Another view of Miller.

• Author: Alter, Daniel
• Position: Letters - Letter to the Editor

I read with interest Mr. Mazer's piece on the state of ERISA preemption and whether the Supreme Court's recent decision in Kentucky Ass'n of Health Plans, Inc., v. Miller 123 S.Ct. 1471 (2003), will alter the current landscape surrounding preemption of Florida's insurance bad faith statute, F.S. [section] 624.155 (January). While the author suggests that the Supreme Court's analysis in Miller may cause the 11th Circuit to rethink its position on ERISA preemption of [section] 624.155, I disagree.

Mr. Mazer devotes much of his discussion to whether Florida's insurance bad faith statute will now be found "saved" from ERISA preemption under the Supreme Court's new two-part test in Miller: "First, the state law must be specifically directed toward entities engaged in insurance. Second, ... the state law must substantially affect the risk pooling arrangement between the insurer and the insured." Id. at 1478-79. However, the question of whether [section] 624.155 is "saved" from preemption under the Miller standard does not end the inquiry. Courts must still address whether otherwise saved state laws nonetheless frustrate ERISA's overall purpose by inappropriately supplementing or supplanting ERISA's exclusive remedies. The Supreme Court has recognized that even if a state law is "saved" pursuant to the savings clause, 29 U.S.C. [section] 1144(b)(2)(A), it will be deemed preempted if it allows plan participants to obtain remedies that Congress rejected in ERISA. Rush Prudential HMO, Inc., v. Moran, 536 U.S. 355 (2002).

Two circuits have recently found post-Miller that state bad faith laws remain preempted by ERISA. In Elliot v. Fortis Benefit Ins. Co., 337 F.3d 1138 (9th Cir. Aug. 1, 2003), the Ninth Circuit...