In an April Fool’s day decision, the Eighth Circuit holds that (1) a policy anniversary is not a renewal and thus is insufficient to trigger a State ban on discretion, and (2) absent evidence of insufficient training or experience, an opinion from a nurse constitutes a full and fair review.
This week the Eighth Circuit’s decision in Roebuck v. USAble Life, No. 19-1855, __F.3d__, 2021 WL 1216217 (8th Cir. Apr. 1, 2021) (Before Colloton, Gruender, and Grasz, Circuit Judges), clarified what triggers Arkansas’s ban on discretionary clauses. As in many states, an Arkansas regulation (“Rule 101”) prohibited the inclusion of discretionary clauses in insurance contracts. The purpose of Rule 101 was to prohibit the conflicts of interest that exist when an insurer responsible for paying disability income benefits has discretionary authority to decide what benefits are due. In effect, the invalidation of discretionary clauses required reviewing courts to apply the less deferential de novo standard of review. But did Rule 101 ban discretionary clauses in a policy that was issued prior to the enactment of the rule? The Eighth Circuit held it did not unless the policy had express language stating a renewal date after the rule’s effective date.
Rule 101 applied to “all disability income policies…issued or renewed on and after March 1, 2013.” The policy at issue in Roebuck was issued on January 1, 2011. The policy listed a single renewal date of January 1, 2012. No language in the policy addressed if or when the contract renewed after January 1, 2012.
Plaintiff argued the anniversary date mentioned in the policy effectively served as a renewal date. The argument was based on a passing mention of a “first renewal” date in the policy on the date of its first anniversary—implying additional renewal dates on subsequent anniversaries.
The Eighth Circuit rejected this argument. It noted that the few district courts to address the issue of whether an anniversary date should be construed as a renewal date had “strictly interpreted the terms of the insurance contract and generally declined to find that an anniversary date constitutes a policy renewal absent explicit contract terms stating so.” In short, the anniversary date of a policy is not a renewal within the meaning of Rule 101.
Because Rule 101 did not nullify the grant of discretion, the Eighth Circuit evaluated the denial under the abuse of discretion standard of review. Two primary issues were presented: (1) whether the use of an in-house nurse satisfied ERISA’s requirement under 29 C.F.R. § 2560.503-1(h)(3)(iii) that the claim administrator “consult with a healthcare professional who has appropriate training and experience in the field of medicine involved in the medical judgment” and (2) whether the fact that the policy carved out radiculopathy from a list of excluded conditions effectively required the payment of benefits if a radiculopathy diagnosis existed. The court rejected both.
On the first issue, the Eighth Circuit agreed with the Sixth Circuit that here was no per se rule that precluded an administrator from consulting a nurse rather than a physician in deciding an administrative appeal. All that ERISA required was a full and fair review by a medical professional, whether a nurse or any other professional, with appropriate training and experience.
The Eighth Circuit then effectively shifted the burden onto the Plaintiff to establish the nurse lacked appropriate training and experience. It noted, “[t]here is no evidence in the record demonstrating that Nurse Benwell did not possess the proper training and experience to review Roebuck’s claim.” This observation was repeated multiple times without any consideration given to searching the record for evidence that the nurse had the proper training and experience—a burden that would seem to be borne by the entity required to provide the full and fair review.
On the second issue, the Eight Circuit noted that while the policy expressly excluded radiculopathies from the “Special Conditions” exclusion, this did not materially alter the requirement that the claimant first establish disability. Here, the court noted the evidence did not support a disability finding. “The plain terms of the Policy exempt radiculopathies from the definition of ‘Special Conditions,’ but the terms of the Policy do not state that any radiculopathy diagnosis entitles a claimant to benefits.” Thus, there was no support in the record for the position that a radiculopathy diagnosis, absent a finding of disability, entitled the claimant to benefits under the policy.
Below is a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.
Trustees of Roofers & Waterproofers Local No. 44 Pension Plan v. Southwest Refinishers, Inc., No. 1:18 CV 764, 2021 WL 1224897 (N.D. Ohio Apr. 1, 2021) (Judge Donald C. Nugent). Plaintiffs, the trustees of several multiemployer pension and welfare plans, brought an action against the defendant employer for failure to make contributions to the plans under a collective bargaining agreement. Plaintiffs were successful on summary judgment and filed a motion for attorney’s fees. The court granted the motion in full, awarding $68,385 for three years of work performed at $350 per hour. The court found that the hourly rate was reasonable even though plaintiffs had not produced any affidavits from local experts to confirm that it was appropriate because plaintiffs’ attorney was a well-known experienced ERISA litigator. The court further found that plaintiffs’ block billing entries were adequate because they were sufficiently detailed that the court could determine the reasonableness of the hours expended.
Breach of Fiduciary Duty
Turner v. Schneider Elec. Holdings, Inc., No. CV 20-11006-NMG, 2021 WL 1178308 (D. Mass. Mar. 26, 2021) (Judge Nathaniel M. Gorton). A group of current and former employees of Schneider Electric who are participants in the Schneider Electric 401(k) Plan filed suit on behalf of the 401k Plan against Schneider Electric, the two committees that oversee the 401k Plan, as well as Aon Hewitt Investment Consulting, Inc, the Plan’s investment manager. Plaintiffs brought a variety of claims under ERISA arising out of allegedly improper investment decisions which resulted in losses to participants’ retirement savings and excessive administrative fees. Schneider and AHIC both brought motions to dismiss the complaint. The court held that: (1) plaintiffs raised a plausible inference that the process for selecting or monitoring assets was deficient. As such, it denied both defendants’ motions with respect to plaintiff’s claim for breach of the duty of prudence; (2) plaintiffs raised a plausible inference that AHIC had improper motives and failed to act solely in the interest of the participants, but did not raise such an inference regarding Schneider; (3) plaintiffs also failed to adequately plead a breach of the duty of loyalty with respect to administrative expenses against Schneider; (4) plaintiffs did, however, adequately plead a breach of the duty of prudence regarding such expenses; (5) because plaintiffs sufficiently pled a breach of Schneider’s duty of prudence, the complaint could sufficiently support an allegation that Schneider failed to adequately monitor the other fiduciaries; and (6) Plaintiffs failed to sufficiently plead a violation of “prohibited transaction” rules with respect to both defendants.
Deleon v. Teamsters Local 802 LLC, 20-CV-24, 2021 WL 1193191 (E.D.N.Y. Mar. 29, 2021) (Judge Roslynn R. Mauskopf). Plaintiff brought suit against former employer and his union, alleging breach of fiduciary duty under ERISA as well as employment discrimination, violation of the Family and Medical Leave Act (“FMLA”), and of the union agreement. The complaint alleged various incidents over several years that plaintiff asserted should be collectively viewed as discrimination, and that he was fired for taking FMLA leave. Defendants argued that the individual allegations asserted do not create a hostile work environment, or demonstrate any age-based animus or race-based discrimination or discrimination based on his veteran status. The court noted that the plaintiff failed to sue in time to bring Title VII or ADEA claims. It also agreed that plaintiff’s ERISA claims must fail, and that the union and its representative were not plan fiduciaries and therefore could not be sued related to these claims. The court agreed that plaintiff had failed to state a claim for which relief could be granted, and dismissed the complaint with leave to amend against his employer, and with prejudice as to the other defendants.
Kendall v. Pharm. Prod. Dev., LLC, et al., No. 7:20-CV-71-D, 2021 WL 1231415 (E.D.N.C. Mar. 31, 2021) (Judge James C. Denver III). Plaintiffs sued defendants for breach of their fiduciary duties in selecting and maintaining certain investment options within the Pharmaceutical Product Development retirement plan. They alleged the investment options offered by defendants were too expensive, that lower share classes for the same options should have been offered in the plan, and that the plan retained a recordkeeper that overcharged for services. The court dismissed the claims based on the investment options but allowed plaintiffs recordkeeping fees claim.
Jones v. Coca-Cola Consolidated, Inc., et al., Case No. 3:20-cv-00654-FDW-DSC, 2021 WL 1226551 (W.D.N.C. March 31, 2021) (Judge Frank D. Whitney). A class action was brought against defendants alleging breaches of fiduciary duties under ERISA. Plaintiffs were current and past participants of the Coca-Cola Consolidated, Inc. 401(k) Plan. Plaintiffs claimed that defendants mismanaged the Plan lineup of investment options and that the record-keeping and administrative costs were excessive. Defendants filed a motion to dismiss the complaint on the basis that plaintiffs lacked standing due to a lack of injury-in-fact. The court found that the plan was a defined-contribution plan, where future benefits would be affected by the outcome of the lawsuit. The court further found that the injuries are alleged to be the result of defendants’ breaches of fiduciary duty, including failure to monitor, and breach of trust. Therefore, if the plaintiffs’ allegations are true, they suffered injury in that their retirement accounts are worth less they would have been absent the breaches. The court accordingly held that plaintiffs had Article III standing to assert their claims as they have properly alleged they suffered an injury-in-fact. The court further held that plaintiffs sufficiently stated causes of action for breach of fiduciary duty, failure to monitor, and knowing breach of trust. Accordingly, the court denied defendants’ motion to dismiss.
Harmon v. Shell Oil Co., No. 3:20-CV-00021, 2021 WL 1232694 (S.D. Tex. Mar. 30, 2021) (Judge Jeffrey Vincent Brown). Plaintiffs, employees of Shell, filed this putative class action against Shell and several Fidelity entities alleging breach of fiduciary duty in the management of Shell’s ERISA-governed 401(k) retirement benefit plan. Plaintiffs alleged that FIIOC, one of Fidelity’s subsidiaries and the plan’s record-keeper, uploaded plan participant data to a Fidelity-wide database that allowed other Fidelity subsidiaries to use the data to solicit the purchase of non-plan products and services. Plaintiffs alleged that their data constituted “plan assets” under ERISA, and that the defendants unlawfully transferred these assets and profited from them in violation of their fiduciary duties. The defendants filed a motion to dismiss, which the court granted. The court found that the participant data did not constitute “plan assets” under ERISA because relevant regulations defined “plan assets” as including a plan’s “investments.” Furthermore, the data, while it had value, was not an asset under “ordinary notions of property rights.” As a result, there was no actionable breach of fiduciary duty, and no prohibited transaction, under ERISA for sharing the information.
Davis, et al., v. Magna International of America, Inc., et. al., No. 20-11060, 2021 WL 1212579 (E.D. Mich. Mar. 31, 2021) (Judge Nancy G. Edmund). Four individuals who invested in a 401(k) plan during their employment with defendant(s) brought a class action for fiduciary breaches against the plan’s fiduciaries for: “(1) failing to objectively and adequately review the Plan’s investment portfolio with due care to ensure that each investment option was prudent, in terms of cost; and (2) maintaining certain funds in the Plan despite the availability of identical or similar investment options with lower costs and/or better performance histories as required by the Plan’s investment policy.” On defendants’ motion to dismiss for failure to state a claim, the court held that plaintiffs satisfied the standing requirements of Article III because they allege actual injury to their own plan accounts that is causally related to the conduct they challenge on behalf of the Plan. Furthermore, the court held that plaintiffs sufficiently stated claims under ERISA for violations of the duties of prudence and loyalty, analogizing to cases in which the plaintiff “alleged numerous acts of wrongdoing, which, when viewed collectively, were found sufficient to state a claim.”
Stanton v. NCR Pension Plan, Case No. 1:17-cv-2309-MLB, 2021 WL 1170109 (N.D. Ga. Mar. 29, 2021) (Judge Michael L. Brown). Plaintiff filed a class action against his employer seeking benefits under a pension plan. He had worked for the company for a total of 10 years, but with a leave of absence for a year interrupting the 10-year period. Plaintiff says the absence was authorized and was not a break in employment, and occurred before ERISA was law. He brought suit under ERISA as a class action, seeking to represent all participants who were denied credited service for pre-ERISA breaks in employment, and who did not receive their pension benefit after 10 years. He also sought to certify three subclasses of participants who did not receive a copy of the summary plan description, did not receive notice of eligibility for benefits under the plan, and all who were not given the opportunity to elect a lump sum distribution. Plaintiff moved to certify the classes and defendant opposed and moved to strike the reply brief, which asserted for the first time claim for relief under 29 U.S.C. § 1132(c)(1)(A) and relied on personnel file records. The court agreed that plaintiff could not add a new cause of action in its reply brief. The court disagreed, however, that the plaintiff’s stated plan to rely on personnel records was a “new argument,” and let that stand. The court then denied certification, holding that the plaintiff had not proved numerosity and the plaintiff’s plan to rely on as-yet unproduced personnel records in discovery was not sufficient.
Disability Benefit Claims
Solari v. Partners Healthcare Sys., Inc., No. 19-11475, 2021 WL 1092547 (D. Mass. Mar. 22, 2021) (Judge Leo T. Sorokin). Solari brought suit seeking reinstatement of her long-term disability benefits based on her postural orthostatic tachycardia syndrome (POTS) and mast cell activation syndrome (MCAS). On cross motions for summary judgment, the court held that the summary plan description (“SPD”) in place when the denial was first issued was the plan document that governed the matter. Moreover, the court reasoned that because a de novo standard of review applied to the insurer’s denial of benefits, the terms of the SPD must be strictly construed against the insurer and in favor of Solari. The court then concluded that the objective medical evidence established that Solari suffered from both POTS and MCAS, and while her doctors could not explain her fatigue solely by reference to these diagnoses, the court noted that the record contained evidence supporting her claims of disabling fatigue. The court also noted that during the functional capacity examination (“FCE”) Solari’s pulse doubled to 180 while performing a sedentary task. Because the parties had not adequately addressed the FCE, the court ordered additional briefing on the significance of the FCE with respect to the ultimate question of disability.
Hughes v. Hartford Life and Accident Insurance Company, No. 3:19-CV-01611 (JAM), 2021 WL 1165430 (D. Conn. Mar. 25, 2021) (Judge Jeffrey Alker Meyer). Plaintiff suffered from migraine headaches and vertigo. Hartford paid long term disability benefits from 2012 to 2016, before deciding Plaintiff was no longer disabled. Applying the arbitrary and capricious standard of review, the court found there was substantial evidence for Hartford’s decision. Plaintiff argued the de novo standard should apply because a prior ruling held that Hartford failed to conduct a full and fair review during the first administrative appeal. This argument was rejected because the Supreme Court had declined to adopt a “one-strike-and-you’re-out” approach. The court found no evidence of irregularities in the subsequent administrative appeal on remand. In fact, it observed that this time it was Plaintiff’s counsel, not Hartford, who decided to engage in gamesmanship. On the merits, the court admitted “there is significant evidence in the record” to support disability. But it saw its role as not to decide in the first instance whether Plaintiff had proved that she was and is disabled. Rather, its role was only to determine if there was substantial evidence to support Hartford’s conclusion that she was not disabled and to evaluate Plaintiff’s claims that Hartford failed to follow the required procedures or other law when evaluating her claim and appeal. Because it found that there was substantial evidence in the record supporting Hartford’s decision, the court concluded that Hartford’s decision to terminate benefits was not arbitrary or capricious.
Bustetter v. Standard Ins. Co., No. CV 18-1-DLB-EBA, 2021 WL 1198305 (E.D. Ky. Mar. 29, 2021) (Judge David Bunning). Plaintiff sued Standard for disability benefits due under his employer’s long-term disability policy. The court remanded the case to the plan for a new determination. Standard wrote to plaintiff on day 44 of the remand and stated it was taking a 45-day extension to make a decision “[d]ue to the time required to complete the medical review.” The court determined that “needing additional time for physician review is not a special circumstance” to justify a plan administrator not making an initial determination within 45 days as required by the ERISA claims regulations. Because Standard’s decision was late, the court did not apply discretionary review to its final determination on remand, instead reviewing Standard’s decision de novo. This did not save Bustetter, however. He was denied summary judgment even under the more favorable standard of review due to lack of evidence supporting his claim for benefits.
McCool v. Life Ins. Co. of N. Am., No. 18-56529, 2021 WL 1235842, __ Fed. Appx. __ (9th Cir. Apr. 2, 2021) (Before Circuit Judges Rawlinson and N.R. Smith, and District Judge Edward R. Korman). McCool brought an action under ERISA against LINA for denying his claim for long-term disability benefits. The district court ruled in favor of LINA after a bench trial and McCool appealed. In a brief memorandum decision, the Ninth Circuit affirmed. The court noted that it would ordinarily “review the policy to determine the definition of ‘sedentary’ or suggestion of what definition to follow,” but “this policy does not contain a definition.” As a result, McCool was required to demonstrate that he could not perform “any occupation” due to an inability to sit for more than four hours in an eight-hour workday. The court ruled that the district court did not clearly err in finding that McCool had not met his burden because the record contained “repeated findings” that he could sit “frequently.”
Lewis v. Unum Life Insurance Company of America, et al., No. CV-18-02191, 2021 WL 1186615 (D. Ariz. Mar. 30, 2021) (Judge Susan M. Brnovich). Plaintiff filed for summary judgment on his long-term disability claim. The court engaged in a lengthy discussion of the standard of review, ultimately determining that abuse of discretion standard applied. The court then analyzed numerous arguments set forth by plaintiff as to why Unum abused its discretion but the court disagreed with all of them, except for the argument that Unum failed to consider all of plaintiff’s symptoms as a whole. The court remanded the case back to Unum to consider whether plaintiff’s conditions and symptoms, when taken together, render him unable to perform his own occupation.
Gary Mulhern v. Life Insurance Company of North America, and Signa Corporation, No. 6:17-cv-1758, 2021 WL 1230560 (D. Or. Mar. 31, 2021) (Judge Ann Aiken). This case involves cross-motions for summary judgment as to whether plaintiff was disabled under a group disability plan. Plaintiff worked as an operating room nurse until February 6, 2009, when he became disabled due to intractable buttock and leg pain and was diagnosed with “herniated disc, lumbar radiculitis, knee pain, foot-drop, shoulder pain, arthritis and lower back injury.” LINA approved and paid benefits through October 23, 2015, when it determined that he had the physical capacity to work in sedentary nursing occupations. The court applied the de novo standard of review and found that plaintiff remained disabled on November 23, 2015, when LINA terminated his benefits. The court was not persuaded that plaintiff’s condition had improved to the point that he was employable. The court disagreed with LINA’s assertion that the 2012 SSA ALJ decision was no longer an accurate evaluation of plaintiff’s physical abilities. The medical records in 2015 were consistent with the ALJ decision. The court noted that LINA used the higher end of the ranges of time that plaintiff could sit, stand, or walk to support the findings in the 2015 TSA. Finally, the court found the opinions of plaintiff’s treating providers more persuasive than the peer reviews.
Tabakian v. Lincoln Nat’l Life Ins. Co., No. 4:19-CV-00073, 2021 WL 1168698 (S.D. Ga. Mar. 26, 2021) (Judge R. Stan Baker). Plaintiff worked in a sedentary job and filed an LTD claim due to symptoms including fatigue, weakness, and joint pain. Plaintiff’s medical record indicated adrenal and growth hormone deficiencies and possible fibromyalgia. Plaintiff filed two appeals. Evidence for her second appeal included an award of social security disability insurance, a stronger supporting letter from her treating doctor, and additional medical records, including a CT chest scan showing a lobe mass which was diagnosed as renal carcinoma and surgically removed, along with ongoing notes of fatigue and myalgias. Defendant upheld its denial on appeal and plaintiff filed suit. Under the “arbitrary and capricious” standard of review, the court granted summary judgment to defendant. In its analysis, the court considered facts including some inconsistency in plaintiff’s supporting doctor’s letters, along with certain lacking objective medical documentation and plan provisions that distinguished this case from a precedent cited by plaintiff.
Manuel v. Turner Industries Group, LLC, et al., No. CV 14-599-SDD-RLB, 2021 WL 1187072 (M.D. La. Mar. 29, 2021) (Judge Richard L. Bourgeois, Jr.). Plaintiff seeks short and long term disability benefits. The district court had previously dismissed plaintiff’s claims on summary judgment. On appeal, the Fifth Circuit reversed and remanded the claims for fiduciary breach and instructed the district court to consider anew any discovery requested related to the surviving claims. The district court found that discovery of performance evaluations and compensation is relevant and appropriate and that Plaintiff need not rely solely on Prudential’s assertions (in a sworn statement from Prudential that “claim outcomes do not affect the compensation or evaluation of claims personnel”). The court did not, however, require Prudential to produce statistical information regarding prior claims decisions, which it found disproportionate to the needs of the case. The court found plaintiff is entitled to discovery regarding the alleged lack of compliance with ERISA’s procedural regulations and is “not required to prove the merits of her procedural defect claim to obtain discovery on it.” The court allowed discovery regarding who drafted the plan, amendments to the plan, and who was responsible for keeping a current copy of the plan documents. Finally, the court would not place any general limitation on Rule 30(b)(6) depositions.
Duncan v. Anthem Life Ins. Co., No. 20-CV-00767-JPG, 2021 WL 1237138 (S.D. Ill. Apr. 2, 2021) (Judge J. Phil Gilbert). Duncan brought this suit under ERISA against Anthem alleging that Anthem had improperly denied her claim for long-term disability benefits. As part of her allegations, Duncan stated that Anthem’s decision was “the product of a conflict of interest and serious procedural irregularities.” Specifically, Duncan was critical of Dr. N. Nicole Barry, who Duncan alleged had rendered opinions about fibromyalgia for Anthem that were incorrect and inconsistent with medical standards of practice. Duncan filed a motion requesting permission to conduct discovery regarding Anthem’s use of Dr. Barry. Anthem opposed the motion, arguing that it had not retained Dr. Barry directly, but had only engaged her services through Dane Street, an independent review organization that had selected her. The court rejected Anthem’s argument and found that “limited discovery” was appropriate because Anthem had “selected Dane Street. And if Dane Street consistently recruits a physician with a minority view that results in more claims being denied, then Anthem may have a conflict of interest.” Anthem “may be motivated to hire Dane Street so that it can deny more claims and thus benefit its bottom line.” As a result, the court granted Duncan’s motion, which sought to depose Dr. Barry and obtain written discovery regarding her prior opinions on claims involving fibromyalgia.
McCluer v. Sun Life Ass. Co. of Can., No. 21-CV-8-GPC-(WVG), 2021 WL 1227584 (S.D. Cal. Apr. 1, 2021) (Judge William V. Gallo). Plaintiff filed suit seeking additional life insurance payments under a policy’s accidental death provision. On plaintiff’s motion for leave to conduct limited discovery, the court determined that the discovery sought is narrowly limited to the plan documents, that it is not burdensome nor does it constitute a fishing expedition, and that the documents sought are necessary. Under that standard, the court concluded that plaintiff met her burden to establish that the proposed discovery was appropriate, and accordingly granted her motion.
Thomas v. Diversified Community Services, Inc., No. CV 20-3813, 2021 WL 1175189 (E.D. Pa. Mar. 29, 2021) (Judge Wendy Beetlestone). Plaintiff Brenda Thomas alleges that she was unlawfully terminated from at-will employment at Diversified Community Services, Inc. (“DCS”) shortly before she reached retirement age. Thomas voluntarily dismissed her ERISA claims after defendants removed to federal court, and then moved to remand for lack of jurisdiction pursuant to 28 U.S.C. § 1447(c). Defendants opposed remand, contending that because Section 502 of ERISA, 29 U.S.C. § 1132, completely pre-empts plaintiff’s breach of contract claim, the court had original jurisdiction over the case. The court held that the dismissal of plaintiff’s federal statutory claims did not deprive it of jurisdiction because the federal claims were not insubstantial on their face. However, the court concluded that, following the dismissal of federal claims, it had the discretionary authority to decline to exercise supplemental jurisdiction over the pendent state law claims. Because this case was at the early stages of litigation and all federal claims have been dismissed, the court declined to exercise supplementary jurisdiction over the remaining claims.
Pacific Recovery Solutions, et al., v. United Behavioral Health, et al., No. 4:20-CV-02249 YGR, 2021 WL 1222519 (N.D. Cal. Apr. 1, 2021) (Judge Yvonne Gonzalez Rogers). Plaintiffs, out-of-network medical providers, brought a putative class action against defendants United Behavioral Health (“United”) and MultiPlan, Inc. (“MultiPlan”) asserting numerous state-law claims arising out of United’s alleged failure to reimburse plaintiffs at “a percentage” of the Usual, Customary, and Reasonable Rates (“UCR”) for Intensive Outpatient Program (“IOP”) services, which plaintiffs provided to patients with health insurance policies administered by United. United and MultiPlan moved to dismiss all claims in the with prejudice under Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1) plaintiffs’ state-law claims are preempted by ERISA; and (2) even if such claims are not preempted by ERISA, the claims are inadequately pleaded. The court held that where, as here, plaintiffs assert state-law claims that depend on the terms of certain healthcare plans, but plaintiffs do not allege any factual matter giving rise to the inference that such healthcare plans are not governed by ERISA, the state-law claims are subject to dismissal on the ground that they are preempted by ERISA. Having granted two previous motions to dismiss without prejudice to no avail, the court dismissed with prejudice.
Pacific Recovery Solutions v. Cigna Behavioral Health, Inc., No. 5:20-cv-02251-EJD, 2021 WL 1176677 (N.D. Cal. Mar. 29, 2021) (Judge Edward J. Davila). This is one of three related cases in which a Cigna entity is alleged to have reneged on its agreement to reimburse mental health provider claims at the usual, customary, and reasonable (“UCR”) rates. On Defendants’ motions to dismiss, the court rejected the argument for complete preemption of Plaintiff’s state law claims under 502(a) of ERISA, 29 U.S.C. § 1132(a), explaining that § 1132(a) provides a basis for federal question jurisdiction, not a basis for dismissal under Rule 12(b)(6). Defendants next argued that state law claims should be conflict preempted under section 514(a) of ERISA, 29 U.S.C. § 1144(a). Because Plaintiff’s Complaint referred to ERISA, as well as patient plans and terms, and Plaintiffs indicated they were assignees of their patient’s benefits, the court determined that the various allegations suggested that Plaintiff’s state law claims were not “completely independent” of the terms and meaning of an ERISA Plan. The court granted the Defendant’s motion to dismiss with leave to amend.
Life Insurance & AD&D Benefit Claims
DeGreenia-Harris v. Life Insurance Company of North America, No. 2:19-CV-00218, 2021 WL 1165502 (D. Vt. Mar. 26, 2021) (Judge Christina Reiss). Plaintiff brought suit against LINA to recover benefits under a group life insurance policy subject to ERISA following his father’s death during an accident involving a snowcat. The decedent’s blood analysis showed presence of cocaine, benzoylecgonine, and THC. LINA denied benefits, concluding that Mr. DeGreenia was impaired while operating the snowcat and that, because of that impairment, his death was foreseeable and therefore not a covered accident. The court denied LINA’s motion for summary judgment, however, concluding that there were contested issues of fact regarding what caused the snowcat’s rollover and the ejection of Mr. DeGreenia from the snowcat’s cab. The fact that his passenger survived the same incident without apparent injury and did not observe any reckless operation or impairment on Mr. DeGreenia’s part was evidence that must be considered.
Morris v. Lincoln Nat’l Life Ins. Co., Case No. 19-1546, 2021 WL 1199005 (4th Cir. March 30, 2021) (Before King, Keenan, and Richardson, Circuit Judges). Plaintiff filed suit alleging that Lincoln wrongfully denied her claim for life insurance benefits after the death of her husband. The district court initially found that Lincoln abused its discretion and remanded the matter to Lincoln. Following the remand, Lincoln again denied benefits and the parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of Lincoln, concluding that Lincoln did not abuse its discretion in denying Morris’ claim for life insurance benefits. The court agreed that Mr. Morris was not covered under the insurance policies because he was not actively at work and he was totally disabled on January 1, 2015, the date the policies took effect. On appeal, the Fourth Circuit affirmed the district court’s judgment in part, reverse in part, and remanded. The Fourth Circuit concluded that the district court did not reversibly err in granting summary judgment to Lincoln with respect to the basic policy because Lincoln did not abuse its discretion in denying benefits on the ground that Mr. Morris was totally disabled on the date the policy took effect. However, the court held that plaintiff was entitled to summary judgment on the claim under a supplemental policy because Lincoln abused its discretion by denying benefits in a manner inconsistent with the plain terms of the policy. Further, because this language was not ambiguous, the court did not defer to Lincoln’s contrary interpretation of the policy language. Therefore, the court held that as a matter of law, Lincoln abused its discretion by denying benefits in a manner inconsistent with the unambiguous terms of the supplemental policy. The Fourth Circuit reversed the district court’s grant of summary judgment on the supplemental policy claim and remanded for entry of summary judgment in favor of Plaintiff on the supplemental policy claim.
Fulkerson v. Unum Life Ins. Co. of America, No. 1:19-CV-01180, 2021 WL 1214683 (N.D. Ohio, Mar. 31, 2021) (Judge David A. Ruiz). Plaintiff’s son, Mr. Tymoc, sustained fatal injuries from a car accident and Plaintiff claimed that Unum wrongfully denied AD&D benefits. Defendant argued that Mr. Tymoc’s death was not due to “accidental bodily injury” because it was not due to “accidental means” and was contributed to by Mr. Tymoc speeding at 80 to 100 miles per hour while under the influence of alcohol and marijuana. However, the court determined that Mr. Tymoc’s actions causally contributed to the accident, not the injury. Defendant also argued that the plan’s crime exclusion made AD&D benefits unavailable, referencing the dictionary definitions of “crime.” Plaintiff contended that Mr. Tymoc’s actions were minor misdemeanor traffic violations and ambiguous provisions should be strictly construed against the drafter. The court agreed with plaintiff and found that AD&D benefits were improperly denied. With regard to additional seatbelt and airbag benefits under the policy, the evidence did not confirm that plaintiff’s son was wearing a seatbelt at the time of the accident, therefore the court that found that Unum had correctly denied seatbelt and airbag benefits.
Bailey v. Metropolitan Life Ins. Co., No. 1:19-CV-1002, 2021 WL 1235372 (W.D. Ark. Apr. 1, 2021) (Judge Susan O. Hickey). Bailey brought this action against MetLife, seeking payment of accidental death and dismemberment benefits under an ERISA-governed benefit plan. Bailey’s right leg was amputated after a blood clot in his knee led to several surgeries complicated by an allergic reaction to heparin. MetLife denied Bailey’s claim on the ground that the amputation was due to an illness, not an accident. The parties filed cross-motions for summary judgment; the court granted MetLife’s and denied Bailey’s. Bailey argued that Arkansas’ ban on discretionary clauses in disability income policies prohibited MetLife from receiving deferential review, but the court ruled that the policy at issue was not a disability policy. The court further found that MetLife had not engaged in any procedural irregularities, and thus it reviewed MetLife’s decision for abuse of discretion. Under this standard of review, the court found it was reasonable for MetLife to conclude that Bailey’s amputation was not a direct result of an accidental injury, independent of other causes, because it was due to acute limb ischemia caused by a blood clot. The court further found that the plan’s exclusion for loss caused by illness applied to bar recovery.
Medical Benefit Claims
Conformis, Inc., et al. v. Aetna, Inc., et al., No. 1:20-CV-10890-IT, 2021 WL 1210293 (D. Mass. Mar. 31, 2021) (Judge Indira Talwani). Plaintiffs are a plan participant and a manufacturer of customized knee replacements whose request for plan coverage was denied on the basis of a plan exclusion for “experimental” or “investigational” treatments. The court found that because the plan contained an anti-assignment provision, and the plaintiffs did not plead any facts to support that the provision was unenforceable or invalid, Conformis, the manufacturer failed to state a claim under ERISA. The court also concluded that Conformis failed to state claims against Aetna under state law, and therefore granted the motion defendants’ motion dismiss all claims brought by Conformis. However, the court denied the motion to dismiss with respect to all claims brought by the participant, concluding that he appropriately raised claims for both equitable relief and benefits that should be addressed with a full record.
Roy A. Bourgeois and BourgeoisWhite, LLP, v. Blue Cross Blue Shield of Massachusetts, Boston Hill Advisors, LLLC, and Joseph Hayes, Case No. 20-40051, 2021 WL 1209590, (D. Mass. March 31, 2021) (Judge D.J. Hillman). Bourgeois, a participant in an ERISA-covered healthcare plan required emergency surgery and BCBS refused to cover the medical expenses that should be covered by Medicare. Bourgeois did not appeal BCBS’s decision, because he alleged that Hayes advised that an appeal would be futile unless he first applied to obtain Medicare Part B retroactively. He and his partnership filed a lawsuit against defendants asserting ERISA fiduciary duties and state-law claims based on their failure to enroll Bourgeois in Medicare Part B coverage after he attained the age of 65. The court dismissed based on Bourgeois’ failure to exhaust his administrative remedies. The court reasoned that the plan provided an appeal process and Bourgeois failed to establish futility by alleging that past patterns of the administrator demonstrated that further administrative review would provide no relief. As to BourgeoisWhite, the partnership, the court determined that it would only have standing to make a claim under ERISA to the extent it seeks restitution, but there were no allegations of an alleged overpayment. As to the preliminary injunction sought against BCBS, the court held that plaintiffs have failed to establish that they would prevail on the merits and that there was potential for immediate and irreparable harm. The court granted BCBS’s motion to dismiss, without prejudice.
Sasson Plastic Surgery, LLC v. UnitedHealthcare of New York, Inc., No. 17CV1674SJFARL, 2021 WL 1224883 (E.D.N.Y. Mar. 31, 2021) (Judge Sandra J. Feuerstein). Plaintiff, a medical provider, sought payment from United for medical services provided to 440 patients covered by healthcare plans issued or administered by United. United filed a motion to dismiss. The court found that assignments of claims of many of the patients were ineffectual and void, and the provider could not seek ERISA benefits pursuant to them. The court found the complaint void of any factual allegations that Defendant waived the anti-assignment provisions and therefore dismissed the claims for plan benefits. The court likewise dismissed plaintiff’s claim for equitable relief, finding it duplicative of the claim for benefits. Finally, the court dismissed plaintiffs asserted state-law claims as preempted by ERISA.
Pension Benefit Claims
Carol A. Wilson, et al., v. Riley Contracting, Inc. No. 20-CV-04721, 2021 WL 1172244 (S.D. Ohio Mar. 29, 2021) (Judge Algenon L. Marbley). Plaintiff and Trustees of numerous employee benefit plans brought this lawsuit on behalf of participants and beneficiaries based on defendant Riley’s alleged violations to comply with collectively bargained agreements, trust agreements and employee-benefit plans. Specifically, plaintiffs claim that Riley should have contributed an amount equal to 40 hours per week for certain of its salaried employees regardless of the number of hours actually worked. Riley answered and filed a counter-claim against plaintiffs. Plaintiffs filed a motion to dismiss the counter-claim and to strike certain affirmative defenses. As to the motion to dismiss, plaintiffs asserted that the court lacked jurisdiction to consider Riley’s counter-claims. The court noted that it did not have jurisdiction under ERISA because defendants were not one of the classes of persons who may bring a civil action: (1) a participant or beneficiary; (2) the secretary of labor; or, (3) a fiduciary. The court held that ERISA does not allow Riley, as an employer, to bring a civil action under ERISA. The court also determined that the Declaratory Judgment Act does not provide an independent basis for jurisdiction. The court granted Plaintiffs’ motion to dismiss Riley’s counter-claim. As to the motion to strike, the court noted that the Sixth Circuit has repeatedly held that contractual and other state law defenses are preempted by ERISA. Thus, Riley’s defenses of failure to meet a condition precedent and accord and satisfaction were stricken. Waiver and estoppel were found to be unavailable as a matter of law.
Ted Williams Enters. LLC v. Palmer, No. 4:20-CV-01018, 2021 WL 1214833 (N.D. Ohio Mar. 31, 2021) (Pamela A. Barker). Williams established a defined benefit plan in which Defendant/Counter-Claimant Palmer was a participant. When Palmer left employment with Williams, she sought a distribution, which was paid by the plan’s third-party administrator (“TPA”) in an erroneous overpayment to Palmer. Two years after the distribution, trustees for Williams Enterprises filed a claim against Palmer for unjust enrichment and a claim under ERISA to recover the overpayment. Palmer filed a third-party complaint against Williams Enterprises and the TPA for equitable relief under ERISA and alleging negligence under state law in the distribution of her retirement benefits. Plaintiff/Counter-Defendant Williams filed a motion to dismiss the counterclaim. With regard to the negligence claim, Williams argued that the claim is preempted by ERISA and Palmer conceded the point and did not contest dismissal of her claim. With regard to her equitable estoppel claim, Palmer argued that Williams should be prevented from recovering the overpayment because of her reasonable and foreseeable reliance on the accuracy of the amount. Williams argued that Palmer has failed to state a claim for equitable estoppel because Palmer has failed to establish that Williams was aware that the amount distributed constituted an overpayment or that Williams made any factual representations with gross negligence or fraudulent intent. The Court agreed with Williams and dismissed.
Kubsh v. UPS Retirement Plan, et al., No. 17-cv-73, 2021 WL 1208902, (S.D. Ill. Mar. 31, 2021) (Judge Staci M. Yandle). The parties filed cross-motions for summary judgment on plaintiffs’ claims for clarification of entitlement to future pension benefits. Plaintiffs were employees and participants of an acquired plan who subsequently earned benefits under the UPS pension plan. Defendants argued for deferential review of the claim denial letter and Plaintiff argued the court should review the claim de novo. The court found neither standard applied because a request for clarification of the right to future pension benefits is a plan document interpretation, where the court interprets the terms in the ordinary and popular sense unless it is ambiguous in which case is to be resolved in favor of providing benefits. The court found there was no ambiguity in the terms and ruled consistent with defendants finding that the “Benefit Service” does not include years worked for the acquired company.
Tait v. Principal Life Ins. Co., No. 6:20-CV-00702, 2021 WL 1238285 (W.D. La. Mar. 31, 2021) (Judge Robert R. Summerhays). Tait brought suit under ERISA alleging that Principal had wrongfully denied her claim for long-term disability benefits. Principal filed a motion to dismiss, arguing that its denial was justified because Tait’s disability commenced after the expiration of Principal’s policy. Tait’s last day of work was December 31, 2018, and her employer’s benefit plan transitioned its insurance from Principal to MONY on January 1, 2019. A magistrate judge issued a report and recommendation that Principal’s motion be granted, but the court rejected that report. The court found that even though Tait was able to work a full day on December 31, 2018, she had alleged that her condition deteriorated on that day to an extent that she became unable to perform her duties prior to midnight, which is when the policy expired. As a result, she had properly pled that she was covered under Principal’s policy.
Pleading Issues & Procedure
Sobolewski v. Prudential Life Ins. Co. of Am., CIVIL ACTION NO. 4:20-cv-02415 2021 WL 1219986 (S.D. Tex. Mar. 31, 2021) (Judge Charles Eskridge). Plaintiff was receiving long-term disability benefits from 2015 to 2017. Benefits were terminated on April 25, 2017 and that decision was upheld on appeal on December 27, 2017. Plaintiff filed suit on July 8, 2020, bringing causes of action for denial of benefits and breach of fiduciary duty. Defendant moved to dismiss, saying the complaint was untimely and the breach of fiduciary claim was duplicative of the claim for denial of benefits. Defendant argued that the policy said suit must be filed within 3 years of when proof of loss was due, and therefore it had to be filed after the elimination period following his initial claim, which would be February 8, 2016 and therefore suit had to be filed by February 2019. Where the denial letter explained the contractual limitation on suit, the court declined to equitably toll the deadline because the insured did not diligently pursue his rights. The court dismissed the complaint with leave to amend.
McGinnes v. FirstGroup Am., Inc., No. 1:18-cv-326, 2021 WL 100056789 (S.D. Ohio Mar. 18, 2021) (Judge Timothy S. Black). Participants in a 401(k) pension plan brought suit against plan fiduciaries challenging their actions in replacing 95% of the plan’s investment with new and untested funds developed by Hewitt, which led to significant plan losses. On defendants’ motions for summary judgement, the court first held that it was premature to determine whether any of plaintiffs’ claims were barred by ERISA’s three-year statute of limitations because the court could not determine when the plaintiffs had actual knowledge of the asserted breaches. The court also held that plaintiffs sufficiently alleged that defendants breached their duties of prudence and loyalty with respect to the selection of the challenged funds, as well as their duty to monitor the fiduciaries whom they appointed. The court concluded, however, that plaintiffs failed to sufficiently allege that the fiduciaries breached their duty to follow plan documents and therefore dismissed the count alleging such a failure.
Saul v. The Lincoln National Life Ins. Co., No. 4:20-CV-00786-KGB, 2021 WL 1230313 (E.D. Ark. Mar. 31, 2021) (Judge Kristine G. Baker). Plaintiff filed suit after his claim for long-term disability benefits was denied. Instead of alleging ERISA violations, Plaintiff alleged that his case was exempt from ERISA via the “church group” exception and thus governed under state law. Lincoln moved to dismiss Dr. Saul’s complaint arguing that his state law breach of contract and bad faith claims were preempted by ERISA. The court agreed and while it granted leave to amend, it expressed skepticism about Dr. Saul’s ability to support his state-law claims via an amended pleading within 14 days.
Penwell v. Providence Health & Servs., No. 2:19-CV-01786-RAJ, 2021 WL 1222663 (W.D. Wash. Mar. 31, 2021) (Judge Richard A. Jones). Plaintiffs sought plan documents pursuant to ERISA Section 104(b)(4) and its “other instruments” language. The court discussed the Ninth Circuit’s narrow interpretation of this phrase, stating that Section 104(b)(4) requires disclosure only of documents that are described with “particularity” and is limited to documents that “provide individual participants with information about the plan and benefits.” Plaintiffs sought information about the negotiated price providers charged participants for certain services. Defendants argued and the court agreed that this information does not inform plaintiffs about their benefits and thus was not encompassed by Section 104(b)(4). Thus, the court found that the statute did not mandate the disclosure of these documents and granted defendants’ motion to dismiss.
In re Becker, No. 20-72805, 2021 WL 1219745 (9th Cir. Apr. 1, 2021) (Before Siler, Rawlinson and Bumatay, Circuit Judges). Plaintiff filed a petition for writ of mandamus requesting the Ninth Circuit to rescind a Northern District of California decision to transfer the case to Minnesota pursuant to the retirement plan’s forum selection clause. The court held that forum selection clauses are valid under ERISA, emphasizing that ERISA’s venue provision uses the words “may be brought.” The court also reasoned that forum selection clauses do not undermine the goal of ready access to federal court and forum selection clauses further ERISA’s goals by funneling plans through one federal court, which encourages uniformity in decisions and decreases costs.
Evans v. UnitedHealthcare of Oklahoma, Inc., No. 20-CV-0670-CVE-JFJ, 2021 WL 1234523 (N.D. Okla. Apr. 1, 2021) (Judge Claire V. Egan). Evans brought this suit against United for wrongful denial of benefits for reconstructive breast surgery under an ERISA-governed medical benefit plan. Among Evans’ claims were several state law claims, as well as a claim for violation of the Women’s Health and Cancer Rights Act of 1998 (WHCRA), one for plan benefits under 29 U.S.C. § 1132(a)(1), and one for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3). United moved to dismiss. Evans agreed that the state law claims were preempted, and the court dismissed them. The court also held there was no private right of action under the WHCRA and dismissed that claim as well. Finally, the court noted that the Tenth Circuit had not addressed the question of whether plaintiffs could pursue simultaneous (a)(1) and (a)(3) claims since the Supreme Court’s decision in Cigna Corp. v. Amara. As a result, the court looked outside the Tenth Circuit and relied on authorities holding that plaintiffs were permitted to bring both claims as alternate theories of recovery, and that it was premature to dismiss (a)(3) claims at the pleading stage. Thus, the court denied United’s motion as to Evans’ (a)(3) claim.
LeBarron v. Interstate Grp., LLC, No. 2:19-CV-1739, 2021 WL 1177792 (D. Nev. Mar. 26, 2021) (Judge James C. Mahan). Among many other employment-related causes of action flowing from his termination, Plaintiff brought suit under ERISA Section 510, alleging interference with his medical benefits. In resolving a motion to dismiss, the court noted plaintiff’s best evidence was a single text message that he was terminated for “insurance reasons.” However, the entire message suggested the company intended to rehire him and that the company was merely complying with the requirements of its health insurance plan. With the evidence showing the company correctly believed plaintiff could not stay on the health insurance plan because plaintiff had not worked for a month, the burden was on plaintiff to show a genuine dispute over whether the company’s proffered reason was pretext for a specific intent to deny him health insurance benefits. Because the best plaintiff was able to show was that the company did not know the ins-and-outs of its health insurance plan, he did not meet his burden and the court granted summary judgment for the company on plaintiff’s ERISA interference claim.
Dahlin, Plaintiff, v. Wells Fargo Bank, No. 18-CV-00554-PAB-GPG, 2021 WL 1192919 (D. Colo. Mar. 29, 2021) (Judge Philip A. Brimmer). Plaintiff alleged that Wells Fargo interfered with her ERISA rights by firing her with the intent to make her ineligible for the Wells Fargo severance plan. Wells Fargo responded that plaintiff was terminated for poor performance. Plaintiff presented evidence that Wells Fargo knew her position should be eliminated and that her performance metrics were unobtainable. The court denied both parties’ motions for summary judgment, finding that an issue of material fact existed as to defendant’s intent in terminating plaintiff’s employment.
Withdrawal Liability & Unpaid Contributions
Laborers’ Pension Fund v. R & W Clark Construction Inc., et al., Case No. 16 C 06885, 2021 WL 1172698 (N.D. Ill. March 29, 2021) (Judge Robert W. Gettleman). Plaintiffs Laborers’ Pension Fund and Laborers’ Welfare Fund of the Health and Welfare Department of the Construction and General Laborers’ District Council of Chicago and Vicinity (the “Funds”), and Catherine Wenskus, Administrator of the Funds, brought a three count complaint against R & W Clark Construction, Inc. (“R & W Clark” or “Company”) and Richard Clark (“Clark”), alleging failure to pay benefit contributions in violation of ERISA (Count I), failure to collect union dues in violation of Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a) (Count II), and fraud against defendant Richard Clark (Count III). R & W Clark agreed to contribute to the Funds. To ensure the Company made these contributions, the collective bargaining agreement entered into by R & W Clark required it to maintain robust payroll records, including the submission of monthly reports that included all hours worked by covered employees and the amounts owed. After R & W Clark failed to make contributions in October 2014, the Funds audited the company’s records and found that Defendants did not have a payroll checking account and did not maintain timecards or other records of employees’ daily hours. Plaintiffs have moved for summary judgment for the first two counts. The court found that ERISA obliges benefit plan fiduciaries like the plaintiffs to hold employers to the full and prompt fulfillment of their contribution obligations and that defendants clearly violated ERISA’s record keeping provisions. It further found that Clark was personally liable as the alter ego of the Company. The court held that the funds were entitled to summary judgment in the amount of $3,155,476.07 for principal contributions and delinquencies, penalties, audit costs, and interest. Therefore, the court granted plaintiffs’ motion for summary judgment on Counts I and II, such that the only remaining cause of action against Clark was for fraud.