Barker v. Hartford Life and Accident Ins.Co., 2007 U.S.Dist.LEXIS 55532 (N.D.Tex. 7/31/2007)(Issue: ERISA Preemption of Concurrent Tort Claims).  The plaintiff, who suffered from several illnesses including acute leukemia, filed suit against Hartford after Hartford terminated his benefits.  Barker sought a temporary restraining order requiring the reinstatement of benefits, but Hartford granted Barker’s appeal before a ruling could be made and therefore mooted the motion for injunctive relief.  Barker nonetheless persisted in pursuing the litigation, seeking damages for intentional infliction of emotional distress.  This opinion is focused on whether such a claim is preempted by the ERISA law.

Hartford moved to dismiss on two separate bases.  First, Hartford maintained that the plaintiff failed to meet Texas’ requirements of pleading conduct so “extreme and outrageous” that it would constitute an intentional infliction of emotional distress.  The court pointed out that such conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” *6 (citation omitted).  In deciding whether the conduct complained of meets that standard, the court is to consider the context in which the conduct occurred and the parties’ relationship since the conduct could arise “from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” *7 (quoting from Restatement (Second) of Torts § 46 cmt 3 (1965)). 

The court determined that the allegations of the complaint met that standard.  Barker alleged that Hartford’s representatives called and attacked his credibility; and their belittling and humiliating conduct occurred within the context of his severe physical and psychiatric illnesses.  The court thus concluded, “To be sure, an insurer’s right to inquire about a customer’s entitlement to benefits does not extend to intentional and calculated humiliation and belittlement.” *11. 

Finding that the facts were sufficiently alleged, the court turned to the question of whether the intentional infliction of emotional distress claim was preempted by ERISA.  In an earlier order, the court found that ERISA’s broad preemption did not preclude the claim.  The court explained: 

[T]he right Barker has to be free from such hostile or intimidating treatment exists independently from his rights under his ERISA plan. If such claims were held to be preempted by ERISA, Barker would be subject to such treatment with no available recourse, and "a plan administrator could 'investigate' a claim in all manner of tortious ways with impunity." Erlandson [v. Liberty Life Assurance Co.], 320 F. Supp. 2d. [501, 508 (N.D. Tex. 2004)] (quoting Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 984 (9th Cir. 2001)). The fact that Barker does not seek recovery of benefits or damages defined by the terms of the Plan reinforces the conclusion that Barker's IIED claim is governed by state law and not ERISA. Thus, under the first prong of the Fifth Circuit test, this claim does not appear to address an area of exclusive federal concern. *13. 

The court added that the duties allegedly violated do not arise out of the terms of the plan but out of common law tort duties.  The court also determined that resolution of the IIED claim would not involve any interpretation or examination of plan terms since the question of “whether or not Defendant’s interviewing techniques are tortious does not require interpretation of the plan or clarify Barker’s benefits due under the Plan.”  *14.