 230 (1991) (hereinafter A Comprehensive Guide). Otherwise, a decision denying an employee benefits under a plan must be reviewed under a de novo standard. Hemphill, 855 F. Supp. at 1235.\nThe defendant finally argues that the dismissal should be affirmed on the grounds that the plaintiff has no standing to file the complaint, as the claim for benefits belongs to the plaintiffs minor son. We agree that the child is the real party in interest and that the claim must be asserted by a general or testamentary guardian or by guardian ad litem, N.C.G.S. \u00a7 1A-1, Rule 17(b) (1990), and that the record does not reveal that a guardian of any type has been appointed for the child. It does not follow, however, that the action must be dismissed. On remand the real party in interest must be given a reasonable opportunity to be substituted as a party plaintiff. N.C.G.S. \u00a7 1A-1, Rule 17(a) (1990).\nThe viability of the plaintiffs claim for emotional distress and punitive damages depends on whether the plan is governed by ERISA. Extracontractual damages, i.e., damages for pain and suffering or emotional distress, and punitive damages are not remedies within the scope of ERISA. A Comprehensive Guide \u00a7 7.16, at 233.\nReversed and remanded.\nJudges MARTIN, John C., and WALKER concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Margaret A. Freeman for plaintiff-appellant, pro se.",
      "Cansler, Lockhart, Campbell, Evans, Bryant & Garlitz, P.A., by George K. Evans, Jr. and Thomas D. Garlitz, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "MARGARET A. FREEMAN, PARENT OF MINOR CHILD MARK FREEMAN v. BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA, A NORTH CAROLINA CORPORATION\nNo. COA95-1203\n(Filed 16 July 1996)\n1. Retirement \u00a7 22 (NCI4th)\u2014 insurance contract not in record \u2014 applicability of ERISA undeterminable \u2014 dismissal error\nWhere the contract of insurance was not part of the record and there were no allegations asserting who paid the insurance premiums, it was impossible to determine from the pleadings whether the contract qualified under ERISA; therefore, it was error for the trial court to dismiss the complaint on the basis that plaintiffs claims are preempted by ERISA.\nAm Jur 2d, Pensions and Retirement Funds \u00a7\u00a7 1-98.\nRight of pension plan, as entity, to bring civil enforcement action under sec. 502 of Employee Retirement Income Security Act of 1974 (29 USCS sec. 1132). 67 ALR Fed. 947.\n2. Retirement \u00a7 22 (NCI4th)\u2014 ERISA claim \u2014 specificity required in complaint\nAssuming the employer\u2019s group insurance benefits policy was governed by ERISA, plaintiff employee\u2019s claim against the insurance company administering the policy for failure to pay her son\u2019s medical expenses was not required to be dismissed because plaintiff failed to allege that defendant did not have the discretion to deny the claim for benefits or that defendant abused its discretion in denying the claim, since the complaint needed only to give fair notice that plaintiff was a participant in the plan seeking to recover benefits under the plan.\nAm Jur 2d, Pensions and Retirement Funds \u00a7\u00a7 1-98.\n3. Parties \u00a7 12 (NCI4th)\u2014 injured minor as real party in interest \u2014 dismissal not required \u2014 substitution of parties permitted\nIn an action to recover medical expenses incurred by plaintiff\u2019s son, the child is the real party in interest, and the claim must be asserted by a general or testamentary guardian or by a guardian ad litem; however, failure to appoint a guardian of any type for the child does not require dismissal of the action, since, on remand, the real party in interest must be given a reasonable opportunity to be substituted as a party plaintiff.\nAm Jur 2d, Parties \u00a7\u00a7 34 et seq.\n4. Retirement \u00a7 22 (NCI4th)\u2014 ERISA action \u2014 extracontrae-tual damages unavailable\nExtracontractual damages for pain and suffering and emotional distress and punitive damages are not remedies within the scope of ERISA.\nAm Jur 2d, Pensions and Retirement Funds \u00a7\u00a7 1-98, 1230, 1231.\nRight of pension plan, as entity, to bring civil enforcement action under sec. 502 of Employee Retirement Income Security Act of 1974 (29 USCS sec. 1132). 67 ALR Fed. 947.\nAppeal by plaintiff from order entered 15 August 1995 in Gaston County Superior Court by Judge Robert Burroughs. Heard in the Court of Appeals 6 June 1996.\nMargaret A. Freeman for plaintiff-appellant, pro se.\nCansler, Lockhart, Campbell, Evans, Bryant & Garlitz, P.A., by George K. Evans, Jr. and Thomas D. Garlitz, for defendant-appellee."
  },
  "file_name": "0260-01",
  "first_page_order": 294,
  "last_page_order": 298
}