Douglas Ghee, as personal representative of the Estate of Billy Fleming, deceased
USAble Mutual Insurance Company d/b/a Blue Advantage Administrators of Arkansas
from Calhoun Circuit Court (CV-15-900383 and CV-15-900383.80)
Ghee, as personal representative of the estate of Billy
Fleming, deceased, appeals from an order of the Calhoun
Circuit Court dismissing his wrongful-death claim against
USAble Mutual Insurance Company d/b/a Blue Advantage
Administrators of Arkansas ("Blue Advantage"). We
dismiss this appeal as being from a nonfinal order.
Advantage was the claims administrator for Fleming's
self-funded employee-health-benefits plan, which Fleming
received through his employment with Wal-Mart Stores, Inc.
There is no dispute that the health-benefits plan falls under
the auspices of the Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. § 1001 et
seq. That plan will be referred to hereinafter as
"the ERISA plan."
filed a complaint in the Calhoun Circuit Court alleging a
wrongful-death claim against Blue Advantage, among others,
based on Fleming's death. The circuit court granted Blue
Advantage's Rule 12(b)(6), Ala. R. Civ. P., motion to
dismiss Ghee's complaint against it based on federal
preemption under ERISA, specifically based on 29 U.S.C.
§ 1144(a). The allegations in Ghee's complaint were
pivotal to this determination; therefore, it is best to relay
the facts exactly as alleged in the complaint:
"18. On June 11, 2013, [Fleming] presented to the
[Northeast Alabama] RMC [Regional Medical Center] emergency
department. According to records, he was complaining of
constipation and abdominal pain that he rated as a 10 on a
"19. [Fleming] was diagnosed with abdominal pain with
constipation and fecal impaction.
"20. [Fleming] was admitted to the hospital.
"21. On June 12, 2013, a CT of [Fleming's] abdomen
showed, according to a written report, a moderate amount of
fecal material within [Fleming's] sigmoid colon and
"22. On June 14, 2013, Dr. Rosen attempted to perform a
colonoscopy on [Fleming], but according to Dr. Rosen's
notes, he was unable to pass the scope beyond 30 centimeters,
and stated that, '[g]iven the marked severity of
constipation, the inadequate colon prep despite multiple
colon preparations, the patient would benefit [from] subtotal
"23. On June 15, 2013, Dr. Crawford was consulted, and
according to his notes, agreed that [Fleming] required a
colectomy and scheduled the procedure for two weeks later as
an outpatient procedure in order to give [Fleming's]
colon an opportunity to flatten out.
"24. [Fleming] was discharged home from RMC on June 17,
"25. On July 2, 2013, [Fleming] visited Dr. Crawford as
a followup at the Crawford Clinic and was scheduled to
undergo his colectomy on July 10, 2013.
"26. Dr. Crawford and/or the Crawford Clinic, according
to its records, sought pre-approval for the surgery from
[Blue Advantage] via CPT code
564.9, which is unspecified functional disorder of
"27. On July 3, 2013, [Fleming] presented to RMC for his
"28. On or about July 5, 2013, an agent of the Crawford
Clinic called [Fleming] and informed him that he could not
have the surgery because [Blue Advantage] had decided that a
lower quality of care -- continued non-surgical management --
was more appropriate than the higher quality of care
--surgery -- that [Fleming] needed and that his surgeon felt
"29. [Fleming] and his family then had multiple
conversations with agents of [Blue Advantage] in an
unsuccessful attempt to convince the company that the higher
quality of care (surgery, as recommended by [Fleming's]
doctors) was the more appropriate course. Ultimately, an
agent of [Blue Advantage] suggested to [Fleming] that he
return to RMC in an attempt to convince hospital personnel
and physicians to perform the surgery on an emergency basis.
"30. On the night of July 10, 2013 (after midnight so
that the hospital records indicate a visit of July 11),
[Fleming] returned to the RMC emergency department. According
to records, he was complaining of severe abdominal pain.
"31. [Fleming] explained his history involving his prior
admission and canceled surgery.
"32. A CT of [Fleming]'s abdomen showed, according
to a written report, a moderate amount of retained stool
throughout [Fleming's] colon.
"33. [Fleming] was seen and discharged that day
(7/11/13) by Dr. Williams, D.O.
"34. On July 14, 2013, [Fleming] returned to the RMC
emergency department and according to the records,
complaining of severe ...