Ghee v. Usable Mut. Ins. Co., 253 So. 3d 366

Decedent Billy Fleming was covered by a Wal‑Mart employee self‑funded health plan administered by Blue Advantage; the plan is governed by ERISA. Fleming suffered severe constipation/fecal impaction, doctors recommended a colectomy, and Blue Advantage denied authorization for surgery. Fleming later presented to hospitals repeatedly and died of a perforated sigmoid colon and peritonitis.
Ghee, as personal representative, sued multiple defendants in Calhoun Circuit Court (including Blue Advantage) for wrongful death and punitive damages under Alabama law, alleging Blue Advantage’s denial/management of care caused Fleming’s death.
Blue Advantage removed to federal court asserting complete preemption under ERISA § 502(a) (29 U.S.C. § 1132); the federal court remanded, holding plaintiff sought punitive wrongful‑death recovery, not ERISA benefits, so removal was improper.
Back in state court, Blue Advantage moved to dismiss under ordinary (defensive) ERISA preemption, 29 U.S.C. § 1144(a); the circuit court granted dismissal under Rule 12(b)(6) and certified the order as final under Ala. R. Civ. P. 54(b), while expressly permitting plaintiff 30 days to amend to pursue any ERISA relief.
Ghee appealed the Rule 12(b)(6)/54(b) order; the Alabama Supreme Court dismissed the appeal for lack of appellate jurisdiction, holding the Rule 54(b) certification was improper because the order left open the same underlying claim for alternative pleading under ERISA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ghee’s state‑law wrongful‑death claim is preempted by ERISA § 514(a) (ordinary preemption)	Ghee: claim challenges Blue Advantage’s intervening control/mandated treatment (quality of care), not a claim for ERISA plan benefits, so not preempted	Blue Advantage: claim “relates to” administration/coverage decisions and therefore is preempted under § 514(a)	Circuit court dismissed on defensive ERISA preemption; appeal dismissed by Ala. Supreme Court for lack of finality (no merits review)
Whether the circuit court’s Rule 54(b) certification made the dismissal order final and appealable	Ghee: (implicit) certification made order final; he disavows an ERISA claim on appeal	Blue Advantage: relied on circuit court’s certification to seek immediate appeal	Court: certification ineffective because the order expressly allowed amendment to pursue ERISA relief based on same conduct, so the claim was not fully adjudicated and appeal is premature
Whether the appeal is from a final judgment (appealability)	Ghee: appealed within 30 days of the order	Blue Advantage: argued order was final as to that party	Held: appeal dismissed for lack of a final judgment; Rule 54(b) improper because it left open the same cause of action to be revived under a different legal theory

Dukes v. US Healthcare, Inc., 57 F.3d 350 (3d Cir. 1995) (distinguishing claims that challenge benefit quantity from claims challenging benefit quality)
Haynes v. Alfa Fin. Corp., 730 So.2d 178 (Ala. 1999) (Rule 54(b) certification must fully adjudicate at least one claim)
Scrushy v. Tucker, 955 So.2d 988 (Ala. 2006) (claims that are mere alternative theories do not create separate claims for Rule 54(b))
Nunn v. Baker, 518 So.2d 711 (Ala. 1987) (appellate courts may raise jurisdictional defects sua sponte)