In Marsico v. Unum Group, the carrier removed the case on the basis that there was an ERISA based claim and/or diversity. Plaintiff brought a breach of contract and bad faith claim against the carriers based on a denial of disability benefits, and also joined the doctor hired by the carrier to perform an IME, on the basis of conspiracy and/or malpractice (the doctor apparently concluding in his IME that there was no disability – at least one not subject to benefits). The court found that the matter was not covered by ERISA, and that diversity could only be destroyed if there were a fraudulent joinder of the non-diverse doctor defendant. The court found that “from a fair reading of the complaint, it appears that plaintiff has set forth, in good faith, reasonable bases in fact and colorable claims against [the doctor], and that [the doctor] has not been fraudulently joined in an effort to defeat diversity of citizenship. Thus, complete diversity jurisdiction does not exist.” The case was remanded.
Date of Decision: November 28, 2007
Marsico v. Unum Group, No. 07-1482, 2007 U.S. Dist. LEXIS 87471 (W.D. Pa. November 28, 2007) (Schwab, J.)