This week’s notable decision is Charles v. UPS National Long Term Disability Plan out of the Eastern District of Pennsylvania. In Charles, the court found that Aetna, the disability plan’s insurer and administrator, abused its discretion by finding that the plaintiff, who was working part-time following a car accident and diagnosis of partial complex seizure disorder, was capable of full-time work in any “reasonable occupation.” The court was particularly critical of Aetna’s evaluation of the claim, stating that “it is clear that Aetna’s goal was to deny the plaintiff’s claim.” The court found that Aetna did not offer substantial evidence that the plaintiff met the definition of disability, which required that he be able to work a “reasonable occupation” based on his experience and earn 60% of his previous salary. From the plaintiff’s perspective, it is good to see a court not penalize a claimant for doing some work notwithstanding a significant disability. Too often in our experience do we see disability plan administrators make the unsupported leap that just because someone can maintain part-time employment that he or she should be able to work full time. It’s also an extra treat to see a plaintiff prevail notwithstanding the tough abuse of discretion standard of review. Read more about this case and others 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.
“Cutback” claims in amended complaint were time-barred and did not relate back to “whipsaw” claim asserted in original class complaint. Durand v. Hanover Ins. Grp., Inc., No. 14-5648, __F.3d___, 2015 WL 6760548 (6th Cir. Nov. 6, 2015) (KEITH and CLAY, Circuit Judges; MARBLEY, District Judge). The Sixth Circuit affirmed the judgment of the district court dismissing claims from this class action suit. Specifically, the district court found that Plaintiffs’ “cutback” claims were time-barred and did not relate back to the “whipsaw” claim asserted in the original class complaint. In March 2007, lead Plaintiff Durand filed a class action complaint challenging the projection rate used by the Plan to calculate the lump-sum payment Durand elected to receive after ending her employment at the Company in 2003. The district court dismissed the complaint on November 9, 2007 due to failure to exhaust, but that decision was overturned by the Sixth Circuit, which held that exhaustion should be excused as futile where an employee challenges the legality of a plan’s methodology for calculating benefits. Relevant to this appeal is Defendants’ seventh defense that putative class members who received lump-sum distributions after December 31, 2003 were barred due to an amendment to the Plan that took effect after that date (the “2004 Amendment”). Plaintiffs sought to amend the complaint with two additional named plaintiffs to assert on behalf of putative subclasses that the 2004 Amendment was an illegal reduction in benefits. The Sixth Circuit found that the cutback claims added by amendment in 2009 do not satisfy the standards of Rule 15(c)(1)(B). The original complaint challenged only the methodology of Defendants’ whipsaw calculation for those Plan participants who have elected or will elect to receive a lump-sum and exit the Plan. In contrast, the cutback claims challenge the legality of the 2004 Amendment, which changed the rate governing the allocation of interest credits to members’ nominal account balances during their continued participation in the Plan. Because the two claims challenge different plan policies as illegal under distinct provisions of ERISA, they do not relate back. The court also rejected Plaintiffs’ argument that their breach of fiduciary duty claims related to their cutback claims and are viable even if the cutback claims themselves are time-barred. The court found that the alleged nondisclosures cannot support a breach of fiduciary duty claim related to the lapse of Plaintiffs’ cutback claims concerning the 2004 Amendment.
Select Slip Copy & Not Reported Decisions
Breach of Fiduciary Duty
Plaintiff adequately alleged a breach of fiduciary duty claim for failing to provide adequate notice of life insurance conversion. Brady v. AIRGAS, Inc., No. 15-4099, 2015 WL 6599750 (E.D. Pa. Oct. 30, 2015) (Judge Jan E. DuBois). The sole claim in this case alleges that Airgas breached its fiduciary duty to its former employee (now deceased) by failing to provide adequate notice of his right to convert his group life insurance to individual policies. Plaintiff, the widow and executor of the estate, seeks an equitable award of surcharge in the full amount of the life insurance policies pursuant to 29 U.S.C. § 1132(a)(3)(B). The court denied Defendant’s motion to dismiss. Taking as true Plaintiff’s allegation that the decedent never received the summary plan descriptions for the life insurance plans and the only relevant notices are a termination letter and two conversion notices (which allegedly did not describe the eligibility or terms for conversion of the life insurance), the court found that Plaintiff has alleged sufficient facts to present a plausible claim that there is a substantial likelihood of confusion for a reasonable employee making a retirement decision. With respect to detrimental reliance, the court noted that the decedent failed to convert the policy following receipt of the conversion notices and his subjective motivation for failing to renew the policy is a fact issue inappropriate for resolution in a motion to dismiss.
Following reconsideration in light of Dudenhoeffer, the court dismisses most of the amended complaint related to investment in BP Stock Fund. In re BP p.l.c. Sec. Litig., No. 4:10-CV-4214, 2015 WL 6674576 (S.D. Tex. Oct. 30, 2015) (Judge Keith P. Ellison). Plaintiffs allege that Defendants breached their fiduciary duties to the Plan from January 16, 2007 to June 24, 2010 and assert two general theories of liability (“Count I” and “Count II,” respectively): (1) The “Insider Defendants” and “Corporate Defendants” breached their duties of prudence and loyalty by permitting Plan participants to invest in the BP Stock Fund, and (2) The “Designated Officer Defendants,” the “Appointing Officer Defendants,” the Savings Plan Investment Oversight Committee Defendants (the “SPIOC”), the “Board Defendants,” and the Corporate Defendants breached their duties to adequately monitor other fiduciaries and provide them with accurate information. Plaintiffs contend that Defendants’ actions and/or inaction cost Plan participants hundreds of millions of dollars in losses following the Deepwater Horizon explosion. The court granted Defendants’ motion to dismiss in its entirety. All claims against the Corporate Defendants, Anthony Hayward, and Lord John Browne are dismissed; Count I of the Complaint is dismissed to the extent that it is based on a Defendant’s role as a Designated Officer or member of the Board of Directors; Count II of the Complaint is dismissed in its entirety; and Plaintiffs’ demand for a jury trial is stricken.
Class action settlement results in independent VEBA for retirees. OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 494, et al. v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, No. 214CV14868DPHEAS, 2015 WL 6774248 (E.D. Mich. Nov. 6, 2015) (Judge Denise Page Hood). In this matter involving retire health care benefits, the court approved finally approved a class action settlement which provides for the establishment and funding of an independent VEBA trust fund to provide health care benefits to eligible current and future UAW retirees, surviving spouses and dependents. As funding for the retiree health care benefits to be provided by the VEBA, the UAW will contribute to the VEBA approximately $346 million, with that figure to be adjusted to account for any amounts paid by the UAW or by its sponsored employee benefit plans to cover the costs attributable to retiree medical benefits provided to Class Members during the period commencing January 1, 2013 and ending on the date that the VEBA is implemented, plus interest using an annual rate of 6.5 percent. For fees and expenses incurred through May 31, 2015, the court awarded class counsel $150,240.50. For work subsequent to that date, class counsel may submit a supplemental petition.
Putative class actions consolidated and interim class counsel appointed. Roe v. Arch Coal, Inc., No. 4:15-CV-1026 (SNLJ), 2015 WL 6702287 (E.D. Mo. Nov. 2, 2015) (Judge Carol E. Jackson). Plaintiffs filed separate complaints against employees of Arch Coal, Inc., alleging breach of fiduciary duties: Bush v. Arch Coal, Inc., et al., Case No. 4:15-CV-1026 (E.D. Mo. June 30, 2015); Roe v. Arch Coal, Inc., et al., Case No. 4:15-CV-910 (E.D. Mo. June 9, 2015). The court granted Plaintiffs’ motion to consolidate the actions and appoint interim class counsel. The court appointed the firms of Kessler Topaz Meltzer & Check, LLP and Stull, Stull & Brody as interim co-lead counsel, and the firm of Blitz, Bardgett & Deutsch, LC as interim liaison counsel.
Disability Benefit Claims
Abuse of discretion review applies to Aetna’s LTD claim denial and it abused its discretion in finding that the claimant could work in a reasonable occupation making 60% of adjusted pre-disability earnings. Charles v. UPS National Long Term Disability Plan, et al., No. CV 12-06223, 2015 WL 6600399 (E.D. Pa. Oct. 30, 2015) (Judge Lawrence F. Stengel). This suit involves a denial of “any occupation” long term disability benefits to Plaintiff, who suffers from a complex seizure disorder. Plaintiff had worked as a package car driver for UPS prior to his disability and returned to UPS on only a part-time basis as a pre-loader. On the issue of the standard of review, which the parties contested, the court found that abuse of discretion review applies based on discretionary language in the long term disability policy. The court rejected Plaintiff’s argument that the discretionary authority only applied to health claims and the argument that discretion has not been delegated to Aetna by the plan administrator. Here, the court found that Aetna was given discretionary authority by the terms of the Plan. On the claim for benefits, the court found that Aetna’s requirement of clinical or objective evidence was an abuse of discretion. Specifically, the court found that Aetna’s expectation that Plaintiff undergo some additional “clinical” test to prove that he is, in fact, experiencing fatigue from his medication, Lacmital, is arbitrary and capricious. The FDA has indicated that certain symptoms are common side effects of Lacmital. Plaintiff’s doctors were continuously monitoring his treatment and to expect more under these circumstances is an abuse of discretion. The court also found that Aetna has an inherent conflict of interest that appeared to taint its claims decision. Only after finding that Plaintiff needed to make over $30/hour under his current restrictions did Aetna seek a peer review to determine whether or not only the part-time restriction was necessary. The court further found that Aetna’s use of a vocational analysis was an abuse of discretion. It did not comply with the plan terms and/or Aetna’s interpretation of those plan terms. The court also found that Aetna’s determination gave more weight to their own experts while giving little, if any, consideration to Plaintiff’s own treating physicians. Aetna did not do anything to resolve conflicting medical opinions, including ordering an independent medical examination.
Court found claimant did not prove disability allegedly caused by mental illness worsened by a workplace sexual assault. Shaw v. Life Insurance Company of North America, No. CV1407955MMMFFMX, 2015 WL 6755187 (C.D. Cal. Nov. 4, 2015) (Judge Margaret M. Morrow). On de novo review, the court found that the medical reports in the administrative record are not sufficient to show by a preponderance of the evidence that Plaintiff was unable to perform the material duties of her regular occupation as a legal assistant. The court found that the only reports that support her claim are conclusory, and provide insufficient information concerning Plaintiff’s functional capacity. The court further found that the fact that Plaintiff was denied federal disability benefits, but received disability benefits from the state of California, is non-conclusive, particularly given the lack of evidence in the record that details the rationale for the two decisions or whether those rationales might have informed a decision as to whether she was disabled under the Plan. The court did not place great weight on narratives provided by Plaintiff, her family, and friends which suggested that her mental illness was disabling. The court declined to expand the record to include a declaration from Plaintiff but it did take judicial notice of the GAF scale found in the DSM-IV.
Negligence claim against insurance broker is completely preempted by ERISA. Med. Admin. Servs., LLC v. Am. United Life Ins. Co., No. 4:15-CV-01289-JCH, 2015 WL 6557177 (E.D. Mo. Oct. 29, 2015) (Judge Jean C. Hamilton). Plaintiff and his now deceased business partner sought to obtain a life insurance policy on the business partner with Plaintiff as beneficiary so that in the event of his death the business could continue operations. Plaintiff consulted with Shigemura, a Missouri insurance broker and AUL’s agent, regarding the purchase of life insurance for this purpose. MAS, as the group policy holder, purchased a life insurance policy from AUL through Shigemura. When the business partner died, AUL informed Plaintiff that it received two beneficiary designations: one which designated Plaintiff as his primary beneficiary, and another that designated the Estate of Mr. Balter as his primary beneficiary. Plaintiff was unaware that the Estate Designation existed. AUL informed Plaintiff that unless he and the Estate reached an accommodation, AUL would file a federal interpleader. Plaintiffs filed a negligence action against AUL and the agent for preparing the Estate Designation when Shigemura knew that it was contrary to the business agreement and would cause MAS financial harm. The court found this claim completely pre-empted by ERISA since it could have been brought under ERISA Section 502.
Pension Benefit Claims
Offset of Workers’ Compensation benefits from disability pension benefits proper notwithstanding subsequent repayment of WC due to third-party settlement. Caban v. Employee Sec. Fund of the Elec. Products Indus. Pension Plan, No. 14-4593-CV, __Fed.Appx.___, 2015 WL 6684688 (2d Cir. Nov. 3, 2015) (ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges). The Second Circuit affirmed the decision of the district court granting summary judgment in favor of Defendants’ on Plaintiff’s claim for disability pension benefits. For the period of time Plaintiff received Workers’ Compensation benefits, the Plan paid Plaintiff zero in benefits, notwithstanding that Plaintiff later had to reimburse his Workers’ Compensation carrier from settlement proceeds from a third-party lawsuit. The court found that the Plan required the WC offset “in all cases,” and the Joint Board’s decision was neither arbitrary nor capricious; to the contrary, it was consistent with the written terms of the PTF Plan. The court also found that the Joint Board’s calculation of Plaintiff’s disability pension was not in error. Plaintiff contended that the Joint Board should have used the pension credit rate applicable to “A”-rated journeypersons because he was highly skilled, performed the same work as an “A”-level employee, and occasionally worked jobs that paid the “A” rate. The court agreed with the district court that the most natural reading of the Plan language is that the participant’s pension benefits depend on his rate of pay and employer contribution at the time he separated from covered employment. Lastly, the court rejected Plaintiff’s argument that the Joint Board failed to provide adequate notice of the reasons for its decision.
Participant did not satisfy burden of establishing eligibility for pension benefits; no document penalty claim against Plan Administrator; and no abuse of discretion by district court in denying further discovery. Whelehan v. Bank of Am. Pension Plan for Legacy Companies-Fleet-Traditional Ben., No. 14-3438-CV, __Fed.Appx.___, 2015 WL 6603417 (2d Cir. Oct. 30, 2015) (AMALYA L. KEARSE, RALPH K. WINTER and JOSÉ A. CABRANES, Circuit Judges). Plaintiff-Appellant asserted that genuine issues of material fact preclude a judicial determination that the denial of her claim for pension benefits by the Bank of America Benefits Appeals Committee (“Appeals Committee”) was not arbitrary and capricious. The Second Circuit affirmed, finding that Plaintiff failed to establish that she became eligible for Plan benefits, participated in the Plan, and accrued a vested benefit. Rather, Plaintiff demands that Defendants produce evidence supporting her claim but this “misapprehends ERISA’s assignment of burdens and the scope of judicial review.” The court also found that the district court properly dismissed the breach of fiduciary duty claim under Section 502(a)(2) since she only seeks individual relief and not relief on behalf of the plan. The court denied Plaintiff’s document penalty claim because there was no evidence that Plaintiff requested documents from the Plan Administrator during the claim and appeals process. Lastly, the court found that the district court did not abuse its discretion in denying Plaintiff’s request for further discovery. Plaintiff did not submit an affidavit in responding to Defendant’s summary judgment motion, she just asked for it in her responsive filing. That was reason alone to deny Plaintiff’s request but the court also found that the documents Plaintiff sought could not have given rise to a genuine issue of material fact since the review was limited to the administrative record.
Court denies reconsideration and declines to apply fraud exception to ERISA’s pension plan antialienation provision and QDRO process. Dahl v. Aerospace Employees’ Ret. Plan of the Aerospace Corp., No. 1:15CV611 JCC/IDD, 2015 WL 6604799 (E.D. Va. Oct. 29, 2015) (Judge James C. Cacheris). A Virginia court issued a divorce decree between Dahl and Goetz. The court incorporated their divorce settlement agreement, which gave Dahl the option to elect a fifty, seventy-five, or one hundred percent survivor annuity benefit under Goetz’s pension plan, the Aerospace Employees’ Retirement Plan. AERP permits a plan participant to designate a beneficiary to receive a survivor annuity after the participant has died. Goetz continued to work for The Aerospace Corporation for eleven years after the divorce, during which time he remarried. When Goetz retired on July 31, 2014, Dahl still had not elected the survivor benefits. Goetz gave Dahl no notice of his intent to retire nor informed AERP of the divorce settlement. In fact, he affirmatively marked on his retirement application that there were no court orders requiring his benefits to be paid to another person. Goetz designated his current wife as his survivor beneficiary and the AERP would not recognize the draft Qualified Domestic Relations Order because the survivor annuity vested in Goetz’s current wife at the time of Goetz’s retirement. The court previously ruled that under Forth Circuit law, the benefits vested in Goetz’s current wife at that time and cases relied on by Plaintiff do not void Goetz’s beneficiary designation as an act of fraud or breach of good faith. The court denied Plaintiff’s motion for reconsideration. The court declined to create a fraud or breach of trust exception to Goetz’s pension plan beneficiary designation because doing so would likely conflict with ERISA’s antialienation provision and create uncertainty in pension plan administration. Further, recognizing alleged fraud to void Goetz’s designation would violate the terms of the AERP benefit plan.
District court did not abuse discretion in appointing receiver over assets disputed in litigation. Pension Ben. Guar. Corp. v. Evans Tempcon, Inc., No. 15-1388, 2015 WL 6685319 (6th Cir. Nov. 2, 2015) (BATCHELDER, MOORE, and ROGERS, Circuit Judges). PBGC received notice that the Estate of Victor Posner (“the Estate”) had failed to make required contributions to the APL/NVF Consolidated Pension Plan. In response, PBGC filed notices of a federal tax lien against the Estate and its entities, including Evans Tempcon, Inc. Thereafter, Evans Tempcon transferred $1.8 million to the other entities as well as to individuals associated with the Estate. Following a foreclosure action against Evans Tempcon, the PBGC and Evans Tempcon entered into a joint stipulation restraining Evans Tempcon from transferring any additional assets without PBGC’s approval. When PBGC learned that Evans Tempcon had violated the stipulation, it filed a motion to appoint a receiver, which the district court granted. The Sixth Circuit determined that the district court did not abuse its discretion in granting PBGC’s motion and affirmed.
Plan did not abuse discretion in interpreting plan document where scrivener’s error caused an internal inconsistency/ambiguity and the interpretation was supported by extrinsic evidence. Davis v. Pension Trust Fund for Operating Engineers, No. 14-CV-00853-JSC, 2015 WL 6664639 (N.D. Cal. Nov. 2, 2015) (Magistrate Judge Jacqueline Scott Corley). When Plaintiff applied for Plan disability benefits he had accrued 9 years of credited service and 9 years of future credited service. Plaintiff contended he was due a higher benefit than that determined by the Plan. The Trust Fund’s legal counsel informed the Appeals Committee that certain relevant provisions contained typographical errors as a result of an amendment to the Plan. The scrivener’s error caused an internal inconsistency/ambiguity in the plan document. The court found that given that the Plan does not state which of three benefit levels applies to a participant in Plaintiff’s circumstances, and given that the Plan read literally does not provide any benefits to a participant disabled after July 2008 with more than ten years, and only provides benefits to those with more than five but less than ten years of credited service, the court cannot conclude that the Trustees’ interpretation was an abuse of discretion. The court also found that extrinsic evidence showed that the Trustees intended to provide disabled participants with more than five but less than ten year of service with a benefit amount equal to the actuarial equivalent. The court found that contra proferentum and equitable estoppel does not apply.
Pleading Issues & Procedure
District court erred by denying motion to vacate default judgment without consideration of the Rule 60(b) factors. Gesualdi v. Quadrozzi Equip. Leasing Corp., No. 13-3018-CV, __Fed.Appx.___, 2015 WL 6642681 (2d Cir. Nov. 2, 2015) (DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, EDWARD R. KORMAN, Senior District Judge). The Second Circuit vacated and remanded the district court’s decision denying Defendants’ motion to vacate a default judgment entered against them in this funds collection case. Here, Plaintiffs allege that Defendants are liable for unpaid and delinquent contributions based on single employer and alter ego theories. The court found that the district court did not explain its conclusion that the complaint “established” Defendants’ liability. In denying the motion to vacate the default judgment, the district court addressed the timeliness of Defendants’ motion and whether their default was willful, but it did not opine on the sufficiency of the complaint, nor did it address the merits of Defendants’ defense or the issue of prejudice to Plaintiffs if the default judgment were vacated. In the absence of explanations, the Second Circuit cannot properly review the district court’s exercise of its discretion. Accordingly, it remanded to give the district court an opportunity to consider these issues and provide fuller explanations.
Under current federal and Wisconsin state law, provider lacks standing to pursue its claims as a beneficiary under ERISA. Univ. of Wisconsin Hospitals & Clinics Auth. v. Aetna Health & Life Ins. Co., No. 15-CV-240-WMC, 2015 WL 6736983 (W.D. Wis. Nov. 3, 2015) (Judge William M. Conley). The court granted Defendants’ motion to dismiss on the grounds that Plaintiff’s claims fail as a matter of law because of an anti-assignment provision in the ERISA plan at issue. The plan specifies unambiguously that the benefit rights may not be assigned to another party with respect to a broad array of interests, including the right to bring legal action. The plan also expressly states that a direction to pay a provider, directly or otherwise, is not an assignment of any right and that a direction to pay does not extend to a provider any legal right to initiate court proceedings. The court explained that this outcome would appear unfortunate from a pure policy perspective since health care providers, particularly large hospitals like Plaintiff here, are far better equipped to hold insurance companies accountable for payment of covered medical treatment than the typical ERISA beneficiary, which would appear the most beneficial outcome in the long run (especially if repeated failures to pay begins to undermine the health providers willingness to afford care for fear of non-payment). The court advised that Plaintiff could perhaps name its patient as an involuntary plaintiff, or otherwise facilitate a lawsuit in its patient’s name.
Insurer has standing to bring recoupment claim against out-of-network health care provider and recoupment does not trigger ERISA’s internal review requirements. Connecticut Gen. Life Ins. Co. v. Sw. Surgery Ctr., LLC, No. 14 CV 08777, 2015 WL 6560536, at (N.D. Ill. Oct. 29, 2015) (Judge John Robert Blakey). Cigna brought this suit against CMIS seeking a declaratory judgment that CMIS has engaged in fee-forgiving practices that have eliminated Cigna’s obligation to pay or reimburse CMIS for services provided. It also sought recovery of alleged overpayments under ERISA and common law theories of unjust enrichment and restitution. On CMIS’s motion to dismiss, the court found that Cigna met the requirements for Article III standing where it alleged that Cigna reimbursed CMIS nearly $800,000 for procedures, which, under the plan terms, it did not have an obligation to pay since CMIS waived patient payment obligations, and that it has also devoted time and resources to an investigation of CMIS’s billing procedures. The court also found that Cigna has statutory standing under ERISA because Cigna is a fiduciary that has discretionary authority over the payment of benefits. The court found that ERISA’s internal review requirements do not apply to Cigna’s recoupment claim.
Motion to transfer lawsuit for denied health benefits to the Eastern District of Virginia is denied. Ridenour v. Cigna Health and Life Insurance Company, No. 3:15-CV-03051-LB, 2015 WL 6674662 (N.D. Cal. Nov. 2, 2015) (Magistrate Judge Laurel Beeler). In this matter involving the denial of speech and language therapy for Plaintiff’s child, the court denied Cigna’s motion to transfer venue to the Eastern District of Virginia. Plaintiff is a participant in the Orrick, Herrington & Sutcliffe LLP Welfare Benefit Plan. The firm’s principal place of business is in California but Plaintiff does not reside in the Northern District of California and, aside from working for a law firm that has its main office in San Francisco, has no connection to the district. Some operative facts occurred in California, but others occurred in Virginia. Plaintiff communicated with Orrick employees regarding the Plan, and the California Department of Insurance investigated the matter in California, but Plaintiff and his family live in Virginia and Plaintiff’s son was examined by doctors and receives therapy in Virginia. The court found that the matter could have been filed in the Eastern District of Virginia, the convenience of the parties is a neutral factor since Plaintiff’s and Cigna’s contacts with two forums are about equal, the ease of access to evidence is also a neutral factor since the pertinent evidence will be in the claims file, and the local interest factor tilts toward the California forum.
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