December 29, 1998
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
The jury's finding in plaintiffs favor on its causes of action for constructive fraud, negligent misrepresentation, unjust enrichment and violation of Insurance Law § 4226 was amply supported by the evidence showing that misrepresentations and omissions by defendant insurance company had induced plaintiff to pay exorbitant premiums for its group health coverage for policy years 1991 and 1992. The proof also supported the jury's awards of damages, both the punitive and compensatory, in the above amounts.
In addition to challenging the verdict as against the weight of the evidence, defendant contends that the subject action is preempted by the Federal Employee Retirement Income Security Act ([ERISA] 29 U.S.C. § 1001 et seq.). However, even if it were appropriate to disregard defendant's failure to raise the preemption issue as a defense in its answer or in its pretrial motions, defendant's preemption claim would still fail since defendant, at the time of the misrepresentations upon which plaintiffs fraud claim is premised, was merely engaged in the sale of additional insurance — an activity plainly subject to State regulation, ERISA notwithstanding — and not acting in the capacity of an ERISA claims fiduciary ( see, John Hancock Mut. Life Ins. Co. v. Harris Trust Sav. Bank, 510 U.S. 86, 99-100; Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 727-730).
We have considered defendant's remaining arguments and find them to be unpersuasive.
Concur — Lerner, P. J., Wallach, Tom and Andrias, JJ.