Parrino v. FHP, Inc.
146 F.3d 699
C.A.9 (Cal.),1998.
Insured under a health maintenance organization (HMO) plan sponsored by his employer sued the plan administrator and the plan's primary health care provider in state court, alleging that they improperly denied his initial claim for proton beam therapy as a treatment for a brain tumor which eventually killed him. Following removal, the United States District Court for the Central District of California, Terry J. Hatter, Jr., J., denied a motion to remand and then granted a motion to dismiss, and the insured's estate appealed. The Court of Appeals, Browning, Circuit Judge, held that: (1) the insured did not have to request an interlocutory appeal to preserve his objections to removal; (2) the provider's failure to join the administrator's removal notice until nearly two months after service, though a procedural defect, did not warrant reversal and remand; (3) removal jurisdiction existed under the Employee Retirement Income Security Act (ERISA); (4) ERISA preempted almost all of the claims; (5) the district court properly considered the Master Group Application in ruling on both motions; (6) the insured did not waive his dismissed claims by failing to reallege them in his amended complaint; and (7) the amended complaint failed to state spoliation claims.
Affirmed, SCOTUS denied cert.
Westlaw finds: 1438 citing documents.
Superseded by Statute as Stated in
Monarch Plumbing Co., Inc. v. Ranger Ins. Co., 2006 WL 2734391, *2+ (E.D.Cal. Sep 25, 2006)
Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir.(Cal.)
Declined to Extend by
Toshavik v. Alaska Airlines, Inc., 1999 WL 33456492, *1+ (D.Alaska Nov 15, 1999)
Distinguished by
Morales v. Safeway Stores, Inc., 2002 WL 202367, *2+ (N.D.Cal. Jan 30, 2002)
Positive Cases (U.S.A.)
Toshavik v. Alaska Airlines, Inc., 1999 WL 33946325, *1+ (D.Alaska Dec 21, 1999) (F.3d)
Mason v. Arizona, 260 F.Supp.2d 807, 814+ (D.Ariz. Mar 28, 2003)
Heath v. AT & T Corp., 2005 WL 2206498, *2+ (N.D.Cal. Sep 12, 2005)
Countrywide Home Loans, Inc. v. U.S. ex rel. I.R.S., (E.D.Cal. Apr 29, 2005)
