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ERISA Watch – December 4, 2014

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Your reliable source for summaries of recent ERISA decisions

Below is Kantor & Kantor LLP’s summary of this past week’s notable ERISA decisions.

Second Circuit

Plan’s interpretation of change-in-control provision is illogical and remedy permitting participants to keep unlawful lump-sum payment as a credit against future benefits is allowable

In Gill v. Bausch & Lomb Supplemental Ret. Income Plan I, No. 14-1058, __Fed. Appx.___, 2014 WL 6778391 (2d Cir. Dec. 3, 2014), the 2nd Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of plaintiffs-appellees, participants in the Bausch & Lomb Supplemental Retirement Income Plan. On appeal, the Plan raised two issues: (1) whether the Plan’s interpretation of the plan’s change-in-control provision was correct, and (2) if not, whether the district court’s remedy for that violation was an appropriate exercise of its discretion. The Plan interpreted the “change-in-control” provision (Section 13 of the plan) to apply to plaintiffs, as “Retired Participants.” However, Section 13 explicitly mentions “Participants,” but contains no mention of “Retired Participants.” The court found that omission cannot be ignored, because the definitions section of the plan defines the two categories to be mutually exclusive. Moreover, Section 13 provides that, for purposes of “determining the Participant’s accrued benefit,” the “date of the Change of Control” will act as a stand-in for “the date of Termination of Employment.” In other words, Section 13 creates an artificial termination date in the event of a change in control which is critical as applied to Participants (who would need an artificial termination date, because they are still working for the company), but is senseless as applied to Retired Participants (who already have a termination date). The court held that because it is plain that Section 13 applies only to Participants, Retired Participants such as plaintiffs do not fall within its scope. With respect to the district court’s remedy, which ordered reinstatement of the Plan’s monthly benefit obligation, while allowing for a one-time “credit” in the amount of the (unlawful) lump-sum that the Plan already paid, the court found that the district court’s chosen remedy was an appropriate exercise of discretion and declined to decide whether the Plan’s proposed alternative-to require return of the lump sum, then begin monthly benefit payments immediately-would also have been permissible.

Ninth Circuit

Genuine issue of material fact remains as to whether plan is entitled to offset benefits that plan participant never received. In Barboza v. California Ass’n of Prof’l Firefighters, No. 12-17439, __Fed.Appx.___, 2014 WL 6766687 (9th Cir. Dec. 2, 2014), a matter in which our firm became involved at the Ninth Circuit, the court granted in part and denied in part summary judgment to each party in a dispute involving the underpayment of long-term disability benefits as a result of contested offsets. Although the court found that the district court did not err when it determined that the Plan administrators’ decisions should be reviewed for an abuse of discretion, the court found that the district court erred in holding that the Plan was entitled to offset a full year of CA Labor Code section 4850 benefits against Plaintiff’s benefit award. Section 4850 provides public safety officers, who become disabled while performing their duties, to a one-year leave of absence without loss of salary in lieu of temporary disability payments for that year. Plaintiff never received section 4850 pay because he did not qualify for the benefit. The court found that there remains a genuine issue of material fact as to whether the Plan required Plaintiff to retire in a manner that would entitle him to a full year of section 4850 benefits and remanded this issue to the district court for further proceedings. The court also found that the district court did not err in holding the Plan administrators did not abuse their discretion in offsetting Plaintiff’s benefit award by his workers’ compensation settlement because the Plan entitles it to recover from any future benefits regardless of their characterization and including, without limitation, future medical claims. The district court also did not err by only permitting the Plan to offset Plaintiff’s net earnings, rather than gross earnings, from his limited self-employment efforts.

Despite recognizing that prejudice is not required for a district court to grant damages under 29 U.S.C. § 1132(c)(1)(B), the court found that the district court did not abuse its discretion in declining to award Plaintiff statutory penalties as a result of the Plan administrators’ failure to furnish documents he requested because he was not prejudiced. Because the district court failed to address Plaintiff’s motion for prejudgment interest on his award of benefits, the court remanded the issue to the district court to consider whether Plaintiff’s request for prejudgment interest on his benefits award is warranted. The court vacated the district court’s injunction requiring the Plan administrators to amend the Plan instrument’s non-ERISA-compliant appeals procedures, finding that such relief was rendered moot by this court’s decision in Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073 (9th Cir.2011). Finally, the court found that the district court did not abuse its discretion in denying the parties’ cross motions for attorneys’ fees and costs because it reasonably concluded that neither party acted in bad faith, the case presented complex issues for adjudication, and the Plan administrators’ attempts to offset Plaintiff’s benefits were “inherently reasonable.”

Eleventh Circuit

Statute of limitations began to run when MetLife clearly repudiated claim for long-term disability benefits, MetLife’s subsequent “courtesy review” did not restart the statutory clock, and MetLife did not waive any statute of limitations defense by failing to specify untimeliness as a basis for denying the claim after its courtesy review. InWitt v. Metro. Life Ins. Co., No. 14-11349, __F.3d___, 2014 WL 6655794 (11th Cir. Nov. 25, 2014), Plaintiff sought disability benefits from December 29, 2005 based on anterior cervical fusion, a herniated lumbar disc, secondary asbestosis, coronary artery disease, and hypertension, which MetLife paid until April 30, 1997. On May 22, 1997, MetLife terminated Plaintiff’s claim effective May 1, 1997, for failure to provide adequate supporting medical records. The parties could not locate a copy of the alleged termination letter that MetLife mailed to Plaintiff and Plaintiff could not recall ever receiving this letter. Although Plaintiff stopped receiving benefits in 1997, he did not challenge the termination of his benefits or make any inquiries of MetLife for 12 years. In 2009, Plaintiff retained an attorney who contacted MetLife about the status of Plaintiff’s claim. On January 26, 2010, MetLife sent a letter to Plaintiff’s attorney characterizing the request for benefits as an attempted revival of Plaintiff’s old claim, rather than a new claim for benefits. MetLife stated that a review for benefits beyond May 22, 1997 would require supporting medical documentation. The letter also told Plaintiff’s attorney to “submit evidence of any abnormal clinical exam findings from the health care providers who treated your client from May 1, 1997 through the date that you are claiming Disability benefits for your client. The information provided should include office visit notes[,] objective test results and any other relevant medical information which was not previously submitted for review.” A year later, Plaintiff’s attorney sent MetLife a letter with 10 documents in support of Plaintiff’s claim. MetLife subsequently reviewed Plaintiff’s claim with the supporting documentation although its legal department noted that it was 14 years outside of the ERISA timeframe. MetLife issued a letter on March 21, 2011 upholding the termination of benefits and invited Plaintiff to appeal the decision. On September 16, 2011, Plaintiff’s attorney notified MetLife that Plaintiff was appealing the continued termination of his claim and MetLife granted him two extensions to file supporting documentation. In a letter dated May 4, 2012, MetLife upheld its decision to leave Plaintiff’s claim terminated, effective May 1, 1997. MetLife’s 2012 letter stated: “You have exhausted your client’s administrative remedies under the plan, and no further appeal will be considered,” and that Plaintiff has “the right to bring civil action under Section 502(a) of the Employee Retirement Income Security Act of 1974.” MetLife’s letter did not assert a time-bar or statute-of-limitations defense.

The 11th Circuit noted the difficulty of determining the accrual date in this situation where the defendant says it issued a formal denial letter and the plaintiff says he never received the letter; although it is undisputed the defendant terminated benefits and did not pay the plaintiff any benefits for 12 years. The court found that even assuming that Plaintiff did not receive MetLife’s termination letter sent on May 22, 1997, MetLife’s conduct nonetheless demonstrated a clear and continuing repudiation of Plaintiff’s rights by failing to provide him any monthly benefits after April 30, 1997. The court further found that even if it were to require an entire year of denied payments before holding MetLife’s nonpayment to constitute a “clear and continuing” repudiation of Plaintiff’s rights, he would undoubtedly have had reason to know of the repudiation at least by May 1, 1998, and the six-year statute of limitations expired by May 1, 2004, at the latest. Under the facts here, the court declined to decide the exact number of missing monthly benefits payments that were required to put Plaintiff on notice that his claim had been clearly repudiated and thus denied. In order to decide this case, the court held that after the 12 months of nonpayment, Plaintiff could not have reasonably believed but that his claim had been denied. The court rejected Plaintiff’s argument that the statute of limitations could not have run on his cause of action because MetLife treated his claim for benefits after May 1, 1997 as a new claim unaffected by its termination of his benefits on or before that date for failure to support. The court found that MetLife conducted a courtesy review of a prior claim, not a “new” claim, thus the statutory clock did not begin to run anew in 2012. Because Plaintiff brought this action on June 14, 2012-more than 14 years after the commencement of the statutory period-his claim is time-barred.

Lastly, Plaintiff argued that Defendants’ conduct waived the statute-of-limitations defense because MetLife undertook to review Plaintiff’s 1997 claim, its 2012 denial letter did not assert or mention MetLife’s statute-of-limitation defense, and MetLife’s 2012 denial letter advised Plaintiff of his right to bring a civil action under § 502(a) of ERISA. The court found that Plaintiff did not show waiver for several reasons: 1) the six-year statute of limitations had already expired on Plaintiff’s legal claim before his attorney contacted MetLife in 2009 and MetLife’s voluntary reconsideration of Plaintiff’s benefit claim cannot revive or resurrect that already-time-barred claim; 2) Plaintiff can point to no document where MetLife expressly waived its right to raise a statute-of-limitations defense; and 3) MetLife’s failure to raise the timeliness defense in its letters during its 2009-2012 courtesy review did not establish that MetLife had the requisite intent to waive the statute-of-limitations defense.

Summary Plan Description constitutes a written instrument that sets out enforceable plan terms and subrogation interest found only in the SPD may be enforced pursuant to § 1132(a)(3). In Bd. of Trustees of Nat. Elevator Indus. Health Ben. Plan v. Montanile, No. 14-11678, __Fed.Appx.___, 2014 WL 6657049 (11th Cir. Nov. 25, 2014), the 11thCircuit Court of Appeals affirmed the district court’s grant of summary judgment in the amount of $121,044.02 in favor of Plaintiff-appellee Board of Trustees of the National Elevator Industry (“NEI”) Health Benefit Plan (the “Board”) in its lawsuit against Defendant-Plan Participant, for reimbursement of the medical expenses the Plan paid on behalf of Defendant after Defendant received a settlement from a third-party tortfeasor for injuries he suffered in an accident. The NEI Summary Plan Description (“SPD”) set forth the Plan’s rights to subrogation and first-recovery reimbursement as follows:

The Plan’s Right of Recovery

The Plan has the right to recover benefits advanced by the Plan to a covered person for expenses or losses caused by another party….

Amounts that have been recovered by a covered person from another party are assets of the Plan by virtue of the Plan’s subrogation interest and are not distributable to any person or entity without the Plan’s written release of its subrogation interest….

The Plan’s right of recovery also applies if benefits are advanced by the Plan to an individual on behalf of an injured covered person or to the covered person’s assignee.

The Plan’s Right of Reimbursement

The Plan has a right to first reimbursement out of any recovery. Acceptance of benefits from the Plan for an injury or illness by a covered person, without any further action by the Plan and/or the covered person, constitutes an agreement that any amounts recovered from another party by award, judgment, settlement or otherwise, and regardless of how the proceeds are characterized, will promptly be applied first to reimburse the Plan in full for benefits advanced by the Plan due to the injury or illness and without reduction for attorneys’ fees, costs, expenses or damages claimed by the covered person, and regardless of whether the covered person is made whole or recovers only part of his/her damages.

The applicable Trust Agreement and the Bargaining Agreement did not have a similar provision. On appeal, Defendant argued that the district court erred in finding that the Board could impose an equitable lien on the settlement funds because the funds had been spent or dissipated. However, this argument was foreclosed by the court’s recent holding inAirTran Airways, Inc. v. Elem, 767 F.3d 1192 (11th Cir. 2014) (where equitable lien immediately attached to settlement funds where a plan provision’s unambiguous terms gave the plan a first-priority claim to all payments made by a third party, a plan participant’s dissipation of the funds thus could not destroy the lien that attached before the dissipation).

As an alternative argument, Defendant contended that the NEI SPD is not a governing Plan document and thus its terms are not enforceable as part of the Plan. The court explained that the U.S. Supreme Court’s decision in Amara only precludes courts from enforcing summary plan descriptions, pursuant to § 1132(a)(1), where the terms of that summary conflict with the terms specified in other, governing plan documents. However, the Amara Court had no occasion to consider whether the terms of a summary plan description are enforceable where it is the only document that specifies the basis on which payments are made to and from the plan, as required by § 1102(b). The court explained that Amara left open the possibility that terms in SPDs may, at times, be enforced, even though they are not always enforceable. Here, the NEI Summary Plan Document does not conflict with any preexisting plan documents that set out the rights of the parties because no other written instrument specifies the benefits and obligations of Plan participants. The terms specified in the SPD are enforceable, pursuant to § 1132(a)(3), because no other document lays out the rights and obligations of plan participants and the Trust Agreement contemplated the rights and obligations would be set forth in a separate document.

Lastly, the court rejected Defendant’s argument that, even if an SPD theoretically could serve both as a written instrument that sets forth the Plan’s terms and a summary plan description, the Trust Agreement constituted the sole governing Plan document and the terms found only in the SPD are not enforceable. The court explained that enforceable plan terms may be found in more than one document. In this case, the Trust Agreement states that the Trustees will establish the “detailed basis on which payment of benefits is to be made” in “the Plan of Welfare Benefits.” Although the SPD does not carry the title contemplated by the Trust Agreement, it serves the precise function as that proposed for the “Plan of Welfare Benefits.” Furthermore, if the enforceable terms of the Plan were limited to those found in the Trust Agreement, there would be no governing document that specifies Plan participants’ rights or obligations regarding benefits and Plan participants would be barred from enforcing their rights under the straight-forward provisions of § 1132(a)(1). The court held that the SPD constitutes a written instrument that sets out enforceable terms of the plan. Accordingly, pursuant to § 1132(a)(3), the Board could enforce the subrogation interest found only in the SPD.

Unreported Decisions

Breach of Fiduciary Duty

Sec’y of Labor v. Doyle, No. 05-CV-2264, 2014 WL 6747882 (D.N.J. Dec. 1, 2014) (in case concerning an action by the Secretary of Labor against James Doyle, Cynthia Holloway, and others, arising from their alleged breach of fiduciary duties to the Professional Industrial Trade Workers Union (PITWU) Health & Welfare Fund (Fund), and on remand from the Third Circuit to address the breach of fiduciary duty arguments and to consider whether the Defendants were responsible for diversion of plan assets held by the Fund, finding that monies sent at the direction of the trustees directly to claims administrators are “plan assets,” and Defendants breached their fiduciary duties to the Fund by failing to act prudently with respect to the diversion of over 60% of the Plan’s assets as payments for sales commissions, service fees, administrative charges, and union dues-not including the administrative expenses which the legitimate TPAs charged for claims processing).

Disability Benefit Claims

Polnicky v. Liberty Life Assurance Co. of Boston, No. 13-CV-01478-SI, 2014 WL 6680725 (N.D. Cal. Nov. 25, 2014) (in matter involving termination of long-term disability benefits for claimant diagnosed with spondylolisthesis, chronic lumbago, and hamstring contractures, as well as generalized anxiety and mood disorders, finding that: 1) Liberty Life incorrectly applied the definition of “Own Occupation” under the terms of the Policy where it did not consider Plaintiff’s actual job duties at Wells Fargo and defined his “Own Occupation” solely by reference to how the position of “Sales Representative, Financial Services” could be performed in the local economy; and 2) the record demonstrates that Plaintiff was unable to perform the material and substantial duties of the Mortgage Consultant position, where his diagnoses were confirmed by Plaintiff’s physicians, independent medical examiners, and even Liberty Life’s own medical reviewer, and no physician disputed Plaintiff’s pain with sitting and standing).

Chavarria v. Metro. Life Ins. Co., No. CIV.A. 13-4712, 2014 WL 6684925 (E.D. La. Nov. 25, 2014) (in suit for long-term disability benefits for participant disabled by on the basis of an inguinal hernia, finding that MetLife abused its discretion given the contradictory medical evidence in the record, the failure to address the SSA decision, and MetLife’s structural conflict of interest; however, the court granted judgment to Plaintiff with respect to the “Own Occupation” definition of disability, for which only eight days remained, and expressed no opinion about Plaintiff’s eligibility under the “Any Occupation” definition of disability; declining to award fees where it found no bad faith and MetLife’s decision, although incorrect, was based on substantial evidence).

Flatt v. Aetna Life Ins. Co. of Hartford, Conn., No. 14-1060, 2014 WL 6673910 (W.D. Tenn. Nov. 24, 2014) (in matter involving denial of short-term and long-term disability benefits, finding that the disability plans are proper defendants in this action even if the allegations in the complaint are directed at Aetna and not the Plans, dismissing breach of fiduciary duty claims against Aetna for being “merely repackaged § 1132(a)(1)(B) denial-of-benefit claims,” and dismissing claim for § 1132(c)(1) penalties against Aetna because it is not the Plan Administrator).

Benson v. Life Ins. Co. of N. Am., No. 5:14-CV-377-BR, 2014 WL 6666944 (E.D.N.C. Nov. 24, 2014) (finding that Plaintiff’s long-term disability claim against LINA is time-barred where the policy contains the following contractual limitations provision: “No action at law or in equity may be brought to recover benefits under the Policy … more than 3 years after the time satisfactory proof of loss is required to be furnished,” and the policy requires that proof of loss “be given to [LINA] within 90 days after the date of the loss for which a claim is made; finding that the “date of the loss” was June 10, 2010, the policy required Plaintiff to submit her proof of loss by September 8, 2010, and that the contractual limitations period mandated that any legal action be brought within three years of that date, or by September 8, 2013, but Plaintiff did not file her complaint until February 17, 2014).

ERISA Preemption

Saint Luke’s Hosp. of Kansas City v. Wabash Mem’l Hosp. Ass’n, No. 14-00059-CV-W-SWH, 2014 WL 6773637 (W.D. Mo. Dec. 2, 2014) (in dispute between medical provider and health insurer, denying motion to dismiss and finding that provider’s claims based on failure to pay for medical services rendered in violation of the preferred hospital agreement and oral representations are not subject to complete preemption, but finding that the conflict preemption issue has not been sufficiently presented at this time and insurer can raise its preemption argument again in a timely motion for summary judgment).

VFS Fin. Inc. v. Elias-Savion-Fox LLC, No. 12 CIV. 2853 PAE, 2014 WL 6765827 (S.D.N.Y. Dec. 1, 2014) (in matter where Plaintiff sought a turnover order enabling it to reach two assets of its debtor, including an “SRA/IRA” retirement account containing approximately $600,000, finding that participant’s SRA/IRA account, and not merely the plan under which it came into being, is governed by ERISA but that ERISA does not preempt N.Y. CPLR § 5205, a state law which shields the SRA/IRA retirement account from garnishment by creditors (save for contributions made during, or after, the 90-day window that preceded the filing of the creditor’s lawsuit)).

Life Insurance & AD&D Benefit Claims

Van Loo v. Cajun Operating Co., No. 14-CV-10604, 2014 WL 6750453 (E.D. Mich. Dec. 1, 2014) (in dispute concerning Basic Life and Accidental Death and Dismemberment benefits and Supplemental Life Insurance benefits insured by Reliance Standard, where employer permitted decedent to enroll in coverage exceeding the guaranteed limit and failed to request evidence of good health, finding that: 1) employer was not a proper party to the Plaintiffs’ claim under 29 U.S.C. § 1132(a)(1)(B) to recover denied benefits; 2) Plaintiff adequately pled claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3) based on alleged misrepresentations; 3) equitable estoppel claim against both Defendants failed to state a claim because the plan language unambiguously does not provide for any scenario in which an insured could obtain effective coverage over $300,000 without submitting proof of good health for approval by Reliance Standard; 4) claim for unjust enrichment should be dismissed because it seeks recovery of benefits already provided for under 29 U.S.C. § 1132(a)(1)(B); 5) employer had no statutory obligation to fulfill Plaintiffs’ request for documents evidencing that Defendants provided decedent with an EIF form or requested that she complete an EIF form such that employer is not a proper defendant to 29 U.S.C. § 1132(c) claim; 6) Plaintiffs cannot recover statutory penalties from Reliance under 29 U.S.C. § 1132(c) based on de facto administrator theory and violations of § 1133; and 7) Plaintiffs are not entitled to a jury trial).

Pension Benefit Claims

Innes v. Barclays Bank PLC U.S.A. Staff Pension Plan, No. 3:14CV00008, 2014 WL 6769205 (W.D. Va. Dec. 1, 2014) (in matter where participant claims that defendants failed to pay benefits to which she was entitled under the Retirement Restoration Plan, and although the Retirement Restoration Plan does not contain an administrative claims procedure, the court found that the Plan incorporates the administrative claims procedure set forth in the Restated Retirement Plan and the participant did not make a formal claim for unpaid Retirement Restoration Plan benefits in accordance with the procedure set forth in the Restated Retirement Plan; dismissing claim without prejudice due to participant’s failure to pursue or exhaust administrative remedies).

Rollins v. Dignity Health, No. 13-CV-01450-TEH, 2014 WL 6693891 (N.D. Cal. Nov. 26, 2014) (where court previously granted partial summary judgment for Plaintiff finding that ERISA’s “church plan” exception only applied if a retirement plan was established by a church, and there was no genuine dispute as to the facts that Catholic Healthcare West was not a church and had established the plan at issue in this case, granting Defendants’ motion to certify the court’s Order for interlocutory appeal and stay the case).

Vanguard Grp., Inc. v. Shikhabolhassani, No. CIV.A. H-14-0061, 2014 WL 6694802 (S.D. Tex. Nov. 26, 2014) (in interpleader action to determine rightful beneficiary to balance of deceased participant in employer’s Savings Plan, where employee’s spouse signed a consent permitting the employee to designate as equal beneficiaries his two children from a previous marriage but who later contested that the consent was invalid because she was forced to sign it and the notary’s commission had expired, finding that the Benefits Committee’s determination to honor the employee’s beneficiary designation was not an abuse of discretion, because although the requirement that a consent be “notarized” logically implies that the notary’s commission not have expired, it is undisputed that the spouse signed the form in the presence of someone she thought was a notary for the purpose of verifying the authenticity of her signature; further finding, however, that the Plan did not meet its burden in showing that the spouse was not entitled to some of the benefit where it appeared that the employee intended the spouse to receive 2% of the fund).

Pleading Issues & Procedure

Saunders v. Liberty Life Assur. Co. of Boston, No. 5:14-CV-1181-JHE, 2014 WL 6773252 (N.D. Ala. Dec. 2, 2014) (in dispute involving denial of long-term disability benefits, finding that the Plan sponsor is not a proper party defendant because it is not the party that control administration of the plan).

Labombard v. Winterbottom, No. 8:14-CV-00071 MAD, 2014 WL 6674629, at *3 (N.D.N.Y. Nov. 25, 2014) (in claim for disability pension benefits, finding that: 1) Plaintiff did not properly serve the summons and complaint on Local 186 by serving Defendant Winterbottom, the Pension Fund plan administrator, because: a) the plan administrator is a distinct legal entity from Local 186, b) Defendant Winterbottom is not one of the officers listed in Section 13 of the New York General Associations Law, c) and Winterbottom was not an employee, officer, or agent of Local 186 or otherwise authorized to accept service of process on behalf of the union; 2) Plaintiff failed to show good cause under FRCP 4(m) for the court to extend the time for service; and 3) Plaintiff failed to state a claim against Local 186 because he can only recover benefits under ERISA from the Plan, not against a labor organization).

Retaliation Claims

McCarthy v. Hawaiian Parasail, Inc., No. CIV. 14-00310 LEK, 2014 WL 6749415, at *7 (D. Haw. Nov. 30, 2014) (in matter where Plaintiff alleged that Defendants violated 29 U.S.C. § 1140 by terminating him in retaliation for his complaints about not receiving medical insurance, finding Plaintiff provided no evidence, other than timing, of pretext, nor rebutted employer’s stated reason of terminating Plaintiff for, inter alia, excessive absenteeism, and Defendants have rebutted any showing of pretext through evidence regarding similarly situated employees; granting Defendants’ motion for summary judgment since there is no genuine issue of material fact as to pretext).

Subrogation/Reimbursement Claims

Unum Life Ins. Co. of Am. v. Pawloski, No. 8:13-CV-2290-T-36MAP, 2014 WL 6686327 (M.D. Fla. Nov. 26, 2014) (granting summary judgment in favor of Unum in claim for reimbursement where Defendant received a Workers’ Compensation settlement which caused an overpayment of long-term disability benefits, finding that even if Defendant already used or otherwise dissipated the specific funds he received from his settlement, this would not defeat Unum’s claim, since to do so under these circumstances would “set a dangerous precedent” by permitting a plan participant to “decline to deduct any amount for other future benefits and then [to] spend all money received, knowing that he would not be held responsible for any overpayment if the funds were dissipated”).

Withdrawal Liability & Unpaid Benefit Contributions

Orrand v. Deer Creek Excavating, LLC, No. 2:13-CV-1121, 2014 WL 6751641 (S.D. Ohio Dec. 1, 2014) (in suit seeking injunctive and monetary relief in connection with Defendant’s alleged failure to make required reports and contributions to the plans, awarding $15,342.10 in unpaid contributions from November 1, 2012 through April 30, 2013 pursuant to 29 U.S.C. § 1132(g)(2)(A); $4,753.56 in interest, calculated to November 15, 2014, plus $7.57 per day thereafter, so long as the judgment remains unpaid pursuant to 29 U.S.C. § 1132(g)(2)(B); $4,753.56 in liquidated damages, calculated to November 15, 2014, plus $7.57 per day thereafter, so long as the judgment remains unpaid pursuant to 29 U.S.C. § 1132(g)(2)(C); court costs in the amount of $400.00 pursuant to 29 U.S.C. § 1132(g)(2)(D); reasonable attorney’s fees pursuant to 29 U.S.C. § 1132(g) (2)(D); and injunctive relief pursuant to 29 U.S.C. § 1132(g)(2)(E), including a mandatory injunction directing Deer Creek to comply with its contribution and audit obligations under the various agreements as set forth in more detail in the Complaint).

Trustees of Painting Indus. Ins. Fund v. Glass Fabricators, Inc., No. 1:14-CV-00313, 2014 WL 6685224 (N.D. Ohio Nov. 25, 2014) (in matter involving delinquent contributions, denying Plaintiffs’ motion for summary judgment where Plaintiffs’ audit was done by the funds’ Administrative Manager, but where the audit’s figures were not supported by any calculations or underlying data that could be double-checked).

Div. 1181 Amalgamated Transit Union – New York Employees Pension Fund v. New York City Dep’t of Educ., No. 13-CV-9112 PKC, 2014 WL 6647368 (S.D.N.Y. Nov. 24, 2014) (reconsidering previous determination and finding that the joint employer doctrine, as applied to impose an obligation to contribute on an employer through 29 U.S.C. § 1392(a)(2), does not apply to the Department of Education for purposes of withdrawal liability under ERISA and the MPPAA, but that Plaintiffs’ claim for withdrawal liability premised on the theory that the Department of Education was an alter ego of the Department of Education Contractors survives).

* Please note that these are only case summaries of decisions as they are reported and do not constitute legal advice. These summaries are not updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. The cases reported above were handled by other law firms but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Kantor & Kantor LLP may be able to advise you so please contact us. Case summaries authored by Michelle L. Roberts, Partner, Kantor & Kantor LLP, 1050 Marina Village Parkway, Ste. 105 Alameda, CA 94501; Tel: 510-992-6130.

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