This week’s notable decision is from one of our firm’s cases, Hirschkron v. Principal Life Insurance Company, where the court found that notwithstanding the disability policy’s choice-of-law (Maryland) and discretionary authority provisions, the California Insurance Code’s ban on discretion applies such that the claim will be reviewed de novo. The court explained that to hold otherwise would subvert the right to a fair review that the California legislature granted to all California residents.
The standard of review is often the dispositive factor in any ERISA benefit claim dispute. When de novo review applies, a disability claimant has a higher chance of prevailing. For example, in Solnin v. Sun Life & Health Ins. Co., the court found on de novo review that the claimant established by a preponderance of the evidence that she is entitled to disability benefits, notwithstanding surveillance and contrary “independent” medical opinions. In Solnin, Sun Life conducted 17 days of surveillance over a ten-year period. The court found that the claimant’s ability to drive to appointments and run errands did not show that she could perform the physical demands of any occupation on a consistent basis. Read about these cases and more in this week’s ERISA Watch.
Your reliable source for summaries of recent ERISA decisions
Below is Roberts Disability Law summary of this past week’s notable ERISA decisions.
Select Slip Copy & Not Reported Decisions
Defendant seeking attorneys’ fees for obtaining voluntary dismissal of lawsuit did not achieve sufficient success on the merits to warrant fees. Jenkins v. Moses H. Cone Mem’l Health Servs. Corp., No. 5:15-CV-34-FL, 2015 WL 6449296 (E.D.N.C. Oct. 23, 2015) (Judge Louise W. Flanagan). In a lawsuit alleging improper billing practices under state law, where Plaintiff voluntarily dismissed the lawsuit after another lawsuit (involving same counsel) was removed and determined preempted by ERISA, Defendant moved for attorneys’ fees, claiming that the voluntary dismissal is sufficient success to be considered the “prevailing” party and that its success in the other lawsuit was a “catalyst” to Plaintiff’s dismissal without prejudice. The court denied Defendant’s motion for attorneys’ fees, finding that even if Plaintiff’s claims were preempted by ERISA Section 502(a), Defendant did not achieve any success on the merits. At most, Defendant achieved trivial success on the merits. Further, if Plaintiff’s remaining claims had been preempted by Section 514, Defendant would have succeeded only on Plaintiff’s state law claims, not any ERISA claim.
Attorneys’ fees awarded for success on life insurance claim but in an amount less than requested. Brown v. United of Omaha Life Insurance Company, No. 2:13-CV-830, 2015 WL 6506548 (S.D. Ohio Oct. 28, 2015) (Judge George C. Smith). The court previously granted Plaintiff’s motion for summary judgment on his claim for life insurance benefits. Addressing a subsequent motion concerning damages and fees, the court awarded $181,666.67 in damages for benefits due under the policy, calculated based on the premiums deducted from the participant’s paycheck. The court awarded Plaintiff prejudgment interest at the prevailing market rate of 3.25% from February 20, 2013 (the date the claim was initially denied) to the date final judgment is entered in this case. The court granted attorneys’ fees but reduced the requested rate for one attorney from $500 to $400/hour and cut 50.6 hours of time which 1) did not reflect substantive legal work; (2) was too vague for the court to ascertain whether they were necessary to the success of Plaintiff’s ERISA claim; or (3) related to work performed in conjunction with Plaintiff’s unsuccessful state law claims. The court denied altogether work done by two other attorneys for failing to provide records detailing how much time they spent on compensable tasks. Lastly, the court denied all requested costs, mostly due to a lack of documentation on which costs are attributable to the successful ERISA claim rather than the unsuccessful state law claims.
On de novo review, claimant disabled by degenerative disc disease is entitled to “any occupation” long term disability benefits. Solnin v. Sun Life & Health Ins. Co., No. 08-CV-2759 DRH AYS, 2015 WL 6550549 (E.D.N.Y. Oct. 28, 2015) (Senior Judge Denis R. Hurley). Previously in this matter the court determined that de novo review applied because Sun Life did not render a decision within the timelines set forth in ERISA’s regulations. On review of the merits of Plaintiff’s long term disability claim, the court determined that Plaintiff has proven by a preponderance of the evidence that she is entitled to disability benefits. In sum, Plaintiff’s case was supported by the clinical findings of an orthopedic surgeon who treated Plaintiff for over 15 years, and who has consistently opined based on his longitudinal treatment of Plaintiff, that she is totally disabled and unable to work in her own or any occupation. Plaintiff also relied on a detailed vocational examination which confirmed that Plaintiff is totally disabled from any competitive job. Sun Life relied primarily on video surveillance of Plaintiff conducted on 17 days throughout 2002-2012 as well as the medical records of several other physicians, including that of an independent medical examiner, which they claim demonstrate that Plaintiff is not Totally Disabled under the plan. With respect to the surveillance, the court found that although it shows Plaintiff driving and leaving her home to attend physical therapy, eat, and shop, as well as carrying items to and from her car, it does not speak to Plaintiff’s ability to sit/stand/walk/lift/carry on a consistent basis.
Disability policy’s choice-of-law provision does not trump California Insurance Code’s ban on discretionary language. Hirschkron v. Principal Life Insurance Company, No. 3:15-cv-00664-JD (N.D. Cal. Oct. 29, 2015) (Judge James Donato) (Westlaw cite TBA). The parties filed cross-motions on the issue of the standard of review. Plaintiff contended that de novo review applies based primarily on the argument that Cal. Ins. Code § 10110.6(a) prohibits discretionary language in disability policies. Principal contended that the disability policy was not governed by the Code because of its choice-of-law provision stating that the laws of Maryland govern. The court found that the arguments regarding the enforceability of this choice of law provision, and about whether or not the undisputed discretionary provisions would be valid under Maryland law, are irrelevant to the question at hand. This is because “on its face, California Insurance Code Section 10110.6, which is ‘self-executing,’ expressly applies to policies, contracts, certificates or agreements that were offered, issued, delivered or renewed ‘whether or not in California.’ The plain language of the Section voids discretionary provisions even if the relevant policy, contract, certificate or agreement contains a choice of law provision that ultimately results in the substantive rights and obligations of the parties being governed by the laws of a state other than California.” The court explained that although choice of law provisions in ERISA contracts should be followed so long as they are not unreasonable or fundamentally unfair, allowing a choice of law provision to trump the Code on the narrow issue of the applicable standard of review for a denial of benefits would subvert the right to a fair review of claims denials that was granted by the California legislature to all California residents.
Discovery in long term disability case denied because Plaintiff did not satisfy threshold burden. Weddington v. Aetna Life Ins. Co., No. 15 C 1268, 2015 WL 6407764 (N.D. Ill. Oct. 21, 2015) (Magistrate Judge Sidney I. Schenkier). Plaintiff propounded five interrogatories and five requests to produce upon Aetna, seeking information that she describes as falling into three categories: (1) Aetna’s internal procedures and protocols applicable to her claim, including certain definitions as to terms she describes as “cryptic;” (2) processes related to Aetna’s engagement of certain medical consultants, and definitions relating thereto; and (3) protocols Aetna uses for reviewing claims when illegible handwritten medical records are involved. The court found that Plaintiff is not entitled to the discovery she seeks because she is unable to satisfy the first threshold burden of identifying a specific conflict or instance of misconduct on Aetna’s part. Specifically, Plaintiff’s assertion of an incomplete administrative record falls short of suggesting that some form of misconduct or bias has occurred. The court went on to find that even if limited discovery were appropriate, many of the discovery requests Plaintiff propounded are improper because they go to the “mental processes” of the Plan’s administrator or do nothing to expose a larger strategy on Aetna’s party to deny claimants their benefits.
Conflict of interest discovery denied in LTD case subject to de novo review. Nguyen v. Sun Life Assurance Company of Canada, No. 314CV05295JSTLB, 2015 WL 6459689 (N.D. Cal. Oct. 27, 2015) (Magistrate Judge Laurel Beeler). Plaintiff sought to discover material outside of the administrative record, including: 1) The completeness of the administrative record; 2) The “policies and guidelines” that Sun Life followed (or should have followed) in assessing his claim; and 3) The relationship between Sun Life and its four outside medical reviewers. The court concluded that, under governing Ninth Circuit law, Plaintiff is not entitled to most of this discovery because he has not “clearly established” that evidence outside the existing administrative record is “necessary to conduct an adequate de novo review of the benefit decision.” The court ordered that documents relied on in making the benefit determination and generated in the course of making the benefit determination must be produced. The court also ordered that “policies and guidelines” must be produced but Plaintiff is not entitled to extra-record discovery into whether and why Sun Life followed, or failed to follow, its own policies and guidelines. The court denied discovery concerning the bias of Sun Life’s medical reviewers although noted that may be an “exceptional” case where such discovery would be appropriate.
Claims alleging constructive fraud and negligence concerning an employee’s eligibility to participate in an ERISA plan are preempted. Van Lier v. Unisys Corp., No. 1:15-CV-974, 2015 WL 6439394 (E.D. Va. Oct. 22, 2015) (Judge T.S. Ellis, III). Plaintiff brought suit in state court alleging that her employer committed constructive fraud and negligence by representing to Plaintiff that she was not eligible for coverage under defendant’s long term disability plan when, in fact, she was eligible. The court held that Section 514(a) of ERISA preempts Plaintiff’s state law claims under the doctrine of conflict preemption because these claims implicate an ERISA plan and refer to an alleged misrepresentation made by an ERISA fiduciary to an employee eligible for the ERISA plan. The court also held that Plaintiff’s state law claims are completely preempted by ERISA because could bring her clams under ERISA Section 502(a). The court rejected Plaintiff’s argument that she does not having standing as a participant under ERISA. The court explained that because she was a participant at the time of the alleged misrepresentation, it does not matter that she is currently not able to participate in the LTD plan. The court dismissed the complaint without prejudice so that Plaintiff can amend her complaint to assert a claim under ERISA.
Exhaustion of Administrative Remedies
Dismissal for failure to exhaust is without prejudice where deadline for administrative appeal has not yet passed. Watkins v. Matrix Absence Mgmt., Inc, No. 3:15-CV-00716-JHM, 2015 WL 6480145 (W.D. Ky. Oct. 27, 2015) (Judge Joseph H. McKinley, Jr.). In granting Defendant’s motion to dismiss, the court concluded that Plaintiff did not meet his burden of proving that the administrative appeals process would have been clearly futile. The court declined to dismiss the case with prejudice because the court did not have the Plan document before it and the time for Plaintiff to appeal the denial of his claim for LTD benefits had not yet passed.
Medical Benefit Claims
Denial of mental health treatment is not a violation of Plan terms and Plan can recoup overpayment. Tedesco v. I.B.E.W. Local 1249 Ins. Fund, No. 14-CV-3367 KBF, 2015 WL 6509039 (S.D.N.Y. Oct. 28, 2015) (Judge Katherine B. Forrest). The court found that Defendants’ denial of coverage for certain providers (for treatment of OCD and mental illnesses) was not a violation of Plan terms. The court also found that Plaintiff did not demonstrate that Defendants’ requirement that Plaintiff recertify the need for continued visits to her psychiatrist violates the Mental Health Parity and Addiction Equity Act of 2008. Further, Plaintiff did not exhaust her claim that Defendants’ recouping of “overpayment” funds from Plaintiff is an unlawful set-off because it violates Plan terms. With respect to Defendants’ counterclaim, the court found that the Plan plainly states that the Fund is entitled to recoupment of overpayments.
Court grants in part and denies in part motion to dismiss lawsuit and addresses issues of preemption, breach of fiduciary duty, exhaustion, and standing. Rogers v. Unitedhealth Grp., Inc., No. 2:15-CV-01736-DCN, 2015 WL 6462716 (D.S.C. Oct. 26, 2015) (Judge David C. Norton). In a lawsuit brought by a plan participant and his spouse against United for payment of rehabilitative care to treat septicemia, the court ruled on United’s motion to dismiss all claims as follows: (1) Plaintiffs’ state law claims are preempted by ERISA; (2) Plaintiffs failed to state a claim for breach of fiduciary duty under 29 U.S.C. § 1109 because they only seek individual recovery rather than monetary relief on behalf of the group health plan; (3) although the participant did not exhaust his administrative remedies, it would have been futile under the circumstances and because it is not apparent from the face of the complaint that the affirmative defense applies, the motion is denied; and (4) because the court dismissed the state law claims and counsel conceded that the spouse would no longer have standing to pursue the ERISA claims, the court granted United’s motion with respect to the spouse’s claims.
Blue Cross did not abuse discretion by denying coverage of autologous stem-cell transplantation for multiple sclerosis. Wenzel v. Blue Cross Blue Shield of Minnesota, No. CV 14-4739(DSD/HB), 2015 WL 6549594 (D. Minn. Oct. 28, 2015) (Judge David S. Doty). Blue Cross denied Plaintiff with relapsing/remitting multiple sclerosis (MS) coverage for a medical procedure known as autologous stem-cell transplantation (ASCT). ASCT is not approved for FDA marketing and is currently in phase III clinical trials. Blue Cross’s medical director reviewed the MPM II-121, which notes that ASCT “is not established in MS.” The court found that the MPM II-121 reasonably explains why ASCT is too underdeveloped to be considered non-investigative for any patient. The court also found that Blue Cross did not have to defer to the treating doctor’s conclusions about ASCT as applied to Plaintiff. The court concluded that Blue Cross’s interpretation of the Plan and subsequent classification of Plaintiff’s ASCT treatment as “investigative” was reasonable. The court rejected Plaintiff’s argument that Blue Cross inconsistently applied the Plan terms because other Blue Cross entities that approved ASCT for MS. Plaintiff did not demonstrate that those entities approved ASCT under the same plan terms.
Pension Benefit Claims
Denial of lump sum pension benefits not arbitrary and capricious where participant did not submit an accurate election form before his death. Fife v. Ford Motor Company, et al., No. 14-CV-14586, 2015 WL 6467626 (E.D. Mich. Oct. 27, 2015) (Judge Matthew F. Leitman). Here, the pension plan participant began receiving monthly pension benefits under the retirement plan and then sought to receive the benefits as a lump sum. He was required to complete an election form that accurately reflected both (1) his personal information that was used to calculate the amount of his lump-sum payment and (2) the amount of the lump-sum payment to which he was entitled under the Plan. The participant completed an election form, but the form included an inaccurate lump-sum payment amount that was based upon the company’s erroneous belief that his wife (who had been entitled to survivorship benefits under the Plan) was still alive. The retirement plan committee deemed the election ineffective but the participant died before he received the corrected election form. The committee found that he never effectively elected to receive the lump-sum payment. His estate brought suit and the court granted Defendant’s motion for judgment, finding that its decision was not arbitrary and capricious since the committee required timely submission of an accurate election form and the participant did not comply. The court rejected the estate’s argument that common-law contractual principles apply or that Defendant was equitably estopped from denying benefits.
Long-term incentives plan is not an ERISA plan. Timian v. Johnson & Johnson, No. 6:15-CV-06125 MAT, 2015 WL 6454766 (W.D.N.Y. Oct. 26, 2015) (Judge Michael A. Telesca). Defendant maintained a Long-Term Incentive Plan to provide “long-term incentives” for its employees, including Restricted Stock Unit awards, which are award(s) of a right to receive an amount based on the Fair Market Value of a share of Common Stock of Defendant, subject to such terms and conditions as the Administrator may establish. The court found that this Plan is neither an employee welfare benefit plan nor employee pension benefit plan governed by ERISA. The Plan is not a welfare benefit plan because it is discretionary and has the stated purpose of providing long-term incentives to those employees with responsibility for the success and growth of the Company. It is not established or maintained for the purpose of providing for its participants medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, prepaid legal services, or similar benefits. The Plan is not a pension plan because although it contemplates the possibility of the deferral of awards, the deferral lies in the sole discretion of the plan administrator. Further, the deferral period cannot extend past the termination of employment. Even if some payments under the Plan may be made after the employee has retired or left the company, it does not result in ERISA coverage.
Employee welfare benefit plan maintained by Transit Management of Southeastern Louisiana is a “governmental plan” exempt from ERISA. Smith v. Reg’l Transit Auth., No. CIV.A. 12-3059, 2015 WL 6442337 (E.D. La. Oct. 23, 2015) (Judge Carl J. Barbier). In this case Plaintiffs allege that Defendants denied them premium-free medical insurance, quarterly Medicare premiums, and deductible reimbursements as guaranteed by their employee welfare benefits plan. Plaintiffs also assert that Defendants breached their fiduciary duties under ERISA in violation of § 1132(a)(2). The court had to decide whether the benefit plan in this case is a “governmental plan” and therefore exempt from ERISA. The court determined that the Regional Transit Authority (“RTA”) is a political subdivision under the two-prong Hawkins test. The court also found that the Transit Management of Southeastern Louisiana, Inc. (“TMSEL”) fits the description of an agency or instrumentality under ERISA and declined to analyze whether TMSEL is a political subdivision. The court concluded that when Plaintiff’s cause of action arose in March 2006, TMSEL was an agency or instrumentality of a political subdivision, it maintained the Plan for its employees, and the Plan is a governmental plan excluded from ERISA’s coverage. The court also concluded that because TMSEL was an agency or instrumentality of the RTA, any claim against TMSEL for which Plaintiffs allege the RTA is responsible does not arise under ERISA.
Arbitration provision contained in provider manual is enforceable. Grasso Enterprises, LLC v. CVS Health Corp., No. SA-15-CV-427-XR, 2015 WL 6550548 (W.D. Tex. Oct. 28, 2015) (Judge Xavier Rodriguez). Plaintiff, owner of two compounding pharmacies, brought suit against CVS/Caremark for allegedly violating ERISA based on its procedures for processing claims. Specifically, Plaintiff alleges that Defendant does not review claims, but instead uses a computerized automated system to process all claims and then reviews the claims after the 30-day period is over. The court determined that there is a valid agreement to arbitrate since both Grasso and CVS/Caremark are signatories to two Provider Agreements that incorporate the terms of the Provider Manual by reference. The Provider Manual contains an arbitration provision that is enforceable and not unconscionable. The court also determined that the dispute in question falls within the scope of the agreement. The court granted in part and denied in part Defendant’s motion to dismiss and compel arbitration and dismissed as moot Plaintiff’s motion for preliminary injunction.
Dismissal of 502(a)(3) claim because relief available under 502(a)(1)(B) and dismissal of document penalty claim. Koenig v. Aetna Life Ins. Co., No. 4:13-CV-00359, 2015 WL 6473351 (S.D. Tex. Oct. 27, 2015) (Judge Kenneth M. Hoyt). North Cypress brought suit against Aetna for substantial underpayment and/or nonpayment of certain healthcare claims from 2009 through 2014. The court found that new Supreme Court authority and Fifth Circuit authority did not modify the general rule that if relief is available under § 502(a)(1)(B), then equitable relief is not also available under § 502(a)(3). The court also found that Aetna is not the plan administrator subject to penalties under ERISA § 502(c). Although the Fifth Circuit has considered the de facto plan administrator theory, it has consistently refused to recognize such a theory where reliance would be deemed unreasonable in light of ambiguous plan documents.
Prompt pay discount program does not violate state law but Aetna did not underpay any ERISA claim. Koenig v. Aetna Life Ins. Co., No. 4:13-CV-0359, 2015 WL 6554347 (S.D. Tex. Oct. 29, 2015) (Judge Kenneth M. Hoyt). The court rejected Aetna’s contention that NCMC’s “prompt pay discount program” violates state law, particularly §§ 101.201, 102.003 of the Texas Occupations Code, on the basis that NCMC engaged in false, misleading or deceptive advertising. The court also found that § 324.101 of the Texas Health and Safety Code and § 552.003 of the Texas Insurance Code do not prohibit discounting a patient’s bill for healthcare services. The court concluded that NCMC, at all times, acquired properly executed assignments, designating it as beneficiary as defined by ERISA. However, the court also concluded that the evidence fails to support a finding that Aetna underpaid NCMC on any ERISA claim.
Retiree Health Benefits
Post-Tackett motion for reconsideration results in reversal of previous finding in favor of class of retirees. Zino v. Whirlpool Corp., No. 5:11CV01676, __F.Supp.3d___, 2015 WL 6559579 (N.D. Ohio Oct. 30, 2015) (Judge Benita Y. Pearson). Defendants moved for reconsideration based on the Supreme Court’s decision in Polymers USA, LLC v. Tackett, 524 U.S., 135 S.Ct. 926, 190 L.Ed.2d 809 (2015). The court granted in part and denied in part Defendants’ motion. Upon reconsideration, the court abandoned employment of the Yard-Man presumption, related contract interpretation principles, and progeny, including any carried forward effect. Relying on ordinary principles of contract law to ascertain the meaning of the CBAs at issue, the court maintained its ruling as to three of four subclasses (although for two of those classes the court applied different reasons). With respect to the subclass of retirees who retired after April 18, 1983, but before January 1, 1993, the court found that they were not promised company-paid health benefits under any of the applicable welfare plans.
Statute of Limitations
Breach of fiduciary duty claim based upon alleged misclassification as independent contractor barred by the statute of limitations. Williams v. Webb Law Firm, P.C., No. 14-3747, __Fed.Appx.___, 2015 WL 6522564 (3d Cir. Oct. 29, 2015) (VANASKIE, SLOVITER, and RENDELL, Circuit Judges). Plaintiff brought a breach of fiduciary duty claim against Defendant based on the allegation that it misclassified him as an independent contractor, instead of as an employee. The Third Circuit affirmed the district’s grant of summary judgment in favor of Defendant due its finding that Plaintiff’s claim is barred by the applicable statutes of limitations in 29 U.S.C. § 1113. The district court did not err by finding that Plaintiff’s lawsuit failed under both: (1) the date of the last action which formed a part of Defendant’s alleged breach of fiduciary duty occurred on January 1, 2006 (and, therefore, the six-year statute of limitations in 29 U .S.C. § 1113(1) bars the claim), and (2) Plaintiff knew about the material elements of Defendant’s alleged breach and knew that these actions constituted a breach of a fiduciary duty, at the latest, in May 2007 (and therefore the three-year statute of limitations in § 1113(2) bars his claim).
Withdrawal Liability & Unpaid Benefit Contributions
Sole owner of company found liable for unpaid contributions. Sheet Metal Workers’ Nat. Pension Fund v. Vardaris Tech Inc., No. 13-CV-5286 ARR, 2015 WL 6449420 (E.D.N.Y. Oct. 23, 2015) (Judge Allyne R. Ross). The court granted Plaintiffs’ summary judgment motion against corporate defendant, Vardaris Tech Inc., and its sole owner, Elias Rizos, in his individual capacity for failing to make contractually required contributions to five multi-employer benefit funds. The court found that the unpaid contributions became plan assets when they became due. Defendant Rizos exercised a level of control over those assets sufficient to make him a fiduciary under ERISA.
Disputed issues of material fact as to whether a company is a successor for purposes of withdrawal liability. Greater Kansas City Laborers Pension Fund v. Al Muehlberger Concrete Co., LLC., No. 4:14-CV-229-SRB, 2015 WL 6457295 (W.D. Mo. Oct. 26, 2015) (Judge Stephen R. Bough). The Pension Fund moved for summary judgment seeking a ruling that LLC is a successor to INC, and thus liable for INC’s withdrawal liability. The court found that there was conflicting evidence as to whether LLC is INC’s “successor,” including whether the entities shared the same owner, shared a significant number of employees, and shared the same type of work. The parties also disagree upon a number of the other nine factors the court will evaluate at trial to determine whether successor liability is proper. As such, the court denied summary judgment.
* 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. The cases reported above were handled by other law firms but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Roberts Disability Law may be able to advise you so please contact us. Case summaries authored by Michelle L. Roberts, Partner, Roberts Disability Law, 1050 Marina Village Pkwy., Ste. 105, Alameda, CA 94501; Tel: 510-230-2090.
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