Let’s talk money. This week’s notable decision, Geiger v. Aetna Life Ins. Co., No. 15-CV-3791, 2016 WL 5391206 (N.D. Ill. Sept. 27, 2016), involves Aetna Life Insurance Company’s failed attempt to have Geiger pay $40,000 in attorneys’ fees following the court’s grant of summary judgment in Aetna’s favor on the disabled claimant’s denied long term disability claim. However, the court did grant Aetna’s request for $17.50 in costs.
In reviewing the court’s opinion, it is unclear why Aetna believed that the court would award attorneys’ fees against the losing claimant. Certainly, Aetna did achieve some “degree of success on the merits,” but that’s a minor hurdle to overcome in a claim for fees against a plan participant. In deciding to not exercise its discretion to award fees, the court determined that Geiger’s position was substantially justified and taken in good faith. Indeed, Geiger had multiple doctors who diagnosed her with conditions affecting her back and ankles, and opined that those conditions were severe enough to require some surgery and pain medication. One doctor opined that Geiger had fairly significant necrosis and osteochondral pathology that would become very painful with prolonged standing and/or walking. On two previous occasions, Aetna had approved Geiger’s disability claim and the Social Security Administration also found Geiger disabled under its rules.
Under a second applicable test for determining whether an award of fees is justified, the courts consider:
the degree of the offending parties’ culpability or bad faith; 2) the degree of the ability of the offending parties to satisfy personally an award of attorney’s fees; 3) whether or not an award of attorney’s fees against the offending parties would deter other persons acting under similar circumstances; 4) the amount of benefit conferred on members of the pension plan as a whole; and 5) the relative merits of the parties’ positions.
Considering these five factors, the court found that the first factor decidedly does not favor Aetna, the second, third, and fourth factors are neutral, and only the fifth factor slightly supports a fee award. For these reasons, the court had little trouble exercising its discretion to deny a fee award.
Unsurprisingly, I think that this is the correct result. Awarding attorneys’ fees against a plan participant would have a chilling effect on beneficiaries seeking redress for legitimate claims. Especially when claimants fare worse under an abuse of discretion review standard, awarding fees against a losing claimant is to rub salt in the wound. On the whole, courts tend not to award attorneys’ fees against losing plan participants, especially disability claimants. My advice to plan administrators debating whether or not to bring a fee petition against an unsuccessful plaintiff: Don’t bother. Unlike the $17.50 awarded in Geiger, that’s two cents you can take to the bank.
Below is Roberts Disability Law’s summary of this past week’s notable ERISA decisions.
Breach of Fiduciary Duty
- In suit brought by the DOL alleging that Defendant First Bankers Trust Services, Inc. (“FBTS”) violated ERISA by approving the sale of 49% of Maran, Inc., a private label denim manufacturer, to the Maran Employee Stock Ownership Plan for whom it served as independent trustee, denying both parties’ motions for summary judgment. The court found that there are genuine issues of material fact relating to: (1) FBTS’s true motivations driving its decisions to select Meyers, Harrison & Pia (“MHP”) as valuation advisor; (2) MHP’s independence; (3) the relevance of the Angelo Gordon offer; (4) the reasonableness of treating the financial information and projections provided by Huang as presumptively accurate; (5) the rigor with which FBTS reviewed and challenged MHP’s methodologies; and (6) FBTS’s failure to negotiate and ultimately approve the Transaction at the designated purchase price. Thomas E. Perez, Sec’y of Labor, U.S. Dep’t of Labor v. First Bankers Trust Services, Inc., No. 12-CV-8648 (GBD), 2016 WL 5475997 (S.D.N.Y. Sept. 28, 2016) (Judge George B. Daniels).
- Pension Trust Plan purchased a life insurance policy insuring the life of an employee of the company which established the Plan. MetLife allegedly overpaid the amount of death benefits owed and Defendants refused to return the amount to MetLife. MetLife sued for return of the overpaid money. The court found that this type of claim will not support a breach of fiduciary duty cause of action under ERISA § 502. Defendants did not owe MetLife a fiduciary duty. MetLife is not suing on behalf of the Plan. Life Ins. Co. v. Sicoli & Massaro Inc., No. 15 CIV. 7141 (PGG), 2016 WL 5390899 (S.D.N.Y. Sept. 26, 2016) (Judge Paul G. Gardephe).
- In suit where Plaintiff alleges that Defendants breached their fiduciary duties to participants in Whole Food’s 401k plan by allowing employees to continue to invest in the company while the company’s stock was artificially inflated due to a widespread overpricing scheme, dismissing the claims against Defendants because although Plaintiff met the first part of the standard alleged in Fifth Third by proposing alternative actions for Defendants that would have been consistent with securities laws, Plaintiff has not plausibly alleged an alternative action that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. Martone v. Whole Foods Mkt., Inc., No. 1:15-CV-877 RP, 2016 WL 5416543 (W.D. Tex. Sept. 28, 2016) (Judge Robert Pitman).
- In putative class action alleging that BP and other plan fiduciaries breached their duty of prudence by allowing the plans to acquire and hold BP’s overvalued stock, which lost significant value after an explosion of an offshore oil rig operated by BP caused a massive oil spill, holding that participants and beneficiaries failed to adequately allege that no prudent fiduciary could have concluded that alternative actions would do more harm than good, and thus they failed to state claim that BP and other fiduciaries breached duty of prudence because they had unfavorable inside information yet allowed investment in ESOP. Reversed and remanded. Whitley v. BP, P.L.C., No. 15-20282, __F.3d__, 2016 WL 5387678 (5th Cir. Sept. 26, 2016) (Before WIENER, CLEMENT, and COSTA, Circuit Judges).
- Following a federal grand jury indictment on three counts of embezzlement and theft from an employee pension or welfare benefit fund in violation of 18 U.S.C. § 664 and one count of embezzlement and theft from an employee health care benefit fund in violation of 18 U.S.C. § 669, finding that the total amount of restitution Gary Maurer owes to the victims in this matter is $310,460.30 and recommending that a reasonable monthly payment amount for restitution is $1,150.00. United States v. Maurer, No. 3:15-CR-131, 2016 WL 5387696 (S.D. Ohio Sept. 27, 2016) (Magistrate Judge Timothy S. Black).
- In a putative class action seeking to enforce a promise of permanent life insurance policies for Allstate retirees, on Allstate’s motion to dismiss, finding that Plaintiffs’ § 502(a)(3) claims for breach of fiduciary duty are not subject to dismissal for failure to allege misrepresentations or omissions on the part of Allstate; the claims are not barred by the applicable statute of limitations; Plaintiffs adequately alleged facts sufficient to support a legal finding that Allstate was a fiduciary and acted as such when communicating with Plaintiffs about the employee benefit plan; state law breach of contract claims are preempted by ERISA. Turner v. Allstate Insurance Company, No. 2:13-CV-685-WKW, 2016 WL 5445068 (M.D. Ala. Sept. 27, 2016) (Judge W. Keith Watkins).
Disability Benefit Claims
- It was not arbitrary and capricious for Unum to determine that Plaintiff’s failure to present a physical etiology for her cognitive dysfunction was one ground on which to deny her claim. It is not an abuse of discretion for Unum to engage in a “feedback loop claims approach,” which involves Unum’s claims personnel reviewing the findings of their colleagues. Here, where a number of claims reviewers delved into Plaintiff’s medical records and determined that they did not support her claim for an organically- or physically-based cognitive condition that rendered her completely disabled from her job, Unum’s failure to seek an IME was not arbitrary and capricious. Correia v. Unum Life Ins. Co. of Am., No. 14 CIV. 7690 (KPF), 2016 WL 5462827 (S.D.N.Y. Sept. 29, 2016) (Judge Katherine Polk Failla).
- Sun Life did not abuse its discretion in determining that Plaintiff is not disabled from her psoriatic arthritis and inability to use a keyboard. Ability to find employment is only relevant if Plaintiff first met her burden of proving she was unable to perform her own occupation. Although Plaintiff’s vocational consultant, Charles Kinkaid, claimed that Plaintiff was “unemployable” because she could not perform keyboarding, she was of “advanced work age,” and because her skills and experience were obsolete, his findings were premature because no finding was ever made that Plaintiff was unable to perform her own occupation as a Programmer Analyst/Network Administrator. Sun Life obtained medical reviews from Dr. Lawrence J. Albers, a psychiatrist and neurologist; Dr. Rajendra Marwah, a rheumatologist; and Dr. Jose Perez, an internist. Sun Life’s motion for summary judgment granted. Drach v. Sun Life Assurance Co. of Canada, No. 15-5467 (NLH/KMW), 2016 WL 5417191 (D.N.J. Sept. 28, 2016) (Judge Noel L. Hillman).
- Granting Liberty Life’s motion for summary judgment since its determination was supported by substantial evidence with respect to (1) Plaintiff’s capability for sedentary work; (2) the existence of alternative occupations consistent with a sedentary work capacity; (3) Liberty Life’s consideration of the diagnoses, restrictions, and limitations provided by Plaintiff’s treating physicians; (4) Liberty Life’s consideration of Plaintiff’s self-reported symptoms of pain; and (5) the reasons that Liberty Life’s determination differed from the Social Security Administration’s disability finding. The court rejected Plaintiff’s argument that de novo review should apply because Liberty Mutual, rather than Liberty Life, made the claims decision. Shatto v. Liberty Life Assurance Co. of Boston, No. CV 14-5653, 2016 WL 5374106 (E.D. Pa. Sept. 26, 2016) (Judge Stengel).
- Plaintiff is entitled to prejudgment interest because benefits incorrectly were withheld and he is entitled to prejudgment interest up to the entry of this Order. The court adopts the interest rate method it employed in Pipefitters Local 636 Fund v. Blue Cross Blue Shield of Michigan, No. 04-73400, 2012 WL 3887174 (E.D. Mich. Sept. 7, 2012), aff’d sub nom. Pipefitters Local 636 Ins. Fund v. Blue Cross & Blue Shield of Michigan, 722 F.3d 861 (6th Cir. 2013) for determining prejudgment interest, which awards interest based on five-year Treasury rates plus one percent, in accordance with MCL § 600.6013. Rochow v. Life Ins. Co. of N. Am., No. 04-73628, 2016 WL 5476240 (E.D. Mich. Sept. 29, 2016) (Judge Arthur J. Tarnow).
- There is no financial conflict of interest where Sedgwick makes independent claims decisions and AT&T funds the disability plan. The Plan’s use of an “objective” standard is appropriate. Although Plaintiff was diagnosed with Grave’s disease and hyperthyroidism, the only evidence her doctor provided regarding any impairment was her high blood pressure, which was insufficient to show that she could not work anymore. The Plan did not abuse its discretion in denying Plaintiff’s short-term disability benefits. Logan v. AT&T Umbrella Benefit Plan No. 3, No. 4:15CV1205, 2016 WL 5462972 (N.D. Ohio Sept. 28, 2016) (Judge Benita Y. Pearson).
- Granting Reliance’s Motion for Judgment on the Administrative Record, finding that it did not abuse its discretion in terminating Plaintiff’s LTD claim after it had paid the claim for about six years. Reliance took a position contrary to SSA but the SSA decision was based on different facts and incomplete information. Also, Reliance could consider Plaintiff’s Facebook posts detailing several vacations and participation in paranormal investigations, even though its denial of Plaintiff’s claim and appeal did not reference its social media investigation. Plaintiff could have provided objective evidence of her disability caused by fibromyalgia and chronic fatigue syndrome via a functional capacity evaluation. However, she failed to satisfy her burden to show that she remained totally disabled. Austin-Conrad v. Reliance Standard Life Ins. Co., No. 4:14-CV-00127-JHM, 2016 WL 5400366 (W.D. Ky. Sept. 26, 2016) (Judge Joseph H. McKinley, Jr.).
- California Insurance Code section 11010.6 applies to this case and so does a de novo standard of review, notwithstanding that Montoya alleged that Reliance abused its discretion and conducted discovery on Reliance’s conflict of interest. The court granted Montoya’s motion for summary judgment because Reliance erred in limiting its physical IME to a certain date, therefore ignoring evidence of Montoya’s worsening condition, and Reliance erred in relying on out-of-date DOT occupational titles of Caseworker/Social Services and Clinical Therapist to determine the “fingering” requirements for someone who held Montoya’s position as a mental health therapist. Montoya v. Reliance Standard Life Ins. Co., No. 14-CV-02740-WHO, 2016 WL 5394024 (N.D. Cal. Sept. 27, 2016) (Judge William H. Orrick).
- In disability benefit lawsuit brought by a law firm partner, denying Plaintiff’s motion to remand and finding that contemporaneous documents that relate to Plaintiff’s IDI policy show that this policy was issued pursuant to her employer’s Supplemental Disability Plan. Unum met its burden of showing that Plaintiff’s IDI policy was part of a plan covered by ERISA and that her state law claims are preempted. Bender v. Unum Grp., No. 16-CV-03990-PJH, 2016 WL 5420156 (N.D. Cal. Sept. 28, 2016) (Judge Phyllis J. Hamilton).
- Plaintiff’s IIED claim, based on the termination of Plaintiff’s long term disability benefits, is preempted by ERISA. Johnson, III v. Lucent Technologies Inc., No. 14-56542, __F.App’x__, 2016 WL 5390352 (9th Cir. Sept. 27, 2016) (Before: TASHIMA, WARDLAW, and BYBEE, Circuit Judges).
Life Insurance & AD&D Benefit Claims
- Where the insured’s life insurance policies named his former spouse as beneficiary, but where the actions of the insured’s Guardian ad Litem effectively terminated the former spouse’s status as beneficiary, such that there were no designated beneficiaries, the benefits are payable to the spouse at the time of death since the policies list the insured’s spouse as the first family member to whom payment may be made. Life Ins. Co. v. Unger, No. 14 CV 07586, 2016 WL 5477523 (N.D. Ill. Sept. 29, 2016) (Judge John J. Tharp).
Pension Benefit Claims
- Although there was a material misrepresentation when Chebowski received benefit statements and communications from the Plan Administrator stating that his monthly retirement benefit was $183.86 and that his benefit was 100%vested; and (2) that the Plan Administrator was aware of the true facts and had all of the information needed to determine Chebowski’s vesting and retirement benefit — Chebowski has not sufficiently alleged the remaining elements of equitable estoppel and those claims are dismissed. Chebowski v. Kelsey-Hayes Salaried Pension Plan, No. 15-13092, 2016 WL 5477335 (E.D. Mich. Sept. 29, 2016) (Judge Denise Page Hood).
Pleading Issues & Procedure
- Plaintiff sufficiently demonstrated his standing to bring an ERISA claim as a plan participant, where he alleges that he was denied compensation for sick days and unused vacation days, that he had joined the Union in 1994 and, therefore, earned a pension until he was terminated in 2015. Plaintiff may not recover $1,000,000 in compensatory damages for “prejudices, damage caused to my person in 20 years.” DDS, the third-party administrator of his dental benefits, is not a proper defendant in this action. Romero v. Local Union 272, No. 1:15-CV-7583-GHW, 2016 WL 5376210 (S.D.N.Y. Sept. 26, 2016) (Judge Gregory H. Woods).
- In putative class action seeking preliminary injunction for Allstate to continue life insurance benefits for retirees, finding that Plaintiffs have established a substantial likelihood that they can succeed on the merits of their § 502(a)(3) claim; Plaintiffs have demonstrated a substantial likelihood that their claim is not barred by § 1113; Plaintiffs have demonstrated a likelihood that irreparable harm will result if their Allstate-provided retiree group life insurance policies are allowed to lapse during the course of this litigation, and the relative harms to the parties and the balancing of equities favor issuance of the injunction. Public policy favors the injunction as it will not undermine the public’s interest in allowing employers flexibility if they choose to exercise it within the requirements of their fiduciary duties. Turner v. Allstate Insurance Company, No. 2:13-CV-685-WKW, 2016 WL 5422071 (M.D. Ala. Sept. 27, 2016) (Judge W. Keith Watkins).
- The Connecticut General Life Insurance Co., et al. v. Humble Surgical Hosp., LLC, C.A. No. 4:13-cv-3291, 2016 WL 3077405 (S.D. Tex. Jun. 1, 2016) decision has preclusive effect on the issue of legal correctness: Cigna’s interpretation of the plan stating that “payment for the following is specifically excluded:…charges for which you [patients] are not obligated to pay or for which you are not billed” to mean that patients had no insurance coverage for medical procedures for which the patient was not billed, was legally incorrect. Cigna abused its discretion where there is strong evidence in the record that Cigna acted in bad faith, including by deliberately targeting North Cypress with its Fee-Forgiving Protocol in order to pressure it to negotiate an in-network contract. Cigna is thus entitled to summary judgment on North Cypress’s § 502(a)(3) claim because North Cypress may not seek identical relief via an allegation of breach of fiduciary duty under § 502(a)(3). Cigna waived the affirmative defense of recoupment by failing to plead it. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, No. 4:09-CV-2556, 2016 WL 5408994 (S.D. Tex. Sept. 28, 2016) (Judge Keith P. Ellison).
- Relying on Plaintiff’s admission in its original Complaint that it was an in-network provider subject to BCBST’s Provider Agreement, pursuant to Brown v. BlueCross BlueShield of Tennessee, Inc., 827 F.3d 543 (6th Cir. 2016), Plaintiff lacked standing to bring its ERISA claims. Since Plaintiff is bound by the terms of the Provider Agreement, it is prohibited from passing the cost of BCBST’s recoupments back on its patients, and because the present suit to enjoin Blue Cross’s recoupments is not a suit that Blue Cross members could have brought, Plaintiff’s claims do not fall within the scope of its derivative ERISA standing. Claims dismissed for lack of subject matter jurisdiction. Apple Corp. Wellness, Inc v. Bluecross Blueshield of Tennessee, Inc., No. 1:15-CV-324, 2016 WL 5390878 (E.D. Tenn. Sept. 27, 2016) (Judge Harry S. Mattice).
Statute of Limitations
- Granting Defendants’ motion for reconsideration based upon the Supreme Court’s recent decision in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 136 S. Ct. 651 (2016), which abrogated the Second Circuit’s decision in Thurber v. Aetna Life Insurance Company, 712 F.3d 654 (2d Cir. 2013), which the court relied upon in reaching its previous conclusions. Plaintiff does not have a claim for equitable relief because the funds are not traceable and the Plan document does not impose an equitable lien. Defendants are entitled to summary judgment on their counterclaim and should be awarded the amount owed under the settlement agreements between the parties which are not expressly preempted by ERISA. District Photo Inc. Health Care Plan v. Dimitri Pyrros, M.D. and Zelen Pyrros, M.D., P.C., No. 13CV4285JFBSIL, 2016 WL 5407869 (E.D.N.Y. Sept. 28, 2016) (Judge Joseph F. Bianco).
Withdrawal Liability & Unpaid Contributions
- Granting default judgment in favor of Plaintiffs in the amount of $117,094.26, broken down as follows: $38,494.50 in unpaid contributions, liquidated damages and interest due to Welfare Fund; $28,395.36 in unpaid contributions, liquidated damages and interest due to the Pension Fund; $4,817.91 in unpaid contributions, liquidated damages and interest due to the Apprenticeship Fund; $22,198.26 in unpaid contributions, liquidated damages and interest due to the Account Fund; $4,688.45 in unpaid union dues withheld from employees’ wages but not remitted to Local 26; $9,928.31 in unpaid contributions, liquidated damages and interest due to the NEBF; $49.12 in unpaid contributions, liquidated damages and interest due to the National Labor Management Cooperation Committee; $491.15 in unpaid contributions, liquidated damages and interest due to the Labor Management Cooperation Committee; and attorneys’ fees and costs of $8,031.20. Trustees of the Electrical Welfare Trust Fund, et al. v. Technology Service Group, LLC, No. GJH-14-3018, 2016 WL 5462800 (D. Md. Sept. 27, 2016) (Judge George J. Hazel).
- Granting Plaintiffs’ motion for default judgment against defendant ILMO in the amount of $15,686.43 in delinquent fringe benefit contributions, interest, and liquidated damages, against defendants ILMO and Rogers in the amount of $41,418.12 in principal and interest on two promissory notes on which they defaulted, and against defendants ILMO and Rogers in the amount of $1,084.40 in attorneys’ fees and costs. Louis – Kansas City Carpenters Regional Council, et al. v. ILMO Contracting, LLC, et al., No. 4:16 CV 751 CDP, 2016 WL 5371586 (E.D. Mo. Sept. 26, 2016) (Judge Catherine D. Perry).
- Entering summary judgment on behalf of Plaintiffs and against Defendant in the amount of $95,854.99 for delinquent contributions, liquidated damages, and interest relating to bonuses, the Edwards Brothers, and ironworkers in Indiana. Iron Workers St. Louis District Council Annuity Trust, et al. v. United Ironworkers, Inc., No. 4:15-CV-00713-AGF, 2016 WL 5371585 (E.D. Mo. Sept. 26, 2016) (Judge Audrey G. Fleissig).
* Please note that these are only case summaries of decisions as they are reported and do not constitute legal advice. These summaries are not updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. If you have questions about how the developing law impacts your ERISA benefit claim, contact an experienced ERISA attorney. Case summaries authored by Michelle L. Roberts, Partner, Roberts Disability Law, 1050 Marina Village Pkwy., Ste. 105, Alameda, CA 94501; Tel: 510-230-2090.