Yale-New Haven Hospital v. Nicholls

ORDER A petition for panel rehearing having been made by Defendant-Cross-Claimant-Appellant Barbara Nicholls, the petition is hereby DENIED. WESLEY, Circuit Judge, dissenting from the denial of panel rehearing: I dissent from the denial of panel rehearing for the reasons stated in my opinion concurring in part and dissenting in part in Yale-New Haven Hospital v. Nic-holls, 788 F.3d 79 (2d Cir.2015). Shortly before our decision in Nicholls, the Supreme Court of Virginia, over the vigorous dissent of three of its members, including the Chief Justice, upheld a state intermediate appellate court opinion that decided substantially the issue presented here. See Cowser-Griffin v. Griffin, 289 Va. 189, 771 S.E.2d 660 (2015), cert. denied, No. 14-1531, — U.S. —, 136 S.Ct. 791, 193 L.Ed.3d 708, 2016 WL 100359 (U.S. Jan. 11, 2016). The Virginia appellant then filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court, see — U.S. -, — S.Ct. -, — L.Ed.3d -, 2015 WL 3918905 (U.S. June 24, 2015), which the Virginia appellee opposed principally on the ground that the posthumous qualified domestic relations order there assigned to *542 an alternate payee payable lump-sum, benefits, as opposed to annuity benefits, and thus no conflict existed between the decision of the Supreme Court of Virginia and those of other state supreme courts or federal courts of appeals, see — U.S. -, — S.Ct. -, — L.Ed.3d -, 2015 WL 7770869 (U.S. Nov. 10, 2015). Without commenting on the merits of such a distinction, I would note that Nic-holls squarely presents this important ERISA question in the context of annuity benefits.