                  United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 96-3170
                                  ___________

Candace J. Wilson,                     *
                                       *
           Appellant,                  *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Eastern District of Missouri.
Wayne Zoellner,                        *
                                       *
           Appellee.                   *
                                  ___________

                     Submitted:   January 14, 1997

                         Filed:   May 21, 1997
                                  ___________

Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.
                               ___________


MAGILL, Circuit Judge.


     After unsuccessfully bringing suit against The Prudential Insurance
Company (Prudential) to recover medical expenses under an insurance policy,
see Wilson v. Prudential Ins. Co., 97 F.3d 1010 (8th Cir. 1996), Candace
J. Wilson brought this action in Missouri state court against Wayne J.
Zoellner for Zoellner's alleged negligent misrepresentation of the scope
of coverage of the insurance policy.      Zoellner removed the case to the
United States District Court for the Eastern District of Missouri.       The
district court dismissed the Missouri state common-law tort action on the
basis of the Employee Retirement Income Security Act's (ERISA) preemption
clause, see 29 U.S.C. § 1144(a) (1994), and Wilson now
appeals.    Because we conclude that Wilson's action has not been preempted
by ERISA, we reverse.


                                        I.


     Wilson worked for Midway Dairy Farms II (Midway) in Missouri as an
agricultural laborer.     During the summer of 1993, Zoellner, working as an
agent for Prudential, sold Midway a health insurance policy from Prudential
for Midway's employees.     Wilson alleges that Midway specifically sought a
policy     that   would   cover   work-related   injuries   and   that    Zoellner
misrepresented to Midway that the Prudential policy would cover such
injuries.


     On August 22, 1994, Wilson was severely injured while working at
Midway.     As a result of her injuries, Wilson was paralyzed and         incurred
significant and ongoing medical expenses.        Prudential denied benefits to
Wilson because its policy with Midway excluded coverage for work-related
injuries.     Wilson brought suit against Prudential in federal court to
recover under the policy, and this Court held that Prudential had correctly
interpreted the policy and had properly denied benefits.          See Wilson, 97
F.3d at 1011.


     On February 20, 1996, Wilson brought this Missouri state common-law
tort action in the Circuit Court of Cape Girardeau County, Missouri,
against agent Zoellner to recover damages for Zoellner's alleged negligent
misrepresentations regarding the Prudential policy's scope of coverage.
Zoellner removed the case to the United States District Court for the
Eastern District of Missouri, alleging that Wilson's claims were preempted
by ERISA.    The district court granted summary judgment to Zoellner on July
17, 1996, holding that Wilson's claims were preempted by ERISA.          Wilson now
appeals.




                                       -2-
                                      II.


      Wilson argues that the district court incorrectly held that ERISA
preempted her Missouri state common-law tort claim against Zoellner for
negligent misrepresentation.     We agree.   "We review the District Court's
decision on ERISA preemption de novo because it is a question of federal
law   involving   statutory   interpretation."   In   Home   Health,   Inc.   v.
Prudential Ins. Co., 101 F.3d 600, 604 (8th Cir. 1996).


      ERISA, codified at 29 U.S.C. §§ 1001-1461 (1994), "is a comprehensive
statute that sets certain uniform standards and requirements for employee
benefit plans."    Arkansas Blue Cross & Blue Shield v. St. Mary's Hosp.,
Inc., 947 F.2d 1341, 1343 n.1 (8th Cir. 1991) (Arkansas Blues).        Congress
enacted ERISA to
      protect interstate commerce and the interests of participants
      in employee benefit plans and their beneficiaries, by requiring
      the disclosure and reporting to participants and beneficiaries
      of financial and other information with respect thereto, by
      establishing standards of conduct, responsibility, and
      obligation for fiduciaries of employee benefit plans, and by
      providing for appropriate remedies, sanctions, and ready access
      to the Federal courts.

29 U.S.C. § 1001(b) (1994).      To meet the goals "'of a comprehensive and
pervasive Federal interest and the interests of uniformity with respect to
interstate plans,'" Congress included an express preemption clause in ERISA
for "'the displacement of State action in the field of private employee
benefit programs.'"   Morstein v. National Ins. Servs., Inc., 93 F.3d 715,
719 n.6 (11th Cir. 1996) (en banc) (Morstein II) (quoting 120 Cong. Rec.
29,942 (1974) (comments by Senator Javits)), cert. denied, 117 S. Ct. 769
(1997).


      ERISA's preemption clause provides:




                                     -3-
     Except as provided in subsection (b) of this section, the
     provisions of this subchapter and subchapter III of this
     chapter shall supersede any and all State laws insofar as they
     may now or hereafter relate to any employee benefit plan
     described in section 1003(a) of this title and not exempt under
     section 1003(b) of this title. . . .


29 U.S.C. § 1144(a) (emphasis added).            In analyzing this clause, the
Supreme Court has "long acknowledged that ERISA's pre-emption provision is
clearly expansive." California Labor Standards Enforcement v. Dillingham
Constr., 117 S. Ct. 832, 837 (1997) (quotations and citations omitted).
The Supreme Court has variously described the ERISA preemption clause as
having "a broad scope, and an expansive sweep, and [as being] broadly
worded, deliberately expansive, and conspicuous for its breadth."              Id.
(quotations and citations omitted).


     The   Supreme   Court,   in   considering    the   standard   for   preemption
enunciated in § 1144(a), has also noted that:


     If [§ 1144(a)'s] "relate to" [language] were taken to extend to
     the furthest stretch of its indeterminacy, then for all
     practical purposes pre-emption would never run its course, for
     really, universally, relations stop nowhere.      But that, of
     course, would be to read Congress's words of limitation as mere
     sham, and to read the presumption against pre-emption out of
     the law whenever Congress speaks to the matter with generality.

New York Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 115 S. Ct. 1671, 1677 (1995) (New York Blues).         See also Dillingham,
117 S. Ct. at 843 (Scalia, J., concurring) ("But applying the 'relate to'
provision [of ERISA's preemption clause] according to its terms was a
project doomed to failure, since, as many a curbstone philosopher has
observed, everything is related to everything else.").               Accordingly,
notwithstanding § 1144(a)'s broad language, "[s]ome state actions may
affect employee benefit plans




                                       -4-
in too tenuous, remote, or peripheral a manner to warrant a finding that
the law 'relates to' the plan."    Shaw v. Delta Air Lines, Inc., 463 U.S.
85, 100 n.21 (1983).


      In applying § 1144(a), the Supreme Court has created a two-part
inquiry to determine whether a state law "relates to" an employee benefit
plan covered by ERISA.    See Dillingham, 117 S. Ct. at 837.     Under this
test, "[a] law 'relates to' a covered employee benefit plan for purposes
of § [1144(a)] if it (1) has a connection with or (2) reference to such a
plan."   Id. (quotations, citations, and alterations omitted).   We address
the   "reference" prong of the Supreme Court's "relates to" analysis first.


                                     A.


      Where a state law "impos[es] requirements by reference to ERISA
covered programs[,] . . . that reference will result in preemption."
Dillingham, 117 S. Ct. at 837-38 (quotations, citations, and alterations
omitted).   A state law has such a prohibited reference to an ERISA plan if
the state law "acts immediately and exclusively upon ERISA plans . . . or
where the existence of ERISA plans is essential to the law's operation
. . . ."    Dillingham, 117 S. Ct. at 838.


      We have previously addressed whether the Missouri state common-law
tort of negligent misrepresentation contains a




                                    -5-
"reference to ERISA."     See In Home Health, 101 F.3d at 602.1      The In Home
Health court noted that


      [t]o maintain a cause of action for negligent misrepresentation
      under Missouri law, one must show (1) that the speaker supplied
      information in the course of the speaker's business or because
      of some other pecuniary interest;       (2) that, due to the
      speaker's failure to exercise reasonable care or competence in
      obtaining or communicating this information, the information
      was false; (3) that the speaker intentionally provided the
      information for the guidance of a limited group of persons in
      a particular business transaction;      (4) that the listener
      justifiably relied on the information;      and (5) that as a
      result of the listener's reliance on the statement, the
      listener suffered a pecuniary loss.

In Home Health, 101 F.3d at 602 n.2 (citing Colgan v. Washington Realty
Co., 879 S.W.2d 686, 689 (Mo. App. 1994)).        Upon considering these elements
of   the   tort, we concluded "that the state common law on negligent
misrepresentation is of general application.             It does not actually or
implicitly refer to ERISA plans.       The state law on misrepresentation . .
. is of general application as it makes no reference to and functions
irrespective   of   the   existence   of   an   ERISA   plan."   Id. at   605   n.6
(quotations and citations omitted).        Because "the existence of ERISA plans"
is not essential to the operation of Missouri state common-law tort of
negligent




      1
      In In Home Health, Inc. v. Prudential Ins. Co., 101 F.3d
600 (8th Cir. 1996), medical services were provided to a
Prudential Insurance Company (Prudential) policy-holder by In
Home Health, Inc. (Home Health). Home Health alleged that
Prudential negligently misrepresented to Home Health the amount
of coverage available to the policy-holder under the Prudential
policy. As a result of Prudential's alleged misrepresentations,
Home Health provided $40,000 worth of services to the policy-
holder that were not covered by Prudential's policy. Home Health
brought suit in Missouri state court under a theory of negligent
misrepresentation to recover the costs for these services. After
removal to the federal court, this Court concluded that Home
Health's Missouri state common-law tort action for negligent
misrepresentation was not preempted by ERISA. See id. at 604-07.

                                       -6-
misrepresentation, Dillingham, 117 S. Ct. at 838, and because the tort of
negligent misrepresentation does not "impos[e] requirements by reference
to   ERISA   covered   programs,"   id.    at   837    (quotations,   citations,   and
alterations omitted), nor "acts immediately and exclusively upon ERISA
plans," id. at 838, Wilson's tort action for negligent misrepresentation
against Zoellner is not preempted by ERISA on the basis of any reference
to ERISA.


                                          B.


      Because the Missouri tort of negligent misrepresentation does not
contain a prohibited reference to an ERISA plan, we must determine if
Wilson's action against Zoellner has a prohibited "connection" with an
ERISA plan.   In deciding "whether a state law has [a] forbidden connection"
to an ERISA plan, the Supreme Court has directed us to "look both to the
objectives of the ERISA statute as a guide to the scope of the state law
that Congress understood would survive, as well as to the nature of the
effect of the state law on ERISA plans."              Dillingham, 117 S. Ct. at 838
(quotations and citations omitted).


      In addressing the effect of a state law on an ERISA plan, this Court
has considered a variety of factors, including:


      [1] whether the state law negates an ERISA plan provision, [2]
      whether the state law affects relations between primary ERISA
      entities, [3] whether the state law impacts the structure of
      ERISA plans, [4] whether the state law impacts the
      administration of ERISA plans, [5] whether the state law has an
      economic impact on ERISA plans, [6] whether preemption of the
      state law is consistent with other ERISA provisions, and [7]
      whether the state law is an exercise of traditional state
      power.




                                          -7-
Arkansas Blues, 947 F.2d at 1344-45 (citations omitted).      In conducting
this analysis, "[t]he court must still look to the totality of the state
statute's impact on the [ERISA] plan--both how many of the factors favor
preemption and how heavily each individual factor favors preemption are
relevant."   Id. at 1345.


i. The negation of an ERISA plan provision.


     We conclude that no provisions in Prudential's policy with Midway
would be negated by allowing Wilson's tort action to proceed against
Zoellner for his alleged negligent misrepresentation of the scope of
coverage of the policy.2    In applying this first factor in In Home Health,
we explained that:


     We respectfully disagree with the District Court that allowing
     Home Health's claim for negligent misrepresentation would
     negate a plan provision. Home Health is not suing for plan
     benefits. It is suing for Prudential's misrepresentation that
     Rich had not exceeded his $1 million limit of benefits. Home
     Health is not alleging that Rich is entitled to more than the
     $1 million in benefits provided by the plan. Prudential has
     not represented that the plan would be responsible for any
     judgment Home Health may recover against Prudential. Allowing
     Home Health to proceed with its claim for negligent
     misrepresentation would not negate any plan provision.


101 F.3d at 605.     In the instant case, Wilson is similarly not seeking
benefits under the Prudential policy.       Indeed, Wilson's claim to plan
benefits was conclusively decided by this Court in




     2
      Because the parties did not include Prudential's plan with
Midway in the joint appendix or their addendums, we have had to
take judicial notice of a copy of the plan that was included in
the appendices for Wilson's appeal in Wilson v. Prudential Ins.
Co., 97 F.3d 1010 (8th Cir. 1996). In examining this plan, we
can find no specific provision regarding tortious acts committed
by insurance agents during the marketing of the plan.

                                     -8-
Wilson v. Prudential Ins. Co., 97 F.3d 1010 (8th Cir. 1996), and Wilson has
not attempted to relitigate the issue of the scope of the Prudential
policy's coverage.      Wilson is seeking nothing from the ERISA plan itself,
and it does not appear that Wilson's action in tort negates any provision
contained in the Prudential policy.


ii.   The affect on relations between primary ERISA entities and the impact
on the structure of the ERISA plan.
      Next, it is apparent that Wilson's tort claim neither affects the
relations between primary ERISA entities nor impacts on the structure of
the ERISA plan.    See Arkansas Blues, 947 F.2d at 1346 (treating "these two
factors as identical" (footnote omitted)).                The primary ERISA entities
include    "the   employer,     the    plan,      the    plan     fiduciaries,    and    the
beneficiaries."    Id.    In this case, Midway--Wilson's former employer--will
not be affected by Wilson's suit against Zoellner.                Nor does it appear that
the plan or the plan fiduciaries will be affected; as we have stated above,
the plan is not responsible for Wilson's medical expenses under its own
terms,    see   Wilson,    97   F.3d   at    1011,      and   Zoellner's      alleged   oral
representations    to     Midway   could    not    modify       the   plan.     See   United
Paperworkers Int'l Union v. Jefferson Smurfit Corp., 961 F.2d 1384, 1386
(8th Cir. 1992) (Noting that allowing oral representations to modify
written terms of an ERISA plan "would be contrary to congressional intent,
contrary to public policy, and contrary to the primary purpose of ERISA.
The ERISA requirement that terms of a welfare benefit plan be committed to
writing was intended to insure that employees could rely on the terms of
the formal written plan provided to them without fear that unwritten,
contrary terms would later surface.").


      Zoellner suggests that, because he was an agent of Prudential when
he allegedly misrepresented the scope of the Prudential




                                            -9-
policy's coverage, Prudential will ultimately be liable for any damages
levied against Zoellner.     See Appellee's Br. at 16.    Because Prudential is
a fiduciary of the Prudential policy with Midway, Zoellner apparently
argues that allowing Wilson to recover against Zoellner would affect a
fiduciary's relation to a beneficiary, and should therefore be preempted.
We reject this argument.


     If Prudential incurs any liability as a result of this suit, it will
do so only as the employer of a tortfeasor, and not as a plan fiduciary.
Prudential will not be liable in any way for its administration of the
ERISA plan, but rather for the coincidental and unrelated conduct of its
agent.    Because Prudential does not face any liability incurred by its role
as an ERISA entity, its relationship with other ERISA entities cannot be
affected    by   Wilson's   suit.   See   In   Home   Health,   101   F.3d   at   606
("Prudential has not represented that the plan would be required to
indemnify it for any damages Home Health may recover for Prudential's
negligent misrepresentations.       Thus, a recovery by Home Health against
Prudential would not impact the structure of the ERISA plan or affect
relations between primary ERISA entities."); Alacare Home Health Servs.,
Inc. v. The Prudential Ins. Co., 1997 WL 121209 at *2 (M.D. Ala. Mar. 4,
1997) ("[A]ny liability that may lie against Prudential [for the negligent
misrepresentation of a Prudential agent] would arise under theories of
agency.    The law is clear that fraud claims against an insurance agent who
solicits participation in an ERISA plan are not preempted under ERISA.             It
is a reasonable extension of that legal standard that claims against the
agency employer of that agent, based on the agency's status as employer
only, should not be preempted since such claims do not affect the relations
among the principal ERISA entities as such." (quotations, citations, and
footnote omitted)).




                                      -10-
iii.    Impact on the administration of the ERISA plan.


        Nor will Wilson's suit against Zoellner impact on the administration
of     the   ERISA   plan.    Wilson's     action    is   premised    on       alleged
misrepresentations by Zoellner prior to the existence of the ERISA plan.
We fail to see how allowing Wilson to recover for pre-plan tortious conduct
could prevent plan administrators from carrying out their duties, nor how
it could impose new duties on plan administrators, nor how it could require
plan administrators to carry out their existent duties in some different
way.     Accordingly, this factor does not favor preemption.               See In Home
Health, 101 F.3d at 606 ("Allowing Home Health to proceed with its claim
for     negligent    misrepresentation    would     not   impose     any    additional
administrative duties upon Prudential or require a change in administrative
procedures.    Therefore, this factor does not support a finding that ERISA
preempts Home Health's state law claims.").


iv.    The economic impact on the ERISA plan.


        Wilson's action against Zoellner will not have any direct economic
impact on the ERISA plan.         As explained above, the written terms of
Wilson's ERISA plan will not cover her medical expenses, see Wilson, 97
F.3d at 1011, and the ERISA plan could not be modified by Zoellner's
alleged misrepresentations.      See United Paperworkers, 961 F.2d at 1386.
While the costs associated with marketing and selling ERISA plans could be
influenced by allowing claims to proceed against insurance agents for
negligent misrepresentation, we do not believe that this indirect economic
influence on an ERISA plan is a significant factor favoring preemption.
See New York Blues, 115 S. Ct. at 1679 ("An indirect economic influence,
however, does not bind plan administrator to




                                         -11-
any particular choice and thus function as a regulation of an ERISA plan
itself . . . .").   As the Morstein II court explained:


       [T]he possibility that insurance premiums will be higher or
       that insurance will be more difficult to obtain because
       independent agents will have less incentive to sell insurance
       to employers whose employee benefit plans will be governed by
       ERISA, does not provide a reason to preempt state laws that
       place liability on agents for fraud.        These same agents
       currently face the threat of state tort claims if they make
       fraudulent misrepresentations to individuals and entities not
       governed by ERISA. To hold these agents accountable in the
       same way when making representations about an ERISA plan merely
       levels the playing field.

93 F.3d at 723.
v.    Consistency of preemption with other ERISA provisions.


       While we do not believe that the preemption of Wilson's suit is
strongly supported by any specific provision of ERISA, we cannot say that
preemption would be inconsistent with, or directly contrary to, any
relevant provisions.     Accordingly, this factor does not support either
preemption or nonpreemption.


vi.   The exercise of a traditional state power.


       Finally, we consider whether Missouri's common-law tort of negligent
misrepresentation   is   an   exercise   of   traditional   state   power.   See
Dillingham, 117 S. Ct. at 838 ("As is always the case in our pre-emption
jurisprudence, where federal law is said to bar state action in fields of
traditional state regulation we have worked on the assumption that the
historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress."
(quotations, citations, and alterations omitted)).




                                     -12-
      In this case, it is apparent that Missouri exercises a "traditional
state power" in adjudicating claims of negligent misrepresentation in its
courts.       Missouri    has     long     recognized   the    tort     of   negligent
misrepresentation.    See, e.g., Luikart v. Miller, 48 S.W.2d 867, 868 (Mo.
1932) ("In order to make out a case for fraudulent representations, it is
not necessary that the defendant shall have had actual knowledge that the
facts stated by him were false.             It is sufficient that he made such
representations with the consciousness that he was without knowledge as to
their truth or falsity, when in fact they were false.") (citing cases);
Peters v. Lohman, 156 S.W. 783, 788 (Mo. 1913) ("The law affords remedies
for   the   consequence   of    innocent    misrepresentation."       (quotations   and
citation omitted)).


      "That the States traditionally regulated these areas would not alone
immunize their efforts;        ERISA certainly contemplated the pre-emption of
substantial areas of traditional state regulation."           Dillingham, 117 S. Ct.
at 840.     However, Missouri's efforts to prevent sellers of goods and
services, including benefit plans, from misrepresenting the contents of
their wares or the scope of their services is "quite remote from the areas
with which ERISA is expressly concerned--reporting, disclosure, fiduciary
responsibility, and the like."           Id. (quotations and citations omitted).
Because "[a] reading of § [1144(a)] resulting in the pre-emption of
traditionally state-regulated substantive law in those areas where ERISA
has nothing to say would be unsettling," id. (quotations and citations
omitted), we believe that this factor does not support a finding of
preemption.
      Weighing these various factors together, we conclude that this
Missouri state common-law tort action against an insurance agent for his
alleged negligent misrepresentation of the scope of coverage of an employee
benefit plan does not have a sufficient




                                          -13-
connection to the ERISA plan to require a finding of preemption.               We
believe that this is particularly true in light of the declared purpose of
ERISA: "to protect interstate commerce and the interests of participants
in employee benefit plans and their beneficiaries . . . ."          29 U.S.C. §
1001(b).   As the court in Morstein II explained:


     Allowing preemption of a fraud claim against an individual
     insurance agent will not serve Congress's purpose for ERISA.
     As we have discussed, Congress enacted ERISA to protect the
     interests of employees and other beneficiaries of employee
     benefit plans.    To immunize insurance agents from personal
     liability for fraudulent misrepresentation regarding ERISA
     plans would not promote this objective. If ERISA preempts a
     beneficiary's potential cause of action for misrepresentation,
     employees, beneficiaries, and employers choosing among various
     plans will no longer be able to rely on the representations of
     the insurance agent regarding the terms of the plan. These
     employees, whom Congress sought to protect, will find
     themselves unable to make informed choices regarding available
     benefit plans where state law places the duty on agents to deal
     honestly with applicants.

93 F.3d at 723-24 (citations omitted).


     Because   Wilson's   Missouri   state   common-law   tort   action   against
Zoellner for negligent misrepresentation has neither a reference to an
ERISA plan, nor a sufficient connection with an ERISA plan, ERISA does not
preempt her suit.   See Dillingham, 117 S. Ct. at   837.   Our conclusion that
ERISA does not preempt Wilson's suit against Zoellner is supported by
compelling case law from several other circuits.           In Morstein II, a
unanimous en banc decision, the Eleventh Circuit held that ERISA did not
preempt an employer's suit against an insurance agent for an alleged
negligent misrepresentation concerning the scope of coverage of a proposed
employee benefit plan.    See 93 F.3d at 716.    In reaching this




                                     -14-
conclusion, the Eleventh Circuit overruled prior decisions, see, e.g.,
Farlow v. Union Cent. Life Ins. Co.,   874 F.2d 791 (11th Cir. 1989), and
vacated a prior panel decision, see Morstein v. National Ins. Servs., Inc.,
74 F.3d 1135 (11th Cir. 1996) (Morstein I), vacated, 81 F.3d 1031 (11th
Cir. 1996), which had held that ERISA preempted suits against insurance
agents for negligent misrepresentation involving ERISA plans.3


     A similar conclusion was reached by the Fifth Circuit.    See Perkins
v. Time Ins. Co., 898 F.2d 470 (5th Cir. 1990).    The Perkins court held
that, while a beneficiary's suit against a plan fiduciary for tortious
breach of contract was preempted by ERISA,


     the same cannot necessarily be said, however, as regards
     [insurance agent] Davis's solicitation of Perkins, which
     allegedly induced him to forfeit an insurance policy that
     covered his daughter's condition for one that did not. While
     ERISA clearly preempts claims of bad faith as against insurance
     companies for improper processing of a claim for benefits under
     an employee benefit plan, and while ERISA plans cannot be
     modified by oral representations, we are not persuaded that
     this logic should extend to immunize agents from personal
     liability for their solicitation of potential participants in
     an ERISA plan prior to its formation.         Giving the ERISA
     "relates to" preemption standard its common-sense meaning, we
     conclude that a claim that an insurance agent fraudulently
     induced an insured to surrender coverage under an existing
     policy, to participate in an ERISA plan which did not provide
     the promised coverage, "relates to" that plan only indirectly.
     A state law claim of that genre, which does not affect the
     relations among the principal ERISA entities (the employer, the
     plan fiduciaries, the plan, and the beneficiaries) as such, is
     not preempted by ERISA.




     3
      In concluding that ERISA preempted Wilson's suit in the
instant case, the district court relied heavily on the now-
vacated decision in Morstein I. See Order at 4-5 (July 17,
1996), reprinted in Appellee's Add. at 4-5.

                                   -15-
Id. at 473 (citations omitted).      See also Perry v. P*I*E Nationwide, Inc.,
872 F.2d 157, 162 (6th Cir. 1989) (holding that ERISA did not preempt
misrepresentation claims by employees who participated in an employee
benefits plan).


                                       III.


     Considering the totality of the circumstances in this case, the
potential impact of Wilson's suit against Zoellner on the "employee benefit
plan[ is] too tenuous, remote, or peripheral . . . to warrant a finding
that the law 'relates to' the plan."            Shaw, 473 U.S. at 100 n.21.
Accordingly, we hold that ERISA does not preempt Wilson's suit against
Zoellner   for    the     Missouri   state    common-law   tort   of   negligent
                     4
misrepresentation.       We reverse the


     4
      Zoellner suggests that comments in two prior opinions by
this Court support a finding of preemption. In Consolidated Beef
Indus. v. New York Life Ins. Co., 949 F.2d 960 (8th Cir. 1991),
this Court stated that:

     CBI's claims, such as inaccurate billings, incorrect
     interest rates and lack of accurate annual statements
     to plan participants, arise directly from the
     administration of the plan. CBI attempts to argue that
     NYL should have foreseen these difficulties and thus
     its claims arose pre-plan and are not pre-empted. This
     assertion is simply not supported by the record because
     CBI's primary concern is whether the plan was properly
     administered. Additionally, even if CBI's claims
     involved misrepresentation in the sale of the § 401(k)
     program, its claims still relate to the employee
     benefit plan.

Id. at 964 (emphasis added). See also Fink v. Union Cent. Life
Ins. Co., 94 F.3d 489, 493 (8th Cir. 1996) ("We think the claims
[for misrepresentation by an insurance agent in the sale of an
insurance policy] are probably preempted, but summary judgment
would be proper anyway because there is no evidence [that the
insurance agent] acted wrongfully during the sale of the
[insurance] policy." (citing Consolidated Beef)).

     Zoellner conceded at oral argument that these statements
were mere obiter dicta, and we agree. See Boyer v. County of

                                       -16-
district court's grant of summary judgment against Wilson.   Because federal
jurisdiction was based solely on ERISA preemption, we remand this matter
to the district court "with instructions to remand to the state court of
Missouri for determination of the state claims originally filed in that
court."   In Home Health, 101 F.3d at 607.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




Washington, 971 F.2d 100, 102 n.4 (8th Cir. 1992) (per curiam)
(statement in prior case "was not necessary to decide the issue
in the case and is not binding authority here"); John Morrell &
Co. v. Local Union 304A, 913 F.2d 544, 550 (8th Cir. 1990) (“This
panel is bound by Eighth Circuit precedent. We need not follow
dicta, however, and we are satisfied that the language identified
by the Unions in our earlier Morrell opinion was not essential to
the judgment in that case." (citation omitted)). Considering the
statements in Consolidated Beef and Fink as persuasive authority,
see Fix Fuel & Material Co. v. Wabash R.R. Co., 243 F.2d 110, 114
(8th Cir. 1957) (noting that this Court's statements in dicta
"may not be disregarded but are entitled to respectful
consideration"), we nevertheless conclude that Wilson's suit is
not preempted by ERISA.

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