The plaintiff, a joint labor-management trust fund established and governed by ERISA, retained defendant, an insurance brokerage company, to acquire on its behalf an ERISA compliant bond. The policy procured by defendant, however, did not comply with ERISA’s coverage requirements because it excluded independent contractors. While the bond was in force, an independent contractor had engaged in fraudulent investment schemes. Plaintiff brings this action asserting claims under Colorado Consumer Protection Act, breach of contract and negligence theories. A District Court sitting in the District of Colorado rejected defendant’s argument that the claims fall into the category of “‘misconduct growing out of the administration of the ERISA plan….’ Although the background facts include misconduct in the administration of the plan, the primary issues to be litigated relate to the scope of Defendant’s duty to procure insurance that satisfied the requirements of the insured and whether Defendant breached that duty. This duty arises primarily out of agency or contract and would exist even if the plan were not governed by ERISA.” See Colo. Operating Engineers Health & Welfare Fund v. Clarke & Sampson, Inc., No. 04-2625, 2006 WL 3842107 (D.Colo. Dec. 27, 2006).
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