                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3456
FRANCISCAN SKEMP HEALTHCARE, INCORPORATED,
                                              Plaintiff-Appellant,
                               v.


CENTRAL STATES JOINT BOARD HEALTH AND
WELFARE TRUST FUND,
                                  Defendant-Appellee.
                    ____________
           Appeal from the United States District Court
             for the Western District of Wisconsin.
             No. 07 C 387—John C. Shabaz, Judge.
                        ____________
        ARGUED MAY 9, 2008—DECIDED JULY 31, 2008
                        ____________


 Before FLAUM, KANNE, and TINDER, Circuit Judges.
  TINDER, Circuit Judge. This is a case about ERISA pre-
emption. The plaintiff-appellant, Franciscan Skemp
Healthcare, Inc. (“Franciscan Skemp”), is a healthcare
provider in La Crosse, Wisconsin. The defendant-appellee,
Central States Joint Board Health and Welfare Trust Fund
(“Central States”), is an employee benefit plan. Sherry
Romine, through her employment, was a Central States
plan participant. She came to Franciscan Skemp in
October 2003 seeking medical treatment. Before providing
2                                             No. 07-3456

services, Franciscan Skemp called Central States to verify
Central States’s coverage of Romine and the relevant
services. A Central States representative made oral repre-
sentations that they were covered. Franciscan Skemp
treated Romine. Following unsuccessful efforts to receive
payment from Central States, after submitting a claim for
benefits, Franciscan Skemp learned that Central States
would not pay—it turns out that Romine lost her benefits,
effective September 30, 2003, for failing to pay COBRA
premiums. When Franciscan Skemp called in October
to verify coverage, the Central States representative
failed to disclose that Romine’s coverage was subject to
COBRA and that the coverage could be retroactively
canceled.
  Franciscan Skemp brought suit against Central States
in Wisconsin state court in May 2007, alleging claims of
negligent misrepresentation and estoppel under the laws
of that state. Central States filed a notice purporting to
remove the case to federal court on the grounds that the
claims were subject to the Employee Retirement Income
Security Act (“ERISA”), conferring exclusive federal
jurisdiction, and then moved to dismiss in district court
for failure to state a claim under ERISA. Franciscan
Skemp opposed the motion to dismiss and brought its
own motion to remand to state court. The district court
concluded that the state-law claims were completely
preempted by ERISA, thus establishing exclusive federal
jurisdiction. After recharacterizing the claims as ones
arising under ERISA, the district court also dismissed
them for failure to state a claim. We are now presented
with Franciscan Skemp’s appeal. We review the legal
question of whether there was federal jurisdiction, and
proper removal, de novo. Alexander v. Mount Sinai Hosp.
Med. Ctr., 484 F.3d 889, 891 (7th Cir. 2007).
No. 07-3456                                               3

  Complete preemption, really a jurisdictional rather
than a preemption doctrine, confers exclusive federal
jurisdiction in certain instances where Congress intended
the scope of a federal law to be so broad as to entirely
replace any state-law claim. ERISA is such an area: “[T]he
ERISA civil enforcement mechanism is one of those
provisions with such ‘extraordinary pre-emptive power’
that it ‘converts an ordinary state common law com-
plaint into one stating a federal claim for purposes of the
well-pleaded complaint rule.’ ”Aetna Health Inc. v. Davila,
542 U.S. 200, 209 (2004) (quoting Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 65-66 (1987)). Complete preemption,
therefore, creates an exception to the ordinary applica-
tion of the well-pleaded-complaint rule—that a court
only looks to the complaint to determine whether there
is federal-question jurisdiction. Artful pleading on the
part of a plaintiff to disguise federal claims by cleverly
dressing them in the clothing of state-law theories will
not succeed in keeping the case in state court. In these
instances, the federal law has effectively displaced any
potential state-law claims. “ ‘When the federal statute
completely pre-empts the state-law cause of action, a
claim which comes within the scope of that cause of
action, even if pleaded in terms of state law, is in reality
based on federal law.’ ” Davila, 542 U.S. at 207-08 (quoting
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003)).
Accordingly, such claims are removable.
  Of course the difficulty arises in drawing the line be-
tween what is completely preempted and what escapes the
cast of the federal net. The Supreme Court in Davila used
a two-part analysis for determining when a claim has
been completely preempted by ERISA:
    [I]f an individual brings suit complaining of a denial
    of coverage for medical care, where the individual is
4                                                    No. 07-3456

    entitled to such coverage only because of the terms of
    an ERISA-regulated employee benefit plan, and
    where no legal duty (state or federal) independent of
    ERISA or the plan terms is violated, then the suit falls
    “within the scope of” ERISA § 502(a)(1)(B) . . . . In other
    words, if an individual, at some point in time, could
    have brought his claim under ERISA § 502(a)(1)(B), and
    where there is no other independent legal duty that
    is implicated by a defendant’s actions, then the individ-
    ual’s cause of action is completely pre-empted by
    ERISA § 502(a)(1)(B).
Davila, 542 U.S. at 210.1
  Under the district court’s and Central States’s reasoning,
Franciscan Skemp could have brought its state-law
claims of negligent misrepresentation and estoppel under
ERISA § 502(a)(1)(B).2 Franciscan Skemp took an assign-
ment of benefits from Romine and filed a claim form
with Central States. The filing of the form and the language
on the form demonstrate an assignment of benefits. Once
Romine’s assignee, Franciscan Skemp stands in her
shoes and is an ERISA beneficiary. As a beneficiary,


1
  The district court used the test from Jass v. Prudential Health
Care Plan, Inc., 88 F.3d 1482 (7th Cir. 1996). While the Jass
decision itself has not been called into question, we find that the
test outlined by the Supreme Court in Davila displaced the
similar three-prong Jass analysis previously used in this
circuit. Therefore, we are using the two-pronged analysis
from Davila rather than the three-part Jass test. Regardless,
the result would be the same.
2
  We use the citation form “ERISA § 502(a)(1)(B)” because
that is the more common practice. The official U.S.C. cite is 29
U.S.C. § 1132(a)(1)(B).
No. 07-3456                                                5

Franciscan Skemp was entitled to bring a claim under
ERISA. Franciscan Skemp requested that Central States
be “estopped from denying coverage benefits for the
Romine medical services” and that a “judgment [be
entered] against defendant for the services provided by
Franciscan Skemp as would otherwise be covered by
defendant’s plan.” The district court found that “[t]hese
requests establish that the gravamen of plaintiff’s cause
of action is a desire to recover benefits it believes are due
to it under the terms of the Plan.” Section 502(a)(1)(B) of
ERISA provides that a beneficiary can bring an action to
“recover benefits due to him under the terms of his
plan.” Therefore, the argument goes, Franciscan Skemp’s
claims are within ERISA § 502’s scope.
   What the district court and Central States too easily
overlook, however, is that Franciscan Skemp is not bring-
ing these claims as Romine’s assignee. Admittedly at
first glance it looks like a claim that would arise under
ERISA—a beneficiary’s assignee bringing an action to
recover plan benefits. But upon closer examination, that
is not at all what is happening here.
  Franciscan Skemp is bringing these claims of negligent
misrepresentation and estoppel, not as Romine’s assignee,
but entirely in its own right. These claims arise not from
the plan or its terms, but from the alleged oral representa-
tions made by Central States to Franciscan Skemp. Francis-
can Skemp could bring ERISA claims in Romine’s shoes
as a beneficiary for the denial of benefits under the plan;
but it has not. In fact, Franciscan Skemp does not at all
dispute Central States’s decision to deny Romine coverage.
Franciscan Skemp acknowledges that Romine is not
entitled to benefits, because she failed to make her COBRA
premium payments. It would be odd indeed, then, to
6                                              No. 07-3456

conclude that Franciscan Skemp is standing in Romine’s
shoes as a beneficiary seeking benefits when Franciscan
Skemp acknowledges that Romine is not actually en-
titled to any benefits. Franciscan Skemp is basing its
claims on a conversation to which Romine was not even a
party. Thus Franciscan Skemp is not and could not be
“standing in her shoes” or asserting her rights. Franciscan
Skemp is bringing its own independent claims, and these
claims are simply not claims to “enforce the rights under
the terms of the plan.” ERISA § 502(a)(1)(B).
  What of the claim form then? We do not quarrel with the
determination below that the claim form evidences an
assignment of benefits; we just disagree with the import
of that determination. The claim form was filed before
Franciscan Skemp was aware that Romine hadn’t made
her payments and that Central States would deny cover-
age. At that point in time, it was perfectly logical for
Franciscan Skemp to file the form as Romine’s assignee.
Upon learning that Central States would not pay due to
Romine’s failure to pay COBRA premiums, Franciscan
Skemp then asserted its own rights by bringing this
lawsuit. Simply because at one point in time Franciscan
Skemp acknowledged an assignment from Romine does
not mean that it simultaneously and implicitly gave up
any claim(s) it had against Central States apart from that
assignment.
  Central States also makes much of the references in
the complaint to the plan and the request that Central
States pay “to the extent said services would otherwise
have been covered.” These references, however, are
solely for the purpose of identifying a damages amount;
they do not convert the claims into ones for plan benefits.
Franciscan Skemp seeks damages, not wrongfully denied
benefits.
No. 07-3456                                                7

  Therefore, under the first consideration from Davila,
the claims are not preempted because they could not
have been brought under ERISA § 502(a)(1)(B). This is not
a beneficiary’s claim—a beneficiary whom all agree is not
even entitled to benefits. Moreover, Franciscan Skemp is
not suing “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of
the plan, or to clarify his rights to future benefits under
the terms of the plan,” which is precisely all § 502(a)(1)(B)
provides. Franciscan Skemp is seeking damages arising
from alleged misrepresentations made by Central States
to Fransiscan Skemp in response to its inquiry—a wrong
not within § 502’s scope.
  Analysis under the second step in the Davila
test—whether there is an independent legal duty impli-
cated by the defendant’s actions—also undercuts finding
the claims completely preempted. The claims of negligent
misrepresentation and estoppel derive from duties im-
posed apart from ERISA and/or the plan terms; Wisconsin
state law defines those duties. For instance, Wisconsin’s
Civil Jury Instruction regarding Negligent Misrepresenta-
tion includes the following:
    Representations of fact do not have to be in writing
    or by word of mouth, but may be acts or conduct on
    the part of (defendant), or even by silence if there is
    a duty to speak. [A duty to speak may arise when
    information is asked for; or where the circumstances
    would call for a response in order that the parties may
    be on equal footing; or where there is a relationship of
    trust or confidence between the parties.]
Wis. Civil Jury Instructions 2403 (1993); cf. Kaloti Enters.,
Inc. v. Kellog Sales Co., 283 Wis. 2d 555, ¶¶ 13-20, 699
N.W.2d 205, ¶¶ 13-20 (Wis. 2005) (describing the duty to
8                                                  No. 07-3456

disclose in misrepresentation-based torts); Tietsworth v.
Harley-Davidson, Inc., 270 Wis. 2d 146, ¶¶ 13-14, 677
N.W.2d 233, ¶¶ 13-14 (Wis. 2004) (explaining that “ ‘silence,
a failure to disclose a fact, is not an intentional misrepre-
sentation unless the seller has a duty to disclose’ ” and
“[t]he existence and scope of a duty to disclose are ques-
tions of law for the court” (quoting and citing Ollerman
v. O’Rourke Co., 94 Wis. 2d 17, 26, 288 N.W.2d 95 (Wis.
1980))). See also, e.g., Milas v. Labor Ass’n of Wisconsin, Inc.,
214 Wis. 2d 1, ¶ 16, 571 N.W.2d 656, ¶ 16 (Wis. 1997), for
the elements of an estoppel claim. Whether Franciscan
Skemp can prevail on these claims is an issue for another
day and another court, but the relevant legal duties,
logically implicated by these facts, are entirely independent
from ERISA and any plan terms. Therefore, under both
Davila prongs in the test for complete preemption, Francis-
can Skemp’s state-law claims survive.
   Decisions from other circuits also support this out-
come. The Eighth Circuit in In Home Health, Inc. v. Pruden-
tial Insurance Co. of America, 101 F.3d 600, 604-07 (8th Cir.
1997), found that ERISA did not preempt a state tort
claim against an administrator of an ERISA plan brought
by a healthcare provider “not as an assignee of an ERISA
beneficiary but as an independent entity claiming dam-
ages.” Id. at 604. The court also noted that “[a] majority [of
other circuits] have concluded [that] providers’ state
law claims are not preempted by ERISA.” Id.; see also
Meadows v. Employers Health Ins., 47 F.3d 1006 (9th Cir.
1995). In Meadows, a healthcare provider similarly re-
ceived assurance of coverage and provided treatment, but
received no payment. The provider brought a claim
alleging negligent misrepresentation, estoppel, and
breach of contract. The action was removed on the basis
No. 07-3456                                                  9

of ERISA preemption, and the court dismissed without
prejudice, explaining that because the healthcare provider
sued derivatively, ERISA preempted the state-law
claims. Meadows, 47 F.3d at 1008. The healthcare provider
then filed a new suit, but this time suing not as an assignee
or subrogee but as “a third-party health care provider
for claims that were non-derivative and independent
of those which the [patient] might have had.” Id. It was a
suit for damages, not for policy benefits. Id. On appeal,
the Ninth Circuit concluded that the claims were not
completely preempted, explaining, “[T]he claims arose
because there was not plan coverage for the [patient],
which was the very fact misrepresented . . . .” Id. at 1010. In
Hospice of Metro Denver v. Group Health Insurance of
Oklahoma, Inc., 944 F.2d 752 (10th Cir. 1991), the court
specifically pointed out that the references in the com-
plaint to the ERISA plan did not automatically make the
claims ERISA claims. It concluded, “those references
provide a background factual explanation of Blue Cross’s
decision to deny benefits . . . . [The patient/beneficiary] is
not a party to this action, and his right to receive benefits
under the plan is not at issue.” Id. at 754. These cases,
and others, from our sister circuits bolster our con-
clusion in this case that Franciscan Skemp’s state-law
claims are not completely preempted by ERISA. See also
Mem’l Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d
236, 243-50 (5th Cir. 1990).
  These decisions were criticized by Central States in
part because they were pre-Davila. We do not find any
concrete reason to suppose that the conclusions reached
in these cases have been deemed incorrect by Davila.
Moreover, we cite these cases not for their analytical
10                                                    No. 07-3456

frameworks, where we might find disagreement3 and
where we opt for the method outlined in Davila, but for
the inherent logic of their outcomes, which supports
the notion that state-law claims brought by third-party
healthcare providers, in situations analogous to the one
with which we are now faced, are independent of ERISA
and not completely preempted.4
   Central States does urge Cromwell v. Equicor-Equitable
HCA Corp., 944 F.2d 1272 (6th Cir. 1991), as support for
its position. However, as the Eighth Circuit noted, this
case is somewhat of an exception to the trend. See In
Home Health, 101 F.3d at 604-05. In Cromwell the Sixth
Circuit found that a healthcare provider’s state-law
claims of negligent misrepresentation and estoppel were
essentially claims for ERISA plan benefits and thus pre-
empted. Cromwell is distinguishable at the outset because
the court found that the appellants “clearly claimed to be


3
   Admittedly some of these cases apply, in whole or in part,
what we consider conflict preemption analysis rather than
complete preemption analysis. However, given the similar
underlying policy considerations and that conflict preemption
in a general sense (apart from its savings clause) is broader than
complete preemption, a finding that these state-law claims
survive even conflict preemption is informative to our discus-
sion. See Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281-82
(11th Cir. 2005). However, we explicitly note that by making
this observation we are not implying that the presence (or
absence) of either conflict or complete preemption is a prerequi-
site (or a bar) for finding the other. Cf. Davila, 542 U.S. at 214
n.4, 216-18.
4
  At least one district court has reached the same result we
reach here post-Davila. See Children’s Hosp. Corp. v. Kindercare
Learning Ctrs., Inc., 360 F. Supp. 2d. 202 (D. Mass. 2005).
No. 07-3456                                                 11

entitled to benefits due them from the . . . plan as beneficia-
ries by virtue of the assignment of benefits clause.” Id. at
1278; see In Home Health, 101 F.3d at 605 (“Cromwell is
distinguishable from the present case because Home
Health is not seeking benefits as the assignee of an ERISA
beneficiary.”). In the instant case as in In Home Health
and unlike Cromwell, Franciscan Skemp is not seeking
benefits as Romine’s assignee or “by virtue of an assign-
ment.”
  Moreover, even aside from that facial difference, the
reasoning in Cromwell is simply not persuasive. As the
dissenting judge in Cromwell opined, in accord with our
analysis in this case, “[A] claim of promissory estoppel
raised by a third-party health care provider is asserted
precisely because that provider is not entitled to benefits
under the plan.” Cromwell, 944 F.2d at 1283 (Jones, J.
dissenting). He also criticized the majority’s focus on the
alleged “assignment,” id. at 1281-82, 1283-84, and con-
cluded that “the Fifth Circuit’s analysis in Memorial
Hospital is correct, and [he] would follow it to find no
preemption of Cromwell’s promissory estoppel and
negligent misrepresentation claims.” Id. at 1284. The
dissenting judge also quoted a rather persuasive passage
from Memorial Hospital:
    If a patient is not covered under an insurance policy,
    despite the insurance company’s assurances to the
    contrary, a provider’s subsequent civil recovery
    against the insurer in no way expands the rights of
    the patient to receive benefits under the terms of the
    health care plan. If the patient is not covered under
    the plan, he or she is individually obligated to pay
    for the medical services received. The only question
    is whether the risk of nonpayment should remain
12                                              No. 07-3456

     with the provider or be shifted to the insurance com-
     pany, which through its agents misrepresented to the
     provider the patient’s coverage under the plan. A
     provider’s state law action under these circum-
     stances would not arise due to the patient’s coverage
     under an ERISA plan, but precisely because there is
     no ERISA plan coverage.
Mem’l Hosp., 904 F.2d at 246, quoted in Cromwell, 944 F.2d at
1284 (Jones, J. dissenting). The criticism of the Cromwell
reasoning found in its dissent and in other circuits’ cases
plus our own application of the Supreme Court’s Davila
test in this case compels us to conclude that Cromwell is a
poorly reasoned outlier in the face of the strong trend in
the bulk of the cases considering healthcare-provider
claims in contexts similar to the case currently before us.
   In sum, proper analysis of Franciscan Skemp’s claims
against the broad reach of ERISA under the test outlined
by the Supreme Court in Davila leads to the conclusion
that ERISA does not completely preempt the claims at
issue in this case. Fransiscan Skemp is not bringing these
claims as a beneficiary, nor is it standing in the shoes of a
beneficiary. It is not arguing about plan terms. It is not
seeking to recover plan benefits and even acknowledges
that under the plan Romine is entitled to nothing.
Fransiscan Skemp is bringing state-law claims based on
the alleged shortcomings in the communications between
it and Central States. There are no grounds for removal.
This case belongs in state court.
  We, of course, make no comment on the ultimate suc-
cess or failure of these state-law claims, nor do we pass
judgment on any potential conflict, sometimes called
defensive, preemption argument. See ERISA § 514(a), 29
U.S.C. § 1144(a). Conflict preemption, unlike complete
No. 07-3456                                                    13

preemption, actually is a true preemption doctrine and is
an issue left to the state court in this case, since conflict
preemption does not provide an independent basis for
federal jurisdiction/removal. See Ervast v. Flexible Prods.
Co., 346 F.3d 1007, 1012-15 (11th Cir. 2003) (“Whether
complete preemption applies is a jurisdictional issue,
which must be addressed first and is separate and distinct
from whether a defendant’s ERISA § 514 . . . preemption
defenses apply . . . .”); see also Jass, 88 F.3d at 1487-88 (“[W]e
noted that the state law claim may be susceptible to
‘conflict preemption’ under § 514(a), but merely as a
defense and not a basis for federal jurisdiction.”); Cotton,
402 F.3d at 1281 n.14 (“[A] federal court’s order
remanding a case to state court based on the inapplica-
bility of the complete preemption doctrine leaves open
the question whether the plaintiff’s claims are neverthe-
less defensively preempted.”).
  We REVERSE the denial of the motion to remand and
VACATE the order dismissing the claims as the trial court
lacked jurisdiction to enter that order. Upon return of this
case to the district court, it is to be remanded to the
state court from which it was removed.




                     USCA-02-C-0072—7-31-08
