Full opinion text
MEMORANDUM OPINION ALBRITTON, Chief Judge. I. Introduction This cause is before the court on Plaintiffs Motion to Remand (Doc. # 10), filed on February 7, 2008. On February 21, 2003, this court entered an Order setting a briefing schedule for Plaintiffs Motion to Remand that was to commence following the completion of six weeks of discovery on issues involving this court’s jurisdiction. The briefing schedule encompassed not only this case, but also eight companion cases involving several of the defendants in this case. At each stage of the briefing schedule, the plaintiffs and the defendants only filed one brief, ie. the briefs for the plaintiffs are identical in each of the nine cases. Each defendant likewise only filed one brief and filed a copy in each case in which the defendant was involved. Briefing is complete, and the cases are under submission. For the purposes of this opinion, the court will address only the issues raised in the instant case, Wilson v. Coman. The applicability, if any, of the court’s conclusions in this case will be discussed in subsequent opinions in each of the other eight cases. The Plaintiff, Betty Wilson (‘Wilson”), filed this civil action originally in the Circuit Court for Coosa County, Alabama. In her Complaint, Wilson brings state law claims against the Defendant for negligence and/or wantonness, negligent procurement, fraud, suppression, negligent and/or wanton hiring, training, and/or supervision, and conspiracy to defraud. All of the Defendants received service of process except The Benefit Source, Inc. (“TBS”). Wilson has yet to effect service of process on TBS. Defendant Loyal American Life Insurance Company (“Loyal American”) removed the case to this court on the basis of federal question jurisdiction. The remaining Defendants who had received service of process, Albert Russell “Chip” Coman (“Coman”) and H. Dwight Bostick, II (“Bostick”), joined Loyal American in its removal of the case to federal court. Wilson then filed the instant Motion to Remand. Wilson’s claims involve a universal life insurance policy that she purchased from Loyal American through her employer, Madix, Inc. The Defendants contend that the federal Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., completely preempts Wilson’s state law claims and allows the Defendants to remove this case to federal court on the basis of federal question jurisdiction. Wilson argues that her claims do not provide a basis for federal question jurisdiction and asks this court to remand her case to state court. After carefully and thoroughly reviewing the parties’ submissions, the court con-eludes that Wilson’s Motion to Remand is due to be DENIED. II. Remand Standard Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984). They may only hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. A federal court has an independent obligation to review its authority to hear a case prior to proceeding to the merits of the case. Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1400 (11th Cir.2000). The Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095. III. Facts The submissions of the parties established the following facts: Wilson is an employee of Madix, Inc. (“Madix”), a company that manufactures store fixtures at a plant in Goodwater, Alabama. Madix employs approximately 544 employees at its facilities in Alabama. As part of its employee benefits programs, Madix offered “voluntary benefits” to its employees. Among the “voluntary benefits” were universal life insurance, cancer insurance, dental insurance, and disability insurance. Once an employee has been employed by Madix for ninety days, the employee becomes eligible to participate in the “voluntary benefits” program. Madix’s employee benefits programs are administered by the Madix Benefits Committee (“the Committee”). Members of the Committee are: Lenora Hannum (“Hannum”), Division Controller; Joe Chastain (“Chastain”), Human Resources Manager; Nancy Higgins (“Higgins”), Benefits Manager; and Justin Saunders, a Madix executive at Madix’s Texas facility. Hannum, Chastain, and Higgins are employed at Madix’s Alabama manufacturing plants. During the fall of each year, the Committee holds a meeting to review the benefits offered to employees. The purpose of the meeting is two-fold. The Committee wants both to have a benefits program that can be efficiently operated with Madix’s payroll procedures and to have the “best overall package” of benefits available to Madix’s employees. Hannum Deposition, p. 38, lines 2-7. In 2000, the Committee began to review Madix’s current offering of voluntary benefits. At that time, Madix’s voluntary benefits were provided by Southern Insurance through broker Jerry Ray (“Ray”). The Committee was displeased with Southern Insurance’s service and believed that Ray was overselling insurance to Madix employees. Id. at p. 25, lines 3-7. The Committee decided to find another source for its voluntary employee benefits program for the next year. The Committee turned to Bostick and his company, The Bostick Group, LLC, for help in finding a new benefits provider to replace Ray and Southern Insurance. In 2000, Bostick and Madix already had a working relationship, for Bostick was Madix’s broker for stop/ loss insurance and dental insurance. Id. at p. 21, lines 13-22; p. 83, lines 1-6. In late May or early June of 2000, Bostick met with the Committee for the purpose of reviewing Madix’s current stop/loss insurance plan. Bostick Deposition, p. 25, lines 11-16. During the meeting, the Committee asked Bostick to research alternative providers of voluntary benefits. Id. at p. 29, line 8. On June 7, 2000, Madix sent Bostick documents that described the current voluntary benefits that Madix made available to its employees. See Madix Letter of June 7, 2000, to Bostick, attached as Exh. 4, to Defendant Bostick’s Evidentiary Submission, Doc. #21 (“Bostick Submission”). Bostick had requested the information so that he could research and compare alternatives to Southern Insurance. After making some inquiries in the summer of 2000, Bostick met Eugene “Bud” Porter (“Porter”) through a business acquaintance. Porter owns TBS. In the employee benefits market, TBS is a communication and enrollment firm. A client hires a communication and enrollment firm such as TBS to design and implement benefits plans, to communicate those plans to the client’s employees, to come to the client’s location and enroll the client’s employees in the benefits program if the employees choose to purchase the voluntary benefits, and to handle the billing for the voluntary benefits. Bostick Deposition, p. 44, lines 2-11. During the meeting, Porter gave a presentation to Bostick detailing TBS’s business and the advantages to a company that deals with TBS. Id. After the meeting, Bostick called a TBS customer as a reference, and the customer gave a positive report on TBS. Id. at p. 45, lines 1-7. Bostick decided to introduce Porter and TBS to Madix. In mid-July 2000, the Committee met with Bostick, Porter, and Christy Taylor (“Taylor”), also of TBS. Bostick Deposition, p. 47, lines 15-23. Porter and Taylor gave a computer presentation to the Committee that covered TBS’s potential role in designing and implementing a new voluntary benefits plan for Madix. Hannum testified in her deposition that the Committee was “impressed with [TBS’s] presentation” and “excited that [the Committee would] not ... have to visit with each employee” because TBS “would take that responsibility and convey what [the Committee] asked them to.” Hannum Deposition, p. 20, line 20 to p. 21, line 2. During the late summer of 2000, TBS and the Committee met to select the benefits products that would be offered to employees during the annual enrollment period. According to Hannum, the Committee and TBS met at least twice. Hannum Deposition, p. 65, lines 15-21. During the meetings, TBS showed a Benefits Communication Proposal to the Committee which outlined the various voluntary benefits and provided a “brief’ on each benefit. Id. at p. 55, lines 8-14. In the initial proposal, the individual “briefs” described the aspects of: 1) group short term disability benefit; 2) universal life benefit; 3) term life benefit, (each of the first three were underwritten by American Heritage Life); 4) accident benefit, underwritten by Continental American Insurance; and 5) cancer benefit, underwritten by Loyal American. See Benefits Communication Proposal, attached as Exh. 11, to Loyal American Life Insurance Company’s Notice of Filing Evi-dentiary Materials in Support of Opposition to Plaintiffs’ Memorandum of Law in Support of Remand, Doc. # 18 (“Loyal American Submission”). The Benefits Communication Proposal also contained details of TBS’s enrollment procedures, billing reconciliation, and client service. Id. At some point during the meetings between TBS and the Committee, TBS prepared a document entitled “Coverage Comparisons” and presented the document to the Committee. The “Coverage Comparisons” compared universal life insur-anee policies from Colonial Life and Accident, American Heritage Life, and Loyal American. See Coverage Comparisons, attached as Exh. 10 to Bostick Submission. After receiving and reviewing the documents provided by TBS, Madix decided to make at least one change in the proposed benefits. The Committee chose to replace the universal life benefit offered by American Heritage Life with the policy offered by Loyal American. Hannum Deposition, p. 58, lines 18-23. This is the policy that is at issue in this lawsuit. Madix, through the Committee, determined that the Loyal American universal life insurance policies would be part of the voluntary benefits offered to Madix’s employees. Bostick participated in the meetings between the Committee and TBS. Bostick’s role in the meetings was to serve as an advisor to the Committee and assist the Committee in determining which benefits programs would be ideal for Madix and its employees. Bostick Deposition, p. 54, lines 16-21. Madix, through the Committee, made the final decision on which benefits would be offered to the employees as part of Madix’s voluntary benefits program. Id. at p. 68, lines 20-21; Hannum Deposition, p. 93, line 4. In September of 2000, Madix appointed Bostick as its sole broker for “all matters relating to employee benefit coverages.” Madix Letter of Sept. 21, 2000, to Professional Insurance Company, attached as Exh. 2 to the Bos-tick Submission; Hannum Deposition, p. 83, lines 12-13. Madix communicated the news of Bostick’s appointment as its broker to several insurance companies in letters identical to the one sent to Professional Insurance Company. See Exh. 2 to the Bostick Submission (collecting letters to American Heritage Life, Citizens Security Life Insurance Company, Great Southern Life Insurance Company, AFLAC, Allianz Life Insurance Company, and Medical Life Insurance Company). On September 20, 2000, Bostick became a general agent with Loyal American. See General Agent’s Agreement between Loyal American and Bostick, attached as Exh. 3 to the Bostick Submission. After holding meetings with TBS, the Committee decided to finalize its decision to allow TBS to replace Southern Insurance and Ray as the provider of Madix’s voluntary benefits. On September 5, 2000, Madix sent letters to TBS, Porter, and Taylor and to Bostick confirming the decision to let TBS “supply the supplemental benefits [to] our employees beginning on January 1, 2001.” Madix Letter of Sept. 5, 2000, to TBS, attached as Exh. 6 to the Bostick Submission; see also Madix Letter of Sept. 5, 2000, to Bostick, attached as Exh. 6 to the Bostick Submission. The Committee’s final decision on the voluntary benefits program, as designed by TBS, was as follows: 1. Group short term disability benefits through American Heritage Life; 2. Accident insurance through Continental Life; 3. Cancer insurance through Loyal American; 4. Term life insurance through American Heritage life; and 5. Universal life insurance through Loyal American. Hannum Deposition, p. 40, lines 14-19. The Committee based its final decision on the “viability and integrity of the [insurance] carriers” and on the benefit “briefs” prepared by TBS. Id. at p. 109, line 21 to p. 110, line 23. For the Loyal American universal life insurance policy at issue, the Committee only reviewed the terms of the policy through the “brief’ prepared by TBS; the Committee did not read the policy word for word. Id. at p. 110, lines 11-16. The Loyal American universal life insurance policy that the Committee selected was part of Loyal American’s Pinnacle Series of universal life products that are available through payroll deductions. William R. Ealy, senior vice-president of sales at Loyal American, testified in his deposition that the Pinnacle Series was designed primarily for sale to employer groups as part of a voluntary life insurance program. Ealy Deposition, p. 60, line 22 to p. 61, line 14. The Pinnacle Series has three separate plans: 1) the Bronze Plan for groups of 5 to 499 employees; 2) the Silver Plan for groups of 500 to 999 employees; and 3) the Gold Plan for groups of 1,000 or more employees. See Pinnacle Series Manual, at p. 3, attached as Exh. 14 to the Loyal American Submission. Ealy stated that at the time Madix chose the Loyal American universal life plan for inclusion in its voluntary benefits program, the Bronze Plan was the only plan offered by Loyal American in the Pinnacle Series. Ealy Deposition, p. 60, lines 19-21. Under the Pinnacle Series plan, universal life insurance may be offered to an eligible employee group on either a contingent issue or simplified issue basis. See Pinnacle Series Manual, at p. 10, attached as Exh. 14 to the Loyal American Submission. Contingent issue is only available to employee groups of 100 or more employees. Id. The sole underwriting requirement for contingent issue is “that an employee has been actively at work on a full-time basis at least 20 hours per week and not missed work, or not been unable to work due to illness or injury, for at least 120 days.” Id. Madix requested contingent issue basis for its universal life insurance benefit. Ealy Deposition, p. 38, lines 2-10. Considering the underwriting guidelines for the contingent issue policies and the fact that contingent issue was only available to employee groups of 100 or more employees, Hannum indicated in her deposition that Wilson could not have purchased the Loyal American universal life insurance Pinnacle Series Bronze plan outside of her employment with Madix. Hannum Deposition, p. 45, lines 6-8. Furthermore, Madix only allows employees to purchase through a payroll deduction those life insurance policies chosen by Ma-dix for inclusion in its voluntary benefits program. Id. at p. 71, fine 23 to p. 72, line 2. After the benefits for the year 2001 had been selected by the Committee, Madix and TBS began to communicate to Madix’s employees about the upcoming opportunity to enroll in the various voluntary benefits. Madix announced the upcoming enrollment meetings by placing inserts in the employees’s paychecks and by placing the announcement on the monitors in the employee break areas. Id. at p. 32, lines 5-7. The insert informed employees that they would have the option of purchasing voluntary benefits, including universal life insurance, through a payroll deduction. See Paycheck Insert, attached as Exh. 17 to the Loyal American Submission. Madix selected several dates in December of 2000 for the enrollment meetings, and Wilson attended one of them. For the enrollment meetings, TBS relied on various agents to serve as the actual enrollers who would meet individually with each Madix employee. In this action, Defendant Coman is the only enrol-ler sued by Wilson. Coman was an American Heritage Life agent who entered into a contract to serve as an agent for Loyal American solely for the Madix enrollment project. Coman Deposition, p. 6, lines 5-9. TBS and Porter had contacted Coman and arranged the agency contract between Loyal American and Coman. Id. At the enrollment meeting, Coman’s job was to explain Madix’s benefit program to employees and to assist them in completing any applications for any benefits the employees may choose to purchase. The enrollment meetings occurred at Madix’s Goodwater facility during work hours. Members of Madix’s human resources department were involved in keeping the flow of employees to the enrollers moving. Hannum Deposition, p. 62, lines 4-18. To assist the enrollers in advising the employees, Madix provided the enrol-lers with specific information about each employee, such as name, social security number, date of birth, dependents, current benefits coverage, and salary. Id. at p. 64, lines 2-8. Madix also gave the enrollers copies of Madix’s Personnel'Policy Manual and information about the company’s 401(k) plan, dental insurance, and health insurance. The enrollers were to give this information to each employee during the individual enrollment meeting. During the actual enrollment meeting, each employee received a copy of Madix’s Personnel Policy Manual along with information about Madix’s 401(k) plan, dental insurance, and health insurance. Each employee signed a form acknowledging receipt of the manual. The enroller would then present a laptop computer presentation to explain the various employee benefits to each employee. The presentation also covered the cost of each benefit. The enrollers also presented each employee with a “brief’ benefit summary on each voluntary benefit. Of specific importance in this case is the universal life benefit “brief’ for Loyal American’s universal life insurance policy. The “brief’ provides a short description of the details of the policy, including the possible benefits for the employee, his or her spouse, and his or her children. See Universal Life Benefit “Brief’, attached as Exh. 21 to the Loyal American Submission. After the employee made the decision to purchase any benefits, the enroller would assist the employee in completing the application. Each employee also signed a Benefit Confirmation Report during the meeting. The Benefit Confirmation Report listed each benefit that the employee had chosen as well as the cost. By signing the document, the employee authorized Madix to make payroll deductions to pay for the chosen benefits. See Benefit Confirmation Reports, attached as Exh. 15 to the Bostick Submission. During the enrollment meetings, Coman met with Wilson and gave her the standard presentation. Wilson decided to purchase the Loyal American universal life insurance policy. Coman helped her complete the application. Wilson also signed her Benefit Confirmation Report, which authorized Madix to pay for her universal life policy through a payroll deduction. Bostick did not participate in the enrollment meetings, and he had no contact with Wilson or with any of the other plaintiffs in the related cases. Bostick Deposition, p. 74, lines 11-18. Wilson testified in her deposition that she neither knew nor had heard of Bostick or The Bostick Group LLC. Wilson Deposition, p. 82, line 21 to p. 33, line 8. Bostick also had no dealings or communication with Coman. In his deposition, Coman testified that he neither knew nor had met Bostick. Coman Deposition, p. 7, lines 12-17. The new benefits chosen by the employees were to begin on January 1, 2001. To pay for the universal life benefit, Madix elected to self-bill. Under self-billing, Loyal American would not send a monthly bill to Madix. Instead, Madix would make payroll deductions each week from each employee’s paycheck. These deductions were held in an accrued account until the total bill was paid at the end of each month. Madix would generate its own bill and send that bill along with the list of payroll deductions to TBS. TBS would “reconcile” the two documents and return the corrected information to Madix. At that point, Madix’s payroll department would send a check to Loyal American to cover the amounts due for each employee who purchased Loyal American’s universal life policy. See Hannum Deposition, pp. 22-23 (describing self-billing process). Despite using the self-billing procedures described above, deductions from individual employee’s paychecks were not always sufficient to cover the cost of the employee’s voluntary benefits. In three cases in January 2001, Madix paid the premiums for an employee’s Loyal American universal life insurance policy because the employee did not receive enough take-home pay to cover the cost of the deductions. Hannum testified in her deposition that an employee may not make enough in salary to cover the cost of the deductions when the employee was either on “short time” or out of work. Hannum Deposition, p. 73, lines 16-23. Additionally, Madix occasionally had problems in its payroll department which resulted in some employees not having the proper deductions withheld from their paychecks. Id. In January 2001 alone, Madix paid the universal life insurance premiums for three different employees without being compensated fully by an accompanying payroll deduction from those employees’ paychecks. Id. at p. 111, line 13 to p. 112, line 13. The Loyal American universal life insurance policies took effect on January 1, 2001. Wilson began making premium payments for the policy through a payroll deduction. Wilson did not, however, continue making payments on the policies she owned prior to enrolling in the Loyal American policy. Wilson contends that the Defendants failed to disclose to her any information about what would happen to the insurance policies she had in effect prior to Madix’s switch from Southern Insurance to TBS as the provider of its voluntary benefits program, and led her to believe that coverage was simply being switched to another company providing as good or better benefits. Wilson asserts that the Defendants failed to inform her that her existing policies would remain in effect and that she would continue to owe premiums on those policies. She also alleges that the Defendants failed to advise her that the new policies provided lesser benefits, but for a higher premium because of her age. Wilson stopped making premium payments on her existing policies allegedly on the basis of the representations by the Defendants. At the time Wilson stopped making payments on her existing policies, those policies had been replaced in Madix’s voluntary benefits program and were no longer part of Madix’s ERISA plan. The old company, without her knowledge, continued to charge premiums against the cash value of the policies, thus reducing that value each time a premium payment was charged. As a result, she lost value in her existing policies and suffered an economic loss when she finally terminated the existing policies and received the then net surrender value. Wilson alleges that the Defendants committed fraud in misrepresenting the length of time that surrender charges would be applicable to her Loyal American policy. Under the Loyal American policy, surrender charges will be applied if the owner terminates the policy during the first ten years after it is issued. Wilson contends that the Defendants misrepresented the amount of the surrender charges as well. Through all of these allegedly fraudulent actions, Wilson asserts that the Defendants caused her to suffer economic loss, neither in the form of a denial of benefits nor in a denial of her rights under the policy, but in the fact that she was worse off economically after agreeing to the universal life insurance contract based on the Defendants’s alleged misrepresentations than she was prior to agreeing to purchase the Loyal American policy. Through this lawsuit, Wilson seeks to recover those damages along with damages for mental anguish. In essence, Wilson seeks damages for an agreement that she entered into based on allegedly false representations, but not for the actual death benefits of her policy. IV. Discussion and Analysis Given the length of this section and the complexity of the legal question at issue, the court believes that a concise and, hopefully, clear statement outlining the court’s analysis and reasoning will be helpful. The court will break this statement into several parts: 1. The court believes that Butero v. Royal Maccabees Life Insurance Co., 174 F.3d 1207 (11th Cir.1999), provides the proper standard for analyzing the question of complete preemption in the Eleventh Circuit. 2. The Butero standard is in direct conflict with the as-applied reasoning of Franklin v. QHG of Gadsden, Inc., 127 F.3d 1024 (11th Cir.1997). 3. If Butero governs, the case should be remanded based on distinctions outlined by a district court in another circuit in Towne v. National Life of Vermont, Inc., 130 F.Supp.2d 604 (D.Vt.2000). 4. Franklin is an earlier panel decision of the Eleventh Circuit, and, under the prior panel rule, the court must follow it. Under Franklin’s reasoning, Wilson’s state law claims are completely preempted because they “relate to” an ERISA plan. 5. Although only dicta in this case because this court’s decision does not rest on this finding, the court concludes that the Eleventh Circuit’s oft-repeated statement that claims against an insurer for fraud and fi-aud in the inducement in the purchase of an insurance policy are in essence claims for benefits under an ERISA plan does not apply to the particular and limited set of facts outlined in this case. 6. The court finds that the Loyal American universal life insurance policy is part of an ERISA plan and that the policy does not qualify for the safe harbor provision found in 29 C.F.R. § 2510.3-Kj). This Memorandum Opinion has three parts. Part I contains the court’s analysis of whether Wilson’s claims are completely preempted. Part II covers the court’s determination that the Loyal American policy is part of an ERISA plan. Part III discusses the safe harbor provision of 29 C.F.R. § 2510.3-l(j). Part I: Complete Preemption The essential issue before the court is one of jurisdiction. Does this court have jurisdiction over Wilson’s state law claims, on the basis of federal question jurisdiction, when it is clear from the face of the complaint that no federal claims are raised? The best place to start is with the Eleventh Circuit’s opinion in Butero v. Royal Maccabees Life Insurance Co., 174 F.3d 1207 (11th Cir.1999), which is quoted at length. Reviewing ... district court orders [involving ERISA preemption] requires juggling two different kinds of ERISA preemption. The first kind is what this circuit has called complete preemption or “superpreemption.” Superpreemption arises from Congress’s creation of a comprehensive remedial scheme in 29 U.S.C. § 1132 for loss or denial of employee benefits. When Congress comprehensively occupies a field of law, “any civil complaint raising this select group of claims is necessarily federal in character” and thus furnishes subject-matter jurisdiction under 28 U.S.C. § 1331. Therefore, federal courts have subject-matter jurisdiction over state-law claims that have been superpreempted, and defendants may remove to federal court those actions that contain such claims.... The second kind of preemption we will call “defensive.” It originates in ERISA’s express preemption provision, 29 U.S.C. § 1144(a). Defensive preemption provides only an affirmative defense to certain state-law claims. As an affirmative defense, defensive preemption does not furnish subject-matter jurisdiction under 28 U.S.C. § 1331; “a cause of action arises under federal law only when the plaintiffs well-pleaded complaint raises issues of federal law.” On the other hand, defensive preemption does require dismissal of state-law claims. Butero, 174 F.3d at 1211-12 (citations omitted). Butero is quoted at length because it is important to understand and clarify the distinctions between the two types of preemption as well as the different sections of ERISA that provide the legislative authority for each type of preemption. Complete preemption, or super-preemption, is derived from 29 U.S.C. § 1132, while defensive preemption is based on 29 U.S.C. § 1144. Butero, 174 F.3d at 1211-12. This distinction is important because a court must take pains not to apply the test for defensive preemption in a situation, such as this one, where the key question is whether federal question jurisdiction is present based on super-preemption of state law claims. The Butero court explained the test that a court should apply to determine if a plaintiffs claims are superpreempted: Here’s the rule: ERISA super-preemption exists only when the “plaintiff is seeking relief that is available under 29 U.S.C. § 1132(a).” Regardless of the merits of the plaintiffs actual claims (recast as ERISA claims), relief is available, and there is complete preemption, when four elements are satisfied. First, there must be a relevant ERISA plan. Second, the plaintiff must have standing to sue under that plan. Third, the defendant must be an ERISA entity. Finally, the complaint must seek compensatory relief akin to that available under § 1132(a); often this will be a claim for benefits due under a plan. Butero, 174 F.3d at 1212 (citations omitted). One should immediately note from this four part test that the Eleventh Circuit made no mention of § 1144 or its “relate[s] to an employee benefit plan” standard. From a statutory perspective, federal jurisdiction is premised on § 1132(a), and not § 1144, and a court addressing a remand issue must take care not to contaminate an analysis of § 1132 with court decisions interpreting § 1144. For the remainder of Part I, the court will focus on the fourth element of the Butero test for complete preemption: Does the Complaint seek compensatory relief akin to that available under § 1132? In Butero, the employer, Simply Fashion Stores (“Simply Fashion”), switched the group life insurance policy which was part of its employee benefits plan from its previous carrier to Royal Maccabees Life Insurance Company (“Royal Maccabees”). 174 F.3d at 1210. The policy that Simply Fashion purchased was one that Simply Fashion owned, and Simply Fashion’s employees had no ownership rights over the policy. Id. If any employee wished to make a claim, the employee had to file its claim through Simply Fashion. Id. After the policy took effect, Royal Maccabees asked Simply Fashion “to provide a ‘statement from the company that there had been no deaths or disabilities since the effective date.’ ” Id. Simply Fashion responded only by saying that “we have had no death claims,” making no mention of any disability claims. Id. at 1210-11. This response was important because a month earlier a Simply Fashion employee, Benedict Butero (“Benedict”), had taken some time away from work due to a severe illness. Id. at 1211. After receiving this response, Royal Maccabees declined Simply Fashion’s request for coverage, canceled the policy, and refunded to Simply Fashion all of the paid premiums. Id. On the day that Royal Maccabees sent the letter to Simply Fashion declining Simply Fashion’s application for coverage, Benedict died. Id. Benedict’s wife, Annette Butero (“Annette”), made a claim for benefits through Simply Fashion. Id. Royal Maccabees denied Annette’s claim, and a lawsuit followed. Id. Annette brought state law claims for breach of contract, bad faith refusal to pay, and fraud in the inducement. Id. In Butero, the Eleventh Circuit analyzed whether Annette’s state law claims were super-preempted. Id. at 1212. The court found that Annette’s claims satisfied the test for superpreemption. Of interest to the instant case, the Butero court noted that [T]he damages apparently sought here are available under § 1132: we have held that claims against an insurer for fraud and fraud in the inducement to purchase a policy are in essence claims “to recover benefits due to [the beneficiary] under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(BA); see Engelhardt [v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1353 (11th Cir.1998)] (fraud in the inducement is claim for benefits under § 1132(a)(1)); Franklin [v. QHG of Gadsden, Inc., 127 F.3d 1024, 1029 (11th Cir.1997)] (claim based on alleged misrepresentation that certain coverage would exist is claim for benefits). All the claims here of bad, faith refusal to pay and breach of contract both pursue the same relief as the fraud claims— payment of the life insurance benefit. Cf. Engelhardt, 139 F.3d at 1354. We therefore conclude that all of [Annette’s] claims are properly recast as claims for benefits due under any plan. Butero, 174 F.3d at 1213. In analyzing the quoted passage from Butero, the language that “claims against an insurer for fraud and fraud in the inducement to purchase a policy are in essence claims ‘to recover benefits due to [the beneficiary] under the terms of the plan’” immediately draws this court’s attention. Id. Specifically, Annette made an actual demand for benefits under the plan. Id. at 1212. She only commenced her lawsuit after her request for payment of the life insurance benefit was denied. The purpose of Annette’s lawsuit was to recover the benefits that she believed she had been wrongly denied. Having determined that Annette was seeking to recover benefits under an ERISA plan that she claimed she was owed, the court concluded that her state law claims were superpreempted and that they could be removed from state court to federal court. Id. at 1212-13. The court decided that Annette was using her state law fraudulent inducement claim to pursue the actual benefits she was denied by Royal Maccabees. Id. at 1213. From the Butero opinion, it is apparent that Annette sought to recover insurance benefits that she believed she was entitled to as a result of Benedict’s death. In contrast, Wilson, who is very much alive, is not seeking actual death benefits from her Loyal American universal life insurance policy. Noting this distinction, the reasoning contained in the case of Towne v. National Life of Vermont, Inc., 130 F.Supp.2d 604 (D.Vt.2000), comes into the picture as persuasive, albeit not controlling, authority. In Towne, the plaintiffs, two oral surgeons who owned an incorporated medical practice, purchased life insurance through defendant National Life of Vermont, Inc., and National Life’s agent, J. Townsend Gilbert (“Gilbert”). Id. at 605-06. The plaintiffs wanted to purchase the life insurance through a severance trust executive program as a means of deferring income and saving for retirement. Id. at 606. The plaintiffs alleged that Gilbert fraudulently induced them to purchase the life insurance by representing that if one of the doctors retired or voluntarily terminated his medical practice, both doctors would be entitled to withdraw from the insurance the amounts they had deposited plus earnings. Id. After making $80,000 in contributions to the plan, the plaintiffs dissolved their medical practice. Id. The plaintiffs learned that under the language of the policy neither doctor was eligible for benefits. Id. In fact, the only employee of the practice who received benefits under the plan was the practice’s only non-physician employee, who received $3,260.31 (less taxes) in benefits. Id. The plaintiffs brought suit in Vermont state court on state law claims for fraud, breach of fiduciary duties, and for violation of the Vermont Securities Act and the Consumer Fraud Act only. Id. The plaintiffs did not seek relief under any federal statutes. Id. The defendants removed the case to federal court, arguing that the plaintiffs’ rights and remedies were completely preempted by ERISA. Id. The Towne court confronted the identical issue facing this court in the instant case. The Towne court first noted that the plaintiffs “do not seek ‘to recover benefits due to them under the terms of [their] plan, to enforce [their] rights under the terms of the plan, or to clarify [their] rights to future benefits under the terms of the plan.’ ” Id. at 608 (quoting 29 U.S.C. § 1132(a)). Instead, the plaintiffs “claim simply that Defendants fraudulently concealed the terms and conditions of the [severance trust executive program] [p]lan in order to induce them to invest in it, and they seek only to be returned to the status quo prior to the adoption of the [p]lan.” Id. at 608. The defendants argued that the plaintiffs were merely picking and choosing their state law claims in an effort to avoid preemption. Id. at 609. The court responded by acknowledging that plaintiffs have a right to make strategic decisions under the well-pleaded complaint rule to choose which claims for relief they will advance in a particular lawsuit. Id. Furthermore, the court noted that complete preemption under 29 U.S.C. § 1132(a) only occurs if the plaintiffs seek to recover benefits, enforce rights under a plan, or clarify future rights under a plan. Id. The court concluded that plaintiffs, through then-state claims, did not seek any of the remedies listed above. Id. The plaintiffs simply wanted to be put back in the same position they were before the alleged fraudulent statements and misrepresentations were made by the defendants. Id. at 608. Such claims do not give rise to federal question jurisdiction under ERISA, and the court remanded the case to Vermont state court. Id. at 609. As the Towne court noted in footnote five of its opinion, an error by the defendants’ counsel contributed to the court’s decision. See id. at 609 n. 5. The defendants failed “to address the issue of this Court’s removal jurisdiction and the distinction between ‘complete pre-emption’ under ERISA [§ 1132(a)] and ‘conflict preemption’ under [§ 1144(a)]. Rather than examining the language of [§ 1132(a)] and the controlling case law interpreting that language, [defendants focus[ed] almost exclusively on case law interpreting the words ‘relate to’ from ERISA [§ 1144(a)], which, as the Second Circuit made clear in Lupo [v. Human Affairs Int’l, Inc., 28 F.3d 269, 272 (2d Cir.1994)], has no relevance to federal removal jurisdiction.” Id. at n. 5. The Eleventh Circuit has also explained the clear distinction between complete preemption, under 29 U.S.C. § 1132(a), and defensive preemption under 29 U.S.C. § 1144(a). See Butero, 174 F.3d at 1212 (“ERISA superpreemption exists only when the ‘plaintiff is seeking relief that is available under 29 U.S.C. § 1132(a).’”) (quoting Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1330 (11th Cir.1998)). If this court were deciding this case on a blank slate with Butero and Towne as the only available decisions for consultation, the court would distinguish Butero, using Towne’s explanation that a state law claim for fraudulent inducement is not preempted in a case where the plaintiff is not using the lawsuit to pursue benefits denied by the ERISA plan administrator. The facts of the instant case closely mirror the facts in Towne. In her Complaint, Wilson contends that the Defendants made false representations and misrepresented material facts in an effort to induce her to purchase universal life insurance policies from Loyal American. At the time the Defendants allegedly made these false representations, Wilson already had one or more universal life insurance policies through a different insurance carrier. According to the Complaint, the Defendants failed to advise Wilson that her existing policies would not be “switched” to her new Loyal American policies and that she would, in essence, be purchasing additional insurance instead of replacing her existing policies. Instead, Wilson would continue to owe premiums on her existing policies, but, due to the fact that she was not paying the premiums, and to the fact that the Defendants allegedly represented that she no longer needed to make the payments, the existing policies lost value as the premiums were paid out of the cash value of the policy. Wilson also asserts that the Defendants misrepresented the fact that by purchasing universal life insurance through Loyal American she was actually buying less valuable life insurance with greater restrictions on its cash surrender value. In essence, Wilson is suing the Defendants for their alleged fraudulent and negligent conduct, which caused her to suffer economic losses. The economic loss that Wilson allegedly suffered includes purchasing insurance that was less valuable than her existing policies in terms of benefits, premium charges, surrender charges, and contestability periods and the lost cash value of her existing policies. What Wilson is not suing the Defendants for is a refusal to pay benefits under the terms of the universal life insurance policies or for a clarification of her rights under the policy. Wilson has not made a request for benefits under her universal life insurance policies. See Plaintiffs Memorandum in Support of Remand (Doc. # 16), at 25 (“The plaintiffs have not made any claim under the Loyal American policy, nor any claim for damages based on the terms of that policy. Plaintiff does not seek ‘benefits’ (i.e., payment of death benefits) under the Loyal American policy.”). This fact distinguishes the instant case from Butero. Butero is not, however, the only Eleventh Circuit opinion which discusses whether state law claims for fraudulent inducement can be removed to federal court on the basis of complete preemption under ERISA. There are at least three other Eleventh Circuit opinions which speak to the issue of whether a claim for fraudulent inducement is completely preempted. See Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1353 (11th Cir.1998) (“Even though Engelhardt’s original complaint purported to raise only a state law claim for fraud, it falls within the scope [of] § 1132(a).”); Hall v. Blue Cross/Blue Shield of Ala., 134 F.3d 1063, 1065-66 (11th Cir.1998) (holding that plaintiffs claim for fraudulent inducement was preempted by ERISA); Franklin v. QHG of Gadsden, Inc., 127 F.3d 1024, 1029 (11th Cir.1997) (finding complete preemption and federal jurisdiction over plaintiffs claim for fraudulent inducement). Further complicating the analysis for the instant case, the complete preemption analysis utilized in Hall and Franklin is different from the analysis the court relied upon in Butero. As evidence of the apparent contradictions, consider the analysis applied by the courts in Hall and Franklin. In Franklin, the plaintiff was offered a position at Baptist Memorial Hospital (“the Hospital”). 127 F.3d at 1026. Before accepting the position, the plaintiff sought to ensure that her husband would receive the same 24-hour home nursing care under the Hospital’s employee benefits plan as he currently received under the plaintiffs employee benefits plan with Goodyear, her current employer. Id. The Hospital informed the plaintiff that her husband would receive “grandfather status” into the Hospital’s benefits program. Id. The plaintiff resigned her employment with Goodyear and accepted employment with the Hospital. Id. After the Hospital was purchased by the defendant, the defendant, exercising a right given to it under the employee benefits plan, altered the Hospital’s employee benefits plan to exclude 24-hour home nursing care. Id. The plaintiff filed suit against the defendant in state court and claimed that she was “fraudulently induced to leave her employment with Goodyear as the result of misrepresentations of material facts, suppression, deceit, and fraudulent deceit regarding the medical coverage.” Id. at 1027. The defendant removed the case to federal court, and the district court denied the plaintiffs motion to remand. Id. Despite the plaintiffs arguments that she was not seeking any relief pursuant to the ERISA plan and that she was not alleging a violation of the employee benefits plan, the district court granted the defendant’s motion for summary judgment. Id. On appeal, the plaintiff argued that the district court lacked jurisdiction because the complaint contained nothing that subjected it to ERISA’s preemptive provisions. Id. The court noted the removal standard under § 1132: “ERISA completely preempts the area of employee benefit plans and thus converts state law claims into federal claims when the state law claim is preempted by ERISA and also falls within the scope of the civil enforcement section of ERISA, ... 29 U.S.C. § 1132(a).” Id. at 1028. The Franklin court further quoted Kemp v. International Business Machines Corp., 109 F.3d 708, 712 (11th Cir.1997): “To sum up, the jurisdictional issue ... turns on whether the plaintiff ] [is] seeking relief that is available under 29 U.S.C. § 1132(a).” Franklin, 127 F.3d at 1028. After annunciating the § 1132(a) standard, the court immediately began to analyze the facts of the case under the § 1144 standard. The court stated: The alleged misrepresentation relates directly to [the Hospital’s] medical benefits plan. [The plaintiff] was allegedly told she would receive comparable benefits to those available under Goodyear’s ERISA benefits plan. [The plaintiffs husband] was “grandfathered” into [the Hospital’s] medical benefits plan. The gravamen of [the plaintiffs] grievance against [the defendant] is that it modified its ERISA medical benefit plan to eliminate 24-hour home nursing care. Thus, a determination of the merits of [the plaintiffs] state law claims will require a court to compare the benefits available under the ERISA plans provided by [the Hospital and the defendant] with those provided to its employees by Goodyear. Accordingly, [the plaintiffs] state law claims have a direct connection to the administration of medical benefits under an ERISA plan. We hold, therefore, that they are completely preempted. 127 F.3d at 1029 (emphasis added). The Franklin court found complete preemption neither because the plaintiff was seeking benefits under the plan nor because the plaintiff was pursuing a remedy under § 1132(a), but because the resolution of the state law claims related to the various ERISA plans at issue. This court respectfully submits, with reliance on the clear delineation drawn by Butero between an analysis under § 1132(a) and an analysis under § 1144, that the “relates to” standard of § 1144 should only be applied when the question is defensive preemption. The Franklin court confronted the issue of complete preemption and relied on § 1144 and the “relates to” standard. This court submits that such an analysis would be inconsistent with Butero and incorrect under § 1132. In Hall, the Eleventh Circuit appears to be dealing both with defensive preemption and complete preemption. See 134 F.3d at 1065-66. In that case, Blue Cross/Blue Shield informed Hall that it would deny any claims arising out of surgery she underwent to have an ovarian mass removed. Id. at 1064. Blue Cross/Blue Shield based its denial on the fact that the surgery occurred during the 270-day pre-existing condition waiting period. Id. Hall contended that Blue Cross/Blue Shield’s agents made representations to her that her surgery would be covered. Id. When coverage was denied, Hall brought suit in Alabama state court for fraud and fraudulent inducement. Id. Blue Cross/Blue Shield removed the case to federal court and moved to dismiss Hall’s state law claims on defensive preemption grounds. Id. The district court denied Hall’s motion to remand and dismissed her state law claims. Id. Hall appealed. Id. In describing the question presented by Hall’s appeal, the Eleventh Circuit stated that “[t]he issue in this case is whether the district court erred in holding that ERISA preemption applies to Hall’s claims based on fraudulent inducement.” Id. The Hall court draws no distinction between defensive preemption and complete preemption. In all fairness, Hall predates Butero by over a year, but the Hall opinion’s lack of a distinction between the two types of preemption makes it unclear as to whether the holding applies to defensive preemption or complete preemption. See Butero, 174 F.3d at 1207 (decided May 10, 1999); Hall, 134 F.3d at 1063 (decided February 4, 1998). Consider the following paragraph: Hall fails to consider the practical consequences of litigating her claims in state court. Ultimately, no court will be able to determine whether Hall has been fraudulently induced without resorting to the written policy and assessing the truth of the agents’[s] representations. Because the terms of Blue Cross’s ERISA-governed policy are critical to the resolution of Hall’s fraudulent inducement claims, her cause of action is sufficiently related to an employee benefits plan to fall within ERISA’s preemptive scope. Hall, 134 F.3d at 1065 (emphasis added). It appears that the Hall court is analyzing whether federal jurisdiction is present or whether the case should be remanded to state court. The standard the court applies, however, as noted by the italicized portion of the text, is the “related to” standard of § 1144. See id. As the Eleventh Circuit in Butero duly noted, the analysis of complete preemption focuses on § 1132, not § 1144. See 174 F.3d at 1211-12 (discussing the differences between the standards for complete preemption and defensive preemption). The above analysis from Hall is not incorrect in its result, however. Assuming federal jurisdiction exists, Hall’s claims, as the court clearly found, are “related to” an ERISA plan and thus defensively preempted. The question of whether Hall’s claims were completely preempted and thus within the jurisdiction of the district court is not clear from the Hall court’s reasoning. While the end result of defensive preemption is correct, assuming federal jurisdiction, this court is hesitant to apply the Hall court’s holding that state law claims for fraudulent inducement are preempted when it is unclear whether that preemption is complete or defensive. The preemption analysis in Butero is in conflict with Franklin and Hall. If Butero were the only circuit precedent on complete preemption, this court could decide to remand this case on the basis that the facts of the instant case mirror the facts in Towne and are distinguishable from the facts of Butero. The Eleventh Circuit has, however, a very strong prior panel rule. Under the prior panel rule, as explained by the court in United States v. Woodard, 938 F.2d 1255 (11th Cir.1991), “[t]he law in this circuit is emphatic that ‘only a decision by this court sitting en banc or the United States Supreme Court can overrule a prior panel decision.’ ” Id. at 1258 (quoting United States v. Machado, 804 F.2d 1587, 1543 (11th Cir.1986)). Under the prior panel rule, this court must follow the Eleventh Circuit’s earliest panel decision. Of the three cases at issue, the earliest is Franklin. At points in the Franklin opinion, it is also difficult to determine whether the court is discussing complete or defensive preemption. The court correctly explains that complete preemption depends on whether the plaintiff is seeking relief that is available under § 1132. See Franklin, 127 F.3d at 1027-28. At the same time, the court also discusses the defensive preemption standard and the “relates to” standard of § 1144. See id. at 1028. From the facts of Franklin, it appears that there is little doubt that the plaintiffs state law claims are defensively preempted. The court explicitly explained that “[t]he alleged misrepresentation relates directly to [the defendant’s ERISA] medical benefits plan.” Id. at 1029. Yet, after carefully and repeatedly reading the opinion’s final paragraph, it appears that the court reaches the conclusion that the plaintiffs claims are completely preempted because the state law claims are directly related to an ERISA plan. See id. at 1029. Specifically, the court stated that the plaintiffs “state law claims have a direct connection to the administration of medical benefits under an ERISA plan. We hold, therefore, that they are completely preempted.” Id. The Franklin court’s as-applied analysis is in direct conflict with Butero. In Bute-ro, the court emphasized that the complete preemption analysis does not involve a determination of whether a state law claim is “related to” an ERISA plan. See 174 F.3d at 1212-13. Franklin’s final paragraph indicates that the court found complete preemption based on the “related to” standard. See 127 F.3d at 1029. This court cannot follow both decisions. Either Butero is correct, and this case may be remanded because the facts are distinguishable from Butero’s facts, or Franklin governs, and the case is due to remain in federal court because the resolution of the instant action “relates to” an ERISA plan. In this situation, the court must conform to the prior panel rule and follow the earliest panel ruling. There is a further complication. In several cases, the Eleventh Circuit has stated directly that claims against an insurer and its agents for fraudulent inducement in connection with the purchase of a policy are preempted by ERISA. See Butero, 174 F.3d at 1213 (“[W]e have held that claims against an insurer for fraud and fraud in the inducement to purchase a policy are in essence claims ‘to recover benefits due to [the beneficiary] under the terms of the plan.’ ”) (citing 29 U.S.C. § 1132(a)(1)(B)); Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1353 (11th Cir.1998) (“Even though Engel-hardt’s original complaint purported to raise only a state law claim for fraud, it falls within the scope [of] § 1132(a).”); Hall, 134 F.3d at 1065-66 (holding that plaintiffs claim for fraudulent inducement was preempted by ERISA); Franklin, 127 F.3d at 1027 (finding complete preemption and federal jurisdiction over plaintiffs claim for fraudulent inducement). This court has noted, under a completely different set of facts than those currently before the court, that Engelhardt and Hall “do not stand for the broad proposition that ERISA preempts all fraudulent inducement claims.” Mehaffey v. Boston Mut. Life Ins. Co., 31 F.Supp.2d 1329, 1335 (M.D.Ala.1998) (Albritton, C.J.). Of the four Eleventh Circuit cases mentioned above, the court has discussed each except Engelhardt. In Engelhardt, the plaintiff, a surgeon, had obtained disability insurance through his employer. 139 F.3d at 1348. The plaintiffs policy contained an amendment which excluded disability claims related to “either or both eyes” because the plaintiff had glaucoma. Id. After the plaintiff and the insurer entered into discussions over the breadth of the amendment, the insurer allegedly informed the plaintiff that the amendment would be construed with “common sense and reason” and would be limited to glaucoma-related problems. Id. According to a letter from the insurer to the plaintiff, the amendment would not be used to deny the plaintiff benefits for “lacerations, puncture wounds, or burns to the eye.” Id. The plaintiffs coverage took effect in 1993. Id. In 1995, the plaintiff suffered a detached retina that was unrelated to his glaucoma. Id. The plaintiff filed a claim for disability benefits under the ERISA plan. Id. The insurer denied the claim based on the amendment to the plaintiffs policy. Id. The plaintiff brought suit in state court on a state law claim for fraudulent inducement. Id. at 1353. The insurer removed the case to federal court on the basis of complete preemption. In analyzing whether complete preemption was present in the case, the Eleventh Circuit stated that: Engelhardfs lawsuit is essentially a challenge to [the insurer’s] refusal to pay benefits. The last two paragraphs of Engelhardfs original complaint are instructive on this point: As a proximate result of the fraudulent inducement by [the insurer], plaintiff accepted the policy. Plaintiff lost monthly disability insurance benefits and will continue to lose such benefits from January 1996 until he reaches the age of 65. Wherefore, plaintiff demands judgment against [the insurer] in such amount of compensatory damages as a jury will award, a separate amount of punitive damages, and his costs. Engelhardt is thus alleging, in effect, that the measure of his compensatory damages is the amount of benefits wrongfully withheld by [the insurer]. The complaint makes no reference to any benefits that Engelhardt gave up by choosing to participate in [the insurer’s] plan. Section 1132(a) provides a cause of action for the recovery of plan benefits and allows for the recovery of costs in bringing such a claim. Engelhardt thus “seeks relief that is available under § 1132(a).” Engelhardt’s original complaint did not seek recission [sic] of his contract, and Engelhardt has never attempted to terminate their ERISA relationship. Rather, Engelhardt has stood on his contract and, despite characterizing his claim as one for fraud, has pursued the contractual benefits [the insurer] promised him. His claim thus lies at the heart of § 1132(a). 139 F.3d at 1354. On that basis, the Engelhardt court found that complete preemption was present and that Engelhardt’s state law claim for fraudulent inducement was removable to federal court. Id. From Engelhardt as well as Butero, Hall, and Franklin, it appears that the Eleventh Circuit has developed its rationale that “claims against an insurer for fraud and fraud in the inducement to purchase a policy are in essence claims ‘to recover benefits due to [the beneficiary] under the terms of the plan’ ” from cases in which the plaintiffs actually do seek to recover benefits under the relevant ERISA plans. See Butero, 174 F.3d at 1213 (quoting 29 U.S.C. § 1132(a)(1)(B)). For example, in Butero, the purpose of Annette’s lawsuit was to recover benefits she believed she was owed after Royal Maccabees denied her claim for benefits. See id. at 1211-13. In Engelhardt, the court noted that the plaintiff, “despite characterizing his claim as one for fraud, has pursued the contractual benefits [the defendant] promised him.” 139 F.3d at 1354. Such a claim, the court explained, “lies at the heart of § 1132(a).” Id. In both Hall and Franklin, the plaintiffs filed suit because the administrator of the relevant ERISA plans refused to provide the plaintiffs with benefits they believed they were entitled to under the ERISA plans. See Hall, 134 F.3d at 1064; Franklin, 127 F.3d at 1026-27. After comparing the facts of the instant case with Butero, Engelhardt, Hall, and Franklin, a fair argument can be made that the instant case is distinguishable from each of those cases. Following that logic, one could reach the conclusion that the case should be remanded because the factual predicate behind the Eleventh Circuit’s language that “claims against an insurer for fraud and fraud in the inducement to purchase a policy are in essence claims ‘to recover benefits due to [the beneficiary] under the terms of the plan’ ” is absent. Butero, 174 F.3d at 1213 (quoting 29 U.S.C. § 1132(a)(1)(B)). Wilson is not seeking to recover benefits that Loyal American allegedly wrongfully refused to pay. That distinction, however, has little bearing on the outcome of the motion to remand, given the current state of the law in the Eleventh Circuit. Under Franklin, which this court must follow under the prior panel rule, the case is not due to be remanded because Wilson’s claims “relate to” an ERISA plan. The court respectfully submits that this is the improper standard for analyzing the question of whether