                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-1290


JAMES KUTHY, individually and as Personal
Representative of the Estate of Debra K.
Kuthy, deceased,

                                                 Plaintiff - Appellant,

          versus


BERNARD J. MANSHEIM; SCOTT L. SPRADLIN;
COVENTRY HEALTH CARE, INC.; CARELINK HEALTH
PLANS, INC.,

                                                Defendants - Appellees.


Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CA-03-108-5)


Submitted:   October 8, 2004                 Decided:   December 3, 2004


Before WILKINS, Chief Judge, NIEMEYER, Circuit Judge, and Glen E.
CONRAD, United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Patrick S. Cassidy, Wray V. Voegelin, Bradley H. Thompson, CASSIDY,
MYERS, COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,
for Appellant. Eric W. Iskra, Samuel M. Brock, III, Grant P. H.
Shuman, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:


           James Kuthy appeals a decision of the district court

denying his motion to remand and granting summary judgment against

him on grounds of preemption.      Finding that the issues raised are

controlled by Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004),

we affirm.


                                    I.

           After   a   long   struggle    with   non-Hodgkin’s   lymphoma,

Kuthy’s wife, Debra, died in May 2003.           Kuthy filed this medical

malpractice and wrongful death action in West Virginia state court

alleging state law claims against his wife’s HMO, Carelink Health

Plans, Inc. (Carelink); Coventry Health Care, Inc. (Coventry),

which owns Carelink; and two doctors who worked for Carelink and

Coventry, Bernard J. Mansheim and Scott L. Spradlin.1                Kuthy

alleged that the physicians breached their standard of care by

denying coverage for an experimental bone marrow transplant that

had been recommended by Ms. Kuthy’s treating physician.          Appellees

removed the case to federal court and moved to dismiss on the

ground   that   Kuthy’s   claims   were   completely   preempted   by   the

Employee Retirement Income Security Act of 1974 (ERISA), see 29

U.S.C.A. §§ 1001-1461 (West 1999 & Supp. 2004). The district court



     1
          We refer to Carelink, Coventry, Mansheim, and Spradlin
collectively as “Appellees.”

                                     2
denied Kuthy’s motion to remand.             Then, treating Appellees’ motion

to dismiss as a motion for summary judgment, the district court

granted    summary    judgment   in   favor      of   Appellees.2     Kuthy   now

appeals.


                                      II.

             “Congress clearly expressed an intent that the civil

enforcement provisions of ERISA § 502(a) be the exclusive vehicle

for actions by ERISA-plan participants and beneficiaries asserting

improper processing of a claim for benefits.”              Pilot Life Ins. Co.

v. Dedeaux, 481 U.S. 41, 52 (1987).             For a claim to be completely

preempted by ERISA, three requirements must be met:                    “(1) the

plaintiff must have standing under § 502(a) to pursue its claim;

(2) its claim must fall within the scope of an ERISA provision that

it can enforce via § 502(a); and (3) the claim must not be capable

of resolution without an interpretation of the contract governed by

federal    law,   i.e.,   an   ERISA-governed         employee   benefit   plan.”

Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366,

372   (4th   Cir.    2003)   (internal       quotation   marks   &   alterations

omitted).    Kuthy’s claims meet each of these requirements.

             First, Kuthy has standing to pursue an ERISA claim

because he, acting individually and as personal representative of



      2
          Prior to entering judgment, the district court granted
Kuthy twenty days in which to amend his complaint to assert a claim
under ERISA. Kuthy declined to do so.

                                         3
his   wife’s   estate,    is    “a    participant    or   beneficiary”       of   the

Carelink/Coventry plan.         29 U.S.C.A. § 1132(a)(1)(B) (West 1999).

           Second, Kuthy’s claims fall within the scope of an ERISA

provision.       Claims    that       challenge     an    insurance    company’s

interpretation of an ERISA-regulated plan fall within the scope of

ERISA.   See Davila, 124 S. Ct. at 2496:

           [I]f an individual brings suit complaining of
           a denial of coverage for medical care, where
           the individual is entitled to such coverage
           only   because    of   the   terms    of   an
           ERISA-regulated employee benefit plan, and
           where no legal duty (state or federal)
           independent of ERISA or the plan terms is
           violated, then the suit falls “within the
           scope of” ERISA § 502(a)(1)(B).

In Davila, the plaintiffs brought malpractice claims for “injuries

allegedly arising from [their insurance companies’] decisions not

to provide coverage for certain treatment and services recommended

by [plaintiffs’] treating physicians.”              Id. at 2493.      Because the

plaintiffs’     claims    stemmed       from   their      insurance    companies’

interpretations of ERISA-regulated plans, the Court ruled that

their malpractice claims implicated the same duties contained in

ERISA and were therefore completely preempted.                See id. at 2498.

The same is true here.           Kuthy alleges that Appellees committed

malpractice by failing to authorize an experimental bone marrow

transplant     recommended       by     his    wife’s     treating     physician.

Appellees’     decision    to    deny    coverage      was   based    upon    their

interpretation of a provision in the insurance plan that excluded


                                         4
experimental treatments.      Kuthy’s claim therefore falls within the

scope of ERISA.

           Finally, it is unquestioned that Kuthy’s insurance plan

is an ERISA-governed plan.      As all of the requirements set forth in

Sonoco   Prods.   Co.   are   met,   we   hold   that   Kuthy’s   claims   are

completely preempted by ERISA.        Kuthy’s motion to remand the case

was properly denied, see Davila, 124 S. Ct. at 2495, and summary

judgment in favor of Appellees was appropriate.


                                     III.

           For the reasons stated above, we affirm the judgment of

the district court.


                                                                    AFFIRMED




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