I am happy to report two notable decisions this week, both resounding wins for plan participants. The first is a favorable Ninth Circuit decision obtained by ERISA Watch subscriber Laurence Padway, telling Unum Life Insurance Company that it must live up to its 2005 promises to the California Department of Insurance (“CDOI”). Cox v. Allin Corp. Plan, __ Fed. Appx. __, No. 18-16975, 2021 WL 613799 (9th Cir. Feb. 17, 2021) (Bybee and R. Nelson, Circuit Judges, and Whaley, District Judge). In Cox, the Ninth Circuit overturned a district court decision in Unum’s favor with respect to plaintiff Elgin Cox’s claim for long-term disability benefits based on his diagnoses of vertigo and dizziness.
Unum was the plan administrator for an ERISA-governed disability plan sponsored by Allin Corporation, for which Mr. Cox worked prior to becoming disabled. Unum terminated Mr. Cox’s benefits after 24-months based on an exclusion in the governing policy for self-reported symptoms. Unum did so despite its 2005 California Settlement Agreement (“CSA”) with the CDOI which, among other things, prohibits such self-reported symptom limitations in “existing California Contracts.” The Ninth Circuit held that the CSA applied to the Allin Plan.
The CSA defines a “California Contract” as “a policy of disability income insurance issued by a Respondent which is subject to the jurisdiction of and approved by the Department.” Noting that the California Insurance Code explicitly prohibits the provision of group disability coverage in California unless the policy is approved by the CDOI, the Court concluded that “California law is clear that insurance provided in California is subject to the jurisdiction of CDOI.” The Court held that Mr. Cox’s coverage fit the bill, pointing out that Unum clearly recognized Cox as a California employee and understood that it was subject to the CDOI’s jurisdiction in its denial letters. The Ninth Circuit concluded that it was irrelevant that the plan stated that it was governed by Pennsylvania law because the CSA by its terms applies to all California Contracts. The Court therefore concluded that the CSA prohibited the application of the plan’s self-reported symptoms limitation, and the Court reversed and remanded on this basis without reaching the parties’ other arguments. The greatest significance of this decision probably lies in the Court’s clear holding that a choice-of-law provision in a plan cannot serve to limit the jurisdiction of the CDOI with respect to insurance provided in California.
This week’s second notable decision, which also involves a claim for long-term disability benefits, is Carlile v. Reliance Standard Life Insurance Co., __ F. 3d __, Nos. 19-4123 & 20-4005, 2021 WL 671582 (10th Cir. Feb. 22, 2021) (Hartz, Murphy and McHugh, Circuit Judges). In this case, the Tenth Circuit upheld a district court decision concluding that Reliance wrongfully denied plaintiff David G. Carlile’s claim for LTD benefits, and ordering an award of benefits, attorney’s fees and costs.
The merits of the case turned not on whether Carlile was disabled, but whether he met the plan’s requirement that he be an “active, full-time employee” when he became disabled. This was an issue because Carlile had been given notice of termination of his employment before he became disabled, but his employment did not actually terminate until after he was diagnosed with disabling prostate cancer. Although Reliance argued that the plan language required that Carlile prove that he was working full-time (at least 30 hours) when he became disabled, the Court held that the language was ambiguous and equally susceptible to another reading: that the claimant simply be a current employee. Construing the term in Carlile’s favor under the doctrine of contra proferentem (presumably because the parties had agreed that de novo review of Reliance’s interpretation was applicable) the Court concluded, as had the Fourth Circuit in a similar case involving the same insurance company and plan language, that a reasonable employee would not expect his coverage to end during his notice period. And because Carlile’s regular work week was at least 30 hours during the course of his employment, he was entitled to LTD benefits under the plan. Furthermore, the Tenth Circuit agreed with the district court that a remand to Reliance was unnecessary since Reliance did not challenge that he was disabled and the only basis for its denial of benefits was that Carlile was not an “active” employee at the onset of the disability. Finally, the Court determined that the district court did not exceed its discretion in awarding Carlile attorney’s fees and costs.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Breach of Fiduciary Duty
Acosta v. Puccio, No. 3:18-CV-00532 (MPS) 2021 WL 602727 (D. Conn. Feb. 15, 2021) (Judge Michael P. Shea). On a motion for summary judgment, Plaintiff asserted that Defendant, the widow of a pension plan sponsor and herself a plan fiduciary, did not discharge her duties in the interest of the participants because she diverted funds from the Plan for her own personal use, leaving only a negligible balance in the Plan incapable of paying participants’ pension benefit. The Court agreed, finding that Defendant had a fiduciary duty to “act to ensure” that the plan “receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries.” The Court agreed with Plaintiff that Defendant did not ensure that the plan had the funds to be used on behalf of two of the plan participants. Instead, she depleted the funds from the Plan’s account to the point that the Plan lacked financial integrity and the obligations to participants could not be satisfied. The Court also found that Defendant breached her fiduciary duty under ERISA Section 406(b)(1) by depleting the plan funds and dealing with the assets of the plan in her own interest. The Court further found Defendant failed to manage and control the assets of the plan as a trustee, failed to use reasonable care to prevent (her now-deceased husband) from committing a breach, and consequentially, enabled him to withdraw substantial assets from the Plan to pay personal expenses. The Court granted Plaintiff’s motion for summary judgment and ordered Defendant to satisfy in full the pension benefit entitlements of Plan participants. The Court also enjoined Defendant from serving as a fiduciary for any ERISA-covered employee benefit plan
Reetz v. Lowe’s Companies, Inc., et al., No. 5:18-CV-00075-KDB-DCK, 2021 WL 535160 (W.D. N.C. Feb. 12, 2021) (Judge Kenneth D. Bell). This case involves allegations against Lowe’s Companies, the Administrative Committee of the Lowe’s 401(k) Plan and Aon Hewitt Investment Consulting, Inc. regarding changes to the investment choices in the Plan that were not in the best interest of the participants and were not prudent investment choices. In a short four paragraph ruling, the Court found that despite hundreds of pages submitted in support of the cross-motions for summary judgment one thing was “abundantly clear;” the parties’ versions of the facts were markedly different. Defendants claim the changes to the investment options were made after a careful, deliberate and thoughtful process. On the other hand, Plaintiff claims Lowe’s was blindly led to make unnecessary changes by self-interested Aon consultants. The Court denied both cross-motions entirely saying it needs to weigh the evidence and assess credibility at trial.
Bailey v. Verso Corp., No. 3:17-CV-332, 2021 WL 673164 (S.D. Ohio Feb. 22, 2021) (Judge Michael J. Newman). Plaintiffs, retired employees of Verso, brought this class action under ERISA alleging that they were entitled to lifetime life insurance benefits under Verso’s employee benefit plan. Previously, Verso filed a motion to dismiss, arguing that Verso was not required to provide life insurance benefits past the termination date of the relevant collective bargaining agreement. The Court had disagreed, finding the language at issue ambiguous. The parties then settled the case and presented a joint motion for class certification and settlement approval to the Court, which the Court granted. The Court found that the class satisfied the requirements of Federal Rule of Civil Procedure 23, ruled that the settlement was fair and reasonable, and approved attorney’s fees representing 20% of the common fund.
Disability Benefit Claims
Hedrick v. AT&T Umbrella Benefit Plan No. 1, No. 1:19-CV-971, 2021 WL 602632 (M.D.N.C. Feb. 16, 2021) (Judge Loretta C. Biggs). Plaintiff was a Business Customer Service Specialist for AT&T. She claimed disability due to a degenerative tear of her lateral meniscus. She was awarded disability benefits under the Plan for this condition and then claimed continued benefits for a subsequent shoulder condition which she said required surgery. After her continued claim for short-term disability benefits was denied, she appealed, and the decision was upheld. The Court granted the Defendant Plan summary judgment under the abuse of discretion standard of review. It addressed the relevant portions of the Fourth Circuit’s eight-factor, non-exclusive analytical framework for assessing the reasonableness of a plan administrator’s decision. The Court found Defendant had considered all evidence in the administrative record, as well as the essential functions of Plaintiff’s job duties that had been provided. During the litigation, Plaintiff argued Defendant erred in not evaluating her full job duties, but she failed “to provide the Court with any indication of what additional physical duties might have existed” Furthermore, because there was no evidence that the Plaintiff had notified the plan administrator that the job description in the record was somehow incomplete or inappropriate, the Court concluded that it was “unclear” how Defendant would have been placed on notice that Plaintiff’s job duties extended beyond the listed job description.
Anderson v. United of Omaha Life Insurance Company, No. 2:20-cv-10146, 2021 WL 613238 (E.D. Mich., 2021) (Judge Stephen J. Murphy, III). Plaintiff filed suit for short-term and long-term disability benefits and the parties moved for judgment on the administrative record. The Court reviewed the denial of benefits de novo because Michigan law prohibits discretionary language in disability policies. The Court found plaintiff’s evidence did not prove that the plan participant was disabled and upheld the denial of short-term disability. In reviewing plaintiff’s claim for long term-disability the Court dismissed the claim with prejudice because plaintiff never filed a claim for long-term disability benefits and thus had not exhausted the claims process. Plaintiff argued that exhaustion would have been futile because the same evidence submitted in support of his short-term disability claim also support his claim for long-term disability, he had no reason to believe defendant would have come to a different decision on his long-term disability claim. The Court found this did not meet the futility standard and denied the long-term disability claim with prejudice.
Canter v. AT&T Umbrella Benefits Plan No. 3, et al., No. 18 C 7375, 2021 WL 663178 (N.D. Ill. Feb. 19, 2021) (Judge Jorge L. Alonso). Plaintiff sought short term disability benefits based on persistent dizziness. On cross motions for summary judgment, the Court found for Defendants applying deferential review. The Court concluded that the Plan was reasonable to conclude there was a lack of objective medical evidence to support the disability claim, reasoning that the SPD required objective evidence of dizziness with exertion. The Court found that Plaintiff’s neurologist stopped saying that Plaintiff should be off work due to dizziness pending tests or medication changes. The Court also found that Plaintiff’s neurologist stated that Plaintiff’s persistent dizziness had resolved. The Court found this supported Defendant’s determination that no objective medical evidence supported Plaintiff’s complaint of dizziness with exertion.
Cruz v. Reliance Standard Life Ins. Co., Case No. CIV 18-0974 RB/SCY, 2021 WL 601827 (D. N.M. Feb. 16, 2021) (Judge Robert C. Brack). Plaintiff sought judicial review of Reliance Standard Life Insurance Company’s (“Reliance”) decision denying him long-term disability benefits under an employer-sponsored insurance plan. The Court first found that a de novo review of the claims file was appropriate, and that plaintiff did not satisfy the test for introduction of additional evidence. Because the proffered exhibits did not offer objective findings of limitations during the relevant period to explain how plaintiff was unable to perform the duties of a surgeon, the Court concluded that as the evidence was unnecessary and could have been submitted to Reliance earlier. The Court then turned to the administrative record, which established that in November 2015, plaintiff was diagnosed with cocaine use disorder, generalized anxiety disorder, cyclothymic disorder, and severe alcohol use disorder. In March 2016, plaintiff’s physician completed a physician’s statement that opined that plaintiff was moderately limited in his ability to perform complex and varied tasks and would take less than four weeks to achieve maximum medical improvement, when his functional capacity would be improved but not full. In May 2016, plaintiff reported to his doctor that he was not drinking or using illicit substances and had some anxiety about going back to work. Reliance engaged a board-certified in psychiatry with a sub-specialty certificate in addiction psychiatry, to review plaintiff’s medical records and provide a peer review report. The report concluded plaintiff was impaired from work activities until May 1, 2016, but that there was no indication that he could not have returned to work on a full-time basis thereafter without restriction. The Court found that plaintiff failed to show evidence of psychosis, paranoia or hallucinations, failed to show limitations or restrictions that show he could not perform his material duties as a surgeon, and failed to show the peer review report was unreliable. Plaintiff was unable to prove by a preponderance of the evidence that he was disabled through May 2016, and therefore, the Court affirmed Reliance’s denial of long-term benefits.
Sullivan-Mestecky v. Verizon Commc’ns, Inc., No. 14-CV-1835 (SJF) (AYS) 2021 WL 650512 (E.D.N.Y. Feb. 19, 2021) (Judge Sandra J. Feuerstein). The plaintiff challenged a magistrate judge’s report and recommendation to permit Verizon to conduct additional discovery. The Court overruled Plaintiff’s objections and accepted the magistrate’s report in its entirety. The Court found that additional discovery was justified because Verizon did not have a “fully adequate opportunity for discovery” with respect to plaintiff’s ERISA Section 502(a)(3) claim before plaintiff moved for summary judgment. The Court concluded that the magistrate judge correctly found the discovery sought by Verizon was germane to its defense against plaintiff’s Section 502(a)(3) ERISA claims and defendant must be afforded a reasonable opportunity to obtain discovery with respect to such claims. Furthermore, the Court agreed with the magistrate that, in reversing the Court’s prior grant of Verizon’s motion to dismiss, the Second Circuit had held only that Plaintiff plausibly pled facts sufficient to state a claim for reformation, and not that she was entitled to prevail.
Pizarro v. Alight Fin. Advisors, LLC, No. 3:20-MC-157-FDW-DCK, 2021 WL 639017 (W.D.N.C. Feb. 18, 2021) (Magistrate Judge David J. Keesler). Petitioners are “are current and former participants of the Home Depot FutureBuilder 401(k) plan (the “Plan”) who have sued the Plan fiduciaries under ERISA, asserting breaches of fiduciary duty for allowing Alight Financial Advisors, LLC (“AFA”) to charge unreasonable fees to Plan participants for managing the assets in accounts of participants who enrolled in the Professional Management Program offered by the Plan and administered by AFA. Before the Court was Petitioners’ motion to compel Respondent AFA to provide complete responses to its Requests for Production regarding “documents or other data showing the fees AFA charged to participants in other plans” served on AFA in a subpoena duces tecum. Respondent AFA opposed Petitioners’ motion and said it would provide “a Rule 30(b)(6) witness who will testify on these topics, as requested in plaintiffs’ separate subpoena to testify to AFA.” Respondent argued that if production was required, Petitioners should bear the costs. The magistrate judge rejected AFA’s arguments and held that the motion to compel should be granted.
Serrano v. Standard Ins. Co., No. 20-2364-JAR-KGG, 2021 WL 602673 (D. Kan. Feb. 16, 2021) (Judge Kenneth G. Gale). Plaintiff brought a claim for long-term disability (“LTD”) benefits due to him under the terms of his LTD policy. Plaintiff sought discovery relating to the definition of “own occupation” in the LTD policy. The Court denied Plaintiff’s motion to compel discovery because, under the applicable arbitrary and capricious standard of review, the Court is limited to the documents contained in the administrative record and Plaintiff made no showing of exceptional circumstances to justify the discovery.
Ewald v. Prudential Fin. Corp. Office Headquarters, No. 1:20-CV-00432-JAW, 2021 WL 606971 (D. Me. Feb. 16, 2021) (Magistrate Judge John C. Nivison). Plaintiff alleged that Prudential Insurance Company of America committed “fraud and financial exploitation” under state law by withholding “funds” and “prior benefits” under Plaintiff’s long-term disability benefit plan. Prudential moved to dismiss Plaintiff’s complaint. Plaintiff did not file an opposition. The Magistrate Judge recommended the Court grant Prudential’s motion to dismiss, without prejudice, based on ERISA preemption. Because determination of whether Plaintiff’s LTD benefits were improperly withheld required evaluation or interpretation of the Plan, the fraud claim was preempted by ERISA.
Bigley v. Jenkins, No. 2:20-CV-00510, 2021 WL 671833 (S.D. W. Va. Feb. 22, 2021) (Judge John T. Copenhaver, Jr.). Plaintiff brought this action for worker’s compensation benefits and negligence against her employer, who filed a motion to dismiss. In a brief decision, the Court upheld the magistrate judge’s ruling that the negligence claim was preempted by ERISA, and that Defendant was not a proper defendant under ERISA. The Court further found that the worker’s compensation claim was not removable to federal Court, severed it from the action, and remanded that claim to state Court.
Clark v. Unum Grp., No. 4:20-CV-04013-KES, 2021 WL 664599 (D.S.D. Feb. 19, 2021) (J. Karen E. Schreier). Plaintiff sued Unum for various state law claims and claims under ERISA relating to his claim for long term disability benefits. Unum moved for summary judgment on Plaintiff’s state law claims, contending they were preempted by ERISA. The Court applied ERISA’s “safe harbor” test in order to determine whether ERISA governed Plaintiff’s claims. It found there was a genuine issue of material fact as to whether the employer contributed to the plan because while Unum contended the employer paid for the benefits from its general assets, Plaintiff alleged that he had withdrawn from the plan and had paid the premiums himself. Unum further contended that the 20% discount Plaintiff had received on his premiums constituted a “contribution” under the safe harbor rules, but the Court disagreed in the absence of information about whether the discount had been negotiated by the employer. Because of these various factual questions, the Court denied Unum’s motion for summary judgment.
Gimeno v. NCHMD, Inc., et al., Case No. 20-cv-24870-BLOOM/Otazo-Reyes, 2021 WL 616710 (S.D. Fl. Feb. 17, 2021) (Judge Beth Bloom). Plaintiff was married to Dr. Justin Polga (“Polga”), who provided physician hospitalist services pursuant to a contract with Defendant NCHMD until Polga’s death in December 2019. During the hiring process, Polga completed forms choosing supplemental life insurance in the amount of $500,000, issued by Lincoln National, naming his husband, Plaintiff, as primary beneficiary. Plaintiff alleged that at no time did Defendants inform Polga that he needed to complete or submit more forms. After Polga’s death, Plaintiff learned that Polga never became a participant in the supplement life insurance coverage plan because Polga never completed the evidence of insurability (“EOI”) form to be submitted to Lincoln National. According to Plaintiff, the EOI form was never provided to Polga, Defendants continued the payroll deduction for the premium amount in spite of the fact that Polga did not have coverage, and Polga was never informed that he was not in fact a participant in the supplemental life insurance plan, or that Plaintiff was not a beneficiary. Plaintiff brought an action for negligence against Defendants for failing to process Polga’s application such that upon his death, Plaintiff was deprived of the supplement life insurance benefit. After removing the case to federal court, Defendants filed a motion to dismiss, arguing that Plaintiff’s lawsuit was completely preempted by ERISA. Plaintiff filed a remand motion, arguing that this state law negligence claim was not completely preempted by ERISA, and therefore the case should be remanded to state court. The Court dismissed Plaintiff’s complaint, holding that Plaintiff’s claim was completely preempted by ERISA because Defendants’ alleged duties arose from the relationship established by the Lincoln Life group insurance policy and Defendants’ duties under ERISA. However, Plaintiff was permitted leave to amend to assert an ERISA claim.
Life Insurance & AD&D Benefit Claims
Festini-Steele v. ExxonMobil Corporation, No. 20-1052, __ F. App’x __, 2021 WL 629755 (10th Cir. Feb. 18, 2021) (Matheson, Baldock, and Kelly, Circuit Judges). This appeal involved whether a divorce decree met the requirements of a Qualified Domestic Relations Order (“QDRO”) under ERISA. Although ERISA Section 514(a) broadly preempts state laws that relate to employee benefit plans, it exempts QDROs, which the statute defines as “a domestic relations order … which creates or recognizes the existence of an alternate payee’s rights to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” After her ex-husband’s death, Plaintiff made a claim for benefits arguing that, pursuant to the divorce decree, she was the intended beneficiary of her deceased husband’s life insurance benefits. Defendant and the district court denied her claim, concluding that the domestic relations order at issue did not meet the statutory requirements for a QDRO. The Tenth Circuit disagreed, concluding that the divorce decree was a QDRO because it clearly specified the amount or percentage of the participant’s benefits to be paid by the plan to each alternate payee. Moreover, even though the decree did not refer to the ExxonMobil plan by name, it referred to “all life insurance accounts,” making it clear that the ExxonMobil life insurance plan was subject to the decree.
Metropolitan Life Ins. Co. v. Tucker, No. 20-11106, 2021 WL 531302 (11th Cir. Feb. 12, 2021) (Before Circuit Judges Martin, Jordan, and Pryor). Metropolitan Life filed an interpleader action to determine a dispute between two brothers with regard to distributing the proceeds of their mother’s life insurance. Jayson Tucker was named beneficiary in the policy in 1979. In 2014 the mother signed a power of attorney for her daughter Karen Tucker, who then changed the beneficiary to her brother Shayne Tucker. A month late she changed it to herself. Jayson argued that his mother had dementia and Karen and Shayne took advantage of her. Karen withdrew her claim to the benefit. The district court held that Jayson failed to submit any documentation other his own affidavit showing that his mother lacked capacity to enter into the power of attorney agreement. Where state law presumes competence, the district court held that the power of attorney was valid, and Shayne was the beneficiary. The Eleventh Circuit affirmed.
Shriners Hosps. for Children v. The Paul F.M. Shaver, III, Profit Sharing Plan, No. 2:20-CV-10-FL, 2021 WL 641433 (E.D.N.C. Feb. 18, 2021) (Judge Louise W. Flanagan). Plaintiff, a charitable organization, brought both ERISA and non-ERISA claims against Defendant, who filed a motion to dismiss all claims. Based on Plaintiff’s concession that Defendant was not an ERISA-governed plan, the Court dismissed all ERISA claims without prejudice.
Pleading Issues & Procedure
Hyperion Medical P.C. v. UnitedHealthcare Ins. Co. of New York, No. 20-CV-5081 (ALC), 2021 WL 568302 (S.D.N.Y. Feb. 15, 2021) (Judge Andrew L. Carter, Jr.). Plaintiff is an out-of-network healthcare provider, which filed an action challenging United’s failure to pay medical bills of patients covered by United insurance policies. Plaintiff provided specific claims information in EOBs to Defendant in attempts to settle the matter. Months later, Defendant removed the matter from state court to federal court based on ERISA. Plaintiff filed a motion to remand, asserting the removal was untimely. The federal district court found that nothing on the face of the EOBS provided to Defendant explicitly stated facts from which Defendant could ascertain that ERISA was implicated. As such, the removal was not untimely. The Court denied the motion to remand. The Court also denied Plaintiff’s request for discovery regarding Defendant’s investigation as to whether the claims involved ERISA.
Tomczak v. Stripes, LLC, et al., No. 1:19-CV-19524-NLH-JS, 2021 WL 567967 (D.N.J. Feb. 12, 2021) (Judge Noel L. Hillman). Plaintiff filed suit against his former employer and its parent company alleging that it caused the denial of his claim for long-term disability benefits from the Hartford Insurance Company (not named as a defendant) by providing an inaccurate termination date. Defendants moved for Summary Judgment arguing that it was not a proper party to this suit because the Defendants did not make the ultimate decision to deny the claim, and instead simply supplied information to the extent required under the circumstances. The district court agreed, finding that Hartford, not Defendants, was the only party that exercised control over the benefit administration, and thus was the only proper party to Plaintiff’s lawsuit.
Park Ave. Aesthetic Surg., P.C. v. Empire Blue Cross Blue Shield, No. 19-CV-9761 (JGK), 2021 WL 665045 (S.D.N.Y. Feb. 19, 2021) (Judge John G. Koeltl). Plaintiff, a medical provider, sued Defendants under ERISA alleging that Defendants had underpaid for services insured by a patient’s employee medical benefit plan. Defendants filed a motion to dismiss, which the Court granted. The Court found that the plan had an explicit and unambiguous anti-assignment provision, which prohibited the patient from assigning her rights under the plan to Plaintiff. The Court further found that Plaintiff’s claims were time-barred because it had filed suit after the 24-month contractual limitation period in the plan. The Court also ruled that Plaintiff had not identified any plan provision or legal authority that supported its claim that it should receive 100% reimbursement for its services. Finally, the Court ruled that Empire was not a proper defendant because it only provided claim administration services, was not mentioned in any of the plan documents, and did not exercise control over the benefit denial process.
Withdrawal Liability & Unpaid Contributions
National Electrical Annuity Plan v. Henkels & McCoy, Inc., Case No. 20-1024, 2021 WL 567868 (6th Cir. Feb. 16, 2021) (Boggs, Donald, and Thapar, Circuit Judges). National Electric Annuity Plan (“NEAP”) is a defined benefit pension plan established under and administered according to the LMRA and ERISA which covered unionized electrical workers. The NEAP sued H&M’s unions for $350,000 in contributions based on work the utility infrastructure contracting firm did installing a 5G network for Verizon as well as other projects. H&M denied that it owed any contributions for the work it performed based on a memorandum of understanding between H&M and two local unions which included an exemption for “outside telephone work.” The district court agreed with H&M and found that the work it performed for Verizon constituted “outside telephone work” and granted summary judgment in its favor. On appeal, the Sixth Circuit, over a vigorous dissent, disagreed and found that the phrase “outside telephone work” was ambiguous and that there was a genuine issue of material fact as to its meaning. The Sixth Circuit determined, by considering the parties’ agreement, H&M’s prior contributions based on similar work and the custom and practice in the industry, that the record contained evidence supporting both parties’ interpretations. The Sixth Circuit accordingly reversed the grant of summary judgment and remanded the case to the district court for further proceedings.