Hаrry J. Perkins, Jr. and Blyonda Ann Perkins appeal an adverse summary judgment dismissing their claims against Time Insurance Company (Time) and its agent, Randall Davis, on the grounds that their state law claims were preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. We affirm the dismissal as to Time, but vacate and remand as to Davis.
Background
Harry Perkins was the general offiсe manager and part owner of Modern Petroleum Technology (MPT) which, upon its formation in 1982, sought to provide medical and death benefits to its employees and, at their option and expense, their dependents. Davis, an independent agent, solicited MPT’s participation in a group insurance plan offered by Time. Perkins, whosе minor daughter had esotropia and mystag-mus, cogenital eye defects that cause crossing and quick, jerky movements of the eyes, informed Davis that his daughter would be requiring сorrective surgery and inquired whether such would be covered under the terms of the proposed Time policy. Perkins asserts that Davis assured him in the presence of othеr MPT employees that his daughter’s condition would be covered under the Time policy because it would be considered a congenital defect rather than an еxcluded preexisting condition. On the basis of these representations Perkins claims that he terminated his existing insurance coverage, which had provided protection for his daughter’s condition, and elected to participate in the Time policy, which MPT then adopted as its employee welfare benefits plan. Perkins proceeded with his daughter’s eye surgery. His claim for benefits, however, was denied by Time on the grounds that the eye problem was a preexisting condition excluded from the plan’s coverage.
Perkins sued Time and Davis in Mississippi state court for tortious breach of contract, seeking compensatory and punitive damages. The ease was removed to federal court with defendants claiming that the MPT employee benefit plan was regulated by ERISA. Time and Davis then sought summary judgment or, alternatively, a Fed. R.Civ.P. 12(b)(6) dismissal. Both sides submittеd affidavits in support of their position. In his opposition to the motions for summary judgment or dismissal Perkins sought leave to amend his complaint to plead fraud in the inducement.
Thе district court granted Time’s motion for summary judgment, holding that ERISA preempted Perkins’ state law claim for tortious breach of contract. While noting that the Mississippi Supreme Court has held agents personally liable for fraudulent solicitation, the district court granted Davis’s motion for summary judgment because Perkins’ complaint did not raise fraud as a basis for recovery. Finally, the court granted Davis’s motion to dismiss on the grounds that even if Time had breached its contract with Perkins, Davis, as the agent for a disclosed principal, cоuld not be held liable for that breach. Perkins timely appealed.
Analysis
While conceding at oral argument that the MPT plan was governed by ERISA, Perkins contends that the district court erred in holding that ERISA preempts his state law claims against Time and Davis. Although his complaint alleged a claim for tortious breach of contract, on appeal Perkins seeks to shift the focus of his complaint to Mississippi statutes regulating the sale and solicitation of insurance. In particular, Perkins points to Mississippi’s “twisting statute,” legislation whiсh deems *473 it an unfair and deceptive insurance practice to misrepresent the terms of an insurance policy “for the purpose of inducing or tending to inducе [a] policyholder to lapse, forfeit, or surrender his insurance.” Miss. Code Ann. § 83-5-35(a). Perkins contends that as a state law regulating the business of insurance, this provision is saved from рreemption by ERISA’s “insurance savings” clause and may provide the basis for his cause of action against both Davis, the agent, and Time, his disclosed principal.
It cannot bе gainsaid that Perkins’ claims against Time “relate to” an employee benefits plan and thus fall within the scope of ERISA’s preemption clause. 29 U.S.C. § 1144(a). The only issue requiring resolution is whether Perkins’ claim against Time is based on a law “which regulates insurance,” and is thereby excused from preemption. 29 U.S.C. § 1144(b)(2)(A).
In
Pilot Life Insurance Co. v. Dedeaux,
Were we to accept Perkins’ attempt to recharacterize his cause of action on appeal to one based on the Mississippi “twisting statute,” that still would not provide Perkins with surcease as to his claim against Time. Addressing the nature of Mississippi’s laws regulating unfair сompetition in the insurance industry, the Mississippi Supreme Court has held that the twisting statute does not create a cause of action for damages caused by the aсtivity it proscribes; rather, any such cause of action arises only under the common law.
Protective Service Life Ins. Co. v. Carter,
While ERISA clearly preempts Perkins’ claims as they relate to Time, the same cannot necessarily be said, however, as regards Davis’s solicitation of Perkins, which allegedly induced him to forfeit an insurance policy that covered his daughter’s condition for one that did not. While ERISA clearly preempts claims of bad faith as аgainst insurance companies for improper processing of a claim for benefits under an employee benefit plan,
Pilot Life,
and while ERISA plans cannot be modified by oral representations,
Degan v. Ford Motor Co.,
Under Mississippi law, an agent for a disclosed principal may be held liable personally where it can be shown that the agent engaged in fraud or similar conduct.
T.G.L., Inc. v. LaCoste,
The decision of the district court is AFFIRMED in part, VACATED in part, and REMANDED for further disposition consistent herewith.
Notes
. In so holding, we emphasize that Davis's liability, if any, is personal and under ERISA may not be imputed to Time.