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Last year, Peter Brown, a manager at a pharmacy business based in Boca Raton, Fla., was given a company car to drive for both business and personal use. Last August, his wife, who also had use of the car, got into an accident with an uninsured driver who was at fault; she and the couple’s two children were injured in the crash. But Brown’s employer, Suncoast Pharmacy, warned him not to submit an uninsured motorist claim with the company’s auto insurer. When he did so anyway, his hours were reduced, he was dropped from the company’s health plan and he was later fired. Now he has sued Suncoast Pharmacy in state trial court in West Palm Beach, alleging retaliatory discharge and fraud. Brown’s suit in Palm Beach Circuit Court claims that dropping him from the health plan violated the state Employee Health Care Access Act, and that firing him for complaining about that move violated the state law prohibiting the firing of employees who object to illegal practices. Brown, 38, was the warehouse and customer service manager for Suncoast, a family-owned and operated retail and wholesale business that has a satellite store in nearby Boynton Beach. It was founded in 1986. State records list Suncoast’s officers and directors as Howard and Arlene Ackerman of Boca Raton. Brown’s suit, filed July 3, arises from “a situation that cries out for a remedy but falls in between the statutes,” said Marc Wites, a partner at Wites & Kapetan in Deerfield Beach who is representing Brown. “It’s a chance to make new law.” Florida Statute 448.102(3) prohibits retaliatory personnel action against an employee who has “objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law.” Florida Statute 627.6699, the Employee Health Care Access Act, requires that insurance companies that offer health care insurance to small companies make such insurance available to all employees who work more than 25 hours a week. But Christine Wilson, a partner at Jackson Lewis in Miami who’s representing Suncoast, said Brown’s lawsuit is “not supported by fact or law.” She has moved to dismiss the case and said in an interview that she will request sanctions against Wites if her motion for dismissal is granted. According to his complaint, Brown was hired by Suncoast in 1995 and was such a trusted employee that he was given the keys to all of the company’s offices and warehouses as well as the personal residences of the owners. In 2002, he was provided with a company-owned car that he and his wife were permitted to use for both personal and business purposes. Brown paid $75 a week for use of the car, which was insured by Suncoast. After the auto accident, Brown submitted an uninsured motorist claim. “This is a working-class family,” Wites explained. “Mr. Brown needed medical care for his wife and children.” In January, before the claim was settled, Brown’s weekly hours were reduced from 40 to 32 and he was removed from Suncoast’s group health plan, according to the lawsuit. Brown protested that the removal was illegal but acceded to the move because, according to his suit, “Mr. Brown needed to make a living.” In March, Suncoast’s auto insurance carrier settled Brown’s claim. Two weeks later, Brown was fired. In the letter of termination, Suncoast gave the reason as “differences involving insurance matters.” Brown’s suit alleges that Suncoast committed fraud by offering an “illusory” job benefit, “the exercise of which would result in Mr. Brown’s termination.” In her motion to dismiss, Wilson countered that because Suncoast paid for the auto insurance, the offer was genuine. “Nowhere in the complaint does plaintiff allege that defendant intended plaintiff to file a claim under the policy,” she writes. In Brown’s initial complaint, Wites mistakenly argued that the state health care law imposes the obligation to offer health coverage to all full-time employees on the employer rather than on the insurance company. From that he argued that it was illegal for Suncoast to fire Brown because he complained about being dropped from the health care plan. Wites corrected that error in an amended complaint, saying instead that Suncoast violated the spirit and intent of the health care law when it dropped Brown from the employee health plan. In her motion to dismiss, Wilson jumped on Wites’ error. “No one acting in good faith would reasonably believe that an employer is required by law to provide health insurance to its employers,” she wrote. She argued that since the law imposes no obligation on Suncoast to offer health insurance to Brown, the company was free to fire him for complaining about being dropped from the health plan. Wilson also argued that the circuit court should dismiss the suit because even if the health care law did apply to employers, the claim would be pre-empted by the federal Employee Retirement Income Security Act. “ERISA provides the sole legal authority for claims relating to the denial and handling of employee benefits,” she wrote. And, she added in boldface letters, “sanctions have been imposed upon attorneys who refuse to acknowledge ERISA’s pre-emptive authority.” But one employment law expert not involved in the case said that the law governing ERISA pre-emption is so complex that it’s “impossible to foresee every circumstance arising under it.” Therefore, it’s unlikely that a judge would impose sanctions against a plaintiff lawyer under these circumstances. “Which state laws are pre-empted by ERISA is a question that is litigated over and over again,” said Susan Dolin, chair-elect of the labor and employment law section of The Florida Bar and a partner at Fort Lauderdale labor and employment defense firm Rothstein Rosenfeldt Dolin Pancier. “We get a new [U.S.] Supreme Court decision every year.” In her opinion, Dolin said, “a good ERISA [defense] attorney would have [Brown's] case removed to federal court,” the sole venue for ERISA claims. Wites said he would fight to keep Brown’s claim in state court so he could argue on the basis of state law. “The intent of the Health Care Access Act is that employers share responsibility,” he said. “The legislators didn’t want the little guy left out.”

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