A recent decision by the Eighth Circuit Court of Appeals, Jones v. Aetna Life Ins. Co., No. 16-1714, 2017 U.S. App. LEXIS 8112 (8th Cir. May 8, 2017), provides another signal that those of us defending against benefit claims increasingly may have to contend with simultaneous equitable claims for breach of fiduciary duty. Though the law is developing in this area (when is ERISA law not “developing”?), and likely will vary from circuit to circuit, you can expect more plaintiffs to add an equitable claim to a benefits complaint, and you can expect at least some courts to allow those claims to go forward. What strategies will prove most effective in responding to this latest tactic? While there are no definitive answers at this point, there are some ideas to consider. Continue Reading
A court in the Western District of Virginia held that a lawyer working as a Senior Trust Officer for a fiduciary to an Employee Stock Ownership Plan could be personally liable to workers who claim they overpaid for their employer’s stock purchased by the employer’s ESOP. Hugler v. Vinoskey, 2017 BL 145574, W.D. Va., No. 6:16-cv-00062, 5/2/17. Continue Reading
In Hannan v. Hartford Financial Services, Inc., (2d Cir., April 25, 2017), the Second Circuit Court of Appeals affirmed dismissal of a potential ERISA class action against Family Dollar Stores, its employee benefits plan, and the plan’s group life insurance provider (Hartford), rejecting allegations by plan participants that the plan defendants had engaged in a so-called “cross-subsidization” scheme in violation of federal law. The Second Circuit confirmed that neither the negotiation of premium rates nor any alleged subsidization component between different types of life insurance provided under the plan constituted a breach of fiduciary duty or prohibited transaction under ERISA.
The background facts, as alleged in the complaint and summarized in the court decisions, are as follows. Family Dollar contracted with Hartford to provide group life insurance coverage to employees under the Family Dollar Stores, Inc. Group Insurance Plan (the “Plan”). All employees were automatically enrolled in basic life insurance under the Plan at no cost to them. They also were offered the option (but were not obligated) to purchase supplemental life insurance coverage for which they would pay the premiums. Continue Reading
For more than twenty-five years, the law of the Fifth Circuit has been that health and disability benefit denials based on factual determinations (e.g., whether a beneficiary is disabled or whether a treatment is medically necessary within the meaning of a plan) are reviewed by courts under an abuse of discretion standard, regardless of whether a subject plan includes discretionary “Firestone” language. Pierre v. Connecticut General Life Ins. Co., 932 F.2d 1552, 1553 (5th Cir.) cert. denied, 112 S. Ct. 453 (1991).
The Fifth Circuit’s so-called “Pierre deference” was recently challenged in the case of Ariana M. v. Humana Health Plan of Texas Inc., No. 16-20174 (5th Cir. Apr. 21, 2017). In Ariana M., the plaintiff argued that a Texas statute prohibiting the use of discretionary clauses in insurance policies overrode the Fifth Circuit’s default Pierre deference, under which district courts are directed to “reject[ ] an administrator’s factual determinations in the course of a benefits review only upon the showing of an abuse of discretion.” Dutka ex rel. Estate of T.M. v. AIG Life Ins. Co., 573 F.3d 210, 212 (5th Cir. 2009). The plaintiff argued that Texas’s specific ban on the use of discretionary language in insurance policies precluded the district court from conducting a deferential review of Humana’s factual findings, and thus compelled application of the more favorable de novo standard.
The Fifth Circuit rejected the plaintiff’s argument, unanimously finding that “Texas’s anti-discretionary clause law concerns what language can and cannot be put into an insurance contract in Texas. It does not mandate a specific standard of review for insurance claims.B” Consequently, “Texas’s anti-discretionary clause law does not change [the Fifth Circuit’s] normal Pierre deference”, and courts in the Circuit will continue to apply Pierre deference to all factual determinations even in cases arising out of insurance policies issued in Texas. In this regard, Ariana M. preserves the status quo. Continue Reading
The Ninth Circuit affirmed two district court judgments dismissing ERISA actions brought by health care providers in DB Healthcare v. Blue Cross Blue Shield of Arizona, No. 14-16518, and Advanced Women’s Health Center v. Anthem Blue Cross Life & Health Insurance Co., No. 14-16612. The health care providers’ argument was two-fold: (1) health care providers were “beneficiaries” under Section 502(a) of ERISA, and thus could bring suit directly under ERISA; and (2) the plaintiffs in these cases could bring derivative claims under ERISA because the subscribers had assigned their claims under the plans to the plaintiffs. The Court denied both these claims.
Consistent with the Second, Third, Sixth, Seventh, and Eleventh Circuits, the Ninth Circuit held that medical providers were not “beneficiaries” under Section 502(a) of ERISA and therefore could not bring suit directly under ERISA. A “beneficiary” is defined as “a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.” The Court noted that the term “benefit” referred to “the specific advantages provided to covered employees, as a consequence of their employment, for particular purposes connected to alleviating various life contingencies.” The right to payment for medical services was not a “benefit” under the plan. Therefore, health care providers are not ERISA “beneficiaries” and may not sue under ERISA to recover payments due for services rendered or to otherwise enforce the statute. Continue Reading
In Williams v. FedEx Corporate Servs., 849 F.3d 889 (10th Cir. 2017), plaintiff sued FedEx for violating the Americans with Disabilities Act (ADA) by requiring him to enroll in the company’s substance abuse and drug testing program. He also sued Aetna, FedEx’s STD insurer, for breach of fiduciary duty for reporting to FedEx that plaintiff had filed a disability claim for substance abuse. The district court granted summary judgment for defendants on both claims.
The Court reversed the ADA decision, and remanded to the district court for further evaluation of one of FedEx’s defenses. Continue Reading
In Erwood v. Life Ins. Co. of N. Am., Civil Action No. 14-1284, 2017 U.S. Dist. LEXIS 56348 (W.D. Pa. 2017), a Federal Judge ruled after a bench trial that WellStar Health System Inc., the plan administrator of a Group Life Insurance Program (“Plan”), breached its fiduciary duty “by misrepresenting and failing to adequately inform [plaintiff] of the need or the means to convert two group life insurance policies purchased by her now-deceased husband[.]”
Plaintiff initially asserted claims for benefits (under 29 U.S.C. § 1132(a)(1)(B)) against the Plan and Life Insurance Company of North America (“LINA”), and for breach of fiduciary duty (under 29 U.S.C. § 1132(a)(3)) against WellStar and LINA. The court granted summary judgment dismissing the benefits claim, but denied summary judgment on the fiduciary duty claim. Plaintiff and LINA subsequently settled, leaving WellStar the sole defendant for trial, with the sole claim of breach of fiduciary duty.
The Plaintiff is the widow of a neurosurgeon who was employed by WellStar. The Plaintiff’s husband purchased life insurance policies as part of the Plan. The Plaintiff’s husband was diagnosed with a malignant brain tumor, forcing him to take FMLA leave, which subsequently became an approved claim under WellStar’s long term disability (“LTD”) plan. While her husband was on disability, plaintiff told WellStar that she had questions about her husband’s benefits, and WellStar set up a meeting with a benefits representative familiar with the Plan. The Court found that WellStar repeatedly assured plaintiff and her husband that “all [of their] coverage [is] going to remain the same[.]” A subsequent mailing by WellStar disclosed that conversion of life insurance coverage would be necessary after 36 weeks of leave, but did not include forms or more information about conversion, or the date by which conversion was required. After plaintiff’s husband’s death, LINA denied her claim under the Plan on the ground that the coverage had lapsed. Continue Reading
In Geiger v. Aetna Life Ins. Co., 845 F.3d 357 (7th Cir. 2017), Aetna initially determined that plaintiff qualified for disability benefits due to bilateral avascular necrosis in her ankles, which prevented walking and driving. When the definition of disability was about to change, Aetna conducted an Independent Medical Exam, which found her capable of sedentary work, and had plaintiff surveilled, which showed her driving and visiting multiple stores. Aetna terminated benefits. On appeal, Aetna reinstated benefits in May 2013, after one of two peer reviewers determined she was not capable of sedentary work.
Aetna later conducted additional surveillance, again showing plaintiff driving and shopping, and terminated benefits again in May 2014, based on a nurse’s clinical review and a Transferrable Skills Analysis. On appeal, Aetna had obtained a third peer review, which concluded that plaintiff could perform sedentary work. Aetna also sent the peer review and surveillance to plaintiff’s doctors; only one responded, and said that the surveilled activities were the result of substantial amounts of pain medication. A follow up peer review did not change the initial conclusion. Continue Reading
In Milby v. MCMC LLC, 844 F.3d 605 (6th Cir. 2016), the plaintiff had her claim for disability benefits terminated following a peer review by a doctor engaged through MCMC. The plaintiff lived in Kentucky, and the peer reviewer was not licensed there. Accordingly, the plaintiff sued MCMC for negligence per se for practicing medicine in Kentucky without a license. The district court granted defendants’ motion to dismiss, and the Sixth Circuit affirmed. Continue Reading
In Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576 (6th Cir. 2016), an employer, its CEO, and an hourly employee (for themselves and as representatives of a putative class of similarly situated employees) sued the defendant for violating ERISA and PPACA (Obamacare) by maintaining per-participant and per-beneficiary caps on benefits. Plaintiff employer bought supplemental health insurance to eliminate those caps. The Plan asserted that it was a grandfathered plan and therefore not required to eliminate the caps.
The district court dismissed plaintiffs’ claims for lack of standing, and the Sixth Circuit affirmed, providing another example of the tightening of federal standing after Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Spokeo is discussed in more detail in a previous post. Continue Reading