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Levine v. United Healthcare Corp.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


October 6, 2003

JEAN LEVINE, PLAINTIFF,
v.
UNITED HEALTHCARE CORP., DEFENDANT.
NOREEN BOGURSKI, PLAINTIFF,
v.
HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, DEFENDANT.
BENJAMIN EDMONSON, PLAINTIFF,
v.
HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, DEFENDANT.

The opinion of the court was delivered by: Jerome B. Simandle United States District Judge

OPINION

The present consolidated cases are before the Court on the motions of the parties for this Court to certify three issues for interlocutory appeal to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. § 1292(b). Defendants seek to appeal the Court's determination regarding two issues in the March 4, 2003 motion to dismiss decision, see Carducci v. Aetna U.S. Healthcare, 247 F. Supp. 2d 596 (D.N.J. 2003), and the plaintiffs seek to appeal the Court's determination regarding one issue in the May 28, 2002 motion to remand decision, see Carducci v. Aetna U.S. Healthcare, 204 F. Supp. 2d 796 (D.N.J. 2002). *fn1

Defendants wish to appeal the Court's finding that (1) the antisubrogation rule included in New Jersey's collateral source statute, as interpreted by the New Jersey Supreme Court in Perreira v. Rediger, 169 N.J. 339 (2001), applies to defendant health insurers because it is not conflict preempted under ERISA section 514(a) because it is "saved" as a state law that regulates insurance, *fn2 and (2) that the Perreira decision applies retroactively to plaintiffs' pre-Perreira health insurance plans. Plaintiffs seek to appeal the Court's finding that their unjust enrichment claims are claims for "benefits due" within the meaning of ERISA section 502(a), and therefore were properly removed to federal court.

The Court has considered the motions and has decided, for the reasons explained herein, to certify these three issues for interlocutory appeal. The Court will stay further proceedings before this Court pending resolution of this matter with the United States Court of Appeals for the Third Circuit.

I. BACKGROUND

The plaintiffs and defendants in these consolidated Employee Retirement Income Security Act of 1974 ("ERISA") cases seek leave to file an interlocutory appeal of three issues determined by this Court in two prior decisions, namely the motion to remand decision dated May 28, 2002, and the motion to dismiss decision dated March 4, 2003. *fn3 The contested issues involve complicated issues regarding ERISA, a 2001 New Jersey Supreme Court case Perreira v. Rediger, 169 N.J. 399 (2001), and New Jersey's law of retroactivity.

The New Jersey Supreme Court, in Perreira v. Rediger held that New Jersey's collateral source statute, N.J.S.A. 2A:15-97, *fn4 includes an antisubrogation rule which prevents health insurers who have expended funds on behalf of their insureds from recouping the funds through a subrogation or reimbursement liens in the event that an insured recovers from a third-party tortfeasor. The plaintiffs, who were insureds under employee benefit health plans, assert that their plans paid health benefits for their personal injuries and then placed subrogation or reimbursement liens on their tort recoveries should they recover from a third party tortfeasor. The plaintiffs alleged that the defendant health insurers were unjustly enriched by the liens since the liens are not permitted by New Jersey's collateral source statute as interpreted by Perreira.

In early 2002, the Court considered motions to remand which were filed by the plaintiffs. The issue before the Court was whether the monies that plaintiffs sought -- which were monies that the insurers took pursuant to the subrogation clauses in the employee benefit healthcare contracts -- were "benefits due" under ERISA section 502(a)(1)(B). This Court, in an Opinion and Order dated May 28, 2002, determined that the monies were "benefits due" under section 502(a)(1)(B), so that the state law unjust enrichment claims were completely preempted by federal law and were properly removed to federal court. See Carducci, et al. v. Aetna U.S. Healthcare, 204 F. Supp. 2d 796 (D.N.J. 2002). Plaintiffs presently seek to file an interlocutory appeal of the Court's determination of this issue. *fn5

Following the remand decision, the Court considered the consolidated defendants' motion to dismiss, which it denied on March 4, 2003. Carducci v. Aetna U.S. Healthcare, 247 F. Supp. 2d 596 (D.N.J. 2003). Defendants presently seek to file an interlocutory appeal of two of the Court's findings. The first is the Court's determination that plaintiffs' claims were not conflict preempted by ERISA section 514(a) because the New Jersey antisubrogation rule is saved from ERISA preemption as a state law regulating insurance. The second is the Court's finding that the New Jersey Supreme Court's 2001 decision in Perreira applies retroactively to plaintiffs' pre-Perreira insurance policies because it represents the prior law of New Jersey.

Defendants filed their present motion to certify the two motion to dismiss issues on March 18, 2003. Plaintiffs then filed their cross-motion to certify the motion to remand issue on April 7, 2003. The Court has considered the submissions of the parties, including their oral arguments on April 24, 2003, and finds, for the following reasons, that the three issues should be certified for interlocutory appeal.

II. DISCUSSION

The district court has discretion, pursuant to 28 U.S.C. § 1292(b), to certify issues for interlocutory appeal to the United States Court of Appeals, provided that "exceptional circumstances" justify the departure from the general rule that appellate review is only available after a final order. 28 U.S.C. §1292(b); *fn6 see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 2457 (1978); Hulmes v. Honda Motor Co., Ltd., 936 F. Supp 195, 208 (D.N.J. 1996), aff'd, 141 F.3d 1154 (3d Cir. 1998)); Carducci v. Aetna U.S. Healthcare, 2002 WL 31262100 (D.N.J. Jul. 24, 2002). To show that "exceptional circumstances" justify certification, the moving party bears the burden of showing (1) that the order at issue involves a controlling issue of law, which if erroneously decided, would result in reversible error on final appeal, (2) that there is substantial ground for difference of opinion about the resolution of the issue, and (3) that an immediate appeal will materially advance the ultimate termination of litigation. See Katz v. Carte Blanche Corp., 496 F.2d 747, 754-55 (3d Cir. 1984); Waldorf v. Borough of Kenilworth, 959 F. Supp. 675, 679 (D.N.J. 1997).

A. Defendants' Motion to Certify Two Issues in the March 4, 2003 Motion to Dismiss Decision
Defendants seek certification to appeal this Court's decision regarding two legal issues in the March 4, 2003 Opinion and Order, namely: (1) that the antisubrogation rule contained in New Jersey's collateral source statute, as interpreted by the New Jersey Supreme Court in Perreira v. Rediger, 169 N.J. 339 (2001), applies to defendant health insurers because it is "saved" from conflict preemption under ERISA section 514(a) as a state law that regulates insurance, and (2) that the Perreira decision applies retroactively to the pre-Perreira health insurance policies at issue in this case.

It is clear that these two issues are controlling issues in this matter and that certification of their appeal now could materially advance the termination of this litigation because an incorrect decision on either issue would result in reversible error on appeal. If, contrary to this Court's decision, the antisubrogation rule of N.J.S.A. 2A:15-97 is preempted by ERISA section 514(a), then the New Jersey antisubrogation rule would not apply to the defendant health insurers' ERISA plans and plaintiffs would be unable to assert rights arising under New Jersey law. Likewise, if the 2001 Perreira decision were to apply prospectively only, contrary to this Court's decision, then the plaintiffs could not obtain the protection of the Perreira antisubrogation rule because it would not apply to plaintiffs' pre-Perreira health insurance plans.

As a result, the main issue on this motion is whether defendants have shown that there are substantial grounds for difference of opinion regarding the Court's decision on these issues. The Court finds that there are, so that all three section 1292(b) requirements for interlocutory certification have been met and this Court will certify these issues for appeal.

1. Savings clause issue

There is a substantial ground for a difference of opinion on this Court's ERISA's insurance savings clause ruling, which is based on, what the United States Supreme Court has described as, "statutorily complex[]" preemption provisions. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (1987).

This Court, in its March 4, 2003 Opinion, explained then-existing law which was pertinent to the determination about whether a law "regulates insurance" under ERISA's savings clause. 29 U.S.C. § 1144(b)(2)(A); *fn7 Carducci, 247 F. Supp. 2d at 614-17. The law has since changed. At the time of this Court's March 4, 2003 decision, the Supreme Court required an inquiry which "start[ed] with a common-sense view of the matter under which a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry," focusing on the "primary elements of an insurance contract[, which] are the spreading and underwriting of a policyholder's risk." Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365-66 (2002) (quoting Metropolitan Life Ins. Co., 471 U.S. at 740; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987)). Then the court was to "test the results of the common-sense inquiry" by considering the three McCarran-Ferguson Act *fn8 factors which determine whether a law is an insurance law, namely whether the law targets practices that (1) have the "effect of transferring or spreading a policyholder's risk," (2) are an "integral part of the policy relationship between the insurer and the insured," and (3) are "limited to entities within the insurance industry." Rush Prudential, 122 S. Ct. at 2163 (quoting Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129 (1982)).

Since this Court's March 4th decision, the Supreme Court on April 2, 2003, issued its decision in Kentucky Association of Health Plans, Inc. v. Miller, 123 S. Ct. 1471 (2003). There, the Court decided to make a "clean break from the McCarran-Ferguson factors" because "our use of the McCarran-Ferguson case law in the ERISA context has misdirected attention, failed to provide clear guidance to lower federal courts, and . . . added little to the relevant analysis." Id. at 1478-79. As a result, the Court enunciated two requirements needed "for a state law to be deemed a `law . . . which regulates insurance' under section 1144(b)(2)(A)." Id. at 1479. First, the "state law must be specifically directed toward entities engaged in insurance." Id. Second, the "state law must substantially affect the risk pooling arrangement between the insurer and the insured." Id.

This Court's decision is supportable under both the law as it existed on March 4, 2003, and the law as it exists after the Miller decision. First, under the law of Rush Prudential and Pilot Life, the antisubrogation rule contained in the New Jersey collateral source statute is a state law directed toward the insurance industry because, according to the Perreira court, it was enacted to contain "spiraling insurance costs." The McCarran-Ferguson factors also support its status as a state insurance law because the antisubrogation rule (1) spreads a policyholder's risk by ensuring that health insurers will pay for medical costs arising from an insured's tort damages, (2) is an integral part of the policy relationship between the insurer and the insured because it "requires plan providers to calculate benefit levels and premium amounts with the knowledge that they will be unable to recover monies expended for injuries caused to their insured by a third person," and (3) only affects entities within the insurance industry because the New Jersey Supreme Court found that it targets the insurance industry and only applies to the insurance industry. Carducci, 247 F. Supp. 2d at 616-17. Second, under the law of Miller, the antisubrogation rule is a law regulating insurance because it (1) is specifically directed toward entities engaged in insurance as it ensures that the health insurers, and not the liability insurers, pay for tort injuries, and (2) substantially affects the risk pooling arrangement between the insurer and the insured because the Court has held that a rule which "governs whether or not an insurance company must cover [certain] claims . . . dictates to the insurance company the conditions under which it must pay for the risk it has assumed [and] certainly qualifies as a substantial effect on the risk pooling arrangement between the insurer and insured." See Miller, 123 S. Ct. at 1478 n.3. *fn9

Even though the Court's decision is supportable, the Court recognizes that the issues involved in this case are complex and subject to debate. Defendants assert that this Court erred by isolating the antisubrogation provision from the rest of the collateral source statute. According to their argument, if the "state law" at issue here were the collateral source statute in its entirety, instead of just the antisubrogation provision within it, this Court would have erred under either savings clause analysis. Under the law of Rush Prudential and Pilot Life, the collateral source statute would not be considered an insurance law because it is not specifically directed toward the insurance industry since it "applies in every case in which a plaintiff might obtain a double recovery, even when the rule has no impact whatsoever on the insurance industry," and because, under the McCarran-Ferguson factors, it (1) may not spread a policyholder's risk because health insurers accept the risk that an insured will be injured when they contract with the insured, regardless of the collateral source statute, *fn10 (2) it may not be an integral part of the policy relationship between the insurer and the insured if its only impact is on health insurance premiums, *fn11 and (3) it affects entities beyond the insurance industry because it applies in "all civil actions" to benefits from "any other source." *fn12 Under the law of Miller, defendants' arguments are basically the same, namely that the collateral source rule (1) is not specifically directed toward entities engaged in insurance because, by its express terms, it applies in "all civil actions" to amounts obtained from "any other source," and (2) does not substantially affect the risk pooling arrangement between the insurer and the insured because the insurer is required to provide benefits in the first instance regardless of the rule.

The Court can distinguish defendants' arguments and still concludes that its decision bears the correct analysis and result. See notes 10, 11, 12, supra. However, the issue on this motion is whether there is substantial ground for debate on this issue and this Court finds that the question involved here is admittedly complicated and sufficiently close that reasonable minds could disagree with this Court's conclusion. Therefore, this Court finds that it is appropriate to certify this issue for an interlocutory appeal to the Third Circuit at this point in the litigation.

2. Issue regarding retroactivity

The Court also finds that there is a substantial ground for disagreement about this Court's March 4, 2003 finding that the 2001 Perreira v. Rediger decision applies retroactively to govern the terms of the pre-Perreira insurance policies at issue here.

The Court, in its March 4th Opinion, explained New Jersey's law regarding the retrospective application of judicial decisions. See Carducci, 247 F. Supp. 2d at 617-19. In New Jersey, judicial decisions apply retrospectively unless the decision establishes a new rule of law that is a "sudden and generally unanticipated repudiation of a long-standing practice" and (1) the parties and the community justifiably relied on the prior rule, (2) the purpose of the new rule will not be advanced by retroactive application, and (3) retroactive application of the rule may have an adverse effect on the administration of justice. Reuter v. Borough Council of the Borough of Fort Lee, 167 N.J. 38, 42 (2001); State v. Afanador, 151 N.J. 41, 58 (1997); Coons v. Am. Honda Motor Co., 96 N.J. 419, 426 (1984).

The Court found that the antisubrogation rule, as interpreted by the Perreira court, should be applied retrospectively because the Perreira court found that the law of New Jersey regarding subrogation has always been reflected by the antisubrogation rule, and not by the contradictory insurance regulation considered in the opinion. *fn13 Thus, this Court found that the antisubrogation rule was not a sudden departure from the long-standing law of New Jersey because the New Jersey Supreme Court had found that the antisubrogation rule was the long-standing law of New Jersey. See Carducci, 247 F. Supp. 2d at 618.

Defendants have now presented additional arguments to support their argument that Perreira should not be applied retrospectively, arguing first that it is a sudden departure from existing law, and second that the other three requirements for prospective application have been met. While the Court's decision is still supportable in spite of the new arguments, the Court recognizes that they do raise substantial questions that should be determined by an interlocutory appeal at this time.

Defendants first argue that the Perreira decision should be considered a sudden departure from existing law because this Court "overlooked a well-settled element of New Jersey's doctrine on the retroactive application of judicial decisions" which allows for prospective application when "a court renders a first-instance or clarifying decision in a murky or uncertain area of the law, or when a member of the public could reasonably have relied on a different conception of the state of the law." SASCO v. Zudkewich, 166 N.J. 579, 594 (2001) (quoting Montells v. Haynes, 133 N.J. 282, 298 (1993); see also Reuter v. Borough Council of Borough of Fort Lee, 167 N.J. 38 (2001). *fn14

There are substantial questions about the retrospective application of the Perreira decision because it, like SASCO, overturned a regulation that defendants relied on and considered common practice in their industry. See N.J.A.C. 11:4-42.10. In SASCO, though, unlike here, the New Jersey Supreme Court applied its decision in a "purely prospective" manner so that it would not affect the parties before it who had relied on industry practice. SASCO, 166 N.J. at 594. In Perreira, the Supreme Court of New Jersey recognized that the defendant insurers had relied on the erroneous insurance regulation and still applied its decision retrospectively to the insurers before it. *fn15

Defendants argue, though, that this Court should not consider the fact that the Perreira court applied its decision retrospectively to the parties before it because New Jersey courts can follow one of four options when determining questions of retrospectivity, namely:

(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced;
(2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation;
(3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and
(4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted.
Coons, 96 N.J. at 425. The approach taken depends largely on "the court's view of what is just and consonant with public policy in the particular situation presented." Id. (quoting State v. Nash, 64 N.J. 464, 469 (1974)). Here, therefore, the New Jersey Supreme Court may have intended that option (2) be followed, in other words, that the Perreira decision be applied retrospectively to the Perreira parties, but not be applied to other pending cases.

Although this Court continues to believe that the Perreira court spoke definitively to apply its antisubrogation decision retrospectively, the Court finds that defendants have shown that its decision regarding the long-standing law of New Jersey and whether Perreira was a departure from that law, are close issues that should be clarified at this point.

Defendants also argue that there are substantial questions about this Court's findings on the other three factors required to justify prospective application. *fn16 For the first prong, they argue that they justifiably relied on the prior law of New Jersey when they relied on the insurance commissioner's regulation. This raises a question because the insurance companies had reason to believe that the insurance regulation was appropriate since administrative regulations are generally accorded a high degree of deference, see Perreira, 169 N.J. at 415. *fn17 For the second prong, defendants argue that the purpose of the Perreira rule will not be advanced by retroactive application because requiring the health insurers to pay plaintiffs for amounts taken will not "shift the burden of health costs away from liability insurers and onto health insurers" because the money is being returned to the plaintiffs and not to the liability insurers. *fn18 This argument, though valid, does assume that the liability insurers paid plaintiffs for the medical expenses that plaintiffs received health insurance coverage for, and the plaintiffs here have asserted that they were injured because they were not compensated for their injuries by either the liability insurer or the health insurer which, though it originally compensated them, took the compensation back via the reimbursement or subrogation lien. *fn19 For the third prong, defendants argue that there are substantial questions with the Court's decision because retroactive application of Perreira would have an adverse effect on the administration of justice because it will raise a "judicial mare's nest" of factual issues in every case about whether Perreira applies or whether the voluntary payment doctrine removes a prior settlement agreement from its reach. *fn20 It is true that the administration of justice may become more complicated if Perreira is applied retrospectively, but it is also clear that justice may require retrospective application to ensure that plaintiffs' medical expenses are compensated.

While the Court has considered defendants' arguments and has pointed out their weaknesses, the Court acknowledges that the issues here are complex and subject to debate, especially because of defendants' reliance on the permissive insurance regulation. "Questions of retroactivity for years have been considered `among the most difficult' problems that engage the attention of the courts, both state and federal." Coons, 96 N.J. at 424-25 (quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374 (1940)). Thus, this Court finds that the question of retroactivity here is a close issue that is subject to debate and should be certified for an appeal at this time in the litigation.

B. Plaintiffs' Motion to Certify the May 28, 2002 Order Denying Their Motion to Remand
Plaintiffs have not opposed defendants' motion to certify this Court's March 4, 2003 order; instead, they seek certification at the same time of this Court's May 28, 2002 decision which denied their motion to remand based on the Court's finding that plaintiffs' claims, although expressed under state law, are in fact for "benefits due" under the terms of their ERISA plan, and thus must be considered in federal court. See Carducci v. Aetna U.S. Healthcare, 204 F. Supp. 2d 796 (D.N.J. 2002); 29 U.S.C. § 1132(a)(1)(B). *fn21

Plaintiffs previously sought certification of the May 28, 2002 Opinion and Order, which was denied without prejudice in this Court's July 24, 2002 Opinion and Order. See Carducci v. Aetna U.S. Healthcare, 2002 WL 312621000 (D.N.J. Jul. 24, 2002). There, the Court found that the issue decided in the motion was a controlling question of law, but that plaintiffs failed to show that there was a substantial ground for disagreement about the issue or that certification of the issue would advance the ultimate termination of the litigation. *fn22 Plaintiffs assert that the calculus has changed at this stage of the litigation and that this issue should now be certified for interlocutory appeal. This Court agrees and will certify the issue.

Again the issue here revolves around whether there are substantial grounds for disagreement on this issue. It is again clear that the issue presented for review is a controlling question of law because if, contrary to this Court's decision, plaintiffs' claims are not claims for benefits due under their ERISA plans within the meaning of ERISA section 502(a)(1)(B), then this Court lacks federal jurisdiction over the action. Likewise, it is clear that certifying this issue now, in conjunction with the certification of defendants' appeal, would materially advance the ultimate termination of the litigation by providing the Third Circuit with all pertinent, and disputed, issues at once.

The principal issue, thus, is whether there are substantial grounds for debate about this Court's "benefits due" decision. Plaintiffs argue that "the situation now is very different than at the time of their original § 1292(b) motion" because subsequent decisions have shown that "substantial ground for difference does indeed exist with regard to this important jurisdictional issue." *fn23 (Pls.' Br. at 4 (citing Arana v. Ochsner Health Plan, Inc., 302 F.3d 462 (5th Cir. 2002), rehearing en banc granted, 319 F.3d 205 (2003); McKandes v. Blue Cross and Blue Shield Assoc., 243 F. Supp. 2d 380 (D. Md. 2003); Popoola v. MD-Indiv. Practice Assoc., 224 F. Supp. 2d 577 (D. Md. 2003)).

The Court finds that these subsequent cases can be distinguished from the present case, *fn24 but that they still show that the issue here is complex, controversial, pivotal to this Court's subject matter jurisdiction, and subject to debate. Therefore, the Court will also certify this issue for interlocutory appeal.

III. CONCLUSION

This Court has considered the motions of the parties seeking the certification of three issues for interlocutory appeal to the United States Court of Appeals for the Third Circuit and has found, for the foregoing reasons, that the three issues, namely

(1) whether the antisubrogation rule contained in N.J.S.A. 2A:15-97, as interpreted by the New Jersey Supreme Court in Perreira v. Rediger, 169 N.J. 339 (2001), applies to defendant health insurers because it is not conflict preempted under ERISA section 514(a) because it is "saved" as a state law that regulates insurance;
(2) whether Perreira v. Rediger, 169 N.J. 339 (2001), applies retroactively to plaintiffs' pre-Perreira health insurance plans; and
(3) whether plaintiffs' unjust enrichment claims for monies taken pursuant to subrogation and reimbursement provisions in their ERISA health plans are claims for "benefits due" within the meaning of ERISA section 502(a);
are controlling issues of law, around which there are substantial grounds for disagreement which should be resolved at this stage in the litigation. Thus, this Court will certify these three issues for appeal and will stay further action in these three consolidated cases pending the resolution of this matter before the United States Court of Appeals for the Third Circuit.

The accompanying Order is entered.

ORDER

This matter having come before the Court on the motion of defendants for this Court to certify for interlocutory appeal two issues determined in this Court's March 4, 2003 decision denying defendants' motion to dismiss, [Docket Item 27-1], and the motion of plaintiffs for this Court to certify for interlocutory appeal one issue determined in this Court's May 28, 2002 decision denying plaintiffs' motion to remand, [Docket Item 29-1], and the Court having considered the submissions of the parties and their oral arguments on April 24, 2003, and having found, for the reasons expressed in an Opinion of today's date, that the issues should be certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b);

IT IS this 6th day of October, 2003 hereby:

ORDERED that defendants' motion for this Court to certify for interlocutory appeal two issues determined in this Court's March 4, 2003 decision denying defendants' motion to dismiss, [Docket Item 27-1], be, and hereby is, GRANTED, and the following two issues are certified for interlocutory appeal:

(1) whether the antisubrogation rule contained in N.J.S.A. 2A:15-97, as interpreted by the New Jersey Supreme Court in Perreira v. Rediger, 169 N.J. 339 (2001), applies to defendant health insurers because it is not conflict preempted under ERISA section 514(a) because it is "saved" as a state law that regulates insurance; and
(2) whether Perreira v. Rediger, 169 N.J. 339 (2001), applies retroactively to plaintiffs' pre-Perreira health insurance plans; and
IT IS FURTHER ORDERED that plaintiffs' motion for this Court to certify for interlocutory appeal one issue determined in this Court's May 28, 2002 decision denying plaintiffs' motion to remand, [Docket Item 29-1], be, and hereby is, GRANTED and the following issue is certified for interlocutory appeal:

whether plaintiffs' unjust enrichment claims for monies taken pursuant to subrogation and reimbursement provisions in their ERISA health plans are claims for "benefits due" within the meaning of ERISA section 502(a); and
IT IS FURTHER ORDERED that proceedings in Levine v. United Healthcare Corp., Civil No. 01-4964 (JBS); Bogurski v. Horizon Blue Cross Blue Shield of New Jersey, Civil No. 01-5339 (JBS); and Edmonson v. Horizon Blue Cross Blue Shield of New Jersey, Civil No. 01-5812 (JBS), be, and hereby are, STAYED pending disposition of these issues before the United States Court of Appeals for the Third Circuit.

JEROME B. SIMANDLE United States District Judge


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