Opinion
CIVIL ACTION NO. 01-2273 SECTION "N"
October 11, 2001
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Remand. For the following reasons the Motion is DENIED.
BACKGROUND
Defendant removed this case from the Civil District Court of the Parish of Orleans pursuant to Title 28 U.S.C. § 1441. The parties do not dispute that this matter is governed by ERISA and therefore within federal jurisdiction. The plaintiff has filed this motion to remand because he argues that the contract of insurance at issue contains a forum selection clause which gives to the insured the right to select the forum in which to try this case. The plaintiff further argues that the existence of the forum selection clause waived the defendant's right to remove the case to federal court despite the existence of a federal question.
LAW AND ANALYSIS
The health insurance policy at issue provides, in Article XXI, that "if you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or federal court." The plaintiff contends that this language amounts to a forum selection clause and therefore precludes the defendant from removing the case to federal court. The defendant asserts that this is nothing more than boilerplate language mandated by ERISA that employers give employees summary descriptions of plan benefits.
It is the established rule that "[a]n intent to waive the right to remove to federal court and submit to the jurisdiction of state court must be clear and unequivocal . . . ." Biggers v. State Farm Mutual Automobile Insurance Co., 1992 WL 266166 (E.D.La.) citing Carpenter v. Illinois Central Gulf Railroad Co., 524 F. Supp. 249, 251 (E.D.La. 1981). The language at issue is required to be given to employees under ERISA. Title 29 U.S.C. § 1022 (b) states that summary descriptions of plan benefits must be given to employees including the "remedies available under the Plan for the redress of claims which are denied in whole or in part." The sentence included in Article XXI is exactly the same language ERISA requires under 29 C.F.R. § 2520. 102-3(t)(2) to be put in benefit plans.
The plaintiff asserts that the inclusion of this sentence clearly demonstrates the defendant's waiver of its right to remove. In support of this position, the plaintiff cites jurisprudence in which courts have remanded cases to state court where contracts granted the insured the right to choose a forum. See City of Rose City v. Nutmeg Insurance Co., 931 F.2d 13, 14 (5th Cir. 1991); Foster v. Chesapeake Insurance Co., Ltd., 933 F.2d 1207 (3rd Cir. 1991); Milk N' More. Inc. v. Beavert, 963 F.2d 1342 (10th Cir. 1992). Those cases do not support the plaintiffs position.
First, the Milk N' More case is irrelevant as the contract at issue there clearly stated that the parties agreed to be governed by the laws of Kansas. There is nothing in the present contract that remotely resembles the forum selection clause in Milk N' More. Second, the wording of the plans in City of Rose and Foster unequivocally demonstrated the insured was given a choice of forums in which to pursue a claim. In City of Rose, the contract stated that "we, at your request agree to submit to the jurisdiction of any court of Competent jurisdiction...." 931 F.2d at 14. The Foster Court required Chesapeake to "submit to the jurisdiction of any court of competent jurisdiction within the United States. 933 F.2d at 1209. The plans in both cases clearly gave the insured a choice. However, the same cannot be said for the defendant's plan.
Finally, the plaintiff argues that Clorox Co. v. U.S. District Court for the Northern District of California, 779 F.2d 517 (9th Cir. 1985), is distinguishable from the present case because it involved an employee handbook rather than a contract. While the plaintiff is correct that this is a contract and Clorox involved a handbook, what is relevant is that the language used in the defendant's benefit plan is required under the federal regulations. In Clorox, the exact same sentence that is in the defendant's policy was included in an employee handbook. The Ninth Circuit held that this was required under ERISA and did not constitute a waiver of any removal right. Id. at 521. The cases that the plaintiff cites in support of his position that this was a forum selection clause contain language that is not present in the defendant's plan. The defendant's plan does not make it clear and unequivocal that the defendant waived its right to removal.
Alternatively, the plaintiff argues that the sentence is ambiguous and should therefore be construed against the drafter. The Court finds that it is not ambiguous. Article XXI clearly informs the insured what rights and protections they are entitled to under ERISA. The right to file suit in state or federal court is one of those rights. This language does not, however, clearly and unequivocally constitute a waiver of the defendant's removal rights.
Accordingly, IT IS ORDERED that the plaintiff's Motion to Remand is DENIED.