     Case: 10-20868        Document: 00512010943         Page: 1   Date Filed: 10/05/2012




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                           October 5, 2012
                                            10-20868
                                                                           Lyle W. Cayce
                                                                                Clerk
ACCESS MEDIQUIP L.L.C.,
a Texas Limited Liability Company,

                                                     Plaintiff-Appellant
v.

UNITEDHEALTHCARE INSURANCE COMPANY,
A Connecticut Corporation,

                                                     Defendant-Appellee



                      Appeals from the United States District Court
                           for the Southern District of Texas


Before STEWART, Chief Judge, and REAVLEY, JOLLY, DAVIS, JONES,
SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK,
HAYNES, GRAVES, and HIGGINSON, Circuit Judges.* **

PER CURIAM:
        The court took en banc this case, which raises questions about the scope
of liability of an ERISA plan administrator and fiduciary for allegedly
misrepresenting a plan beneficiary’s coverage in its advice to a provider of health
devices. The vacated panel opinion relied primarily on this court’s decisions in
Transitional Hosp. v. Blue Cross & Blue Shield of Texas, Inc., 164 F.3d 952 (5th
Cir. 1999), and Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236

        *
            Judge King did not participate in this decision.
        **
        Judge Reavley and Judge Graves agree to reinstate the panel opinion and concur in
the judgment.
   Case: 10-20868      Document: 00512010943         Page: 2    Date Filed: 10/05/2012




                                      No. 10-20868

(5th Cir. 1990), in reaching the conclusion that three of the provider’s state law
claims, for negligent misrepresentation, promissory estoppel and violations of
the Texas Insurance Code, were not preempted by ERISA.1
       The panel itself rejected, albeit without citing, this court’s decision in
Cypress Fairbanks Med. Ctr., Inc. v. Pan-American Life Ins. Co., 110 F.3d 280
(5th Cir. 1997). Further, UnitedHealthcare, the plan administrator, contended
in its petition for rehearing en banc that Transitional and Northbrook, and
consequently the panel’s decision, are in tension with the court’s prior opinions
in Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286 (5th Cir. 1988)
(“Hermann I”), and Hermann Hosp. v. MEBA Med. & Benefits Plan, 959 F.2d 569
(5th Cir. 1992) (“Hermann II”).
       Having reconsidered this case en banc, we reinstate the panel opinion and
overrule, to the extent inconsistent with its reasoning, the court’s opinions in
Cypress Fairbanks, Hermann I and Hermann II.
       The judgment of the district court is REVERSED and the case
REMANDED for further proceedings consistent herewith.
                                                      REVERSED and REMANDED.




      1
       Access Mediquip has not challenged the panel’s rejection of its state law claims for
quantum meruit and unjust enrichment; that portion of the panel opinion is reinstated.

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                                     No. 10-20868

E. Grady Jolly, Circuit Judge, specially concurring:
        I concur. If, however, we were writing on a clean slate–that is without two
decades of following Memorial Hospital, and without other circuits essentially doing
the same–I would make clear that the test proposed in Memorial Hospital should be
articulated in the disjunctive, not the conjunctive. Instead of requiring that “the
state law claims address areas of exclusive federal concern, such as the right to
receive benefits under the terms of an ERISA plan; and . . . the claims directly
affect the relationship among the traditional ERISA entities–the employer, the plan
and its fiduciaries, and the participants and beneficiaries,” Memorial Hosp. Sys. v.
Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir. 1990), I would make the test
whether: “(1) the state law claims address areas of exclusive federal concern, such
as the right to receive benefits under the terms of an ERISA plan; [or] (2) the claims
directly affect the relationship among the traditional ERISA entities–the employer,
the plan and its fiduciaries, and the participants and beneficiaries.” Id. The
satisfaction of either the first or second prong establishes preemption, and that is
that.




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