Before the Court en banc (Justice Pickering recused). Opinion by Justice Douglas.
In contrast to the Court’s decision in Cervantes v. Health Plan of Nevada, 127 Nev. ___, ___ P.3d ___ (Adv. Op. No. 70, October 27, 2011), the Court in this appeal determined that ERISA did not preempt state law claims for negligence against a managed care organization (“MCO”) based on these factual circumstances. The question of preemption in this context depends upon the factual distinction between an MCO acting as an administrator of an ERISA plan and an MCO acting independently. Because this was an appeal of an order granting a motion to dismiss, the Court assumed the facts alleged in the complaint were true and held that the facts alleged indicated that the MCO was acting independently and therefore claims against it were not preempted by ERISA. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
