Case — continued from Previous Page
Paul Revere Life Ins. Co. (9th Cir. 1998) 145 F.3d 1118, 1120, n.2.) Most courts will determine that a benefit is part of an ERISA plan if the
coverage was provided as an employee benefit. An ERISA policy will usually be issued in the name of the employer, employee group, or the benefit plan itself,
instead of the individual claimant. But there are important exceptions carved out by statute and case law: • Benefit plans for employees of the gov- ernment and public agencies are exempt from ERISA. (29 U.S.C. § 1003(b)(1).) • Also exempt are benefit plans for employees of churches or church-operated businesses, unless the employer properly elected to fall under ERISA. (29 U.S.C. § 1003(b)(2).) • Policies issued to sole proprietors, part- ners, and their spouses are not ERISA preempted, so long as the business does not provide benefits under the policy to any common-law employees. A single employee can render the entire plan ERISA preempted. (29 C.F.R. § 2510.3- 3(b), (c)(1), (c)(2); Kennedy v. Allied Mut. Ins. Co. (9th Cir. 1991) 952 F.2d 262, 264.) • An independent contractor is not an “employee” and is therefore not subject to ERISA preemption, unless he obtains insurance benefits through the same group plan that covers employees of the company. (Harper v. American Chambers Life Ins. Co. (9th Cir. 1990) 898 F.2d 1432, 1434.) • ERISA preemption does not extend to claims arising under an individual policy, even though the coverage was initially obtained as part of an ERISA plan, if that coverage was converted to a new individ- ual insurance policy. (Waks v. Empire Blue Cross/Blue Shield (9th Cir. 2001) 263 F.3d 872, 874.) • Some courts have suggested that a plan is not “established or maintained” by an employer under 29 U.S.C. § 1002(1) unless the employer intended to create an ERISA plan. (See Kanne, 867 F.2d at 493; Stanton v. Paul Revere Life Ins. Co. (S.D. Cal. 1999) 37 F. Supp. 2d 1159, 1163.) Other courts have held that an employer has not “established or maintained” an ERISA plan if its activities were limited to “ministerial function[s] that [are] ancil- lary to other activities that create no ERISA plan under the safe harbor regula- tions,” such as verifying full-time employ- ment status for the insurance company. (Zavora, 145 F.3d at 1122.) Still others have indicated that an ERISA plan has not been “established” where the insurer
68— The Advocate Magazine JUNE 2011
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