       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       COB Clearinghouse Corp. v. Aetna                No. 02-3645
    ELECTRONIC CITATION: 2004 FED App. 0097P (6th Cir.)           U.S. Healthcare, Inc., et al.
                File Name: 04a0097p.06
                                                                    Before: SILER and COOK, Circuit Judges;
                                                                         BERTELSMAN, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                     COUNSEL

COB CLEARINGHOUSE                  X                      ARGUED: Steven M. Ott, OTT & ASSOCIATES,
CORPORATION , also known as         -                     Cleveland, Ohio, for Appellant. Andrew S. Pollis, HAHN,
                                    -                     LOESER & PARKS, Cleveland, Ohio, for Appellees.
Digital Healthcare, Inc.,                                 ON BRIEF: Steven M. Ott, OTT & ASSOCIATES,
                                    -  No. 02-3645
           Plaintiff-Appellant,     -                     Cleveland, Ohio, for Appellant. Andrew S. Pollis, Robert J.
                                     >                    Fogarty, HAHN, LOESER & PARKS, Cleveland, Ohio,
                                    ,
            v.                                            Mark J. Schwemler, ELLIOTT, REIHNER, SIEDZKOWSKI
                                    -                     & EGAN, Blue Bell, Pennsylvania, Christopher S. Williams,
                                    -                     Henry G. Grendell, CALFEE, HALTER & GRISWOLD,
AETNA U.S. HEALTHCARE ,             -                     Cleveland, Ohio, Shaunda A. Patterson-Strachan, Stephen H.
INC.; GREAT WEST LIFE AND           -                     Goldberg, Waldemar J. Pflepsen, Jr., JORDEN BURT LLP,
ANNUITY INSURANCE CO .;             -                     Washington, D.C., for Appellees.
                                    -
BLUE CROSS & BLUE SHIELD
                                    -                                           _________________
OF KANSAS CITY;                     -
CONNECTICUT GENERAL LIFE            -                                               OPINION
INSURANCE COMPANY ,                 -                                           _________________
         Defendants-Appellees. -
                                    -                       COOK, Circuit Judge.            Plaintiff-Appellant, COB
                                    -                     Clearinghouse Corp. (COB), appeals the district court’s
                                   N                      dismissal of its claims against Aetna U.S. Healthcare, Inc.,
       Appeal from the United States District Court       Great West Life and Annuity Insurance Company, Blue Cross
      for the Northern District of Ohio at Cleveland.     and Blue Shield of Kansas City, and Connecticut General Life
  No. 02-00020—Patricia A. Gaughan, District Judge.       Insurance Co. (collectively the Insurers). We affirm.

              Argued: December 12, 2003

           Decided and Filed: April 5, 2004

                                                              *
                                                                The Honorable William O. Bertelsman, United States District Judge
                                                          for the Eastern District of Kentucky, sitting by designation.

                            1
No. 02-3645          COB Clearinghouse Corp. v. Aetna               3    4        COB Clearinghouse Corp. v. Aetna                  No. 02-3645
                           U.S. Healthcare, Inc., et al.                          U.S. Healthcare, Inc., et al.

                       I. BACKGROUND                                     district court had no subject matter jurisdiction over the case.2
                                                                         Counts Three through Five were dismissed as state law claims
                          A. Procedure                                   which were preempted by ERISA. COB has appealed only
                                                                         the district court’s dismissal of Counts One and Two.
  COB filed a Complaint against the Insurers, alleging that it
was an authorized agent of Goodyear Tire & Rubber                                         B. Coordination of Benefits Issues
(Goodyear), Bridgestone-Firestone, Inc. (Bridgestone),
Babcock & Wilcox, Progressive Processing, Inc.                             COB’s Complaint raised allegations relating to
(Progressive), FirstMerit Bank (FirstMerit), Cambridge                   “coordination of benefits” issues. The necessity for health
Industries, Inc. (Cambridge), and State Industries, Inc. (State)         insurers to coordinate health benefits arises when two (or
(collectively the Employers). The Employers provide                      more) health care plans provide benefits to the same
ERISA-regulated health care benefits plans to their employees            individual. The insurers must then determine who is
and their employees’ dependents. COB claimed that it                     primarily and who is secondarily liable for the payment of
represented the interests of the Employers pursuant to                   that individual’s health care benefits. This determination can
contracts it had entered into with each Employer.                        sometimes be made by reviewing the provisions of the
                                                                         individual insurance contracts. In some instances, however,
  The Insurers, on the other hand, contracted with different             the insurance contracts may conflict. For example, each may
employers to provide similar health care benefits through                state that it provides only secondary coverage under the
non-ERISA health insurance policies.                                     circumstances. See McGurl v. Trucking Employees of North
                                                                         Jersey Welfare Fund, Inc., 124 F.3d 471, 473 (3d Cir. 1997).
  The Complaint set forth five claims. Count One alleged a               Many states, including Ohio,3 have resolved these conflicts
violation of the Employee Retirement Income Security Act                 by adopting part or all of the Model Regulations set forth by
(“ERISA”), and Count Two alleged “federal common law                     the National Association of Insurance Commissioners
claims.” Counts Three through Five alleged claims for unfair             (NAIC), an independent group of state insurance regulatory
and deceptive insurance practices, bad faith, and unjust                 commissioners. See McGurl, 124 F.3d at 483.4 That state
enrichment.
   The Insurers1 filed Motions to Dismiss the Complaint                      2
pursuant to Federal Rules of Civil Procedure 12(b)(1) and                      The district court also found that Counts One and Two failed to state
                                                                         a claim upon which relief could be granted. COB alleged several errors
12(b)(6), arguing that COB lacked standing to bring the                  challenging that determination, and the Insurers alleged an alternative
claims and failed to state a claim upon which relief could be            argument for affirming the district court’s decision. Due to our
granted. The district court agreed, finding that COB had no              disposition of the issue of CO B’s standing, it is not necessary for us to
standing to bring Counts One and Two and, therefore, the                 address these other issues.

                                                                             3
                                                                                 See Ohio Adm inistrative Code § 3901 -1-56(G).

    1                                                                        4
     Aetna filed a Motion to Dismiss, in which Connecticut General and        In some cases, the insurance policy at issue may also incorporate the
Great-West joined. Upon disposition, the district court also granted a   provisions of the NAIC Mode l Regu lations. See Bap tist Mem’l Hosp. v.
dismissal, sua sponte, to Blue Cross & Blue Shield.                      Pan American Life Ins. Co., 45 F.3d 992 , 995 (6th Cir. 1995).
No. 02-3645        COB Clearinghouse Corp. v. Aetna          5    6      COB Clearinghouse Corp. v. Aetna           No. 02-3645
                         U.S. Healthcare, Inc., et al.                   U.S. Healthcare, Inc., et al.

law would apply in cases where coordination of benefits is        entered into with each Employer. While the contracts with
required between two plans which are not subject to ERISA.        the seven Employers were each slightly different, the
                                                                  agreements generally provided that COB would review each
  ERISA, however, provides no guidance on coordination of         Employer’s records, use its “proprietary systems” to
benefits issues. See Regents of the Univ. of Mich. v.             determine if the Employer made payments under its health
Employees of Agency Rent-a-Car Hosp. Assoc., 122 F.3d 336,        care plan for which the Employer was only secondarily liable,
339 (6th Cir. 1997). In cases involving two ERISA-regulated       and attempt to collect payment from the party that COB
plans, therefore, federal courts have fashioned federal           believed to be primarily liable in exchange for a percentage of
common law to resolve these issues. McGurl, 124 F.3d at           the amounts recovered.
484 (adopting “employer first” rule, providing that plan
which covers beneficiary as employee is primary and plan            The relevant provisions of the Goodyear, Bridgestone,
which covers beneficiary as dependent of employee is              Progressive, Babcock & Wilcox, and FirstMerit agreements
secondary). See also PM Group Life Ins. Co. v. Western            were substantively identical. Each of these five agreements
Growers Assur. Trust, 953 F.2d 543, 548 (9th Cir. 1992);          contained an “agency clause,” appointing COB its agent for
Reinforcing Iron Workers v. Mich. Bell Tel. Co., 746 F. Supp.     certain purposes:
668, 670-71 (E.D. Mich. 1990) (adopting the “birthday rule,”
declaring plan of employee whose birthday occurs earlier in           [Employer will] make [COB,] and its contractors, [the
the year primarily responsible for medical benefits of a minor,       Employer’s] agents for the purpose of carrying out an
where parents are both covered by separate ERISA plans).              audit of coordination of benefits issues, and the
                                                                      subrogation and collection of indemnities due as a result
   COB alleged that, in this case, certain beneficiaries were         of such audit as provided for and privileged by standard
insured both under one of the Employers’ self-funded ERISA            rules [or law] (for example, Section 3902.13(F) of the
plans and under one of the Insurers’ non-ERISA policies.              Ohio Revised Code or the rule[s] of the [NAIC], as
COB claimed that the Insurers’ policies were primary,                 interpreted by the state at issue on any given claim).
presumably because the coordination of benefits clauses of
the applicable insurance contracts conflicted. COB then           Those agreements then required COB to make three attempts
argued that the district court should extend the federal          to collect every claim and “further pursue every claim of a
common law established in McGurl to these cases that              value exceeding $500.00 for the period of at least one year, or
involve only one ERISA-regulated plan. Under such a rule,         until collection of the correct indemnity, or settlement of the
COB contends that the Employers paid claims for which the         claim, whichever occurs first.” The agreements all provided,
Insurers were primarily liable and they were only secondarily     however, that COB would “commence no litigation in the
liable.                                                           name of [the Employer], or on its behalf, without prior notice
                                                                  to [the Employer].”
          C. COB’s Contracts with the Employers
                                                                    The other two agreements were similar. The State
 COB bases its claim to being an authorized agent of the          agreement differed in that it authorized COB to report
Employers upon the contract—called either the “Audit              potential claims to State, but did not authorize COB to pursue
Agreement” or the “Recovery Service Agreement”—that it            them. The Cambridge agreement differed in that it authorized
No. 02-3645        COB Clearinghouse Corp. v. Aetna         7    8        COB Clearinghouse Corp. v. Aetna                   No. 02-3645
                         U.S. Healthcare, Inc., et al.                    U.S. Healthcare, Inc., et al.

COB to “conduct litigation to recover amounts owed” without        ERISA strictly limits standing. 29 U.S.C. § 1132(a)(3)5
requiring prior notice to Cambridge.                             provides, in pertinent part, that:
                      II. ANALYSIS                                   A civil action may be brought -
   The district court dismissed those counts COB                       ...
appeals—Counts One and Two of COB’s Complaint—on the
ground that COB did not have standing to bring the case.             (3) by a participant, beneficiary, or fiduciary (A) to
“We review a district court’s decision to grant a motion to              enjoin any act or practice which violates any
dismiss for lack of subject matter jurisdiction de novo.”                provision of this subchapter or the terms of the plan,
Joelson v. United States, 86 F.3d 1413, 1416 (6th Cir. 1996).            or (B) to obtain other appropriate equitable relief (i)
“For purposes of ruling on a motion to dismiss for want of               to redress such violations or (ii) to enforce any
standing, both the trial and reviewing courts must accept as             provisions of this subchapter or the terms of the plan
true all material allegations of the complaint, and must                 ....
construe the complaint in favor of the complaining party.”
Warth v. Seldin, 422 U.S. 490, 501 (1975). Having invoked          And courts narrowly construe ERISA to permit only the
the jurisdiction of the federal courts, however, it is the       parties specifically enumerated to bring suit. See Simon v.
plaintiff’s burden to demonstrate that jurisdiction is proper.   Value Behavioral Health, Inc., 208 F.3d 1073, 1081 (9th Cir.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);    2000) (citing Franchise Tax Bd. v. Constr. Laborers Vacation
Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.       Trust for S. Cal., 463 U.S. 1, 27 (1983)). See also
1996).                                                           Teagardener v. Republic-Franklin Inc. Pension Plan, 909
                                                                 F.2d 947, 951 (6th Cir. 1990) (narrowly construing proper
  Assuming, as we must, that COB was an authorized agent         parties under 29 U.S.C. § 1132(a)(1)). Indeed, even an
of the Employers under the terms of the parties’ agreements,     assignee of a participant, beneficiary, or fiduciary is generally
we must determine whether such an authorized agent has           not permitted to maintain an ERISA claim. See Simon v.
standing under ERISA to pursue these claims.
                                                                      5
                                                                       COB did not identify the ERISA provision under which it brought
                                                                 its Comp laint. The district court, however, broadly interpreted the
                                                                 Comp laint and assumed that the action was brought pursuant to 29 U.S.C.
                                                                 § 1132(a)(3), which was the pro vision id entified b y CO B in its brief in
                                                                 opposition to the M otion to Dismiss. There was some dispute before the
                                                                 district court regarding whether COB sought equitable relief or monetary
                                                                 dama ges. We note that 29 U.S.C. § 1132(a)(3), which provides for
                                                                 equitable relief, allows “participants, beneficiaries, and fiduc iaries” to
                                                                 bring claims, while 29 U.S.C. § 11 32(a)(1), which provides for monetary
                                                                 dama ges, only allows “participants and beneficiaries” to file suit. Like the
                                                                 district court, we will assume that COB brought the action pursuant to 29
                                                                 U.S.C. § 1132 (a)(3), as that is the only section which gives rise to any
                                                                 argument that COB has standing in this case.
No. 02-3645         COB Clearinghouse Corp. v. Aetna           9
                          U.S. Healthcare, Inc., et al.

Belwith Int’l, Inc., 3 Fed. Appx. 363, 364 (6th Cir. 2001). It
is undisputed that COB was neither a participant, a
beneficiary, nor a fiduciary according to the dictates of the
statute. COB argues, nevertheless, that the Employers whom
it represented were fiduciaries and that as the agent of the
Employers, it could bring suit.
   Whether an employer who is also an ERISA plan sponsor
is a fiduciary of the plan generally requires a detailed analysis
of the employer’s actions and whether those actions were
performed in the employer’s fiduciary capacity. See Hunter
v. Caliber Sys., Inc., 220 F.3d 702, 718 (6th Cir. 2000).
“[W]e must examine the conduct at issue to determine
whether it constitutes ‘management’ or ‘administration’ of the
plan, giving rise to fiduciary concerns, or merely a business
decision that has an effect on an ERISA plan not subject to
fiduciary duties.” Id. (citations and internal quotations
omitted). But even assuming that the Employers were
fiduciaries who had a right to file suit pursuant to 29 U.S.C.
§ 1132(a)(3), that assumption does not confer standing on
COB to sue in its own name as the Employers’ agent.
Restatement (Second) of Agency § 372(2) (1958) provides
that “an agent does not have such an interest in a contract as
to entitle him to maintain an action at law upon it in his own
name merely because he is entitled to a portion of the
proceeds as compensation for making it or because he is
liable for its breach.”
                     III. CONCLUSION
  Given COB’s lack of standing, we affirm the decision of
the district court.
