Full opinion text
MEMORANDUM OPINION AND ORDER PICKERING, District Judge. This matter is before the Court on Defendants’ Motion for Summary Judgment asserting ERISA preemption of Plaintiffs claims. The Court, having reviewed the briefs of the parties, the authorities cited and being otherwise fully advised in the premises, finds as follows, to-wit; THE ALLEGATIONS Plaintiffs complaint alleges breach of contract, fraud in the inducement, negligent and/or intentional misrepresentation, and claims for extracontractual and punitive damages based on the alleged blatant misconduct of the Defendants and the recision of the subject policy. Defendants filed a joint answer generally denying Plaintiffs complaint and affirmatively asserting that the insurance contract at issue is covered by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq. Defendants have moved for summary judgment and request the Court to hold that all of Plaintiffs causes of action arise under state common law and are preempted by the operative provisions of ERISA. 29 U.S.C. § 1144(a). Plaintiff asserts that none of his claims are preempted by ERISA. FACTUAL BACKGROUND In November, 1987, the Plaintiff was employed at Poulos Pacer Tire Co. in Biloxi, Mississippi, as a tire changer/mechanic. Through his employer, he was provided with medical insurance coverage offered by Liberty National Insurance Company, which had been secured through Defendant Tapper. At that time, Defendant Tapper approached Plaintiffs employer, David Poulos, and advised him that he could obtain medical insurance at a lower rate for Poulos’ employees. However, the Plaintiff had been hospitalized in 1986 for ulcers and pancreatitis and Poulos wanted to be certain that Plaintiff would be covered before he switched policies. Defendant Tapper first sought coverage for Poulos with Blue Cross and Blue Shield of Mississippi. By his own admission, Defendant Tapper acquired Plaintiffs prior medical records and history and forwarded it to Blue Cross. After reviewing Plaintiffs medical records, Blue Cross declined coverage. With knowledge that Blue Cross had declined to insure Plaintiff, Defendant Tapper then sought coverage with Defendant Pan American. Tapper filled out the application for all of Poulos’ employees, including the Plaintiff, and forwarded it to Pan American who issued coverage effective December 1987. According to Poulos, Tapper assured him at that time that Plaintiff was covered, so he, Poulos, canceled the Liberty National policy. Some two months later, in February 1988, Plaintiff was hospitalized for similar stomach problems for which he had been previously hospitalized. He incurred in excess of sixteen thousand dollars in medical expenses. He then submitted a claim for the expenses to Pan American, who denied the claim. In July, 1988, Pan American rescinded the policy because of alleged misrepresentations by Plaintiff on his application. The application contained a question about prior hospitalizations within the past twenty-four months which, for Plaintiff, was answered “No”. To the contrary, Plaintiff had been hospitalized some twelve to eighteen months prior to the application date for the above noted stomach problems. Tapper has admitted that he filled out the application and answered the question “No”, but alleges he did so at the direction of Plaintiff. It is Tapper’s explanation that Plaintiff told him the hospitalization was more than twenty-four months prior to the application, which would have made the “No” answer correct. However, the hospital records provided to Defendant Tapper clearly reveal that the “No” answer was not correct. Additionally, plaintiff and his employer, David Poulos, dispute Tapper’s version of the application incident and state that Tapper was fully aware of Plaintiffs 1986 hospitalization at the time of the application. Poulos states in his affidavit that he and employee Mona Criswell were present when Suggs told Tapper that he (Suggs) was hospitalized in 1986. Plaintiff asserts that he was not aware that Tapper had answered this question incorrectly because he did not read the application after Tapper completed it and he was not furnished a copy of the completed application with his policy as required by Miss.Code Ann. § 83-9-11 (1972). STANDARD OF REVIEW The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A Judge’s function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. In making its determination of fact on a motion for summary judgment the court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.1986). “The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material.” Id. “With regard to ‘materiality’, only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment.” Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.1987). PLAINTIFF’S THEORIES Plaintiff advances two theories as to why his claims are not preempted by ERISA. First, he argues that the policy of insurance at issue here is not an employee benefit plan under ERISA. Secondly, he argues that his claims for fraud in the inducement and violation of related insurance statutes are not preempted because: 1) they do not relate to an employee benefit plan; and 2) they are based upon state laws which regulate insurance and are thus saved from preemption. PART I. ANALYSIS REQUIRED TO DETERMINE IF INSURANCE POLICIES ARE COVERED BY ERISA. Pursuant to 29 U.S.C. § 1002 there are two types of “employee benefit plans”. They are “employee welfare benefit plans” and “employee pension benefit plans”. This case involves only “employee welfare benefit plans” which ERISA defines as “... any plan, fund, or program ... established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment....” 29 U.S.C. § 1002(1). This Court has attempted to carefully analyze the various steps that must be taken in order to determine whether ERISA is or is not applicable to the insurance policy which is the subject of this suit. This is a tedious and cumbersome process for a case that involves hospital expenses of only some $16,-000. The Court will discuss its frustrations in more detail later, but first will carefully go through the detailed analysis that this Court understands must be made to determine whether ERISA controls. The Fifth Circuit has devised a comprehensive three part test in determining whether a particular plan or program qualifies as an “employee welfare benefit” plan subject to ERISA preemption. Under that test, the Court must determine whether a plan: (1) exists; (2) falls within the safe-harbor provision established by the Department of Labor; and (3) satisfies the primary elements of an ERISA “employee benefit plan” — established or maintained by an employer or employee organization intending to benefit employees or members. Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir.1993). A. FIRST TEST, DOES A PLAN EXIST? As indicated above, the first step in an analysis of whether ERISA applies is to make a determination of whether or not the particular arrangement is a “plan.” The initial inquiry as to whether the “arrangement” is in fact a “plan” is governed by a test first articulated by the Eleventh Circuit in Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982) (en banc), and accepted by this Circuit in Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir.1990). That test is as follows: In determining whether a plan, fund or program (pursuant to a writing or not) is a reality a court must determine whether from the surrounding circumstances a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits. Donovan v. Dillingham, 688 F.2d at 1373. As indicated above, the plan does not have to be in writing. There need be no formal document designated as “the Plan” to establish that an ERISA plan exists. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d at 241. Additionally, the purchase of an insurance policy does not, in and of itself, establish the existence of an ERISA plan, “... but the purchase is evidence of the establishment of a plan, fund, or program; the purchase of a policy or multiple policies covering a class of employees offers substantial evidence that a plan, fund, or program has been established.” Id. at 242, quoting Donovan v. Dillingham, 688 F.2d at 1373. Ultimately, the determination of whether or not the arrangement is an “employee welfare benefit plan” is generally a question of fact governed by a set of well established legal standards. See Gahn v. Allstate Life Ins. Co., 926 F.2d 1449 (5th Cir.1991); and Han sen v. Continental Ins. Co., 940 F.2d 971 (5th Cir.1991). Based on controlling case law and the evidence submitted, this Court is of the opinion that it would have been obvious to a reasonable person that the intended benefits of the policy at issue here, purchased by Plaintiffs employer, were medical coverages; that the beneficiaries were the employees of Poulos Pacer Tire Company enrolled in the program; that the source of financing was by premiums paid by the employer and/or the employees and submitted by the employer to the insurer; and that the procedure for receiving benefits was to make claim with the insurer through forms provided to the employer by the insurer and completed by the insured. Thus based on applicable law, the Court finds that the policy at issue is an “employee benefit plan”. B. SECOND TEST, DOES THE PLAN FALL WITHIN THE SAFE-HARBOR PROVISION? A finding by the Court that the program at issue is an “employee benefit plan” does not automatically qualify the plan, fund or program as an ERISA plan. See Hansen v. Continental Ins. Co., supra. Only those employee welfare benefit plans that are established or maintained by an employer or employee organization for the purpose of providing certain benefits to its employees or members, which do not fall within the safe-harbor provision established by the Department of Labor, are covered by ERISA. Meredith v. Time Ins. Co., supra. Therefore, once the Court determines that the program is an “employee benefit plan”, it must then look to Department of Labor regulations to determine if the arrangement is one excluded from ERISA’s coverage. Id. See also Kidder v. H & B Marine, Inc., 932 F.2d 347 (5th Cir.1991). The Department of Labor regulations provide that the term “employee welfare benefit plan”; shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee organization, under which (1) No contributions are made by an employer or employee organization; (2) Participation in the program is. completely voluntary for employees or members; (3) The sole functions of the employer or employee organization with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees or members, to collect premiums through payroll deductions or dues checkoffs; and (4) The employer or employee organization receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions or dues checkoffs. 29 C.F.R. § 2510.3-1© (1988). See also, Terry v. Protective Life Ins. Co., 717 F.Supp. 1203 (S.D.Miss.1989). If any one of the four factors set out in the regulations is present, the plan is not excluded from ERISA coverage by the safe-harbor provision. The Fifth Circuit has opined that the presence of the “and connector indicates that the existence of any one of the four criteria listed in the regulation would prevent a group insurance plan, otherwise qualifying as an ERISA plan, from being excluded from coverage under the Act.” Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d at 241, fn. 6. (Emphasis added.) In reviewing the factors set forth above, the Court would note that there is a factual dispute as to who paid the premiums on this policy. Plaintiff asserts that he paid 100% of the premiums. However, the subscription agreement signed by his employer indicates that the employer would be responsible for 100% of the employee’s premiums with the employee responsible for 100% of dependent coverage premiums. It also appears that the entire premium refund check was sent to the employer, as the Plaintiff has testified that he never received any part of it. Plaintiff has provided the affidavit of his employer, David Poulos, as to other issues in the case, but it does not enlighten the Court on this issue. Even though the issue of who paid the premiums may ultimately be decided against Plaintiff, for purpose of this Motion, this issue is resolved in favor of Plaintiff, the non-moving party. As to factor two, the subscription agreement itself provides that participation is not voluntary. It provides that for five to eight employees, all minus one must participate in the program. The employer stated that he had five full time employees, all of whom would participate in the program. As to factor three, Tapper has testified that the employer was responsible for keeping a supply of claim and other forms and for submitting these forms to the insurer. The employer was also responsible for maintaining records and for reporting additions, changes, terminations, and other information necessary for the administration of the policies. Plaintiffs employer agreed to pay all of the premiums for his employees and to collect the dependent coverage portion of the premiums and forward all of them to the company and to pay all invoices in accordance with the terms of the agreement. While the administrative functions of the employer were somewhat nominal, they were beyond those minimal functions set forth in factor three of the Department of Labor Regulations. They were also as involved as those set out in Memorial Hospital, supra. As to factor four, there is no testimony that Plaintiffs employer received any consideration or remuneration as set out in the regulation. Therefore, this factor would militate in favor of exclusion of the policy from ERISA preemption. However, as set out above, the evidence submitted regarding factors 2 and 3 indicate that this policy does not come within the safe-harbor provision. The Court is, therefore, of the opinion that under controlling judicial precedents the policy in issue is not one excluded from ERISA coverage by the Department of Labor regulations. C. THIRD TEST, IS THE PLAN “ESTABLISHED OR MAINTAINED” UNDER THE LANGUAGE OF ERISA? Once the Court finds the existence of an -“employee benefit plan” and determines that the plan is not excluded from ERISA coverage by the Department of Labor regulations, the plan still does not automatically qualify as an ERISA plan. The Court must then proceed to determine whether the plan meets the criteria adopted in this circuit which determine what plans are covered by ERISA. See Kidder, supra; Gahn, supra; and Hansen, supra. Only those employee welfare benefit plans that are “established or maintained” by an employer for the “purpose of providing certain benefits to its employees” are covered by ERISA. See 29 U.S.C. § 1002(1). Thus, under this requirement, the two primary elements of an ERISA plan are: (1) it must be established or maintained by an employer, and (2) the employer must have a certain intent — a purpose to provide benefits to its employees. Hansen, supra. Therefore, the third determination for the court in deciding whether or not this particular plan is in fact an ERISA plan is to decide whether the plan was established or maintained by Plaintiffs employer with a purpose of providing benefits set forth in 29 U.S.C. § 1002(1) to its employees. 1. “ESTABLISHED AND MAINTAINED”? Ultimately, in order for a plan to be “established and maintained” by an employer and ERISA preemption to apply, the plan, fund, or program requires some control, administration, or responsibility on the part of the employer. In making the determination as to whether Poulos Pacer Tire “established or maintained” an employee benefit plan, “the court should [focus] on the employer ... and [its] involvement with the administration of the plan.” Gahn, 926 F.2d at 1452. Thus, if an employer does no more than purchase insurance for her employees, and has no further involvement with the collection of premiums, administration of the policy, or submission of claims, she has not established an ERISA plan. Kidder, 932 F.2d at 353; Memorial Hospital, 904 F.2d at 242. Hansen v. Continental Ins. Co., 940 F.2d at 978. Plaintiffs employer, David Poulos, was the one who sought to “establish” this plan. Poulos “maintained” it within the parameters set out above by keeping a supply of claim and other forms; by submitting those forms to the insurer; being responsible for maintaining records and for reporting additions, changes, terminations, and other information necessary to the administration of the policies; agreeing to pay all of the premiums for his employees; agreeing to collect the dependent coverage portion of the premiums and to forward them to the company; and agreeing to pay all invoices in accordance with the terms of the agreement. Thus the policy in question meets the test for “established and maintained” under applicable law. See, Memorial Hosp. Systems v. Northbrook Life Ins. Co., supra; and Hansen v. Continental Ins. Co., supra. 2. “FOR THE PURPOSE OF PROVIDING BENEFITS”? After the Court has made a determination that the employer in fact “established and maintained” an employee welfare benefit plan, the other prong of the test is to establish whether the employer had a purpose to provide health insurance, accident insurance, or other specified types of benefits to its employees. In other words, the Court must find that the employer had an “intent to provide its employees with a welfare benefit program through the purchase and maintenance of [the] group insurance policy.” Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d at 241. After considering relevant case law and reviewing the evidence submitted and summarized above, this Court is of the opinion that the policy at issue, although nothing more than a group health insurance policy constituted an employee benefit plan established and maintained by Poulos Pacer Tire Company with the intent and purpose of providing medical care benefits to its employees. Therefore, under controlling ease law this insurance policy is an employee benefit plan as defined by ERISA. See, Memorial Hosp. Systems v. Northbrook Life Ins. Co., supra; and, Hansen v. Continental Ins. Co., supra. PART II. ERISA PREVENTION. Once the Court determines that an employee benefit plan (group health insurance policy or otherwise) is controlled by ERISA, the Court must then determine whether state law causes of action “relate to” the plan, or policy, and are thus preempted. The Act provides, “[T]his chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan----” 29 U.S.C. § 1144(a). (Emphasis added.) The Supreme Court has held that this language is “deliberately expansive,” and is designed to make regulation of employee benefit plans an exclusively federal concern. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987). Plaintiff asserts that his claims, specifically his claim for fraud in the inducement, are not preempted by ERISA because they do not “relate to” an employee benefit plan. Case law is to the contrary. “[T]he Supreme Court has announced that the term ‘relate to’ in the preemption provision should be given its broadest common sense meaning: a ‘law “relates to” an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Hansen v. Continental Life Ins. Co., 940 F.2d at 979; quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983). (Emphasis added.) The cases hold the preemption provision was intended to displace all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements. See Shaw v. Delta Air Lines, Inc., supra. The Fifth Circuit has recently clarified the analysis of what “relate to” means: In Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1467-68 (5th Cir.1986), cert. denied, 479 U.S. 1034, 107 S.Ct. 884, 93 L.Ed.2d 837 (1987), we determined that the most important factor for a court to consider in deciding whether a state law affects an employee benefit plan “in too tenuous, remote, or peripheral a manner to be preempted” is whether the state law affects relations among ERISA’s named entities. “[Courts] are more likely to find that a state law relates to a benefit plan if it affects relations among the principal ERISA entities — the employer, the plan, the plan fiduciaries, and the beneficiaries — than if it affects relations between one of these entities and an outside party, or between two outside parties with only an incidental effect on the plan. nl9, Id. at 1467. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d at 249. Plaintiff asserts that Perkins v. Time Ins. Co., 898 F.2d 470 (5th Cir.1990), stands for the proposition that a state law claim for fraudulent inducement relates to a benefit plan only indirectly and thus is not preempted. While that is what the Court held in regard to the selling insurance agent, that is not what the Court held in regard to the insurance company. The Court in that case held that the state law claims against Time Insurance Company did affect relations among the principal ERISA entities, that is the beneficiary, the plan itself, and the fiduciaries, and that accordingly the state law claims of the beneficiary, under the plan (policy) against Time Insurance Company (fiduciary) were preempted. That is the same situation with which this Court is confronted. Plaintiffs claims directly affect the relations among the plan, the plan fiduciaries (Pan Am and NIS), and himself as beneficiary. Thus, Plaintiffs position on this issue is simply contrary to existing case law. See also, Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 812, 121 L.Ed.2d 684 (1992). Under prevailing law, the State law claims of breach of contract, fraud in the inducement, negligent and/or intentional misrepresentation asserted by the Plaintiff against Pan American and NIS directly affect the relations among principal ERISA entities and therefore “relate to” an employee benefit plan. On this basis, Plaintiffs state law claims are preempted as to these Defendants unless excused from preemption by the saving clause as discussed below. However, Plaintiffs reasoning is correct as to Defendant Tapper. Since his state law claims against Tapper relate to an employee benefit plan only indirectly, they are not preempted by ERISA. See, Perkins v. Time Ins. Co., supra; and Memorial Hospital, supra. PART III. CONTROLLING LAW ON THE SAVING CLAUSE. Having determined that the policy in question is covered by ERISA and that the preemption clause applies, the Court must go further and determine if the Plaintiffs state law claims nevertheless can be maintained because they are preserved by the “saving clause.” ERISA’s “saving clause” provides “... nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance. ...” 29 U.S.C. § 1144(b)(2)(A). (Emphasis added.) Speaking of the Conference Committee compromise that broadened ERISA’s preemption clause to its present form, the Supreme Court said, “The change gave the insurance saving clause a much more significant role, as a provision that saved an entire body of law from the sweeping general pre-emption clause.” (Emphasis added.); and “... the saving clause is broad on its face and specific in its reference.” Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724, 745-746, fn. 23-24, 105 S.Ct. 2380, 2392 fn. 23-24, 85 L.Ed.2d 728 (1985). (Emphasis added.) Despite this broad language describing the “saving clause,” the specific controlling decisions have been to the contrary. Very few state statutes regarding insurance have survived the broad sweep of ERISA preemption, despite the “saving clause.” Even in those instances in which state statutes have survived the ERISA preemption, the state remedy has not. See Hansen v. Continental Ins. Co., supra. The saving clause was intended to preserve the right of States to regulate the “business of insurance” as provided for by the McCarran-Ferguson Act. The Courts have held that in order to determine whether a State law is saved from ERISA preemption, a court should examine the meaning of the phrase “business of insurance”. Three criteria are used to decide whether a law regulates the “business of insurance”: “first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Gahn v. Allstate Life Ins. Co., 926 F.2d at 1453 and eases cited therein. A final factor to be considered in determining if a state law is saved from preemption is whether the state law in question conflicts with the substantive provisions of ERISA — specifically, in this case, with the civil enforcement provisions set forth in 29 U.S.C. § 1132(a). The Courts have held that even if there is no direct conflict, if a state law gives an employee a remedy greater or other than a remedy set out in ERISA that there is nevertheless an implied conflict and the state law remedy is preempted. See Pilot Life Ins. Co. v. Dedeaux, supra, and Hansen, supra. Plaintiff does not specify exactly which of his claims are “saved”. However, the law is clear in this Circuit that ERISA preempts, and the saving clause does not save, a state law cause of action brought by an ERISA plan participant or beneficiary alleging improper processing of a claim for plan benefits. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. at 48, 107 S.Ct. at 1553; and Ramirez v. Inter-Continental Hotels, 890 F.2d 760, 762 (5th Cir.1989). It is equally clear that ERISA preempts state law claims based on breach of contract, fraud, or negligent misrepresentation, if such theory would have the effect of orally modifying the express terms of an ERISA plan and increasing plan benefits for participants or beneficiaries who claim to have been misled. See Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d at 245; citing Lee v. E.I. Du Pont de Nemours & Co., 894 F.2d 755, 758 (5th Cir.1990); and Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1295 (5th Cir.1989). A. THE “TWISTING STATUTE” AND THE SAVING CLAUSE Plaintiffs primary argument that his claims are within the saving clause centers on the claims he asserts under Mississippi’s “twisting statute”, Miss.Code Ann. § 83-5-35 (1972), and related statutes regulating insurance. The “twisting statute” deems it an unfair and deceptive insurance practice to misrepresent the terms of an insurance policy “for the purpose of inducing or tending to induce [a] policyholder to lapse, forfeit, or surrender his insurance.” Miss. Code Ann. § 83-5-35(a). However, to the Plaintiffs detriment, the Mississippi Supreme Court has held that the twisting statute does not create a cause of action for the damages caused by the activity it proscribes; rather, any such cause of action arises only under common law. Protective Service Life Ins. Co. v. Carter, 445 So.2d 215 (Miss.1983). The reasoning which supports this decision is that because the Commissioner of Insurance by statute is given regulatory powers over unfair competition in the insurance industry pursuant to § 83-5-33 and § 83-5-37 there is no private cause of action under § 83-5-35. This Court is Erie bound to follow that decision. Consequently, Plaintiff cannot go forward under § 83-5-35, the twisting statute. B. VIOLATION OF § 83-9-11 AND THE SAVING CLAUSE Plaintiff contends that he was not furnished a copy of the application with his policy and thus was not able to ascertain that Tapper had answered the question as to his prior hospitalizations in the negative. Failure to provide Plaintiff a copy of his application with the policy is contrary to the provisions of Miss.Code Ann. § 83-9-11(1) (1972), which provides, “The insured shall not be bound by any statement made in an application for a policy unless a copy of such application is attached to or endorsed on the policy when issued as a part thereof.” That section goes on to provide that “The falsity of any statement in the application for any policy covered by §§ 83-9-1 — 83-9-21 may not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer.” Miss.Code Ann. § 83-9-11(3) (1972). As § 83-9-11 applies to the plan (policy) in this case it obviously “relates to” an employee benefit plan since it is directed at the application process for the policy (plan). It is therefore preempted unless it “regulates the business of insurance”. Applying the “regulates the business of insurance” test, as set out in Gahn, supra, it is equally clear that this statute is specifically directed at and limited to the insurance industry; has the effect of spreading the policyholder’s risk; and is an integral part of the policy relationship between the insurer and the insured. Additionally, the statute alone does not conflict with the civil enforcement provisions of ERISA. Therefore, the Court finds that § 83-9-11 is a state law which “regulates the business of insurance” and is thus saved from ERISA preemption. Since this section is saved, it will be utilized to determine if the policy in question can be canceled as contended by Defendant. C. OTHER STATE LAW AND THE SAVING CLAUSE On issues confronting the Court for which ERISA does not provide guidance, “the Court may look to general principles of common law or state law that may be persuasive.” Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir., 1993). See also 29 U.S.C. §§ 1001-1461 (1988). An insurance company that insures a plan remains an insurer for purposes of state laws “purporting to regulate insurance”---- The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan’s insurer. FMC Corp. v. Holliday, 498 U.S. 52, 61, 111 S.Ct. 403, 409, 112 L.Ed.2d 356, 366 (1990). Under well settled Mississippi law, if an applicant for an insurance policy makes a material misrepresentation in his application, a right to rescind arises in the insurer. Fidelity Mut. Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817 (1908). Of course, the misrepresentations must affect either the acceptance of the risk or the hazard assumed by the company. Miss.Code Ann. § 83-9-11(3) (1972). The Defendants, of course, argue that the negative answer by the Plaintiff to the question on prior hospitalizations materially affected the acceptance of the risk by the company. In other words, if the Plaintiff had answered the question in the affirmative, they would never have insured him. This Court accepts the proposition that information on prior hospitalizations is material to the acceptance of the risk. Plaintiff argues, however, that there was no misrepresentation, material or otherwise, because Tapper was advised of the previous hospitalizations and even given copies of the hospital records. Defendants argue “it is irrelevant whether or not Mr. Suggs relayed this information to Mr. Tapper at the time of his enrollment” since they contend that they are not bound by information relayed to Defendant Tapper. However, under Mississippi law, if the applicant divulges the information, but the agent who fills out the form does not record the information accurately, there has been no misrepresentation. Mattox v. Western Fidelity Ins. Co., 694 F.Supp. 210, 215 (N.D.Miss.1988), citing, World Insurance Co. v. Bethea, 230 Miss. 765, 93 So.2d 624 (1957). An insurance company “cannot avoid the policy because the application for insurance does not fully disclose information given to its agents.” National Life and Acc. Ins. Co. v. Miller, 484 So.2d 329, 334 (Miss.1985). Defendants strongly contend that Tapper was not their agent and point to language in the subscription agreement which states that Tapper was not an agent of NIS or Pan American but was in fact the agent for Poulos. Defendants ignore Miss. Code Ann. § 83-17-1 (1972) which, in pertinent part, states; Every person who solicits insurance on behalf of any insurance company, or who takes or transmits, other than for himself, an application for insurance or a policy of insurance, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, collect, or transmit any premium of insurance, or ... do or perform any other act or thing in the making or consummation of any contract of insurance for or with any such insurance company ... shall be held to be the agent of the company for which the act is done or the risk is taken as to all the duties and liabilities imposed by law, whatever conditions or stipulations may be contained in the policy or contract. It is clear that this statute is specifically directed at and limited to the insurance industry; has the effect of spreading the policyholder’s risk; and is an integral part of the policy relationship between the insurer and the insured. Additionally, the statute alone does not conflict with the civil enforcement provisions of ERISA. It is thus saved from ERISA preemption. Since it is undisputed that Tapper took the application for the policy of insurance ' in question and based on § 83-17-1, John Tapper was the agent of Pan American and NIS, the policy terms not withstanding. See also, Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172 (Miss.1990); and McCann v. Gulf Nat. Life Ins. Co., Inc., 574 So.2d 654 (Miss.1990). Defendants make much of the fact that Suggs signed the application and admitted that he was given a chance to review the application even though he didn’t take advantage of the opportunity. However, the signing of a completed application does not alter the fact that the insured has communicated the information to the agent. Home Ins. Co. of New York v. Thornhill, 165 Miss. 787, 144 So. 861 (1932). “Absent some proof of collusion between the applicant and the agent, which is not even alleged in this case, the information relayed to the agent is imputed to the company and the company cannot then rescind the policy because it was not told what its agent was told.” Mattox v. Western Fidelity Ins. Co., 694 F.Supp. at 215. See also, Southern United Life Ins. Co. v. Caves, 481 So.2d 764, 767 (Miss.1985). Although this court has held that there is no duty on the insurer to investigate an applicant upon receipt of the application, Ross v. Western Fidelity Insurance Co., No. EC87-54-S-O (N.D.Miss. June 29, 1988) (unpublished opinion), that does not mean that the company may, in good faith, wait until a claim is filed and then determine that the claimant was not an insurable risk and avoid the policy. Uninsurability alone is not grounds for rescission of the policy. The company that refuses to investigate until after a claim is filed runs the risk that it has insured someone whom it otherwise would not have. It is indeed true that the company has the right to rely on the information supplied in the application in determining whether or not to accept the risk, Apperson v. U.S. Fidelity & Guaranty Co., 318 F.2d 438, 441 (5th Cir.1963). However, ... [a]n applicant has neither concealed nor misrepresented information when he has answered fully and truthfully all the questions asked of him. Liverpool & London & Globe Ins. Co. v. Delaney, 190 Miss. 404, 200 So. 440 (1941). Mattox v. Western Fidelity Ins. Co., 694 F.Supp. at 216-17. Tapper testified that everytime he saw Suggs, he (Suggs) was too greasy to fill out the forms. At this stage Suggs is entitled to have the evidence viewed in the light most favorable to him. Since Suggs was always too greasy to fill out the forms, this could support a reasonable inference to confirm Suggs’ testimony that he did not read the application and did not know that it was filled out incorrectly by Tapper. There is no question that the Plaintiff’s coverage was rescinded on July 25, 1988, for what the Defendants term “his material omission on his enrollment card.” It is equally clear that § 83-9-11 forbids the Plaintiff being bound by any statement made in the application if he was not furnished a copy of the application with his copy of the policy. Defendants do not contest Plaintiffs contention that he was not provided a copy of the application when the policy was delivered to Plaintiff. It is therefore clear that the Defendants were not entitled to deny coverage based on any allegedly false statement made by the Plaintiff in the application. As the record now stands, had Plaintiff moved for summary judgment on this issue, it would have been granted. Since Miss.Code Ann. § 83-17-1 (1972) is likewise saved, Defendant Pan American and NIS will be bound by what the evidence establishes was told to Tapper about Plaintiffs previous hospitalizations. In Gahn, the Fifth Circuit considered the question of whether ERISA preempted a Louisiana statute prohibiting an .insurance company from terminating an insurance policy after an insured was diagnosed with liver cancer. The situation before this Court and the two statutes discussed above are analogous to the situation presented in Gahn and the Louisiana statute involved in that case. Holding that ERISA did not preempt such a statute the Court in that case cited a Louisiana case, Cataldie v. Louisiana Health Service & Indem. Co., 456 So.2d 1373 (La.1984), and said, “The court also stated that it would be unconscionable to allow an insurance company to wait until a risk had been realized before canceling a policy, making it impossible for the insured to obtain insurance from any other carrier.” Gahn v. Allstate Life Ins. Co., 926 F.2d at 1455. Likewise it would be unconscionable for an insurance agent to make representations to an insured that would cause him to lapse a policy that provided him coverage for his existing or preexisting conditions and to purchase a policy that provided absolutely no coverage. Although §§ 83-9-11 and 83-17-1 are saved for the purpose of determining if the policy in question is subject to cancellation for the reasons stated, the remedies available under state law are not saved against Defendants NIS and Pan American as will be discussed in the next paragraphs.' PART IV. WHAT REMEDIES ARE NOT AVAILABLE UNDER ERISA? Plaintiff asserts that if § 83-9-11 and § 83-17-1 are saved from ERISA preemption, then he is entitled to pursue his full range of remedies under state common law. His reasoning is that once a law is saved from preemption, he is entitled to pursue any remedy available thereunder. This argument is contrary to case law. “In short, when beneficiaries seek to recover benefits from a plan covered by ERISA, their exclusive remedy is provided by ERISA, in 29 U.S.C. § 1132(a)(1)(B).” Hansen v. Conti nental Ins. Co., 940 F.2d at 979; quoting, Degan v. Ford Motor Co., 869 F.2d 889, 893 (5th Cir.1989). (Emphasis added.) Thus, although these state laws are saved insofar as they will help the Court determine whether the policy in question can be canceled, the only remedies available to Plaintiff are those found in ERISA. Any argument that one is entitled to seek any relief regarding an ERISA plan other than that set forth in the civil enforcement provisions will face the Supreme Court’s edict that “[t]he six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted [29 U.S.C. § 1132(a) ], ..., provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1985). (Emphasis in original). However, only two of these remedies are available to an individual plan participant or insured. If Plaintiff’s remedies are limited to ERISA, he argues that federal courts are under a mandate from Congress and the Supreme Court to “... develop a federal common law of rights and obligations under ERISA-regulated plans.” Pilot Life Ins. Co. v. Dedeaux, supra, 481 U.S. at 56, 107 S.Ct. at 1557. See also 129 Cong.Rec. 29942 (1974) (remarks of Sen. Javits). “However, this power extends only to areas which federal law preempts but does not address.” Degan v. Ford Motor Co., 869 F.2d at 895. He contends that this body of “federal common law” is to be developed from the common law of the states. Under the Plaintiffs concept of the federal common law to be developed, he would be entitled to extracontraetual and punitive damages for the wrongful denial of his claim by the defendants. A widely cited Eleventh Circuit case discussed the development of federal common law in ERISA eases': The claim that Congress intended for the federal courts to create a body of federal common law to govern ERISA cases does not, as appellant suggests, give a federal court carte blanche authority to apply any prevailing state common law doctrine it chooses to ERISA cases. A federal court may create federal common law based on a federal statute’s preemption of an area only where the federal statute does not expressly address the issue before the court. See C. Wright, Law of Federal Courts § 60, at 283-84 (3d Ed.1976); see also Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456-57, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957). Furthermore, even when it is appropriate for a federal court to create federal common law, it may use state common law as the basis of the federal common law only if the state law is consistent with the policies underlying the federal statute in question; see Lincoln Mills, 353 U.S. at 457, 77 S.Ct. at 918; Scott [v. Gulf Oil Corp.], 754 F.2d [1499] at 1502 [ (9th Cir.1985)]; federal courts may not use state common law to re-write a federal statute. Nachwalter v. Christie, 805 F.2d 956, 959-60 (11th Cir.1986). The Fifth Circuit has recently spoken on the development of federal common law and the availability of the type damages Plaintiff seeks to pursue under ERISA: The plain language of this statute does not mention recovery of extracontraetual or punitive damages. Nothing in the statute instructs us to fashion a federal common law remedy to grant plaintiffs the right to recover punitive or extracontraetual damages ____ We join the other circuits that have held that Section 502(a)(1)(B) does not allow the recovery of extracontraetual or punitive damages. Medina v. Anthem Life Ins. Co., 983 F.2d 29, 31-32 (5th Cir.1993). It is thus clear, under prevailing federal law, that neither extracontractual nor punitive damages are available to Plaintiff as a “federal common law” remedy for any claim he may assert under 29 U.S.C. § 1132(a)(1)(B). Plaintiff also argues that he can pursue extracontraetual and punitive damages under the “other appropriate equitable relief’ language of § 1132(a)(3). Whether such damages are available under that section had been a question since Massachusetts Mut. Life Ins. Co. v. Russell, supra. However, the Fifth Circuit in Corcoran v. United Healthcare, Inc., 965 F.2d 1321, 1335 (5th Cir.1992), has now spoken to that issue: Section 502(a)(3) provides relief apart from an award of benefits due under the terms of a plan. When a beneficiary simply wants what was supposed to have been distributed under the plan, the appropriate remedy is § 502(a)(1)(B). ... Damages that would give a beneficiary more than he or she is entitled to receive under the strict terms of the plan are typically termed “extracontractual.” Section 502(a)(3) by its terms permits beneficiaries to obtain “other appropriate equitable relief’ to redress (1) a violation of the substantive provisions of ERISA or (2) a violation of the terms of the plan. The Fifth Circuit went on to recognize that the courts are to be guided by general principles of trust law, and to some extent by contract law, in deciding what is meant by “other appropriate equitable relief.” However, it found that the emotional distress and mental anguish damages sought by the Corcorans were not recoverable under § 502(a)(3) (29 U.S.C. § 1132(a)(3)). Id. at 1338. See also Medina, supra, addressing 29 U.S.C. 1132(a)(1)(B). In a decision handed down June 1, 1993, the U.S. Supreme Court strongly indicated that “other appropriate equitable relief’ includes neither compensatory nor punitive damages: Although they often dance around the word, what petitioners in fact seek is nothing other than compensatory damages— monetary relief for all losses them plan sustained as a result of the alleged breach of fiduciary duties. Money damages are, of course, the classic form of legal relief---- And though we have never interpreted the precise phrase “other appropriate equitable relief’, we have construed similar language of Title VII of the Civil Rights Act of 1964 ... — “any other equitable relief as the court deems as appropriate,” ... — to preclude “awards for compensatory or punitive damages”.... Mertens v. Hewitt Associates, 508 U.S. -, -, 113 S.Ct. 2063, 2066, 124 L.Ed.2d 161, 169 (1993). (Emphasis in original). The Court went on to note that, “[t]he authority of courts to develop a ‘federal common law1 under ERISA, see Firestone [Tire and Rubber Co. v. Bruch], supra, [489 U.S. 101,] at 110, 103 L.Ed.2d 80, 109 S.Ct. [948, at] 988, is not the authority to revise the text of the statute.” Id., 508 U.S. at -, 113 S.Ct. at 2070, 124 L.Ed.2d at 172. It is thus clear, under prevailing federal law in this Circuit that neither extracontractual nor punitive damages are available to Plaintiff as a “federal common law” remedy for any claim he may assert under 29 U.S.C. § 1132(a)(1)(B). And according to Mertens, supra, the same is likely true as to 29 U.S.C. § 1132(a)(3). PART V. THE DEEMER CLAUSE. The Plaintiff finally argues the application of the “deemer clause” to the case at bar. The “deemer clause” provides; “Neither an employee benefit plan ... nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts____” 29 U.S.C. § 1144(b)(2)(B). The “deemer clause”, which modifies the saving clause, strictly involves situations where there has been no purchase of an insurance policy to fund the “plan”. Plans may self-insure or they may purchase insurance for their participants. Plans that purchase insurance — so-called “insured plans” — are directly affected by state laws that regulate the insurance industry. Plans that are uninsured (self-funded) are not subject to state regulation. Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. at 732, 105 S.Ct. at 2385. The Supreme Court has made a distinction between insured and uninsured plans by finding that the latter are exempt from the application of the saving clause and are therefore not subject to state regulation. As the Court stated; State laws that directly regulate insurance are “saved” but do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws. On the other hand, employee benefit plans that are insured are subject to indirect state insurance regulation. FMC Corp. v. Holliday, 498 U.S. at 61, 111 S.Ct. at 409. There are no allegations by the Plaintiff that the employee benefit plan at issue here is self-funded or uninsured. It is in fact a policy of insurance issued by an insurance company. The Court cannot accept the Plaintiffs argument that the deemer clause has any application to this action. PART VI. INTENT OF CONGRESS THWARTED BY JUDICIAL INTERPRETATIONS. Congress clearly set forth its intent in adopting ERISA. That express intent is accepted by the courts without dispute. In one of the earliest cases interpreting ERISA the Supreme Court stated: ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. at 90, 103 S.Ct. at 2896, 77 L.Ed.2d at 497. In Hansen, the Fifth Circuit stated: Congress enacted ERISA ... to protect working men and women from abuses in the administration and investment of private retirement plans and employee welfare plans. Hansen v. Continental Ins. Co., 940 F.2d at 976; quoting, Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir.1982) (en banc). In Pilot Life, supra, and in Metropolitan Life Ins. Co., supra, the Supreme Court in interpreting ERISA said “ ‘ “[t]he purpose of Congress is the ultimate touchstone.””’ (Emphasis added.) (citations omitted) 481 U.S. at 45, 107 S.Ct. at 1552 and 471 U.S. at 747, 105 S.Ct. at 2393. In Russell, the Supreme Court again addressed Congressional intent and stated: The floor debate also reveals that the crucible of congressional concern was misuse and mismanagement of plan assets by plan administrators and that ERISA was designed to prevent these abuses in the future. See Cong.Rec. 29932 (1974). Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. at 140-141, fn. 8, 105 S.Ct. at 3089-90, fn. 8. (Emphasis added.) The Court went on to quote various statements from members of Congress affirming Congressional intent to protect employees from abuse and fraud. The unanimity with which Congressional intent is accepted and understood is illustrated by two quotes from Defendant’s Brief. “ERISA was enacted by Congress to protect employee benefits from a multitude of abuses that workers are encountering.” Defendant went on further to say “Finally, being remedial legislation ERISA should be liberally construed in favor of coverage so that the purpose of the Act, to protect plan participants and beneficiaries, would be fulfilled.” (Emphasis added.) Despite this recognition, that is not what Defendants are attempting to do in this case. What Defendants are attempting to do is to have “preemption” liberally construed and interpreted so that the “coverage” of the policy can be defeated. Despite this clearly stated objective of ERISA, with so many state laws and/or remedies having been preempted, employees obviously have less protection in the field of health insurance today than they had before ERISA was passed in 1974. To the point that the Court in Corcoran, said, “the result ERISA compels us to reach means that the Corcorans have no remedy, state or federal, for what may have been a serious mistake. This is troubling ...” Corcoran v. United Healthcare, Inc., 965 F.2d at 1338. (Emphasis added.) Even more to the point in Hansen, supra, the Court stated: ... ERISA’s preemption provision bars state law causes of action even though such preemption may leave a victim of fraud or misrepresentation without a remedy. Hansen v. Continental Ins. Co., 940 F.2d at 979. (citation omitted) (Emphasis added.) It cannot be said that Congressional intent has been followed when the results are so clearly to the contrary. These results remind one of the words of Welsh poet Dylan Thomas when he was describing the awesome problems created by the signature and decree of a certain monarch who had imposed great hardship upon many people. He concluded “great is the hand that holds dominion over man by a scribbled name.” In many respects the judicial interpretation of ERISA has accomplished the same thing. It has preempted from application to most group health insurance policies a volume of state laws and remedies developed over many years of experience that protected insureds (employees or beneficiaries under ERISA). ERISA has not been interpreted to provide federal remedies to replace preempted state remedies. PART VII. HOW DID WE GET WHERE WE ARE IN THE AREA OF INSURANCE POLICIES HELD TO BE COVERED BY ERISA? If it was Congress’ primary intent to protect “employees and their beneficiaries,” how is it that courts repeatedly are reaching conclusions to the contrary and providing workers less, not more protection? In the opinion of this Court that result has been brought about primarily because of the following: (1) There has not been a consistent recognition that some provisions of ERISA that apply to private pension plans and self-funded welfare benefits plans might not apply to private welfare benefit plan funded through the purchase of insurance. Provisions that are perfectly clear and make perfectly good sense in regard to privately funded pension funds or self-funded benefit plans might not be so clear or make such perfectly good sense when applied to an insurance policy purchased by a plan. (2) There has not been a clear distinction between “welfare benefit plans” and the “assets” of such plans, particularly in the area of health insurance policies. This is true in spite of the fact that ERISA plainly makes that distinction in providing that insurance policies, although to be considered as assets of plans, are not to be held in trust, and thus not subject to trust provisions. 29 U.S.C. § 1103(a) and (b). (3) Principles of trust law which are not applicable to contract law and insurance policies have nevertheless been imposed upon insurance policies despite the provision in ERISA that insurance policies are not to be held in trust. 29 U.S.C. § 1103(a) and (b). (4) Because the preemption clause has been broadly interpreted and the saving clause has been more narrowly interpreted, Congress’ stated intent to leave the regulation of the “business of insurance” to the states even though stated twice in ERISA has not been closely adhered to. (5) The courts in some instances have applied law developed under LMRA, not just to ERISA in general, but to insurance policies held to be “plans,” and this despite the saving clause. (6) The courts have failed to develop a federal common law of ERISA despite legislative history that indicates that courts have this responsibility and despite pronouncements in earlier decisions of the Supreme Court that this would be done. (7) The courts have failed to provide “other appropriate equitable relief’ in any effective manner. (8) Finally, although protection of “employees and their beneficiaries” has been repeatedly recognized as the “ultimate touchstone” or “crucible of congressional concern” in adopting ERISA, and it has been further recognized that the Act as a whole should be interpreted and not just a “single sentence” or a single word or a single phrase, nevertheless, that has generally not been the guiding beacon for interpreting ERISA in the area of health insurance benefits. ERISA is an extremely long and complicated act. A number of different areas in ERISA have proven difficult to interpret. When a new comprehensive statute is adopted, courts will decide a case and establish a premise. Another case will establish another premise. As more and more decisions are handed down, one premise is built upon another premise and on and on goes the process. If not careful, courts can eventually reach a conclusion clearly contrary to Congressional intent and this can be true in spite of good intentions. Comprehensively putting together all of these decisions affecting different areas of ERISA is one of the major problems in regard to ERISA and group health insurance policies. Realizing that the results now being reached in ERISA cases are so contrary to Congress’ stated intent, this Court cannot but attempt to determine what has brought this about. Hence, this Court will analyze, as best it can, what has produced this result. A CONGRESSIONAL INTENT NOT GUIDING BEACON. As already indicated the Supreme Court has repeatedly held that Congressional intent is the “ultimate touchstone.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. at 45, 107 S.Ct. at 1551-52. The Court went further in Pilot Life to hold, “ ““ “in expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” ”” ” (Citations omitted), Id. at 51, 105 S.Ct. at 1555. The object and policy of ERISA is to protect employees and their beneficiaries. Its very name indicates the thrust of the impetus for the act — Employee Retirement Income Security Act of 1974. Mr. Justice Rehnquist speaking for the Court in Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), held: ... in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling. We have reserved “some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning ... would thwart the obvious purpose of the statute.’” (Citations omitted.) 458 U.S. at 572, 102 S.Ct. at 3251, 73 L.Ed.2d at 981. The principle enunciated in Griffin has not been applied to ERISA cases. A simple procedure that would help insure that Congressional intent is followed when courts consider whether insurance policies are welfare benefit plans under ERISA would be to ask “are employees and beneficiaries better off under this interpretation than they were before ERISA was adopted?” That is precisely the process that Justice O’Connor followed in Firestone Tire & Rubber, when speaking for the Court she wrote “... Firestone’s reading