Dearth

I.

Introduction

Appellants, Carl A. Dearth and Kara Dearth (Dearths) brought the underlying action in the Superior Court of the County of Los Angeles against respondent Great Republic Life Insurance Company (Great Republic) and respondents David A. Nagler and Nagler & Nagler Insurance Agency (Nagler). The underlying action involves a policy of group health insurance (the Policy) issued by Great Republic to Dearth’s employer Pacemaker Enterprises Inc. (Pacemaker), a California corporation, covering Pacemaker’s employees.

Nagler acted as Great Republic’s agent in introducing the Policy to Pacemaker and its employees. Great Republic eventually refused to pay the *1262 Dearths certain benefits under the Policy, and Dearth brought suit against Great Republic and Nagler on a variety of related theories.

Great Republic moved for summary judgment below on the grounds that all of the claims of Dearth against it were preempted by virtue of the Employee Retirement Income Security Act of 1974 (ERISA) ( 29 U.S.C. § 1001 et seq.). Nagler joined in Great Republic’s Motion on the grounds that if the Policy is ERISA regulated, all causes of action against Nagler are also preempted.…

concur in the judgment as to the affirmance of summary judgment in favor of Great Republic. I respectfully dissent, however, from the affirmance of summary judgment in favor of Nagler.

The majority opinion uncritically accepts respondent’s position and rationale on all issues, including the question of ERISA preemption of all causes of action against the insurance agent. I am unable to do so. In particular, I find the recent Fifth Circuit opinion, Perkins v. Time Ins. Co. (5th Cir. 1990) 898 F.2d 470 , more persuasive and more relevant to the instant case than the two earlier, apparently contrary, Eleventh Circuit decisions—Farlow v. Union Cent. Life Ins. Co. (11th Cir. 1989) 874 F.2d 791 and Belasco v. W.K.P. Wilson & Sons, Inc. (11th Cir. 1987) 833 F.2d 277 .

According to the allegations of the complaint and the evidence before the court on summary judgment, here as in Perkins the defendant was an insurance agent. Here, as in Perkins , before the medical plan went into effect and while the plaintiffs were considering whether to participate, the defendant misled the plaintiffs about the extent of coverage under the plan he was selling. Here, as in Perkins , the plaintiffs thus…

WOODS (Fred), J. —

Appellants, Carl A. Dearth and Kara Dearth (Dearths) brought the underlying action in the Superior Court of the County of Los Angeles against respondent Great Republic Life Insurance Company (Great Republic) and respondents David A. Nagler and Nagler & Nagler Insurance Agency (Nagler). The underlying action involves a policy of group health insurance (the Policy) issued by Great Republic to Dearth's employer Pacemaker Enterprises Inc. (Pacemaker), a California corporation, covering Pacemaker's employees.

Nagler acted as Great Republic's agent in introducing the Policy to Pacemaker and its employees. Great Republic eventually refused to pay the Dearths certain benefits under the Policy, and Dearth brought suit against Great Republic and Nagler on a variety of related theories.

Great Republic moved for summary judgment below on the grounds that all of the claims of Dearth against it were preempted by virtue of the Employee Retirement Income Security Act of 1974 (ERISA) ( 29 U.S.C. § 1001 et seq.). Nagler joined in Great Republic's Motion on the grounds that if the Policy is ERISA regulated, all causes of action against Nagler are also preempted. The…