United States Ninth Circuit

In an action claiming that a state's practice of disapproving insurance policies with clauses vesting discretion in insurers violated the Employee Retirement Income Security Act (ERISA), summary judgment for defendant-state insurance commissioner is affirmed where: 1) the state's bar on discretionary clauses addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans; and 2) the commissioner's practice merely alters the terms by which the presence or absence of the insured contingency is determined; and 3) thus, the state regulatory scheme was saved from preemption under 29 U.S.C. section 1144(a) by the savings clause in section 1144(b).

Appellate Information

• Argued 06/03/2009
• Decided 10/28/2009
• Published 10/28/2009

Judges

• O'SCANNLAIN, Circuit Judge:, Before:  ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN, and RAYMOND C. FISHER, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Meir Feder, Jones Day, LLP, New York, NY, argued the cause for the plaintiff-appellant and filed the briefs.  Phineas E. Leahey, Shawn Hanson, Katherine Ritchey, and Lara Kollios were also on the briefs., Jeremiah J. Morgan, Bryan Cave, LLP, Kansas City, MO, filed a brief on behalf of amici curiae National Association of Insurance Commissioners., Mary Ellen Signorille, AARP Foundation Litigation, Washington, DC, filed a brief on behalf of amici curiae AARP. Melvin R. Radowitz, AARP, was also on the brief.


• For Appellees:
  
• James G. Hunt, Hunt Law Firm, Helena, MT, argued the cause for the defendant-appellee and filed the briefs.