In an action claiming that a state's practice of disapproving insurance policies with clauses vesting discretion in insurers violated the Employee Retirement Income Security Act (ERISA), summary judgment for defendant-state insurance commissioner is affirmed where: 1) the state's bar on discretionary clauses addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans; and 2) the commissioner's practice merely alters the terms by which the presence or absence of the insured contingency is determined; and 3) thus, the state regulatory scheme was saved from preemption under 29 U.S.C. section 1144(a) by the savings clause in section 1144(b).
Argued and Submitted June 3, 2009
Filed October 27, 2009
Opinion by Judge O'Scannlain
James G. Hunt, Hunt Law Firm, Helena, MT