concurring in part; dissenting in part.
I agree with the majority that the trial court did not err in granting UEBC’s motion. I do not agree that the claims against PACC were not preempted by ERISA and would affirm the trial court’s summary judgment in favor of PACC.
The majority recognizes that an employee benefit plan is a reality if the intended benefits, beneficiaries, source of financing and procedure for receiving benefits can be ascertained from the surrounding circumstances. James v. National Business Systems, Inc., 924 F2d 718, 720 (7th Cir 1991). Despite that, the majority concludes that, because *44PACC “thwarted” Hart’s intentions to provide insurance by January 1, 1991, there was no plan here. That conclusion equates recognition of a source of financing with identifying a particular insurer, and I do not agree with that interpretation. Hart’s plan was a reality, because it was clear from the circumstances that the plan would be financed by insurance, whether by Blue Cross, PACC or some other insurer.
Hart’s plan met the test for an established plan that the majority cites from James v. National Business Systems, Inc., supra, 924 F2d at 720:
“The other and prior criterion is that the plan was intended to be in effect, and not just be something for future adoption.” (Emphasis supplied.)
It is clear that Hart intended the plan to be in effect by January 1,1991, and that, as PACC contends, she did all that she could to provide insurance by that date. Hart promised her employees that, through a health insurance policy, she would provide basic health benefits under the Oregon Health Plan. She had the employees fill out health statements by October in order to obtain coverage. Blue Cross approved the group, but Hart continued to discuss other insurance plans with the agent. On December 26, PACC application forms were given to the employer, and she was told that there would be an effective date of January 1,1991, for the policy. PACC cashed Hart’s premium check, but then denied coverage on January 17,1991.
The majority’s conclusion that PACC’s rejection of the application means that the plan “was only a contingency, not a reality,” 130 Or App at 39, makes establishment of a plan dependent on an insurer’s actions. However, a plan is established by an employer. 29 USC § 1002(1). The fact that coverage was not provided by January 1, 1991, as Hart promised, does not mean that no employee plan existed. Rather, it means that the employer had not provided the benefits of the plan.
Furthermore, I cannot agree with the majority that plaintiffs claims for common law negligence, breach of contract and breach of fiduciary duty are not preempted. Under 29 USC § 1144(a), a claim is preempted for “all State laws insofar as they may now or hereafter relate to any employee *45benefit plan * * “Relate to” means “a connection with or reference to such apian.” Ingersoll-Rand v. McClendon, 498 US 133, 139, 111 S Ct 478, 112 L Ed 2d 474 (1990); Shaw v. Delta Air Lines, Inc., 463 US 85, 96, 103 S Ct 2890, 77 L Ed 2d 490 (1983).
In Ingersoll-Rand v. McClendon, supra, the employee filed a wrongful discharge action asserting state law tort and contract theories, alleging that he was fired due to the employer’s wish to avoid contributing to his pension fund. In holding that the employee’s claims were preempted, the Supreme Court rejected, inter alia, the employee’s argument that the pension plan was irrelevant because all that was at issue was the employer’s improper motive. The court noted that, under the state court’s analysis of the case, there “simply is no cause of action if there is no plan.” 498 US at 140.
The majority reasons that plaintiffs claims are not related to a plan because they
“are based on the theory that PACC breached its agreement to provide insurance and that it acted negligently in the processing of the appbcation for insurance. It need not be shown, to prevail in those claims, that Hart had established an employee welfare benefit plan; the inquiry is whether Hart and her émployees had an agreement with PACC and whether PACC breached that agreement.” 130 Or App at 40-41. (Footnote omitted.)
I do not understand how the “agreement” can be anything but insurance under the plan, and, as in Ingersoll-Rand v. McClendon, supra, any agreement that plaintiff might have had with PACC was dependent on Hart’s agreement. Indeed, plaintiff himself acknowledges as much when he states that he “was a third-party beneficiary of a proposed contract for group health insurance between his employer and PACC Health Plan, Inc.” Without Hart’s plan to provide medical coverage to her employees, plaintiff would have no claim against PACC. I would hold that plaintiffs claims against PACC are related to the plan and preempted by ERISA.