                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-1168



JACQUELINE MOORE, individually and as administrator of the
Estate of Keith Karwacki, deceased,

                Plaintiff - Appellant,

          v.


LIFE INSURANCE COMPANY OF NORTH AMERICA, a foreign corporation;
CIGNA CORPORATION, d/b/a Cigna Group Insurance, a foreign
corporation,

                Defendants - Appellees,

          and


METROPOLITAN LIFE INSURANCE COMPANY, a foreign corporation,

                Defendant,

          v.


SHARON L. KARWACKI; DEBORAH NAUGHTON,

                Third Party Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cv-00169-FPS)


Submitted:   April 7, 2008                  Decided:   May 15, 2008


Before MOTZ, TRAXLER, and KING, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.


Brent K. Kesner, Ellen R. Archibald, KESNER, KESNER & BRAMBLE,
PLLC, Charleston, West Virginia, for Appellant. John C. Lynch, Jon
S. Hubbard, TROUTMAN SANDERS LLP, Virginia Beach, Virginia; Damon
L. Ellis, MANI & ELLIS, PLLC, Charleston, West Virginia; Scott
Steven Blass, BORDAS & BORDAS, Wheeling, West Virginia for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

       Jacqueline Moore appeals the district court’s orders granting

Appellees LINA/CIGNA’s motion to dismiss her state law claims as

preempted    under    the     Employee   Retirement       Income     Security      Act

(“ERISA”),    29     U.S.C.     §    1132(a)(1)(B)       (2000)      and    granting

LINA/CIGNA’s motion for summary judgment as to the remaining claim.



                                         I.

       Around 2:00 a.m. on February 28, 2003, Moore’s son, Keith

Karwacki,    was    driving    his   motorcycle       without    a   helmet   at    an

estimated speed of 80 to 100 mph in a posted speed limit zone of 40

mph.    When he lost control and crashed into the rear of a street

sweeper traveling around 5 mph in the far right lane of an open

highway, he died instantly on impact.                 A toxicology report found

that Karwacki’s blood alcohol content was 0.16 percent at the time

of   the   crash,    double    Florida’s      legal    limit    of   0.08   percent.

Investigating police officers concluded Karwacki was the sole cause

of the crash due to the influence of alcohol.

       Karwacki was employed by American Airlines.                     Through his

employment, he was covered by an insurance policy issued by Life

Insurance Company of North America (“LINA”) and CIGNA Corporation

(“CIGNA”) that included accidental death and dismemberment (“AD&D”)

benefits. Moore submitted a claim for AD&D benefits to LINA, which




                                      - 3 -
denied the claim because it did not consider Karwacki’s death an

accident, due to his intoxication.1

     After exhausting administrative appeals, Moore filed a lawsuit

in West Virginia state court asserting various state law claims.

Moore denied that the policy fell under ERISA, but later amended

her complaint to include, in the alternative, a single count under

ERISA should it be determined that the AD&D policy was subject to

ERISA. LINA/CIGNA thereafter removed the case to federal court and

filed a motion to dismiss Moore’s state law claims as preempted by

ERISA.   The district court subsequently granted LINA/CIGNA’s Rule

12(b)(6) motion to dismiss, denied Moore’s Rule 59(e) motion to

alter or amend that decision, denied Moore’s Rule 54(b) motion to

certify the ruling as final, and granted LINA/CIGNA’s later motion

for summary judgment as to the remaining ERISA claim.



                                II.

     On appeal, Moore first claims the district court erred when it

granted LINA/CIGNA’s Rule 12(b)(6) motion to dismiss her state law

claims, arguing that the AD&D policy is not subject to ERISA.   We

review the district court’s decision to grant a motion to dismiss

de novo.   See Brooks v. City of Winston—Salem, 85 F.3d 178, 181

(4th Cir. 1996).   The factual allegations in the complaint must be



     1
      CIGNA was not involved in the administration of benefit
claims under the plan.

                               - 4 -
accepted as true and those facts must be construed in the light

most favorable to the plaintiff. Edwards v. City of Goldsboro, 178

F.3d 231, 244 (4th Cir. 1999).        A Rule 12(b)(6) dismissal motion

tests the sufficiency of a complaint, it does not resolve contests

surrounding the facts, the merits of a claim, or the applicability

of defenses.    Republican Party of N.C. v. Martin, 980 F.2d 943, 952

(4th Cir. 1992).

     With few exceptions, ERISA applies to all employee benefit

plans established or maintained by an employer engaged in commerce.

29 U.S.C.A. § 1003(a)(West 1999 & Supp. 2007).              “The existence of

a plan may be determined from the surrounding circumstances to the

extent that a reasonable person could ascertain the intended

benefits, beneficiaries, source of financing, and procedures for

receiving benefits.”    Custer v. Pan Am. Life Ins. Co., 12 F.3d 410,

417 (4th Cir. 1993) (quoting Donovan v. Dillingham, 688 F.2d 1367,

1373 (11th Cir. 1982) (en banc)).      “Thus, for ERISA to apply, there

must be (1) a plan, fund or program, (2) established or maintained

(3) by an employer, employee organization, or both, (4) for the

purpose    of   providing   a   benefit,   (5)    to    employees   or      their

beneficiaries.”     Custer, 12 F.3d at 417.           By regulation, certain

group insurance programs are excluded from ERISA if they meet four

requirements:

     (1)    No contributions are made            by   the   employer   or
            employee organization;



                                   - 5 -
      (2)    Participation   in  the   program   is           completely
             voluntary for employees or members;

      (3)    The sole functions of the employer or employee
             organization with respect to the program are,
             without endorsing the program, to permit the
             insurer to publicize the program to employees or
             members, to collect premiums through payroll
             deductions or dues checkoffs and to remit them to
             the insurer; and

      (4)    The employer or employee organization receives no
             consideration in the form of cash or otherwise in
             connection with the program, other than reasonable
             compensation,     excluding    any   profit,     for
             administrative   services   actually   rendered   in
             connection   with   payroll   deductions   or   dues
             checkoffs.

29 C.F.R. § 2510.3-1(j) (2007).              There must be some payment and

manifestation of intent by the employer or employee organization to

provide a benefit to the employees or the employees’ beneficiaries

of the type described in 29 U.S.C. § 1002(1).

      Here, the district court found that the policy was subject to

ERISA and, therefore, that the state law claims were preempted.

However, when evaluating whether ERISA preempted the state law

claims, LINA/CIGNA had not yet provided a copy of the policy at

issue or a summary of its provisions to the court.              Consequently,

the district court relied solely upon the allegations of Moore’s

complaint and, in particular, Moore’s alternative assertion in the

amended complaint that the policy is part of an “employee benefit

plan” pursuant to the provisions of ERISA. The district court also

relied upon Moore’s allegations that all premiums for the policy

had   been   paid   as   due,   that   the     insurance   companies   provided

                                       - 6 -
benefits for one of the statute’s specified benefit purposes, and

that   the    policies   issued   by    LINA/CIGNA    provided   benefits     to

eligible employee participants, including intended beneficiary

Karwacki.

       The parties did not address the § 2510.3-1(j) exception prior

to LINA/CIGNA’s 12(b)(6) motion to dismiss, and the district court

did not address the exception in its order.                    However, Moore

contended from the outset that her claims did not fall within

ERISA, asserted the ERISA claim only in the alternative, and argued

that    the    alternative     count     should     not   be   considered     an

acknowledgment of the policy’s status as an ERISA plan.                       In

addition, Moore asserted that the motion to dismiss under ERISA was

premature because LINA/CIGNA had not yet served their Rule 26(a)(1)

disclosures and because discovery on the issue was necessary to

determine the status of the policy.            In short, Moore asked that the

court stay or defer ruling on the motion to dismiss her state law

claims under ERISA until LINA/CIGNA had established that the policy

was, in fact, an ERISA plan.

       Shortly   after   the   district    court     granted   the   motion   to

dismiss, Moore filed a motion to alter or amend the order under

Rule 59(e), along with a copy of the policy, based specifically

upon the exception, arguing that new facts had come to light

(including production of the policy claim file and a copy of the

policy at issue) that demonstrated that the policy was not subject


                                       - 7 -
to ERISA as a matter of law and, more specifically, that § 2510.3-

1(j) applied.   In the alternative, Moore sought relief under Rule

54(b), asking the district court to certify the Rule 12(b)(6)

dismissal as a final and appealable order.

     The district court denied the motion to alter or amend on

procedural grounds, ruling that because Rule 59(e) motions only

apply to final judgments and the Rule 12(b)(6) motion was an

interlocutory ruling, the Rule 59(e) motion was not appropriate.

The district court also denied Moore’s Rule 54(b) request to

certify the Rule 12(b)(6) ruling as final.            Consequently, the

district court did not reach the merits of the § 2510.3-1(j)

exception and has, to date, never specifically addressed the

question of whether the exception applies.2



                                   III.

     We   conclude   that   the   district   court   erred   in    granting

LINA/CIGNA’s motion to dismiss Moore’s state law claims based

solely upon the allegations of the complaint and, in particular,

upon the alternative ERISA count that Moore alleged in the event

the policy was demonstrated to be subject to ERISA.               While the

§ 2510.3-1(j) exception was not raised by Moore until the motion to



     2
      We express no opinion as to the merits of the exception, but
note that it appears that American Airlines collected premiums
through payroll deductions, but apparently did not contribute
anything itself. It is unclear if it had any other function.

                                  - 8 -
alter or amend was filed, the AD&D policy was not before the

district court for consideration at the time the Rule 12(b)(6)

motion was granted.    Moore at all times argued in opposition to

that motion that a ruling was premature and specifically requested

that the ruling be delayed pending LINA/CIGNA’s production of

information and evidence refuting her primary allegation that the

claims arose not under an ERISA plan, but rather pursuant to West

Virginia state law.3

     We agree that the district court’s dismissal of Moore’s state

law claims for failure to state a claim under Rule 12(b)(6) was

premature and, without further inquiry of LINA/CIGNA or examination

of the policy at issue, in error.      Accordingly, we reverse the

district court’s order granting LINA/CIGNA’s motion to dismiss the

state law claims and remand the case to the district court for

further proceedings as to whether the policy is subject to ERISA or

excluded under the § 2510.3-1(j) exception.    We also vacate the

district court’s decision granting LINA/CIGNA’s motion for summary


     3
      The proper vehicle for Moore to have raised a motion to
reconsider was Rule 54(b), which also provides that, in the absence
of certification under the first sentence, “the order or other form
of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities
of all the parties.” Fed. R. Civ. P. 54(b). Here, Moore filed a
motion to alter or amend under Rule 59(e) and, in the alternative,
for certification under Rule 54(b). Although we conclude that the
Rule 12(b)(6) dismissal was erroneous in its own right, we think it
would have been proper for the district court to have reconsidered
the interlocutory ruling under the second sentence of Rule 54(b)
and, thereby, to have addressed the § 2510.3-1(j) exception at that
time.

                               - 9 -
judgment as to Moore’s alternative ERISA count, expressing no

opinion as to the merits of that decision.     Should the district

court determine that the AD&D policy is subject to ERISA on remand

and dismiss the state law claims anew on that basis, it is free to

reconsider the motion for summary judgment as to the ERISA count at

that time.   We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                             REVERSED AND REMANDED




                              - 10 -
