Happy Monday! Hope you’re not late for a very important date! According to a recent decision out of the Fifth Circuit Court of Appeals, Moss v. Unum Group, a claimant’s failure to timely submit a written appeal of a denial of benefits results in a dismissal with prejudice. If only courts would exact such a harsh penalty against administrators who were late in rendering claim and appeals decisions. But such equity in ERISAland would really be going down the rabbit hole….
Your reliable source for summaries of recent ERISA decisions
District court correctly dismissed lawsuit with prejudice where the claimant did not, and could not, timely submit a written administrative appeal. Moss v. Unum Grp., No. 15-30341, __F.3d___, 2016 WL 424638 (5th Cir. Feb. 3, 2016) (Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges). Plaintiff-Appellant alleged that Defendants-Appellees (collectively “Unum”) unlawfully denied his claim for total disability benefits under two ERISA-governed insurance policies. The district court dismissed Plaintiff’s claims with prejudice for failure to exhaust administrative remedies and the Fifth Circuit affirmed. Unum denied Plaintiff’s claim under the policies on June 5, 2009 and gave him 180 days to appeal. On June 30, 2009, Plaintiff’s attorney called a Unum representative and verbally informed him that he disagreed with Unum’s decision. A few weeks later, Plaintiff’s attorney mailed copies of Plaintiff’s paychecks to Unum, but he never filed a formal written appeal. On December 10, 2009, Unum sent Plaintiff another letter reiterating its denial of his claim for benefits and giving him 180 days to file a written administrative appeal. Plaintiff did not file an appeal, but instead, filed a lawsuit against Unum, in which he argued that attempting to exhaust his administrative remedies would be futile. The district court dismissed Plaintiff’s claim without prejudice, at which point Plaintiff asked Unum to allow him to file an administrative appeal. Unum declined to do so because the appeal request was far beyond the 180-day deadline. Plaintiff filed suit again but this time the district court dismissed his case with prejudice since Plaintiff could not demonstrate that he would be able to timely exhaust his administrative remedies in the future. The court rejected Plaintiff’s arguments for why the court should excuse his failure to appeal. First, Plaintiff relied on the following statement from Unum’s December 10, 2009 denial letter: “Unless there are special circumstances, the administrative appeal process must be completed before you begin any legal action regarding your claim.” Plaintiff claimed that Unum’s alleged bad faith in denying his claim for disability benefits constitutes a “special circumstance” that excuses him from his obligation to file an administrative appeal. And, because the term “special circumstances,” is vague, it should be construed in his favor. The court agreed with the district court that if a claimant could avoid the exhaustion requirement simply by alleging in his complaint that the plan administrator denied his claim in bad faith, then no claimant would ever be required to exhaust administrative remedies before filing suit. Adopting Plaintiff’s interpretation would render the administrative appeal requirement completely toothless. The court held that Plaintiff was required to file a written administrative appeal within 180 days. The court rejected Plaintiff’s next argument that even though he did not file a formal written appeal, he “effectively exhausted” his administrative remedies by taking informal actions that fulfilled “the underlying purpose of the exhaustion requirement.” The court found that informal attempts to substitute the formal claims procedure would frustrate the primary purposes of the exhaustion requirement. Lastly, Plaintiff argued that Louisiana Civil Code art. 3462 tolled the 180-day deadline for filing an administrative appeal when Plaintiff filed his first lawsuit and that it began to run again when the district court dismissed his lawsuit without prejudice. The court found this argument meritless since ERISA requires the claimant to exhaust his administrative remedies within the time period specified in the plan, which in this case was 180 days after denial. At least one other court in this Circuit rejected an identical tolling argument and the court found the reasoning persuasive. Because Plaintiff did not timely file an administrative appeal, the district court correctly dismissed his claim.
Select Slip Copy & Not Reported Decisions
Plaintiff entitled to attorneys’ fees after securing remand to LTD insurer. Kaiser v. United of Omaha Life Ins. Co., No. 14-CV-762-WMC, 2016 WL 379814 (W.D. Wis. Jan. 29, 2016) (Judge William M. Conley). The court found Plaintiff eligible for an award of attorneys’ fees for winning a remand to the insurer for determination of disability under the terms of a long-term disability plan. Applying Hardt v. Reliance Standard Life Insurance Company, 560 U.S. 242 (2010) and the “substantial justification” test and the five-factor test in Raybourne v. Cigna Life Ins. Co. of New York, 700 F.3d 1076, 1089 (7th Cir. 2012), the court found that its decision finding that Defendants violated ERISA by acting arbitrarily and capriciously, and ordering remand to the Plan Administrator for further review, was all that Plaintiff could achieve in this court. Additionally, Defendants’ interpretation of the pre-existing condition clause was at odds with fairly settled Seventh Circuit case law, and rendered their posture during the case as a whole not substantially justified. The court found an award of attorneys’ fees and costs appropriate under 29 U.S.C. § 1132(g)(1) and directed Plaintiff to submit its fee request.
Court awards most of attorneys’ fees requested by prevailing LTD plaintiff. Robertson v. Standard Ins. Co., No. 3:14-CV-01572-HZ, 2016 WL 406343 (D. Or. Jan. 31, 2016) (Judge Hernandez). Plaintiff previously prevailed on her LTD and life insurance waiver-of-premium claims. She then moved for attorneys’ fees totaling $73,640.25 and costs totaling $1,620.33. The court granted the motion in part and awarded $43,526 in fees and $420.08 in costs. The court reduced the requested hours by time spent on an unsuccessful motion to compel, some “duplicative” time spent by local counsel, time spent on clerical tasks, time described by “vague” time entries, and time spent on the fee petition for failing to follow Local Rule 7-1’s requirement to meet and confer in good faith. The court applied an hourly rate of $288.88 for an attorney who graduated from law school in 2003 and is based in Kentucky and a rate of $336.34 for an Oregon attorney with 22-23 years of ERISA experience. With respect to expenses, the court declined to award “copy/printing” fees where information about the copy charges was not provided. The court also declined to award $168.75 in scanning expenses, the $400 filing fee for Plaintiff’s action in Kentucky that she voluntarily dismissed, and $100 for a pro hac vice application.
Disability Benefit Claims
Denial of LTD benefits for claimant with Lyme disease is not an abuse of discretion, where denial supported by opinions of three infectious disease specialists. Ryan v. PNC Fin. Servs. Grp., Inc., No. CV 14-1048, 2016 WL 374273 (W.D. Pa. Feb. 1, 2016) (Judge Nora Barry Fischer). The court granted summary judgment in favor of the defendant, a self-funded welfare benefit plan providing long-term disability benefits administered by Liberty Life Assurance Company of Boston. Plaintiff claimed disability as a result of symptoms related to Lyme disease. The court found that three reviewing infectious disease specialists interpreted Plaintiff’s IGG/IGM Western Blot test results to be inconclusive, at best, for Lyme disease because the tests lack a positive result on the IGG portion of the test. Further, the reviewing physicians all generally noted that for individuals suffering illness for over a month, a negative IGG2 in combination with a positive IGM tends to mean that the IGM is a false-positive. Additionally, the physicians found that the physical and cognitive ailments complained of by Plaintiff were non-specific to Lyme disease. The court found that Defendant’s decision to rely on three reviewing physicians over Plaintiff’s treating doctor was not an abuse of discretion. The court found that Plaintiff had ample time to supplement her medical record during the appeals process, and was informed of the exact nature of testing for which Liberty was looking when reviewing her claims. Liberty explicitly stated that it would be helpful if Plaintiff provided evidence of psychological consultations, neuropsychological testing, and formal occupational assessments. However, Plaintiff did not submit neuropsychological testing results nor did she explain her failure for doing so to the court.
Abuse of discretion to deny LTD claim on basis of pre-existing condition exclusion. Kaiser v. United of Omaha Life Ins. Co., No. 14-CV-762-WMC, 2016 WL 379814 (W.D. Wis. Jan. 29, 2016) (Judge William M. Conley). Plaintiff filed suit seeking long-term disability benefits for his deceased wife’s disability caused by Stage IV lung cancer. Defendants denied benefits on the basis that the disability fell within the preexisting condition coverage exception of the long-term disability insurance plan. The court granted summary judgment to Plaintiff, finding that Defendants acted arbitrarily and capriciously in invoking the pre-existing condition provision to deny benefits. During the “look-back” period, Plaintiff’s wife injured her shoulder and received a diagnosis and treatment consistent with rotator cuff impingement. There was no concern or suspicious of cancer of metastasis from a primary lung cancer. After the look-back period, Plaintiff’s wife was diagnosed with metastatic cancer and filed for long-term disability less than a month after the diagnosis. The court found that the relevant inquiry is whether a doctor’s visit for shoulder pain, prescription of pain medication, subsequent referral to physical therapy, and one physical therapy session were “for” the wife’s cancer. The court found that medical care was not for the cancer. Further, the fact that Plaintiff’s wife was eventually diagnosed with cancer, and that her shoulder pain “in retrospect” was caused by her cancer, is not material to a determination of whether her medical care providers suspected cancer at the time of treatment. The court remanded the claim to determine the question of disability.
Court remands to MetLife consideration of “any occupation” benefits where MetLife terminated LTD benefits nine days short of “any occupation” period, mishandled the claim, and later admitted liability for “own occupation” period. Hantakas v. Metro. Life Ins. Co., No. 214CV00235TLNKJN, 2016 WL 374562 (E.D. Cal. Feb. 1, 2016) (Judge Troy L. Nunley). In this long-term disability dispute, Plaintiff was employed by Kaiser Permanente as Assistant Director of Imaging in the Radiology Department of Kaiser Permanente Hayward, until May 26, 2010, when severe pain and sciatica rendered her unable to perform the material duties of her job. MetLife paid Plaintiff LTD benefits until nine days short of the full 24-month “own occupation” period, relying on a file review conducted by MetLife Medical Director, Dr. Veena Vani, who claimed that Plaintiff had “no objective exam findings to show ongoing impairment to preclude sedentary work.” Plaintiff, through her attorney, administratively appealed MetLife’s termination of benefits. On appeal, MetLife obtained a file review from Dr. Robert Lee Waltrip and sent it to Plaintiff’s physicians. When MetLife did not make a timely decision, Plaintiff filed suit. MetLife then decided that it would pay Plaintiff the 9 days left in the own occupation period and agreed to pay Plaintiff’s attorney $13,500 in fees. MetLife requested that the court remand the claim to MetLife to make a determination about Plaintiff’s eligibility for benefits under the “any occupation” definition of Total Disability under the Plan. Plaintiff opposed the remand. The court granted MetLife’s request, agreeing with MetLife that no decision has been reached about Plaintiff’s eligibility for benefits under the “any occupation” definition. All communications between MetLife and Plaintiff have been about her eligibility for benefits during the initial 24 month “own occupation” period. The court rejected Plaintiff’s argument that MetLife’s determination that Plaintiff cannot perform her own “sedentary” occupation is exactly the same as being unable to perform “any occupation.” Although the court agreed that MetLife failed to follow appropriate claim procedures as to Plaintiff’s appeal of the denial of her “own occupation” benefits, the failure to follow ERISA claim procedures for the initial appeal does not impute to MetLife’s decision under the “any occupation” standard. The court also rejected Plaintiff’s argument that the Social Security Administration’s decision that Plaintiff is disabled requires MetLife to approve her “any occupation” claim. Because MetLife never considered Plaintiff’s eligibility under the more stringent “any occupation” standard for extended benefits, the court found that there is nothing for it to review until MetLife makes a decision. Accordingly, the court remanded the matter to MetLife to decide Plaintiff’s eligibility for “any occupation” benefits. The court acknowledged the mishandling of Plaintiff’s claim and required MetLife to file a realistic and expedient timeline for their decision of Plaintiff’s LTD clam. The court decided to stay the case pending MetLife’s decision in order to prevent any further prejudice to Plaintiff.
Pension Benefit Claims
Denial of pension benefits an abuse of discretion where administrator did not adequately investigate claim. Gurasich v. IBM Ret. Plan, No. 14-CV-02911-DMR, 2016 WL 362399 (N.D. Cal. Jan. 29, 2016) (Magistrate Judge Donna M. Ryu). The parties’ central disagreement is whether Plaintiff’s right to pension benefits terminated when she stopped working for IBM. Defendants took the position that her pension rights terminated because she transferred employment from IBM to another company as a result of the sale of the IBM business unit where she had been working. Defendants contend that Plaintiff’s IBM Plan assets were transferred to her subsequent employer’s benefit plan as part of that transaction. On the contrary, Plaintiff’s position is that she did not end her employment with IBM as part of an IBM asset sale; instead, she voluntarily quit IBM to take a job with Siemens, which happened to be the same company that eventually ended up purchasing her former IBM business unit. Plaintiff contended that if the IBM Plan transferred her pension assets to another employer, it had no right to do so, and she is entitled to pension benefits as evidenced in the many notices she received over the years until she made a claim for benefits. The court granted each parties motion in part. On the benefits claim, the court found that the Plan Administrator abused its discretion by denying Plaintiff’s claim based on an inference drawn from another employer’s records, rather than reviewing records within its own control. In reaching this conclusion, the court gave some weight to the structural conflict, as the Plan Administrator failed to adequately investigate the claim even though Plaintiff brought concrete and undisputed factual discrepancies to its attention. The court rejected Defendants’ argument that the Plan Administrator had no affirmative duty to investigate a plaintiff’s claim for benefits under the Plan. On Plaintiff’s second claim for breach of fiduciary duties and her third claim for equitable relief, Plaintiff conceded that because the court has awarded her benefits under the IBM Plan in her first cause of action, she is not entitled to further relief under her second and third claims. As such, the court did not reach these issues.
Employment agreement providing for severance benefits creates an ERISA plan. Zgrablich v. Cardone Industries, Inc., No. CV 15-4665, 2016 WL 427360 (E.D. Pa. Feb. 3, 2016) (Judge R. Barclay Surrick). The court found that an employment agreement providing for severance benefits is governed by ERISA. The court found that Plaintiff’s eligibility to collect the severance benefits as set forth in the Agreement turns on whether he was terminated with or without cause-a standard requiring the exercise of judgment on a case-by-case basis. Standing alone, the court found this fact strong proof that the plan at issue involves a separate determination of each individual’s eligibility for benefits and is therefore governed by ERISA. In addition, the Agreement has language demonstrating the ongoing need for administration of the plan. For example, Cardone Industries is not obligated to provide Plaintiff with medical coverage if he obtains comparable substitute coverage from another employer. And, all severance and medical benefits provided by the Agreement terminate in the event that Plaintiff breaches any of the restrictions or provisions in the Agreement’s “Non-Compete; Non-Solicitation clause.” The court found that the Agreement creates an ERISA benefits plan even through it is a “one-person employment agreement” since the Agreement itself recognizes that other senior company executives made similar agreements.
United’s Early Out Benefit Plan for Certain Association of Flight Attendant-Represented Employees is an ERISA plan. Scarber v. United Airlines, Inc., No. 15 C 9147, 2016 WL 362377 (N.D. Ill. Jan. 29, 2016) (Judge Harry D. Leinenweber). The court denied Plaintiff’s motion to remand his lawsuit seeking benefits under United’s Early Out Benefit Plan for Certain Association of Flight Attendant-Represented Employees. The Plan enabled certain flight attendants to receive lump sum payments of up to $100,000 upon their separation from the airline. Plaintiff challenged Defendants’ claim that the Plan was an ERISA plan such that his lawsuit is preempted. The court agreed with Defendants that the Plan at issue here is different than the Plan discussed in the Supreme Court’s decision in Fort Halifax. First, the Plan includes administrative procedures to determine claimant eligibility and vests the plan administrator with discretion to “limit participation and determine exit dates.” Second, the Plan provides a review procedure in the event a claimant is denied benefits. Third, a payment amount cannot be calculated until a claimant’s exit date is determined. Finally, the Plan provides for additional benefits beyond the lump sum payment, including continued health benefits and travel passes. The court found that these features taken together require ongoing administration and is an employee benefit plan subject to ERISA.
Pleading Issues & Procedure
Court has personal jurisdiction over third-party complainant with no connection to the forum state due to ERISA’s nationwide service of process. Ng v. Prudential Insurance Company of America, No. CV 13-11317-TSH, 2016 WL 424956 (D. Mass. Feb. 3, 2016) (Judge Timothy S. Hillman). The court denied the third-party complainant’s motion to dismiss for lack of personal jurisdiction. The movant was married to the decedent at the time of his death and was originally named the decedent’s beneficiary under a life insurance plan insured by Prudential. The decedent’s children brought suit against Prudential over the life insurance proceeds. Prudential determined that the movant is the proper beneficiary. The movant has lived in New York her entire life. From 2010 through 2013, the movant, who suffers from mental health issues, lived in several different psychiatric facilities in New York. There was a time when her location was unknown to family and friends and she was ultimately located and hospitalized at a psychiatric hospital in Brentwood, New York. From there she was moved to an outpatient facility for several months until March 11, 2013, when she was placed in the mental health group home where she currently resides. The court found that ERISA provides for nationwide service of process so that as long as the movant has the requisite “minimum contacts” with the United States, the court has personal jurisdiction over her. The court did note that there is an element of unfairness where an individual has no contacts with the forum state relating to the lawsuit but that the court did not expect the movant would have to travel from New York to Massachusetts either for pre-trial discovery, or to attend a trial, should it prove necessary.
ERISA claims dismissed where laboratories lack standing to assert claims under self-funded Cigna plans and failed to exhaust administrative remedies. Biohealth Medical Laboratory, Inc., et al. v. Connecticut General Life Insurance Company, et al., No. 1:15-CV-23075-KMM, 2016 WL 375012 (S.D. Fla. Feb. 1, 2016) (Judge K. Michael Moore). This matter involves a dispute arising out of Cigna’s denial of claims for toxicology testing performed by the plaintiff Laboratories. Cigna is a global health service company that serves as the claims administrator for various employer-sponsored health and welfare benefit plans. The Laboratories are out-of-network healthcare providers that routinely receive requests for testing services from Cigna’s insureds. Cigna moved to dismiss the ERISA and state law claims on several grounds. Cigna contended that the Laboratories lack broad derivative standing and are barred from bringing fiduciary duty claims and claims related to self-funded plans under the express language of the Assignment. The court found that the Laboratories’ standing by assignment theory for self-funded plans does not survive the express language of the Assignment. The Laboratories have standing to assert claims for breach of fiduciary duty but lack standing to assert claims under the self-funded Cigna plans and the court dismissed those claims without prejudice. Cigna also asserted that the Laboratories have failed to exhaust their administrative remedies. The court found that in the Complaint and the parties’ arguments that the Laboratories have not alleged the exhaustion of administrative remedies. Instead, they allege that Cigna ignored their payment demands and failed to provide them with an adequate administrative remedy. The court found that the Laboratories’ “bald assertions” of futility undercut the exacting requirement to exhaust administrative remedies. Because the Laboratories failed to make a “clear and positive showing” that proper assertion of their claims would be futile or offer more than “naked assertions devoid of further factual enhancement” that the Laboratories were denied meaningful access to administrative review of their claims, the court dismissed the ERISA benefit claims without prejudice so that the Laboratories may pursue their administrative remedies.
Dismissal of pro se provider’s complaint seeking unpaid benefits affirmed. Griffin v. Habitat for Humanity Int’l, Inc., No. 15-13516, __Fed.Appx.___, 2016 WL 385893 (11th Cir. Feb. 2, 2016) (Before HULL, MARCUS and JILL PRYOR, Circuit Judges). The court affirmed the dismissal of the pro se Appellant’s complaint seeking approximately $928 in unpaid benefits, at least $64,000 in penalties, and declaratory relief related to treatment she provided as an out-of-network provider for a participant in Defendant’s health plan. The court concluded that even though the insured assigned Plan benefits to Appellant, the assignment is void under the Plan’s anti-assignment provision. The court found that the anti-assignment provision applied even though BCBSGA failed to notify Appellant of the provision after she asked whether the Plan contained such a term. The court disagreed that BCBSGA is equitably estopped from relying on the anti-assignment term or has waived it.
Statute of Limitations
Lawsuit challenging vesting requirements of deferred stock incentive plan filed 27 years too late. Bond v. Marriott Int’l, Inc., No. 15-1160, __Fed.Appx.___, 2016 WL 360801 (4th Cir. Jan. 29, 2016) (Before SHEDD, DIAZ, and HARRIS, Circuit Judges). In this unpublished PER CURIAM opinion, the Fourth Circuit found that the Appellant’s claims challenging the vesting requirements of Marriott’s Deferred Stock Incentive Plan are barred by the statute of limitations. The court found that Marriott informed the Appellants in 1978 that the Plan was exempt from ERISA’s vesting requirements but that the Appellants then waited more than 30 years to file suit. Here, the court found that Marriott clearly repudiated any right the Appellants had to the vesting requirements of ERISA in 1978 and the Appellants’ ERISA claims are untimely under Maryland’s three-year statute of limitations for contract actions. The court reversed the district court’s grant of summary judgment to the Appellants on that ground and granted summary judgment to Marriott. Because this conclusion is dispositive, the court did not reach the question of whether Marriott’s Plan was a valid top hat plan, and vacated the district court’s later order granting summary judgment to Marriott.
Statutory Damages & Notice Violations
Statutory penalties awarded against plan administrator for failing to produce required documents pertaining to 401(k) plan. Askew v. R.L. Reppert, Inc., et al., No. 11-CV-04003, 2016 WL 447060 (E.D. Pa. Feb. 5, 2016) (Judge James Knoll Gardner). Plaintiff filed a six-count Class Action Complaint. Count One alleges violations of ERISA document production requirements and seeks statutory penalties pursuant to 29 U.S.C. § 1132(c)(2) against Reppert, Inc. as plan administrator. The court granted Plaintiff’s motion for partial summary judgment and dismissal in part on Count One because it concluded that defendant Reppert, Inc. failed to produce any required documents pertaining to the 401(k) Plan within thirty days of Plaintiff’s written request and because defendant failed to produce a custodial agreement with Nationwide Trust Company, FSB. The court denied summary judgment on Count One in part because it found that (1) defendant Reppert, Inc. was not obligated to produce any documents regarding the Davis Bacon Plan; (2) defendant Reppert, Inc. fulfilled any document production obligations it had with respect to trust agreements, periodic benefits statements, notice of vested deferred benefits, disclosure of financial reports, Section 404(c) disclosures, notice of qualified default investment, notice of availability of investment advice, and depository documents for the 401(k) Plan; (3) Plaintiff has not provided sufficient evidence to demonstrate entitlement to any custodial agreements other than the Nationwide Trust Company agreement; and (4) there are genuine disputes of material fact relating to what, if any, penalties should be imposed on defendant for such failure.
Master Business Agreement referenced in claim and appeal denial letters is not a disclosure required by Section 1024(b)(4). Gurasich v. IBM Ret. Plan, No. 14-CV-02911-DMR, 2016 WL 362399 (N.D. Cal. Jan. 29, 2016) (Magistrate Judge Donna M. Ryu). Plaintiff sought Section 502(c)(1)(B) penalties against Defendants for not producing the Master Business Agreement (“MBA”), which is the May 2, 1992 agreement between IBM, Siemens Communication Systems, Inc., and Siemens Aktiengesellschaft that is referenced in Appendix C of the 1994 version of the IBM Plan. The Plan Administrator referenced the MBA in the initial denial letter as well as the denial of Plaintiff’s appeal. Plaintiff argued that Defendants were required to produce the MBA during the administration of her claim pursuant to 29 U.S.C. § 1024(b)(4) and Defendants’ failure to produce the MBA resulted in a violation of 29 C.F.R. § 2560.503-1, which is an implementing regulation for 29 U.S.C. § 1133. The court denied Plaintiff’s motion for summary judgment, finding that IBM was not required to produce the MBA under section 1024(b)(4). The court noted that the Ninth Circuit narrowly construes the disclosures required by section 1024(b)(4) and Plaintiff put forward no evidence that the MBA is a contract, or other instrument under which the IBM Plan is established or operated, provides participants with information about the plan and benefits, or otherwise qualifies as an instrument similar in nature to the documents specifically enumerated in the statute. The court also determined that a violation of 29 C.F.R. § 2560.503-1(h)(2)(iii), which requires that a benefits plan provide a claimant copies of all documents, records, and other information relevant to the claimant’s claim for benefits, does not trigger liability under 29 U.S.C. § 1132(c)(1)(B).