The Michigan Supreme Court has vacated our earlier opinion in this case and remanded for reconsideration in light of
Teper v Park West Galleries, Inc,
This case concerns whether the federal Employee Retirement Income Security Act, 29 USC 1001 et seq., precludes application of our no-fault coordination-of-benefits law, MCL 500.3109a; MSA 24.13109(1). Specifically at issue is whether the Vanderwals’ no-fault insurer can look to Mr. Vanderwal’s health plan, a self-insured plan of his employer governed by erisa, to assume primary responsibility for medical expenses incurred by the Vanderwals in a car accident. The employer’s health plan specifically excludes benefits for injuries received in accidents involving a car for which a no-fault insurance policy was in effect. The *602 health plan indicates that the benefits involved here were self-funded by the employer.
In our earlier unpublished opinion per curiam, decided June 22, 1987 (Docket No. 90026), we affirmed the trial court’s dismissal of plaintiffs claim by finding that the claim was precluded under erisa, relying on
State Farm Mutual Automobile Ins Co v C A Muer Corp,
As set forth in State Farm, pp 334-336, two questions must be addressed to resolve the issue before us: (1) Since our no-fault law would require the health plan to take primary responsibility for paying for the medical expenses, does that law "relate to” the plan so that erisa would preempt its application; and (2) Does our answer change because the health plan is a self-insured plan? The Teper opinion concerns only the first question.
Erisa expressly preempts the application of a state law which "relates to” an employee benefit plan. 29 USC 1144(a). In Teper, our Supreme Court reviewed the various United States Supreme Court decisions regarding erisa preemption and the meaning of the term "relates to.” Our Supreme Court found that a state law is preempted if it "relates to” an employee benefit plan by
1) altering the level of benefits which would be paid out under a given plan from state to state, 2) altering the terms of the plan such as requirements for eligibility, or 3) subjecting the fiduciaries of a plan to claims other than those provided in the erisa itself. [431 Mich 221 .]
The Michigan no-fault coordination-of-benefits law would require the health plan to assume primary responsibility for the Vanderwals’ medical expenses despite the plan’s exclusion clause.
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Federal Kemper Ins Co, Inc v Health Ins Administration, Inc,
However, erisa also includes a provision which allows for the application of insurance laws even if they "relate to” the plan. We therefore turn to consideration of our second question: Does our answer change because the health plan is a self-insured plan?
As noted in State Farm, supra, p 335, there is a "saving” clause in erisa which would allow enforcement of the no-fault policy as a state law regulating insurance. 29 USC 1144(b)(2)(A). This saving clause is, however, limited by the "deemer” clause which provides that an employee benefit plan shall not be deemed an insurance company for purposes of a state law regulating insurance companies or contracts. 29 USC 1144(b)(2)(B). State Farm held that, because the health plan there was self-funded and not insured by a commercial insurance company, it was not deemed to be subject to the insurance laws of Michigan. Under State Farm, the no-fault law would continue to be preempted.
Since
State Farm,
however, the Sixth Circuit Court of Appeals has considered the identical question raised here of whether Michigan’s no-fault coordination-of-benefits law was preempted when
*604
applied to self-insured health plans. In
Northern Group Services Inc v Auto Owners Ins Co,
833 F2d 85 (CA 6, 1987), cert den — US —;
Defendants’ final issue, challenging plaintiffs standing, was not addressed in our earlier opinion. We also need not address it now since they did not properly raise this issue by filing a cross appeal. MCR 7.207;
Michigan Ass’n of Administrative Law Judges v Michigan Personnel Director,
In summary, we find that our no-fault coordination-of-benefits law would be preempted under Teper as a law which "relates to” an erisa benefit plan. However, because the no-fault law is the type of state insurance regulation not barred by erisa, the coordination-of-benefits law is saved from preemption. We therefore reverse the order granting summary disposition for defendants and remand this matter to the trial court. Jurisdiction is not retained.
Reversed.