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