Wolf v. Life Ins. Co. of N. Am., No. 21-35485, __ F.4th __, 2022 WL 3652966 (9th Cir. Aug. 25, 2022) (Before Circuit Judges Gilman (6th Cir.), Ikuta and Miller)

Employers provide all types of benefits to their employees, and most of us focus on the big-ticket ones: health and retirement. However, employers often provide other types of insurance as well, including accidental death insurance. At first glance, this kind of insurance may seem fairly straightforward, but because of the inherent ineffability of the word “accident,” it has been the subject of an inordinate amount of litigation. Much of that litigation has involved Life Insurance Company of North America, which has taken an aggressive position in its disputes with beneficiaries.

This case is no exception. Scott Wolf was insured by LINA under an ERISA-covered accidental death benefit plan when he died in a one-car collision. At the time, he was intoxicated and driving at high speed in the wrong direction down a one-way road. He hit a speed bump, lost control of his car, and flipped it into a submerged ditch. The medical examiner listed his cause of death as “Accident.”

LINA, however, did not agree. When Scott’s father, the beneficiary under the policy, submitted a claim for benefits, LINA informed him that Scott’s death was not in fact an “accident.” LINA stated that the policy only insured a “sudden, unforeseeable, external event that results, directly and independently of all other causes.” Scott’s death did not qualify because it was “a foreseeable outcome of his voluntary actions, and thus, the loss was not a result of a Covered Accident” as defined by the policy.

Specifically, LINA stated that, while it could not determine what Scott’s subjective state of mind was, a “reasonable person with a similar background” to Scott “would have viewed serious injury or death as highly likely to occur…it is reasonable to assume that a person of similar education and age-based experience would have understood that serious injury or even death would be highly likely to occur while operating a vehicle…with a BAC of 0.20% and speeding at 6.5 times over the legal speed limit, the wrong way down a road.”

Scott’s father unsuccessfully appealed to LINA, after which he filed this action against LINA under ERISA. The parties filed cross-motions with the district court, which acknowledged that Scott had engaged in “extremely reckless behavior.” However, the court granted summary judgment to Scott’s father, concluding that “a reasonable person would not have viewed [Scott’s fatal] injury as substantially certain to occur as a result of his actions, rendering his death accidental under the policy.” LINA appealed this decision to the Ninth Circuit.

The Ninth Circuit noted that the only issue on appeal – whether Scott’s death was an “accident” – was a narrow one, and that it was governed by the framework set forth in the court’s prior ruling in Padfield v. AIG Life Insurance Co., 290 F.3d 1121 (9th Cir. 2002). That framework consisted of an “overlapping subjective and objective inquiry” in which the court “first asks whether the insured subjectively lacked an expectation of death or injury. If so, the court asks whether the suppositions that underlay the insured’s expectation were reasonable, from the perspective of the insured… If the subjective expectation of the insured cannot be ascertained, the court asks whether a reasonable person, with background and characteristics similar to the insured, would have viewed the resulting injury or death as substantially certain to result from the insured’s conduct” (emphasis added).

Conducting the subjective inquiry first, the Ninth Circuit agreed with the district court that “there is insufficient evidence in the administrative record to determine Scott’s subjective expectation at the time he died.” As a result, the court moved on to the objective inquiry, “which is where the crux of the parties’ disagreement lies.”

Here, LINA shifted gears. Rather than argue, as it had in its denial letters and to the district court, that Scott’s death was “substantially certain” under the Padfield test, LINA instead argued to the Ninth Circuit that “because the policy defines the term ‘accident’ as ‘a sudden, unforeseeable, external event,’ the district court should have asked whether Scott’s death was ‘reasonably foreseeable.’” In other words, LINA contended that its interpretation was not constrained by Padfield, despite its previous arguments, and that the court should instead only look to the policy language.

The Ninth Circuit was unimpressed by LINA’s change of tactics. The court observed, and LINA admitted, that LINA “never made this argument to the district court.” The court noted that it “generally do[es] not consider arguments raised for the first time on appeal,” and declined to do so in this case because “not only did LINA fail to raise the argument below, it also did not use that test when initially denying Wolf’s claim.” The court stated that allowing LINA to advance its new argument would “unduly prejudice” Mr. Wolf.

LINA contended that there was no prejudice and it had not created “a new reason for denial” because it had consistently quoted the policy language in its correspondence. However, the court determined that the difference between the test LINA actually used (whether the death was “substantially certain” under Padfield) and its new proposed test (whether the death was “reasonably foreseeable”) was significant because the new test was “a far broader standard.” Indeed, the court explained that the two definitions “are at opposite poles” because the first definition asks “whether the victim could reasonably have expected to escape the injury,” whereas the second asks “whether the victim could reasonably have expected to suffer the injury.”

Having dispatched LINA’s new argument, the Ninth Circuit returned to the second part of the Padfield inquiry. The appellate court agreed with the district court that while Scott “undoubtedly engaged in reckless conduct, the record does not show that his death was ‘substantially certain’ to result from that conduct.” The court distinguished LINA’s authorities on this point by noting that they involved deferential review of claim denials under the abuse of discretion standard of review, while the standard of review in this case was the stricter de novo standard. Indeed, “the two circuits that have considered this question de novo both held that the drunk-driving deaths at issue were accidents.”

Ultimately, the Ninth Circuit conceded there was “no doubt” that “drunk driving is ill-advised, dangerous, and easily avoidable.” However, “many accidents, if not most, involve an element of negligence or even recklessness on the part of the insured.” Even then, death is still “a statistical rarity.” Thus, “the record before us does not show that Scott’s particular act of drunk driving was substantially certain to result in his death. The district court therefore correctly determined that Scott’s death was an ‘accident’ and thus covered[.]”

Finally, the court had some advice for LINA and other insurers. The court observed that the term “accident” was “an inherently difficult concept to fully capture,” and suggested that if insurers wanted to avoid “conflicting bodies of caselaw that deal with obscure issues of contractual interpretation,” it could do so by writing better policies. “The solution for insurance companies like [LINA] is simple: add an express exclusion in policies covering accidental injuries for driving while under the influence of alcohol, or for any other risky activity that the company wishes to exclude.”

Judge Ikuta wrote a brief concurrence, in which she stated that ordinarily a court should look to the “explicit language” of a benefit plan in order to effectuate “the clear intent of the parties.” In this case, that would likely mean ignoring Padfield – which has traditionally been used only where the relevant policy failed to define “accident” – and applying the “reasonably foreseeable” test proposed by LINA. However, Judge Ikuta was compelled to rule against LINA, and apply Padfield, because LINA “forfeited its argument that the insurance policy’s own definition of ‘accident’ applies.”

Plaintiff was represented by Kantor & Kantor attorneys Glenn Kantor, Sally Mermelstein, Sarah J. Demers, and Stacy Monahan Tucker.

Breach of Fiduciary Duty

Third Circuit

Berkelhammer v. Automatic Data Processing, Inc., No. 20-5696 (ES) (JRA), 2022 WL 3593975 (D.N.J. Aug. 23, 2022) (Judge Esther Salas). Plaintiffs Beth Berkelhammer and Naomi Ruiz, plan participants and beneficiaries, commenced a putative breach of fiduciary duty and prohibited transaction class action against Automatic Data Processing, Inc., ADP TotalSource Group, Inc., and the administrative committee of the ADP TotalSource Retirement Savings Plan. Defendants moved to dismiss. The motion was granted in part and denied in part. Among things typically challenged in these types of ERISA class actions like excessive fees and underperforming funds, this suit also alleged something novel – that defendants permitted its third-party administrator, Voya Institutional Plan Services, LLC, through its affiliate Voya Financial Advisors, Inc., “to use plan participant data to market and sell non-Plan investment products to participants.” This was allowed, plaintiffs asserted, because defendants “had a separate and conflicting business arrangement with Voya.” Essentially, as alleged in the complaint, defendants and Voya were cross-selling to one another, scratching each other’s backs and profiting to the detriment of participants. This original aspect of plaintiff’s complaint was in fact the area in which they encountered pleading problems. Although the court was satisfied that plaintiffs sufficiently alleged the remainder of their claims, and had standing to bring their suit, plaintiffs’ failure to “offer a single case supporting their fiduciary breach claim” with regard to the data use and confidential information was deeply problematic to the court. In fact, the court stated that a plan’s recordkeeper should have certain personal information on plan participants. “If anything, it might be imprudent not to disclose that information to Voya as recordkeeper.” Nor could plaintiffs allege to the court’s satisfaction sufficient facts explaining “what processes were flawed with respect to permitting Voya…to use plan participant data for non-plan purposes.” Finally, the court stated that plaintiffs needed to “outline the conduct of comparable fiduciaries in like situations” for the court to compare and draw inferences. The court thus dismissed, without prejudice, the breach of fiduciary duty claim regarding the data. Additionally, plaintiffs were found not to have adequately alleged a prohibited transaction claim regarding this same issue because plan participant data is not the same as plan assets. Again, dismissal was without prejudice, and the court expressly left open the possibility that “Plaintiffs may plausibly plead that plan participant data, when collected and aggregated, can be used as something of value to benefit the Plan and participants of the Plan.”

Sixth Circuit

Parker v. GKN N. Am. Servs., No. 21-12468, 2022 WL 3702072 (E.D. Mich. Aug. 26, 2022) (Judge Sean F. Cox). Retirement plan participants commenced a putative class action lawsuit claiming that defendants GKN North America Services, Inc., its board of directors, and its benefit committee breached their fiduciary duties of prudence, loyalty, and to monitor to plan participants and beneficiaries, causing them financial harm, by failing to investigate or select lower-cost investment options, by retaining imprudent investments within the plan, and by charging excessive fees. Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Separately, the U.S. Chamber of Commerce moved for leave to participate as amicus curiae. The court first addressed the Chamber of Commerce’s motion. The court stated that the Chamber of Commerce’s motion “and its accompanying proposed brief simply rehash arguments already made by the parties and summarize case outcomes from other jurisdictions irrelevant to this case.” Accordingly, the court denied the Chamber’s motion. Turning to the motion to dismiss, the court first addressed plaintiffs’ breach of prudence claim. Defendants argued that the complaint failed to state a claim because its focus was not on the process of the plan administration, but instead improperly centered on the outcome of fund performance with the benefit of hindsight. The court disagreed and ultimately concluded that plaintiffs adequately alleged imprudence with regard to the failure to investigate or select lower-cost alternative investments and regarding imprudent plan investments. However, the imprudence claim regarding the excessive recordkeeping fees was found to lack sufficient apples-to-apples benchmarks specifying the services provided for the fees charged and was accordingly determined to be insufficient. Plaintiffs’ breach of fiduciary duty of loyalty claim was likewise found to be deficient. “Without the required allegations of fiduciary self-dealing, it is not reasonable for the Court to find a breach of fiduciary duty under the duty of loyalty theory.” Finally, because it had concluded that plaintiffs sufficiently stated an imprudence claim, the court allowed the derivative failure to monitor claim to proceed.

Seventh Circuit

Laabs v. Faith Techs., No. 20-C-1534, 2022 WL 3594054 (E.D. Wis. Aug. 22, 2022) (Judge William C. Griesbach). A participant in the Faith Technologies, Inc. 401(k) Retirement Plan brought this putative class action against Faith Technologies, its board of directors, and 30 Doe defendants challenging their process administering the plan and selecting and maintaining funds with high costs. Plaintiff originally asserted five claims in her complaint – (1) breaches of prudence and loyalty regarding excessive recordkeeping and administrative fees; (2) breaches of prudence and loyalty regarding excessive management fees; (3) failure to monitor co-fiduciaries in regard to the plan’s recordkeeping and administrative fees; (4) failure to monitor regarding the management fees; and (5) engaging in prohibited transactions. Defendants moved to dismiss. On September 30, 2021, the Magistrate Judge issued a report and recommendation granting in part and denying in part defendants’ motion to dismiss. Specifically, the report recommended the court grant defendants’ motion regarding excessive recordkeeping and administrative fees (counts 1 and 4), as well as dismiss the prohibited party-in-interest transaction claim and the claims for breaches of duty of loyalty, but in all other respects deny the motion. The parties each filed objections to the Magistrate’s report. The court stayed the case pending the Supreme Court’s decision in Hughes v. Northwestern. After the Hughes stay was lifted, the court in this order resolved each of the parties’ objections. As defendants’ arguments relied heavily on the Seventh Circuit’s decision in the Hughes case, which was overturned by the Supreme Court, their objections to the report were considerably weakened. First, neither party objected to the portion of the report that dismissed the breach of loyalty and prohibited transaction claims. Thus, the court adopted the report as to those claims. Plaintiff did however object to the portion of the report having to do with her claims of prudence and monitoring pertaining to the high-cost funds and stable value investments, disclosure of revenue-sharing, and investment services. In its analysis, the court found that as currently pled it could infer defendants had acted imprudently in the ways outlined in the complaint, and defendants’ arguments in favor of dismissal were “factual questions…inappropriate at the pleading stage.” Therefore, the court found plaintiff appropriately stated these claims, and defendants’ motion to dismiss was only granted with respect to the claims plaintiff did not object to.

O’Driscoll v. Plexus Corp., No. 20-C-1065, 2022 WL 3600824 (E.D. Wis. Aug. 22, 2022) (Judge William C. Griesbach). This case presented an interesting contrast to the Laabs decision by the same judge summarized above. As in Laabs, defendants’ motion to dismiss this putative breach of fiduciary duty class action was also stayed pending the Supreme Court’s decision in Hughes. Drawing the opposite conclusion from Laabs, Judge Griesbach in this decision granted defendants’ (Plexus Corp., the company’s board of directors, and Doe individuals) motion. The court ultimately found that plaintiff lacked Article III standing for her breach of duty of prudence claim and that her complaint did not allege “she suffered any concrete injury-in-fact.” Despite plaintiff’s request that the court focus on defendants’ fiduciary process rather than the outcome, the court was adamant that “the outcome is relevant to whether Plaintiff suffered a harm.” Furthermore, the court stated that defendants are not required to disclose information about revenue-sharing arrangements under Seventh Circuit precedent and accordingly dismissed that claim. The court also held the breach of fiduciary duty of loyalty claim was not sufficiently distinct from the already dismissed duty of prudence claim. Finally, the derivative failure to monitor claim failed was dismissed because plaintiff failed to state an underlying duty of prudence claim.

Nohara v. Prevea Clinic, Inc., No. 20-C-1079, 2022 WL 3601567 (E.D. Wis. Aug. 23, 2022) (Judge William C. Griesbach). This action is the third of four decisions this week from Judge Griesbach ruling on motions to dismiss putative breach of fiduciary duty class actions stayed awaiting the Supreme Court’s ruling in Hughes. Here plaintiffs are participants of the Prevea Clinic, Inc. 401(k) and Retirement Plan who have sued Prevea and its board of directors for failing to review the plan’s investment portfolio and for retaining underperforming and excessively costly funds. Plaintiffs voluntarily dismissed their breach of fiduciary duty of loyalty claims, leaving them with breach of fiduciary duty of prudence and failure to monitor claims. The court dismissed plaintiffs’ claim pertaining to defendants’ failure to disclose fees charged to the Plan for the same reasons given in the O’Driscoll decision, namely Seventh Circuit precedent does not require ERISA fiduciaries to disclose this information. In all other respects, the court denied the motion to dismiss, concluding that under the standards outlined in Hughes, plaintiffs had plausibly alleged breaches of prudence. Plaintiffs’ derivative failure to monitor claims will thus also proceed. The decision ended with the court accepting as true plaintiffs’ allegations that the board of directors are fiduciaries. Accordingly, the motion to dismiss was granted in small part and otherwise denied as outlined above.

Glick v. ThedaCare Inc., No. 20-C-1236, 2022 WL 3682863 (E.D. Wis. Aug. 25, 2022) (Judge William C. Griesbach). This case is the last of the quartet of Judge Griesbach rulings in breach of fiduciary duty class actions stayed pending Hughes. In this suit, plaintiff Joseph B. Glick, a participant of the ThedaCare, Inc. Retirement and 403(b) Savings Plan, brought a proposed class action against ThedaCare Inc. and its board of directors in connection with the plan’s excessive fees and imprudently low net returns. In this decision, the court granted in part the motion to dismiss. As a preliminary matter, the court addressed Mr. Glick’s standing under Article III. To begin, the court stressed that this plan is a defined contribution and not a defined benefit plan, and therefore defendants’ reliance on the Supreme Court’s decision in Thole was misplaced. “Plaintiff has a ‘concrete stake’ in the lawsuit because if Plaintiffs wins his suit, he alleges that his account balance will be greater based on excessive fees and expenses returned to his individual account by Defendants.” Thus, the court concluded Mr. Glick had sufficiently alleged an injury in fact conferring him with standing to assert his claims. However, like its other three decisions this week the court dismissed Mr. Glick’s breach of fiduciary duty claim related to defendants’ failure to disclose revenue sharing information with participants. The court also dismissed the breach of duty of loyalty claims, deciding they were based on the same allegations as the duty of prudence claims and better understood as imprudence claims than as allegations of “disloyal acts.” The remainder of the claims were found to be properly pled, and the court concluded a person reading the complaint could plausibly infer imprudence and failure to monitor in the manner alleged.

Disability Benefit Claims

Fourth Circuit

Foggie v. Am. Nat’l Red Cross Long Term Disability Plan, No. 1:21-cv-0001 (PTG/JFA), 2022 WL 3580745 (E.D. Va. Aug. 18, 2022) (Judge Patricia Tolliver Giles). Plaintiff Rhea Foggie has been disabled since February 2006 from several long-standing musculoskeletal and chronic pain disorders. Ms. Foggie received long-term disability benefits from her ERISA-governed plan from the onset of her disability until December 2018, when her benefits were terminated. Ms. Foggie, in her suit asserting claims under Section 502(a)(1)(B) and (a)(3), argued that the only substantive change that occurred within that time was that her plan’s claim administrator switched from MetLife to Liberty Life Assurance Company of Boston. Defendants argued, to the contrary, that the record was replete with evidence demonstrating that Ms. Foggie’s conditions had improved. Liberty further expressed that in addition there was new evidence which it considered. This consisted of reviews of the record performed by six physicians Liberty hired, and an analysis of Ms. Foggie’s transferrable skills done by a vocational consultant, also hired by Liberty. In addition to disagreeing with the denial, Ms. Foggie also asserted that Liberty failed to provide her with a full and fair review thanks to the denial letter’s use of generic language and its failure to inform her how to perfect her claim. The parties each moved for summary judgment and debated the appropriate standard of review. As a preliminary matter, the court found abuse of discretion review applicable given the plan’s amendment in 2018 which granted the claim administrator discretionary authority. Under this deferential standard, the court agreed with Liberty that substantial evidence supported its decision and that the denial letters were in compliance with ERISA and adequately put Ms. Foggie on notice of why her claim was denied and how she could improve her claim. Thus, the court denied Ms. Foggie’s motion for summary judgment and granted summary judgment in favor of defendants.

Rupprecht v. Reliance Standard Life Ins. Co., No. 1:21-cv-01260 (AJT/JFA), 2022 WL 3702086 (E.D. Va. Aug. 26, 2022) (Judge Anthony J. Trenga). Plaintiff Walter Rupprecht’s long-term disability benefits were terminated after 24 months when his policy switched from a definition of disability in which an individual had to be unable to perform his or her own occupation to disability defined as a participant being unable to perform any occupation. Defendant Reliance Standard Life Insurance Company informed Mr. Rupprecht that he no longer met the plan requirements for continued benefits past 24 months and he was able to perform sedentary work positions. According to Mr. Rupprecht’s complaint, Reliance Standard’s denial letter failed “to specify why Plaintiff was being denied benefits and (claimed) the vocational review was flatly contradicted by the submitted opinions of (his) treating physicians and did not explain to him what information would be needed on appeal to ‘perfect the decision’ as required under law.” The parties each moved for summary judgment. The court began its analysis by determining whether Mr. Rupprecht had exhausted his administrative remedies before filing suit. Mr. Rupprecht asserted that Reliance Standard’s failure to decide his appeal within the allotted 45-day period under ERISA should constitute exhaustion. Reliance countered that it had invoked a 45-day extension and was awaiting the results of an Independent Medical Examination before issuing its final decision. Thus, Reliance argued, Mr. Rupprecht’s failure to attend that evaluation and his decision to pursue relief under Section 502(a) of ERISA amounted to failure to exhaust administrative remedies. The court sided with Mr. Rupprecht, stressing that under the relevant provision a claim administrator can only extend the 45-day decision window under “special circumstances.” The court further stated that Reliance did not provide adequate notice to Mr. Rupprecht for an extension. Accordingly, the court held that Mr. Rupprecht’s suit was not time-barred. Next, the court scrutinized the parties’ differing positions on the applicable standard of review. Mr. Rupprecht argued that de novo review was appropriate here as Reliance declined to issue a decision within the appeal window. Reliance maintained that the plan’s discretionary authority clause should trigger abuse of discretion review. Again, admonishing Reliance for its conduct during the administrative appeal, the court sided with Mr. Rupprecht, holding that it would apply de novo standard to its review. The court went on to hold that Mr. Rupprecht’s claim has been “deemed denied” by Reliance’s failure to issue a decision, and the court turned to reviewing the application for disability benefits on its merits. That review too was favorable to Mr. Rupprecht. Based on the medical evidence and the opinions of Mr. Rupprecht’s treating physicians, the court concluded that “Plaintiff qualified as Totally Disabled…Plaintiff provided ample evidence to Reliance…Reliance, on the other hand, relies on a nurse’s evaluation of the medical records that is flatly inconsistent with and contradicted by the treating physician’s opinions.” The decision ended with the court granting summary judgment in favor of Mr. Rupprecht and awarding him back benefits as well as reinstating his disability benefits going forward. The court also requested Mr. Rupprecht submit briefing in support of an award of attorneys’ fees and costs.

Fifth Circuit

Khan v. AT&T Umbrella Benefit Plan No. 3, No. 3:21-CV-1367-S, 2022 WL 3650632 (N.D. Tex. Aug. 23, 2022) (Judge Karen Gren Scholer). Plaintiff Imran Khan sued the AT&T Umbrella Benefit Plan No. 3 after his claims for short-term and long-term disability benefits were denied. Mr. Khan has been diagnosed with multiple sclerosis and suffers from pain associated with the disease. However, this subjective measure of the severity of his illness put him at a disadvantage for obtaining benefits. Even Mr. Khan’s own physicians, who supported a finding that he was disabled, admitted that objective evidence including “imaging and (pain) specialists are not finding much pathology to correlate to his severity of pain.” It was this shortcoming, a lack of objective evidence supporting the disabling pain, which the plan’s administrator, Sedgwick Claims Management Services, utilized in order to deny the claims. The Plan and Mr. Khan each moved for summary judgment. In his motion, Mr. Khan argued that the denials were an abuse of discretion because defendant failed to fairly consider his complaints of pain and declined to reconsider his claims after he submitted additional evidence to the record. For its part, the Plan argued that its denials were not arbitrary and capricious because its reviewing physicians had considered Mr. Khan’s complaints of pain, and substantial evidence within the record did not corroborate the self-reported pain or functional limitations. The Plan further stated that its refusal to consider the additional evidence Mr. Khan submitted was not an abuse of discretion because the documents were submitted after it had issued its final denials. The court sided with the Plan. “While it is an abuse of discretion to ignore a claimant’s subjective complaints of pain, the administrative record here does not support Plaintiff’s contention that Defendant did so.” Thus, the court agreed that under the terms of the plans, defendant’s denials were reasonable. Furthermore, the court did not feel that the Plan’s refusal to consider the evidence Mr. Khan submitted to the report to be an abuse of discretion as Mr. Khan had already exhausted his internal appeals and the submission of evidence only one month before Mr. Khan commenced his suit “did not give Defendant the ‘fair opportunity’ to reconsider its decision.” The court concluded by stating the evidence itself would not even have bolstered Mr. Khan’s claim or have changed the outcome. For these reasons, the court granted summary judgment in favor of defendant.

Eighth Circuit

Foss v. Standard Life Ins. Co., No. 20-cv-2449 (WMW/TNL), 2022 WL 3579749 (D. Minn. Aug. 19, 2022) (Judge Wilhelmina M. Wright). Plaintiff Caroline Foss sought a court order overturning her denial of long-term disability benefits. Ms. Foss has been diagnosed with several overlapping mental health disorders, including ADHD, anxiety, and major depressive disorder. By the time Ms. Foss applied for disability benefits in 2019, her symptoms included gastrointestinal problems, sleep disturbances, an inability to perform self-care, memory loss, severe anxiety, and “at least one breakdown resulting in an emergency room visit.” Ms. Foss’s application for benefits was denied by her insurer, defendant Standard Insurance Company. Standard concluded that per the terms of the plan, Ms. Foss needed to demonstrate that her disability precludes her from performing her same category of job with any employer, and in Standard’s view Ms. Foss’s disability was directly tied to her current employer. Although Foss’s particular work situation might be causing her stress, “her medical records do not provide clinical evidence of symptoms so severe as to impair her ability to work for all employers.” In the court’s arbitrary and capricious review of the parties’ cross-motions for summary judgment, it found that a reasonable person could draw the same conclusion as Standard, and the denial was therefore not an abuse of discretion. As such, the court awarded summary judgment to Standard and denied Ms. Foss’s summary judgment motion.

Ninth Circuit

Smith v. Pitney Bowes, Inc., No. 6:21-cv-1422-MC, 2022 WL 3577036 (D. Or. Aug. 19, 2022) (Judge Michael J. McShane). Plaintiff Stan Smith has been disabled a long time, nearly three decades, and he has been receiving disability benefits throughout. Mr. Smith continues to receive disability benefits. That is not the dispute among the parties in this suit. Rather, the parties dispute whether the amount of disability benefits being paid to Mr. Smith is proper. Mr. Smith argues that his 1993 election for the plan’s buy-up option for benefits totaling 66.6% of his pay should be honored, and defendant Pitney Bowes Inc. has therefore been inappropriately paying him benefits equaling only 50% of his salary. Since the 1990s communication between the parties has been sporadic, and the court concluded that the unusual fact pattern presented here meant both that the claim was not untimely, and that Pitney Bowes did not significantly fail its duties under ERISA through inexcusable ongoing procedural errors. In resolving the parties’ cross-motions for summary judgment under abuse of discretion review, the court acknowledged the novelty of issues here but ultimately concluded that defendant’s interpretation of the plan was reasonable and supported by the record. The company concluded that Mr. Smith’s disability onset date was December 30, 1993, and he was therefore ineligible for the higher valued benefits. Accordingly, defendant’s motion for summary judgment was granted, and plaintiff’s motion for judgment was denied.

Eleventh Circuit

Brewer v. Unum Grp. Corp., No. 1:21-cv-694-CLM, __ F. Supp. 3d __, 2022 WL 3593133 (N.D. Ala. Aug. 22, 2022) (Judge Corey L. Maze). Brewer v. Unum Grp. Corp., No. 1:21-cv-694-CLM, 2022 WL 3643490 (N.D. Ala. Aug. 22, 2022) (Judge Corey L. Maze). There were two orders this week in this action alleging the wrongful denial of long-term disability benefits to plaintiff Robin Brewer. In the first, the court adjudged Ms. Brewer’s motion for partial summary judgment. Ms. Brewer argued that the failure of defendants Unum Group Corporation and Unum Life Insurance Company of America to issue a ruling on her claim during the administrative review process within the 45-day window allowed by ERISA’s claims-procedural regulation should strip Unum of its discretionary authority. Unum countered that it had triggered an extension to the 45-day timeframe thanks to a “special circumstance.” Unum further argued that even if the court were to conclude that its decision was untimely, such a conclusion should not automatically remove its entitlement to deferential review. The court rejected each of these arguments presented by Unum. First, the court held that “a circumstance cannot be special if it is common or expected during the appeals process.” Here, Unum’s “special circumstance” was a need for Ms. Brewer to review and respond to new information, which the court decided was not an “unexpected or out of the ordinary” circumstance warranting an extension to an insurer’s decision-making time limitation under ERISA. Furthermore, Unum’s failure to issue a timely decision “was not a de-minimis violation” in the eyes of the court, especially because Unum failed to demonstrate that the violation was “for good cause or due to matters beyond the control of the plan.” Thus, the court found that Unum failed to exercise discretionary authority when it denied the claim after she had filed her lawsuit, and therefore granted Ms. Brewer’s motion for partial summary judgment on thew de novo standard of review. The court then issued its second decision in the case in which it resolved the parties’ discovery dispute. Ms. Brewer moved for discovery of 11 interrogatories, 21 requests for production, and 5 depositions on three topics: (1) the completeness of the administrative record, (2) Unum’s compliance with internal procedures and fiduciary duties, and (3) bias and conflicts of interest among those involved with the administration of her claim for benefits. Having decided that its review would be de novo, the court stated that its only role will be deciding whether Unum’s decision was wrong and if so to reverse it. “To prevail, Brewer must prove that she was qualified for long-term disability benefits under her plan.” In order to do this, the court stated she will need her complete administrative record. Therefore, discovery into facts which relate to her qualification for benefits under the plan should be permitted, the court held, even under de novo review. Thus, this portion of her discovery motion was granted. However, the court also stressed a balance in permitting discovery. Discovery that the court felt would not strengthen Ms. Brewer’s claim included everything under the broad categories of “compliance, conflicts, and bias.” “Discovery into whether Unum complied with internal procedures and fiduciary obligations doesn’t help answer whether Brewer was entitled to LTD benefits.” The motion was therefore granted in part and denied in part, and the court ordered Unum to produce all its non-privileged documents that bear on Ms. Brewer’s entitlement to benefits that are not currently part of the administrative record.

Discovery

Sixth Circuit

Winders v. Standard Ins. Co., No. 2:22-cv-155, 2022 WL 3654894 (S.D. Ohio Aug. 25, 2022) (Magistrate Judge Elizabeth A. Preston Deavers). Plaintiff Kenneth D. Winders filed a motion for discovery in this Section 502(a)(1)(B) action regarding terminated long-term disability benefits. Defendant Standard Insurance Company opposed the motion. Mr. Winders made three arguments in favor of discovery. First, in his most adventurous argument, Mr. Winders contended that the Supreme Court’s recent decision in the capital punishment case of the Boston Marathon bomber, United States v. Tsarnaev, 142 S. Ct. 1024 (2022), abrogated the Sixth Circuit’s decision in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d at 619, regarding discovery in ERISA cases. In reply, Standard argued that “Tsarnaev did not abrogate Wilkins because a ‘trial court’s discretion to conduct voir dire in a high-profile criminal death penalty case is simply not related to substantive adjudication of ERISA cases under the careful balancing intended by Congress in enacting ERISA.” The court agreed with Standard and would not grant discovery on this basis. Second, Mr. Winders argued that Standard’s conflict of interest as the entity that both decides and pays claims should entitle him to discovery on said conflict. Although the court agreed that Standard has a structural conflict of interest, it found that Mr. Winders’ conflict argument failed to establish a pattern of bias or explain how the discovery would prove that bias affected Standard’s ultimate decision-making. The court thus denied discovery on this basis as well. Finally, Mr. Winders asserted that discovery is appropriate because he has demanded a jury trial. Standard countered that there is no right to a jury trial in ERISA cases, and the jury demand should therefore be stricken, and discovery should not be granted on this ground. The court was not willing to strike the jury demand without Standard filing a separate motion addressing the issue formally. However, the court disagreed with Mr. Winders that discovery “is permitted in the present case simply because (he has) made a jury demand.” For the reasons stated above, the court denied the discovery motion.

Ninth Circuit

S.L. v. Premera Blue Cross, No. C18-1308-RSL, 2022 WL 3586998 (W.D. Wash. Aug. 22, 2022) (Judge Robert S. Lasnik). Plaintiffs are a family challenging Premera Blue Cross’s denial of a preauthorization request for the son’s coverage for his treatment of his mental health disorders at a residential treatment center, Catalyst, under the Amazon Corporate LLC Group Health and Welfare Plan. The denial will eventually be reviewed under the abuse of discretion standard. Before that can happen, the parties must go through discovery on the topic of Premera’s conflict of interest and how that conflict affected its benefits determination. On August 17, 2020, the court granted plaintiffs’ motion to compel production of documents “related to defendants’ adoption and utilization of the InterQual criteria for claims processing.” Plaintiffs have now moved to compel deposition of Premera on this same topic. Defendants opposed the motion and reiterated their position from their opposition to plaintiffs’ previous motion to compel, namely that the topics “do not go to the conflict of interest, …are too broad, and (they) have already produced all information (they have) on the topics.” Each of these arguments was rejected by the court. “Premera claims that deposition would not reveal any new information relevant to plaintiff’s requests. However, plaintiff need not take Premera’s word for it – he is entitled to a deposition.” The motion to compel discovery was accordingly granted.

ERISA Preemption

Third Circuit

Horizon Blue Cross Blue Shield of N.J. v. Speech & Language Ctr., No. 22-1748 (MAS) (DEA), 2022 WL 3588105 (D.N.J. Aug. 22, 2022) (Judge Michael A. Shipp). Horizon Blue Cross Blue Shield of New Jersey has sued a speech therapy service provider and the speech pathologist who owns and operates it for alleged fraudulent healthcare billing. Blue Cross claims in its complaint that it has overpaid defendants by approximately $6.5 million. Blue Cross brought its suit in state court in 2014 alleging violations of the New Jersey Insurance Fraud Protection Act, and claims for breach of contract, unjust enrichment, and negligent misrepresentation, among others. In 2019 the parties reached a settlement agreement, but defendants refused to honor the settlement and make the obligatory payments. Blue Cross again went to state court to enforce its rights, and the court ruled in favor of Blue Cross once again. However, defendants removed the case to federal court in March of this year alleging federal question jurisdiction. Blue Cross moved to remand, arguing that “the Court lacks subject matter jurisdiction, and the removal was untimely.” The court agreed. To begin, the court expressed that ERISA does not preempt the state law causes of action. “It is settled law that insurers can bring state law fraud claims against healthcare providers in state court without being preempted by ERISA.” Because resolution of the claims doesn’t require interpretation of any ERISA plan, the court was satisfied that preemption doesn’t apply. Moreover, the court concurred with Blue Cross’s untimeliness argument, stating that “removal was about eight years too late.” Thus, the court found remand to be appropriate and granted Blue Cross’s motion.

Fifth Circuit

Clayton v. Elite Rest. Partners, No. 4:22-CV-00312, 2022 WL 3581393 (E.D. Tex. Aug. 19, 2022) (Judge Amos L. Mazzant). On June 25, 2020, LaTrecia Clayton was diagnosed with cancer. She died five days later, on June 30, 2020. According to plaintiffs, treatment during that brief window of time may well have prevented her death, or at least prolonged her life. However, Ms. Clayton was without health coverage because her employer, IHOP, rehired her after its COVID closures and failed to reinstate her previous healthcare coverage despite promising Ms. Clayton that it would do so. Plaintiffs are Aaliyah Clayton and Paul Clayton, representatives of LaTrecia Clayton’s estate. They sued IHOP, Elite Restaurant Partners, and related entities in state court alleging claims of negligence, fraud in the inducement, intentional misrepresentation, and wrongful death. Defendants removed the case to federal court pursuant to federal question jurisdiction. They argued plaintiffs’ claims are completely preempted by ERISA. Plaintiffs disagreed and moved to remand the case. In this decision, the court granted the motion to remand. Examining the suit under the two-prong Davila complete preemption test, the court concluded that plaintiffs could not satisfy the first prong as they lack standing to have brought a claim under ERISA Section 502. “Since the Fifth Circuit does not recognize non-enumerated parties as having standing to sue under § 1132(a), Plaintiffs here must satisfy one of the two enumerated classes…or have been assigned benefits by a member of the enumerated classes.” As plaintiffs were neither participants nor beneficiaries and were not assigned benefits to receive derivative standing, the court held they do not have the ability to sue under ERISA, and the claims were therefore not completely preempted, making remand appropriate.

Exhaustion of Administrative Remedies

Eleventh Circuit

Landa v. Aon Corp. Excess Benefit Plan, No. 22-cv-21091-BLOOM/Otazo-Reyes, 2022 WL 3594916 (S.D. Fla. Aug. 22, 2022) (Judge Beth Bloom). Plaintiff Michael Landa commenced this action seeking recovery of benefits under the Aon Corporation Excess Benefit Plan (“the Plan”) pursuant to Section 502(a)(1)(B). At the time Mr. Landa filed suit, the Plan had issued a suspension notice informing Mr. Landa that his benefits were indefinitely suspended. This notice did not inform Mr. Landa of his rights under ERISA or the Plan’s 90-day window to reach an adverse benefits determination. In fact, by the date the suit was filed, the Plan had neither commenced payment of Mr. Landa’s benefits nor denied his claim for benefits. Regardless, after this lawsuit began, the Plan issued a “Forfeiture Notice” to Mr. Landa, and subsequently moved to dismiss the claim for failure to exhaust administrative remedies. The Plan also moved for an award of attorney’s fees pursuant to Section 1132(g). Mr. Landa opposed both motions. He argued that the court should deem him to have exhausted administrative remedies because he had no path open to him other than pursuing legal action thanks to the Plan’s actions and non-compliance, meaning he had no meaningful access to administrative review. Mr. Landa further stressed that he properly stated a claim to recover benefits. Lastly, Mr. Landa urged the court not to award attorney’s fees to the Plan. In its decision, the court referred to Eleventh Circuit precedent in Perrino v. S. Bell Tel. & Tel. Co., 209 F.3d 1309, 1315 (11th Cir. 2000), which holds in relevant part that the Eleventh Circuit only recognizes two exceptions for failure to exhaust: “(1) when resort to administrative remedies would be futile or the remedy inadequate, or (2) where a claimant is denied meaningful access to the administrative review scheme in place.” Perrino “make[s] clear that the exhaustion requirement for ERISA claims should not be excused for technical violations of ERISA regulations that do not deny plaintiffs meaningful access to an administrative remedy procedure through which they may receive an adequate remedy.” In examining the particulars of this case and applying Perrino, the court agreed with the Plan that its failure to comply with ERISA’s 90-day decision-making time frame was the type of technical violation that did not meaningfully deny Mr. Landa with access to an administrative appeals process, and therefore does not fall within one of the two exceptions to exhaustion outlined in Perrino. Accordingly, the court granted the motion to dismiss for failure to exhaust administrative remedies. Nevertheless, the court agreed with Mr. Landa that an award of attorney’s fees would be antithetical to ERISA’s guiding purposes, and not warranted given the good faith in which the case was brought, especially considering the Plan’s failure to formally deny Mr. Landa’s claim for benefits within the required timeframe. Finally, the court’s dismissal was without prejudice.

Medical Benefit Claims

Tenth Circuit

Anne M. v. United Behavioral Health, No. 2:18-cv-808, 2022 WL 3576275 (D. Utah Aug. 19, 2022) (Judge Howard C. Nielson, Jr.). In this action, as is the case in many ERISA healthcare suits challenging denials of benefits for young people receiving residential treatment, the particulars are distressing. Plaintiff is a beneficiary of the Motion Picture Industry Health Plan who suffers from severe depression and post-traumatic stress disorder stemming from a history of sexual abuse. Plaintiff’s mental health problems were so severe that she was “hospitalized at least six different times over the course of three years for depression (and) suicidality.” Help did come for plaintiff in the form of her nearly two-year-long stay at Uinta Academy, during which plaintiff “made improvements.” Despite the benefits of her treatment, defendant United Behavioral Health only paid for a small duration of the stay. Claims for benefits beyond those covered in the initial period were denied for not being medically necessary under the plan. United asserted that per the plan language and its Optum “Level of Care Guidelines” residential treatment is not appropriate for long-term care and there is a “reasonable expectation that services will improve the member’s presenting problems within a reasonable period of time.” In this suit plaintiff and her parents challenged the denials under Section 502(a)(1)(B) and brought a claim for violation of the Mental Health Parity and Addiction Equity Act. The parties each moved for summary judgment. The court began its discussion by addressing the appropriate standard of review. Although the plan grants discretion to United, the court agreed with plaintiffs that de novo review should apply because “United failed to ‘substantially comply’ with ERISA’s regulatory procedures” by issuing its denial 182 days after it received plaintiffs’ appeal. Then the court turned to addressing the denial, which asserted that plaintiff’s treatment at Uinta was not medically necessary and she could have been treated at a lower outpatient level of care. The court understood the plan language and Optum’s guidelines to mean that “long-term care is not the goal of residential treatment – to the contrary, a member is ineligible for continued service if his or her ‘condition is unchanging.’” In the eyes of the court, only short-term residential treatment care is covered under the plan. Thus, because proper care for plaintiff, the care that resulted in improvement for her disorders, took a long time it could not be deemed “acute stabilization” and was accordingly not covered under the contract terms of her ERISA plan. “Instead, this contract covers such care only if it is provided through outpatient treatment.” The court therefore concluded that the denials were proper and granted summary judgment to United. As for the Parity Act violation, the court found none. Under the terms of the plan, both medical residential inpatient nursing care and mental health residential inpatient level care imposed substantially similar requirements for coverage, and “both sets of guidelines make clear that long-term treatment will not be covered at this level of care.” Accordingly, the court granted summary judgment in favor of United on the second claim as well.

Pension Benefit Claims

Ninth Circuit

Metaxas v. Gateway Bank F.S.B., No. 20-cv-01184-EMC, 2022 WL 3702099 (N.D. Cal. Aug. 26, 2022) (Judge Edward M. Chen). Plaintiff Poppi Metaxas sued her former employer, Gateway Bank F.S.B., and the Gateway Bank Supplemental Executive Retirement Plan, seeking relief under Sections 502(a)(1)(B) and (a)(3) of ERISA. Ms. Metaxas worked as the Bank’s CEO and president before she became disabled due to ovarian cancer and migraine headaches. During her tenure with the Bank, Ms. Metaxas committed bank fraud, and in 2015, five years after leaving the bank, she pled guilty to federal conspiracy to commit bank fraud and was sentenced to a year-and-a-half in jail. Ms. Metaxas was not terminated or in any other way punished by the bank for her unlawful actions, and she voluntarily resigned from her position due to her illnesses. Ms. Metaxas’s claims for disability and termination benefits, which she made in 2013, were tolled as the criminal case against Ms. Metaxas was pending at the time. Following the criminal conviction, Ms. Metaxas’s claims were denied by defendants and the denials were upheld during the administrative appeal. Defendants concluded that Ms. Metaxas’s criminal actions did not “deserve award through” the plan, that she had not reached retirement age, that her employment status had changed making her ineligible for benefits, and she was not disabled as defined by the plan. On administrative appeal, defendants added that Ms. Metaxas was not qualified for benefits because she was terminated for cause. The parties cross-moved for summary judgment. In addition, defendants moved to strike evidence from Ms. Metaxas that extended beyond the administrative record. The court in this ruling granted in part and denied in part each party’s summary judgment motion, denied the motion to strike, and remanded to defendants “for reconsideration of Plaintiff’s eligibility for termination benefits consistent with this decision.” Weighing the conflict of interest presented by the unusual circumstances of the suit, the court applied some skepticism to the decisions made and concluded that defendants abused their discretion in two ways with regard to the termination benefits: “(1) the Initial Claim Committee lacked authority to change Ms. Metaxas’s employment status to render her ineligible for termination benefits pursuant to (the) Plan…and (2) the Appeal Committee erred in determining Plaintiff was ‘terminated for cause’ rather, she voluntarily resigned from her position.” Furthermore, the court stressed that the committees had violated ERISA regulations by changing their rationale for denying the claims in the middle of the appeals process, depriving Ms. Metaxas of a full and fair review. Accordingly, the court granted Ms. Metaxas’s motion for summary judgment on her claim for termination benefits and ordered defendants to reconsider the claim for those benefits. However, the court came to the opposite conclusion with regard to the disability benefits, concluding that substantial evidence within the record supported the denial. Thus, the court found that defendants’ decision to deny disability benefits was not arbitrary and capricious. Accordingly, the court granted summary judgment in favor of defendants regarding the disability benefit claim. Finally, the court held that Ms. Metaxas’s claim for equitable relief under Section 502(a)(3) “fails as a matter of law,” because the plan at issue is a top-hat plan and is therefore exempt from ERISA’s fiduciary duty obligations. Summary judgment was granted to defendants on this claim as well.

Pleading Issues & Procedure

Fourth Circuit

Gifford v. Burton, No. 2:21-cv-00669, 2022 WL 3702266 (S.D.W.V. Aug. 26, 2022) (Judge Joseph R. Goodwin). Plaintiff Sara Gifford was the sole beneficiary of her late husband’s 401(k) retirement plan which he received through his employment with defendant Walmart. However, a few months before his death, Mr. Gifford, without his wife’s consent, but with the help of defendant Hall Financial Advisors, LLC, requested and received a distribution of all of the funds from his Walmart 401(k) and deposited the funds into an IRA. Mr. Gifford then named his daughter, defendant Emma Gifford, as a 90% beneficiary to said IRA, leaving his wife as a beneficiary of the remaining 10%. In her suit, Ms. Gifford brought ERISA claims against all defendants alleging that spousal consent was required before Mr. Gifford could withdraw his pension funds and move them into an IRA. Additionally, Ms. Gifford asserted a negligence claim against Walmart and Hall Financial, and a claim of constructive trust against Emma Gifford. Walmart and Hall Financial moved to dismiss. They argued that ERISA does not require spousal consent for Mr. Gifford’s actions outlined above. Defendant Hall Financial additionally moved for judgment on the pleadings. Finally, because Ms. Gifford’s responses to their motions were tardy, defendants moved the court to strike the responses. All of the motions were granted. First, the court granted the motion to strike Ms. Gifford’s untimely responses because she failed to even acknowledge her tardiness, let alone assert good cause or plead excusable neglect for the lateness. Next, in a direct statement the court held that “because Plaintiff’s misunderstanding of the law is the entire basis of this lawsuit, I dismiss the Complaint in its entirety.” As the Walmart 401(k) plan was determined by the court to be both a profit-sharing and stock bonus defined contribution plan rather than a qualified joint and survivor annuity, the court concluded it is not subject to the provisions of Section 412, meaning Mr. Gifford did not need spousal consent to take the distribution under ERISA. Accordingly, Ms. Gifford failed to state a claim upon which relief could be granted, and the court dismissed the complaint.

Eleventh Circuit

Martinez v. Miami Children’s Health Sys., No. 21-cv-22700, 2022 WL 3577084 (S.D. Fla. Aug. 19, 2022) (Judge Beth Bloom). Plaintiff Eddy Martinez brought this action against his former employer, Miami Children’s Hospital System Inc., and the company’s severance plan, challenging defendants’ denial of his claim for severance benefits. The hospital asserted counterclaims against Mr. Martinez. The first of these counterclaims sought a declaration of the court pursuant to Section 502(a)(3)(B) that its decision to deny severance was proper. Mr. Martinez sought dismissal of this particular counterclaim under Rule 12 of the Federal Rules of Civil Procedure, arguing that it was redundant of his claim for benefits under Section 502(a)(1)(B). The court agreed and granted the motion. The court wrote that “the relief (the hospital) seeks is a declaration interpreting the Plan in a manner that denies Martinez the right to severance benefits, which is in effect, the converse of the relief sought by Martinez. Thus, a resolution of Martinez’s ERISA claim (for benefits) would also resolve the issues raised in Count I of the Counterclaim.”

D.C. Circuit

Serv. Emps. Int’l Union Nat’l Indus. Pension Fund v. UPMC McKeesport, No. 22-cv-249 (TSC/GMH), 2022 WL 3644808 (D.D.C. Aug. 24, 2022) (Magistrate Judge G. Michael Harvey). Plaintiff Service Employees International Union National Industry Pension Fund and its board of trustees filed this delinquent contribution ERISA suit against a hospital, UPMC McKeesport, after it failed to make its required pension contributions under the parties’ collective bargaining agreement. Defendant moved to stay. Its motion derived from a complaint it filed (hours before this action was filed) for declaratory judgment in the Western District of Pennsylvania against the Fund and the Union. That case sought a declaration that the hospital doesn’t owe any additional payments to the Fund. That declaratory judgment action, “the cornerstone of UPMC’s arguments in favor of pausing this case,” was dismissed. Accordingly, “the difficulty of litigating two concurrent lawsuits in separate jurisdictions” no longer exists and resolution of the ERISA claims here therefore no longer presents a risk of inconsistent rulings in concurrent actions. For these reasons, the motion to stay was denied.

Statute of Limitations

Eleventh Circuit

Bakos v. Unum Life Ins. Co. of Am., No. 22-11131, __ F. App’x __, 2022 WL 3696648 (11th Cir. Aug. 25, 2022) (Before Circuit Judges Wilson, Rosenbaum, Anderson). Plaintiff-appellant Angela Bakos appealed the district court’s decision to dismiss her ERISA disability benefits suit as time-barred based on her plan’s three-year statute of limitations. Despite the fact that defendant Unum Life Insurance Company of America did not specify any deadlines within the denial letters they sent to Ms. Bakos, the final denial letter did include a statement that “Bakos could request – free of charge – any documents, records, and information relevant to her claim for benefits.” Within those documents, had Ms. Bakos requested them, was information regarding the plan’s provision giving participants three years within which to bring a suit under Section 502(a) of ERISA. The district court concluded that Unum’s failure to provide “explicit notice” of the time limitation did not merit equitable tolling. Additionally, the district court held that Ms. Bakos’s arguments about actual knowledge were inapplicable because she brought a Section 502(a)(1)(B) claim for benefits and not a breach of fiduciary duty claim. In this unpublished Eleventh Circuit decision, without wasting any words, the court of appeals agreed with the district court’s dismissal and its position that Unum’s actions complied with ERISA, and that the three-year statute was enforceable making Ms. Bakos’s suit untimely. Referring to its own precedent in Pacific Harbor Capital v. Barnett Bank, 252 F.3d 1246, 1252 (11th Cir. 2001), the Eleventh Circuit reiterated its stance that there is no equitable tolling “when the plaintiffs had notice sufficient to prompt them to investigate and that, had they done so diligently, they would have discovered the basis for their claims.” Accordingly, the lower court’s order dismissing the case was affirmed.