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Charles W. Burson, Attorney General, George P.

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Lesley C. Green and Russell G. Thomas E. Shardlow and Patricia G. Henry Solano, Marc I. Spencer Letts, District Judge, Presiding. The Opinion filed May 8,is withdrawn. A revised Opinion has been filed in its place. With the amendments made in the revised Opinion, the panel has voted unanimously to deny the petition for rehearing. Judge T. Nelson and Judge Berzon deny the petition for rehearing en banc and Judge Beezer so recommends.

The full court has been advised of the suggestion for rehearing en banc and no active judges has requested a vote on whether to rehear the matter en banc. On cross-appeal, Dishman asserts that the district court erroneously dismissed as preempted his state law tort claim. We affirm in part and reverse in part. After granting Dishman's claim for disability benefits, UNUM sought and obtained two reports from Dishman's neurologist confirming the severity of Dishman's condition, which had afflicted him since childhood.

Moreover, the vocational expert UNUM retained to evaluate Dishman recommended settlement because 1 Dishman's medical record Woman seeking sex tonight Dishman established" the presence and duration of his condition; 2 Dishman had gone to great lengths to remedy it; 3 Dishman had made "numerous attempts to overcome his disability and improve his work capacity" without avail; and 4 "further medical information was unlikely to render information useful to his claim.

John w. dishman, plaintiff-appellee-cross-appellant, v. unum life insurance company of america; the adams, duque & hazeltine long term disability income plan, defendants-appellants-cross-appellees, f.3d (9th cir. )

Puthoff hired several private investigative agencies to do a "work and sports check" on Dishman, and asked him to submit to two "Independent Medical Evaluations" "IMEs"one with a neurologist and another with a forensic psychiatrist. Neither of those IMEs ever came to pass. One of the"work and sports checks" Puthoff ordered returned ambiguous information suggesting that Dishman might be employed by Semiotix, Inc.

The report, which allegedly resulted from an investigator's impersonation of a bank lender, did not indicate the amount Dishman was being paid, or whether any payments were the result of Dishman's ownership of a minority interest in the business. Nonetheless, on the strength of that report and another indicating that Dishman had traveled to Denver three times and was Chairman of the Board of Semiotix, Puthoff telephoned Dishman on July 18, Woman seeking sex tonight Dishman, and informed him that she was terminating his benefits and canceling the appointments with the neurologist 1 and psychiatrist.

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Prior to this call, Dishman had no knowledge that UNUM was investigating his claim or giving any thought to stopping benefits payments Woman seeking sex tonight Dishman him. Dishman informed Puthoff that he was not employed by Semiotix and that her information was incorrect. Upon learning this, Puthoff told Dishman she was going to"suspend" his benefits rather than deny his claim and that he was to provide her with a statement explaining his relationship with Semiotix, his travel to Colorado, and his investment in any other business, as well as copies of his and Semiotix' and tax returns.

UNUM suspended Dishman's benefits without receiving any medical opinion that Dishman was no longer disabled, or that the activities it thought he might be engaged in indicated that he was capable of performing his "own occupation," as his policy required.

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UNUM made no effort to ascertain whether any money Dishman might have received from Semiotix was sufficient to require a reduction in benefits payment under the terms of the contract. UNUM, moreover, received two additional investigative reports after July 18,stating that Dishman was not an employee of Semiotix. After Dishman retained an attorney, a series of correspondence ensued. Upon being told that he had no administrative recourse, Dishman filed the instant suit. In addition to his claims relating to nonpayment of disability benefits, Dishman's complaint alleged that UNUM was vicariously liable for the tortious invasion of privacy perpetrated by the several investigative firms it hired.

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In Februarythe district court dismissed this state law claim without a hearing, presumably because it thought the claim was preempted by ERISA. A bench trial on UNUM's "suspension" of benefits ensued, with the result that Dishman prevailed on all his claims.

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UNUM appealed the bench trial judgment and fee award, and Dishman cross-appealed the dismissal of his state law cause of action. In a memorandum disposition, we held that neither order was an appealable final order because the district court included a line in each to the effect that it might amend or amplify the orders at a later date. On Dishman's motion, the district court issued a "Modified Judgment and Order" on April 20,that removed that line from the judgment resulting from the trial.

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On January 29,pursuant to our suggestion, the court excised the same line from the order dismissing Woman seeking sex tonight Dishman invasion of privacy claim. Now that both orders are final, we have jurisdiction to consider the parties' claims on appeal. The district court apparently agreed, as it granted UNUM's motion to dismiss this claim.

As we noted in Rutledge v. The problem is this: 29 U. Travelers Insurance Co. As the Supreme Court explained in Travelers," [t]he basic thrust of the pre-emption clause. Delta Air Lines, Inc. Holliday, 20 which required plan providers to calculate benefit levels in Pennsylvania differently than elsewhere, and the New Jersey law at issue in Alessi v. Raybestos-Manhattan, Inc. More recently, the Supreme Court found that a Washington statute that provided for automatic revocation, upon divorce, of any deation of a spouse as a beneficiary of a non-probate asset posed the same problem.

California's common law tort remedy for an "unreasonably intrusive" investigation that amounts to an invasion of privacy 27 bears scant resemblance to the laws the Supreme Court has found violative of this first principle.

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By no stretch of the imagination can it be said to "mandate employee benefit structures or their administration" as the laws at issue in Shaw and Egelhoff did. This tort remedy, moreover, is entirely unlike the Pennsylvania law in Holliday or the New Jersey law found preempted in Alessi. Travelers also pointed out, however, that state laws may be preempted for another reason: they may provide "alternative enforcement mechanisms" that relate to ERISA plans.

McClendon, 30 in which a former employee brought a wrongful discharge cause of action alleging that his employer discharged him to avoid vesting of ERISA benefits. Dedeaux, 33 these include claims for tortious breach of contract, breach of fiduciary duty, and fraud in the inducement.

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Consistent with Pilot Life's teaching, in Bast v. Prudential Insurance Co. In so doing, we characterized these torts as causes of Woman seeking sex tonight Dishman "asserting improper processing of a claim for benefits under an insured employee benefit plan. If Prudential had authorized the requested treatment, there would have been no loss of consortium, no breach of contract, and presumably no emotional distress. The Basts, every bit as much as the discharged plaintiff in Ingersoll-Rand, were seeking an "alternative enforcement mechanism.

The Basts' intentional infliction of emotional distress claim was preempted because the emotional distress they allegedly suffered arose from Prudential's failure to timely pay them benefits. The harm they suffered was inextricably intertwined with the plan's decision not to pay. Thus, to find Prudential liable for intentional infliction of emotional distress for not paying benefits would be tantamount to compelling benefits, which assuredly "encroaches on the relationships regulated by ERISA.

As he notes, his damages for invasion of privacy remain whether or not UNUM ultimately pays his claim. His tort claim does not depend on or derive from his claim for benefits in any meaningful way.

State v. dishman

UNUM argues that Dishman's claim must "relate to " the plan, because but for the plan's relationship of insurer and insured, UNUM would have had no need to investigate Dishman's claim of disability. Obviously, at some level Dishman's tort claim relates to the plan. That cannot be denied. But that cannot be the end of the analysis, either, for as we know," [p]re-emption does not occur.

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The fact that the conduct at issue allegedly occurred "in the course of UNUM's administration of the plan" does not create a relationship sufficient to warrant preemption. If that were the case, a plan administrator could "investigate" a claim in all manner of tortious ways with impunity. Would the fact that the surveillance was intended to shed light on his claim shield UNUM and the investigator from liability?

What if UNUM had tapped Dishman's phone, put a tracer on his car, or trained a video camera into his bedroom in an effort to obtain information?

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Must that be tolerated simply because it is done purportedly in furtherance of plan administration? To ask the question is to answer it. Though there is clearly some relationship between the conduct alleged and the administration of the plan, it is not enough of a relationship to warrant preemption.

We are certain that the objective of Congress in crafting Section a was not to provide ERISA administrators with blanket immunity from garden variety torts which only peripherally impact daily plan administration. Accordingly, the district court's dismissal is reversed, and the state law claim is remanded for further proceedings.

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Federal courts have authority to enforce the exhaustion requirement in ERISA actions, "and [ ] as a matter of sound policy they should usually do so. The district court excused Dishman's failure to exhaust his administrative remedies because it found that UNUM gave him inadequate notice of both the denial of his claim and the available appeals procedure.

The district court's findings of fact amply support this determination. For Woman seeking sex tonight Dishman, the court found that on July 18,Puthoff called Dishman and told him she was denying his claim. She later retreated somewhat and said she was merely "suspending" his benefits until he provided certain tax and employment information.

UNUM ignored this first request for information, prompting Dishman to repeat it. In response to the inquiry, "Does UNUM have any procedures applicable to the suspension and threatened termination of Mr. Dishman's benefits? If so, is UNUM willing to provide me with a copy? We find nothing in the record to suggest that these facts are clearly erroneous.

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The district court's decision to excuse Dishman's failure to exhaust his administrative remedies is further supported by the fact that the district court offered, earnestly and in good faith, to allow UNUM thirty days to undertake its administrative process, and UNUM rejected that offer. When the court repeated and clarified its offer, UNUM's counsel denigrated the proposition, thinking aloud about the repercussions on the administrative record and any subsequent standard of review.

Under these circumstances, it was not an abuse of discretion for the court to excuse Dishman's failure to exhaust his administrative remedies.

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The court properly upheld Dishman's decision to proceed directly to suit. Although there was no administrative Woman seeking sex tonight Dishman, UNUM contends that the district court should have limited its de novo review of UNUM's decision to deny Dishman benefits to the contents of the administrative record. This argument lacks merit. It is true that in Kearney v. Standard Insurance Co. Baxter Travenol Long Term Disability Benefit Plan, 45 we recognized that the administrative record need not serve as the exclusive basis for review.

A district court may, in its discretion, allow evidence that was not before the plan administrator"when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision. We find no abuse of discretion here, either. Thus, Dishman, unlike the plaintiff in Kearney, could not have "easily. In this case, there was no administrative process to speak of, and hence there is no administrative record.

Thus, the need to introduce evidence from outside the record to facilitate de novo review is stronger here than in Mongeluzo, where the administrative record found wanting was present but flawed. UNUM's argument to the contrary is not persuasive.