In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-3137 & 98-3248

TRUSTMARK LIFE INSURANCE COMPANY,
f/k/a BENEFIT TRUST LIFE INSURANCE COMPANY,

Plaintiff-Appellee/Cross-Appellant,

v.

THE UNIVERSITY OF CHICAGO HOSPITALS,

Defendant-Appellant/Cross-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 4692--David H. Coar, Judge.


Argued September 30, 1999--Decided March 20, 2000



  Before HARLINGTON WOOD, JR., COFFEY, and EVANS,
Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. Trustmark
Life Insurance Company ("Trustmark"), formerly
known as Benefit Trust Life Insurance Company,
brought an action under the Employee Retirement
Income Security Act, 29 U.S.C. sec. 1001, et seq.
("ERISA"), against the University of Chicago
Hospitals & Health System ("UCH") to recover
payment made for breast cancer treatment of Grace
Fuja, one of Trustmark’s insureds. On July 24,
1998, the district court entered final judgment
in favor of Trustmark as to recovery and denied
UCH’s state-law defenses as preempted under
ERISA. UCH appealed and Trustmark cross-appealed
the district court’s denial of attorney’s fees,
costs, and prejudgment interest. We reverse.

I.   BACKGROUND

  Mrs. Fuja was a participant in an ERISA-
governed employee welfare benefit plan (the
"Plan") sponsored by her employer Emsco
Management Services, Inc. and insured by Benefit
Trust Life Insurance Company, now known as
Trustmark Life Insurance Company. As a breast
cancer patient who had not responded to standard
treatment, Mrs. Fuja sought high dose
chemotherapy with autologous bone marrow
transplant ("HDC/ABMT") treatment. Trustmark
denied precertification for HDC/ABMT treatment,
claiming it was not "medically necessary" as
defined under the Plan. Mrs. Fuja sought
injunctive relief against Trustmark’s refusal to
cover the HDC/ABMT treatment, and on December 22,
1992, the district court in that case enjoined
Trustmark from denying coverage. See Fuja v.
Benefit Trust Life Ins. Co., 809 F. Supp. 1333
(N.D. Ill. 1992), rev’d, 18 F.3d 1405 (7th Cir.
1994). On or about December 29, 1992, in a
telephone conference, a Trustmark executive
stated that Trustmark would comply with the court
order, precertification would not be necessary,
and Trustmark would pay for the treatment,
without specifying any conditions or that payment
would be subject to appeal. In a follow-up letter
sent to UCH that same day, Trustmark confirmed
those statements, specifying that "Benefit Trust
Life Insurance Company will comply with the
court’s order" and treatment would be paid under
Plan benefits, again without attaching any
conditions to the payment, which allowed for a
$250.00 yearly deductible, 70% of the next
$5,000.00, and 100% thereafter for each calendar
year.

  In addition, after receiving notice from Mrs.
Fuja that she might not be able to pay her
deductible and copayment obligations, UCH decided
to waive Mrs. Fuja’s deductible and copay. Prior
to entering the hospital for treatment on January
7, 1993, Mrs. Fuja signed an Admission and Out-
Patient Agreement with an Authorization and
Release of Benefits clause which stated that Mrs.
Fuja would be financially responsible for the
balance owed if her insurance did not pay the
full amount due, which amount might include the
costs of collection and/or reasonable attorney’s
fees.

  Less than a month after its unconditional
statement of payment, on January 20, 1993,
Trustmark filed its notice of appeal. During this
period, Mrs. Fuja remained hospitalized until her
death in March 1993. Shortly thereafter,
Trustmark paid the sum of $362,232.97 to UCH for
Mrs. Fuja’s treatment, again without specifying
any conditions. Nearly a year later, on March 18,
1994, this court reversed the district court’s
judgment, holding that Mrs. Fuja’s HDC/ABMT
treatment did not fall within the parameters of
"medically necessary" procedures as defined in
the Plan policy because the treatment was
"furnished in connection with medical . . .
research." Fuja v. Benefit Trust Life Ins. Co.,
18 F.3d 1405, 1410 (7th Cir. 1994).

  Trustmark subsequently filed an action in
district court pursuing recovery of the amount
paid to UCH for Mrs. Fuja’s HDC/ABMT treatment
under sec. 502(a)(3)./1 The district court
granted summary judgment in favor of Trustmark,
finding a violation of the Plan under ERISA sec.
1132 (a)(3) because this court had already
determined that Trustmark was not required to pay
for the treatment under the Plan. The district
court ordered UCH to reimburse the full amount to
Trustmark. UCH appealed the summary judgment
finding and Trustmark cross-appealed from the
district court’s denial of attorney’s fees,
costs, and prejudgment interest.

  As there are no disputes as to the issues of
material facts, summary judgment is appropriate
in this case. However, for the reasons set forth
below, we reverse the judgment of the district
court in favor of Trustmark. We affirm the denial
of attorney’s fees, costs, and prejudgment
interest.

II. ANALYSIS
A. Subject Matter Jurisdiction

  Before reviewing the merits of Trustmark’s
claim, we must first decide whether it was
properly before the district court. ERISA
regulates both employee pension plans and
employee welfare benefit plans. 29 U.S.C.
sec.sec. 1002(3) & 1003(a). Participants,
beneficiaries or fiduciaries of these plans (and
the Secretary of Labor) may sue under ERISA. 29
U.S.C. sec. 1132(a). In Central States, Southeast
and Southwest Areas Health & Welf. Fund v.
Neurobehavioral Assocs., 53 F.3d 172, 173 (7th
Cir. 1995) (hereinafter "Neurobehavioral
Assocs."), a welfare fund brought an action under
sec. 502(a)(3) to recover a mistaken overpayment
made to a medical care provider for the medical
treatment of one of its members. The court found
that the claim fell directly within sec.
502(a)(3) of ERISA’s civil enforcement provision.
Id. at 176. The panel stated, "A medical care
provider who receives benefits from the fund at
the behest of a participant is a beneficiary."
Id. at 173 (citation omitted). A dispute over
restitution, "undoubtedly an equitable action,"
id. at 174 (citation omitted), "between a
fiduciary [the fund plan] and a beneficiary [a
medical care provider] . . . is of primary
concern under ERISA."/2 Id. "Forcing trustees of
a plan to pay benefits which are not part of the
written terms of the program disrupts the
actuarial balance of the Plan and potentially
jeopardizes the pension rights of others
legitimately entitled to receive them." Id.
(quoting Cummings v. Briggs & Stratton Retirement
Plan, 797 F.2d 383, 389 (7th Cir. 1986)). The
court noted in Neurobehavioral Assocs. that the
state law claim made by the trustees of the plan
would be preempted by ERISA. Id. at 175.
  Like Neurobehavioral Assocs., UCH is a medical
care provider who received benefits from a
welfare fund at the behest of a Plan participant,
Mrs. Fuja, and is therefore recognized as a
beneficiary. Mrs. Fuja sued the Plan in order to
have those benefits paid. Fuja, 809 F. Supp. at
1342-43. This circuit then determined that the
payment of those benefits was not authorized by
the Plan. Fuja, 18 F.3d at 1412. The conclusion
was that the Plan language unambiguously excluded
coverage for any treatment "in connection with
medical or other research." Id. Therefore,
subject matter jurisdiction was proper under
ERISA.

B.   Common Law Defenses

  Although we have determined that Trustmark’s
action for recovery of ERISA benefits should be
resolved in a federal forum, we must next
determine the validity of UCH’s defenses based on
common law principles. UCH argues the defenses of
breach of contract and promissory estoppel. We
will review each claim in order to determine
whether such common law principles are applicable
under ERISA. We note, given the particular
circumstances, that the law of the case doctrine
does not foreclose consideration of these issues.


  This circuit has already determined that all
common law concepts are not automatically
inapplicable in the ERISA context. Thomason v.
Aetna Life Ins. Co., 9 F.3d 645, 647 (7th Cir.
1993). In passing ERISA, Congress expected that
"a federal common law of rights and obligations
under ERISA-regulated plans would develop." Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987).
Courts may develop a federal common law where
ERISA itself "does not expressly address the
issue . . . ." Thomason, 9 F.3d at 647 (citation
omitted). State common law may be used as a basis
in constructing a federal common law that
implements the policies underlying ERISA where it
is not inconsistent with congressional policy
concerns. Id. (citations omitted).


  1.   Breach of Contract

  UCH’s primary argument is that the letter from
Trustmark promising payment constitutes a private
contract which bypasses the Plan. After careful
scrutiny of the district court record, we find
that UCH has waived this argument as it was not
raised at the district court level. See Mouton v.
Vigo County, 150 F.3d 801, 803 (7th Cir. 1998)
(citations omitted). Although UCH repeatedly
discussed the contractual arrangements between
Mrs. Fuja and itself (as pertaining to the
deductible and copayment waiver), there was never
any assertion or discussion that the statements
or letter created an independent contractual
arrangement, implied or explicit, between UCH and
Trustmark. Throughout the district court
proceedings, UCH described itself as an
independent third party who provided the HDC/ABMT
treatment at the direct behest of Mrs. Fuja. UCH
repeatedly insisted it had no knowledge of the
dispute between Mrs. Fuja and Trustmark. UCH did
assert on several occasions that it had relied
upon Trustmark’s promise to pay, but did not, at
any time, describe that promise as creating an
independent contractual agreement nor did UCH
argue there was an implied contract. UCH also
failed to present a breach of contract argument
at any point. However, even if UCH had preserved
this issue, we find it would fail.

  This circuit refused to recognize a breach of
contract claim in an ERISA setting. See Buckley
Dement, Inc. v. Travelers Plan Administrator of
Illinois, Inc., 39 F.3d 784, 789-90 (7th Cir.
1994). We are also reluctant to create a cause of
action which supersedes the civil enforcement
provisions already enumerated in 29 U.S.C. sec.
1132(a), noting that the Supreme Court has made
it clear that those detailed enforcement
provisions provide "strong evidence that Congress
did not intend to authorize other remedies."
Mertens v. Hewitt Assocs., 508 U.S. 248, 254
(1993) (citation omitted). The panel in
Neurobehavioral Assocs. found that a welfare fund
action to recover a mistaken overpayment made to
a medical care provider may not be characterized
as a dispute involving only the fiduciary’s
interest in collecting a debt from a third party.
53 F.3d at 173. "ERISA preemption is . . . not
limited to displacement of state laws affecting
employee benefit plans, . . . but rather extends
to any state cause of action that has a
’connection or reference to’ an ERISA plan." Id.
(citing Pilot Life Ins. Co., 481 U.S. at 47).
  In its breach of contract argument, UCH
characterizes itself as a third party who
received payment after entering into an
independent contract with the fiduciary.
Neurobehavioral Assocs. refused to acknowledge
this type of claim involving a medical care
provider who had been directed by the insured as
an assignee in receiving plan benefits. 53 F.3d
at 173.

  UCH relies on The Meadows v. Employers Health
Ins. Corp., 47 F.3d 1006 (9th Cir. 1995), to
argue that ERISA does not preempt a health care
provider’s state claims for breach of contract,
estoppel, and negligent misrepresentation arising
out of an insurer’s alleged misrepresentation
concerning whether patients were covered by the
insurer’s policy. In The Meadows, the Ninth
Circuit found that the insurer had made mistaken
assurances of coverage. Id. This case and several
others UCH relies upon, all from other circuits,
are based upon mistaken assurances of coverage.
See In Home Health, Inc. v. Prudential Ins. Co.,
101 F.3d 600 (8th Cir. 1996); Lordmann Enters.,
Inc. v. Equicor, Inc., 32 F.3d 1529 (11th Cir.
1994); Hospice of Metro Denver, Inc. v. Group
Health Ins., Inc., 944 F.2d 752 (10th Cir. 1991);
Memorial Hosp. Sys. v. Northbrook Life Ins. Co.,
904 F.2d 236 (5th Cir. 1990). The Meadows, In
Home Health, Lordmann, Hospice of Metro Denver,
and Memorial Hospital System are all
distinguished from the present case in that they
were state law claims brought in state court by
the medical care providers who had never been
paid after receiving repeated assurances of
coverage by the insurer. After being removed to
the district court by the defendants, these cases
were all dismissed in federal court and remanded
to the state courts. In addition, these cases are
distinguished from the present case in that there
was no mistaken assurance of coverage. Trustmark
had been enjoined from denying coverage and
stated that payment was guaranteed so as to
"comply with the court’s order."

  UCH asserts that Trustmark made a promise to
pay which created an independent contract.
However, as stated in the letter from Trustmark’s
executive, "Benefit Trust Life Insurance Company
will comply with the court’s order and will cover
charges for Mrs. Fuja’s ABMT treatment."
(emphasis added). UCH maintains that because
Trustmark did not condition its payment pending
an appeal, it created an independent contract.
Although we agree that Trustmark did not place
conditions on its payment, we do not believe the
elements of a contract--offer, acceptance, and
consideration--are present when one party is
compelled by a court order to provide payment, as
is the case here. In addition, even UCH concedes
in its brief that Trustmark would want to appeal
the district court’s order to pay for the
treatment as it created an unfavorable precedent
that would obligate it to pay for similar kinds
of treatment in future cases under the same or
similar ERISA plans. As noted in Neurobehavioral
Assocs., this disruption of the Plan and the
potential effect on the pension rights of others
fundamentally involves ERISA. 53 F.3d at 175. For
these reasons, we cannot recharacterize the
circumstances of the instant case as a breach of
contract issue.


 2.   Estoppel
  This circuit has recognized that estoppel
principles can be applied to certain ERISA
actions. Black v. TIC Inv. Corp., 900 F.2d 112,
115 (7th Cir. 1990), reaffirmed by Thomason v.
Aetna Life Ins. Co., 9 F.3d 645, 650 (7th Cir.
1993); see also Coker v. Trans World Airlines,
Inc., 165 F.3d 579, 584 (7th Cir. 1999) (finding
that estoppel claim based on misrepresentations
of insurer arises under the federal common law of
ERISA). Black expressly limited the application
of equitable estoppel principles to claims for
benefits under ERISA unfunded, single-employer
welfare benefit plans. 900 F.2d at 115. We note
that Trustmark, as far as we can ascertain from
the record, is an unfunded, single-employer
welfare benefit plan.

  Although the definition and elements of
"estoppel" in the ERISA context have been varied,
the court in Coker noted that four elements must
always be present: (1) a knowing representation,
(2) made in writing, (3) with reasonable reliance
on that misrepresentation by the plaintiff, (4)
to her detriment. 165 F.3d at 585; Black, 900
F.2d at 115. Where all four elements are present,
the promise will be enforced in order to avoid
injustice. See Evans v. Fluor Distributor Co.,
Inc., 799 F.2d 364, 366 (7th Cir. 1986) (citing
Bank of Marion v. Robert "Chick" Fritz, Inc., 311
N.E.2d 138 (Ill. 1974)). In Coker, the court
found that "factual questions such as whether
[the defendant] misrepresented (either
intentionally or negligently) to the Cokers any
material facts about their coverage and whether
the Cokers reasonably relied to their detriment
on such misrepresentations," could not be
resolved by interpreting an existing plan (in
that case, a collective bargaining agreement).
165 F.3d at 584. The court determined that the
estoppel case arose under federal common law of
ERISA, not the collective bargaining agreement.
Id.

  The factual question in this case involves the
reasonable reliance of UCH in receiving payment
for the medical services provided. In addition,
the written confirmation from Trustmark satisfies
the rule which requires modification of ERISA
plans to be in writing. 29 U.S.C. sec.
1102(a)(1). UCH asserts that it would not have
accepted the financial risk of providing HDC/ABMT
treatment to Mrs. Fuja had Trustmark not provided
a guarantee, but would have sought alternative
means to ensure that it would receive payment for
services before rendering them. We find that the
claim is properly before us, although we
reemphasize the narrow scope of such claims. See
Coker, 165 F.3d at 585.

 Summary judgment is reviewed de novo. Feldman
v. American Memorial Life Ins. Co., 196 F.3d 783,
789 (7th Cir. 1999) (citation omitted). Summary
judgment will be affirmed when, after viewing the
record in the light most favorable to the
nonmoving party, there is no genuine issue of
material fact. Fed.R.Civ.P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).

  UCH maintains that Trustmark is estopped from
recovering the monies paid for Mrs. Fuja’s
HDC/ABMT treatment because of Trustmark’s written
(and oral) statements guaranteeing payment.
Trustmark clearly promised payment
notwithstanding the fact that it was paid "under
court order." It is also logical that Trustmark
knew or should have known that its promise to pay
would induce action on the part of UCH,
particularly based on the "urgency" of Mrs.
Fuja’s medical condition.

  In determining whether an employer was entitled
to a refund of payments in a restitution claim,
the court in UIU Severance Pay Trust Fund v.
United Steelworkers of America, 998 F.2d 509, 513
(7th Cir. 1993), stated that several factors
should be considered: (1) were the unauthorized
contributions the sort of mistaken payments that
equity demands be refunded, i.e., was it a good
faith mistake or the result of unauthorized
activity? (2) has the employer delayed in
bringing the action? (3) has the employer somehow
ratified past payments? (4) can the employer
demonstrate that the party from whom it seeks
payment would be unjustly enriched if recovery
were denied? Although we may find in favor of
Trustmark in answering questions two and three,
as to question one, it would have been easy for
Trustmark to have made the payment conditional,
stating that payment would be made subject to
appellate review. However, in failing to do so,
Trustmark misled UCH. As to question four, the
matter of UCH’s unjust enrichment is of great
importance.

  As discussed in Restatement of Restitution sec.
1, restitution is a device to avoid unjust
enrichment. See also Central States Health &
Welf. Fund v. Pathology Labs., 71 F.3d 1251, 1254
(7th Cir. 1995) (hereinafter "Pathology Labs.").
In Pathology Labs., we noted that "[a] provider
of medical care is not unjustly enriched by being
paid the market fee for its services." Id.
Although we recognize that Trustmark always
insisted coverage for the HDC/ ABMT treatments
was denied under the Plan, and paid for the
treatments under court order, we cannot say that
UCH does not have an honest claim to the money.
UCH provided services at the market rate, was
paid for those services, and was not unjustly
enriched.

  In addition, we agree with the analysis in
Rehabilitation Institute v. Group Adm’s, 844 F.
Supp. 1275, 1282 (N.D. Ill. 1994), particularly
when applied to the health care sector, which
stated that "the risk of loss from misstatement
in the commercial arena ought to lie with the
putative promisor, rather than with the party who
justifiably relies on the erroneous promise." We
find that Trustmark is estopped from seeking
recovery of the unconditional payment made for
Mrs. Fuja’s HDC/ABMT treatment.

C.   Waiver of Copayments

  Trustmark argues that UCH’s waiver of Mrs.
Fuja’s copayment and deductible voids the
insurance contract. See Kennedy v. Connecticut
Gen. Life Ins. Co., 924 F.2d 698, 699 (7th Cir.
1991). However, Mrs. Fuja remained liable for
those amounts, when she entered the hospital on
January 7, 1993 for her HDC/ABMT treatments, by
signing the Out-Patient Agreement and
Authorization, which stated, "I understand that
I am financially responsible to pay for my care,
and that if my insurance does not pay the full
amount due I will be responsible for the balance.
This may include costs of collection and/or
reasonable attorney’s fees." Unlike the medical
care provider in Kennedy, who perpetrated an
ongoing scheme of fraud by waiving the copayment
but raising the fee, 924 F.2d at 699, UCH’s
agreement held Mrs. Fuja ultimately legally
responsible for any outstanding balance not
covered by insurance.

D. Attorney’s Fees, Costs, and Prejudgment
Interest

  Trustmark maintains that it is entitled to
attorney’s fees under sec. 502(g)(1) of ERISA.
See 29 U.S.C. sec. 1132 (g)(1). Section 502(g)(1)
provides, "[i]n any action under this subchapter
. . . by a participant, beneficiary, or
fiduciary, the court in its discretion may allow
a reasonable attorney’s fee and costs of action
to either party." Our decision to reverse the
district court’s judgment means that Trustmark is
no longer a prevailing party, and, therefore, is
no longer entitled to an award of attorney’s
fees. Even had Trustmark remained the prevailing
party, we agree with the district court’s denial
of attorney’s fees, costs, and prejudgment
interest. We have chosen to review the merits of
this issue because we conclude that each party
should bear their own attorney’s fees and costs
on appeal.
  An award of attorney’s fees is reviewed for an
abuse of discretion. Filipowicz v. American
Stores Benefit Plans Comm., 56 F.3d 807, 816 (7th
Cir. 1995). "[A] district court’s determination
will not be disturbed if it has a basis in
reason." Little v. Lux’s Supermarkets, 71 F.3d
637, 644 (7th Cir. 1995) (citations omitted).

  The general test for analyzing whether
attorney’s fees should be awarded to a party in
an ERISA case after it has attained "prevailing
party" status is: "[W]as the losing party’s
position substantially justified and taken in
good faith, or was that party merely out to
harass its opponent?" Quinn v. Blue Cross and
Blue Shield Assoc., 161 F.3d 472, 478 (7th Cir.
1998) (citations omitted). In determining whether
the losing party’s position was "substantially
justified," the Supreme Court has stated that a
party’s position is "justified to a degree that
could satisfy a reasonable person." Pierce v.
Underwood, 487 U.S. 552, 565 (1988).

  The district court determined that UCH had
pursued its position in good faith, given the
fact that this was not a typical ERISA
misrepresentation. UCH knew Trustmark was under
court order to provide coverage and was expressly
told by Trustmark that it would pay for Mrs.
Fuja’s HDC/ABMT treatments. The district court
found that when the order given Trustmark to pay
for the coverage was reversed, UCH was
"substantially justified" in asserting it was not
required to reimburse the money for the
treatments incurred. As the district court
stated, such litigation "was not in any way
designed to harass Trustmark."

  Trustmark also acted in good faith. It was
substantially justified in pursuing this action,
given this court’s reversal of the injunction.
Trustmark was not merely harassing UCH. As we
noted earlier, this was an unusual case. Both
parties had legitimate claims, with no clear
winner or loser.

  Prejudgment interest may be appropriate in ERISA
cases. Lorenzen v. Employees Retirement Plan of
Sperry & Hutchinson Co., 896 F.2d 228, 236-37
(7th Cir. 1990). Prejudgment interest is designed
not only to fully compensate the victim, but also
to prevent unjust enrichment. Id. at 236. Whether
to award prejudgment interest to an ERISA
plaintiff is "a question of fairness, lying
within the court’s sound discretion, to be
answered by balancing the equities." Landwehr v.
DuPree, 72 F.3d 726, 739 (7th Cir. 1995)
(citations omitted). One of the factors
considered in determining whether to award
prejudgment interest is the presence of bad faith
or good will. Id. (internal quotations &
citations omitted).

  UCH received Trustmark’s money as payment for
medical services rendered. The district court
found that UCH was not unjustly enriched by
receiving payment for the treatments it provided
to Mrs. Fuja. Nor did the fact that the appellate
court determined the Plan did not cover the
treatments indicate that UCH was guilty of
wrongdoing or bad faith. We believe the district
court acted within its discretion in denying
Trustmark prejudgment interest. However, in this
case, there is no evidence of bad faith on the
part of either party.

  For these reasons, we find that each party
should bear its own attorney’s fees and costs.

III.   CONCLUSION

  We reverse the district court’s finding of
summary judgment in favor of Trustmark and note
that each party shall bear its own attorney’s
fees and costs on appeal.


/1 Section 502(a)(3) states in relevant part:
a civil action may be brought--

by a participant, beneficiary or fiduciary (A) to
enjoin any act or practice which violates any
provision of this subchapter or the terms of the
plan, or (B) to obtain other appropriate
equitable relief (i) to redress such violations
or (ii) to enforce any provisions of this
subchapter or the terms of the plan. 29 U.S.C.
sec. 1132(a)(3).

  Federal courts have exclusive jurisdiction over
actions brought pursuant to the above provision.
29 U.S.C. sec. 1132(e).

/2 In Connors v. Amax Coal Co., Inc., 858 F.2d 1226,
1229 n.4 (7th Cir. 1988), the Seventh Circuit had
previously stated in dicta, "Section 502(a)(3)
does not apply to suits by fiduciaries to recover
money that they paid to outside entities in
violation of the terms of ERISA or the plan." In
Connors, trustees of the United Mine Workers of
America 1950 Benefit Plan and Trust sought
reimbursement from Amax alleging that the company
was liable, under the Black Lung Benefits Act, 30
U.S.C. sec. 901-45 ("BLBA"), for payments made
for black lung-related medical expenses of miners
who worked for Amax. Id. at 1227-28. The trustees
brought suit against Amax in district court as
subrogees to the miners’ rights, alleging that
the company had been unjustly enriched by the
plan’s payment of the black lung-related
expenses. Id. at 1228. This circuit affirmed the
district court’s dismissal for lack of subject
matter jurisdiction, ruling that under the BLBA
the trustees could only sue in district court to
enforce a final compensation order obtained
through prescribed procedures, which had not been
followed. Id. The district court found that the
trustees assertion of ERISA and federal common
law was insufficient to confer subject matter
jurisdiction. Id.

  The Connors case is clearly distinguishable from
the instant case. In Connors, the trustees of the
plan were suing the employer. 858 F.2d at 1227.
More importantly, the action in Connors was
controlled by the BLBA, which created a
preemption exception which occurs when a more
specific statutory provision confers exclusive
jurisdiction elsewhere and supersedes the
application of sec. 1332. Id. at 1228.




  COFFEY, Circuit Judge, concurring. I write
separately only to emphasize that I remain
convinced that Trustmark was under no obligation
to cover Grace Fuja’s request for bone marrow
treatment. See Fuja v. Benefit Trust Life Ins.
Co., 18 F.3d 1405 (7th Cir. 1993). However, the
fact remains that Trustmark made the decision and
agreed to pay for the bone marrow transplant
before this court published its decision without
placing any conditions and/or qualification on
the promise to pay. So although I am of the
opinion, for the reasons stated previously in
Fuja, supra, that Trustmark was not legally
obligated to pay for the bone marrow transplant
under the insurance contract, I agree with the
majority’s position that Trustmark, via its
unqualified promise to pay, is now estopped from
seeking recovery of the money it paid to UCH.
