You already know that when a claimant brings suit alleging wrongful denial of ERISA-governed disability benefits, the first issue the court looks at is: what standard of review applies. If the plan or policy includes “discretionary review” language, then the court should affirm the claim decision absent an abuse of discretion. If the plan or policy is silent on the issue, the court applies de novo review.
In recent years, many state insurance regulators have issued regulations or legislation banning discretionary review in ERISA-governed claims decisions. Here in Washington, for example, the Insurance Commissioner issued a regulation banning abuse of discretion language in disability policies.
But other states, like Minnesota, have no such regulation banning discretionary review.
Consider the choice-of-law argument when assessing whether the claim will be reviewed under an abuse of discretion standard.
Here’s the case of Brake v. Hutchinson Technology, Inc., __ F.3d__, 2014 WL 7345692 (8th Cir. December 29, 2014) (Choice of law provision allows abuse of discretion review despite regulation banning discretionary review).
FACTS: Brake, who works in South Dakota, made a claim for ERISA-governed disability benefits provided by her employer, Hutchinson. Hutchinson is based in Minnesota and the long term disability policy was issued in Minnesota. The policy contained language requiring discretionary review, and the plan contained a choice-of-law provision requiring application of Minnesota law. South Dakota has banned discretionary review. Minnesota has no such regulation.
ISSUE: What standard of review applies: South Dakota law and de novo review, or Minnesota law and abuse of discretion review?
8th Circuit Court of Appeals HELD: Minnesota law and the abuse of discretion standard applies.
- “’Where a choice of law is made by an ERISA contract, it should be followed, if not unreasonable or fundamentally unfair.’” Op. at 5.
- “We find nothing unreasonable or fundamentally unfair about enforcing the plan’s Minnesota choice-of-law provision.” Op. at 5.
- The South Dakota ban on discretionary review did not apply because Minnesota law controls.
You already know that the primary responsibility for providing medical proof of disability undoubtedly rests with the claimant.
But does the plan administrator sometimes have an obligation to obtain medical records and information? YES.
Here’s the case of Harrison v. Wells Fargo Bank, N.A., __ F.3d __ (December 5, 2014) (When there is no evidence in the record to refute the beneficiary’s theory of disability, claims administrators have a duty to obtain materially important records from treaters it knows about, or it must advise claimant what specific records are missing.)
HOWEVER: In cases where there is “sufficient evidence in the existing record to refute claimant’s theory of disability, then a plan administrator is not ‘under a duty to secure evidence [to the contrary]’ under such circumstances.”
FACTS: Harrison sought short term disability benefits under an ERISA plan. The plan granted her benefits during her recovery from a surgery, but denied benefits from September 10 to October 31, 2011 even though she had ongoing complications from surgery and also began experiencing depression. Harrison appealed the denial.
Wells Fargo had two peer reviews—one for her alleged physical disability, and one for her alleged mental disability. The peer review on the mental disability claim never contacted Harrison’s treating psychologist, despite being referred to him. The peer reviewer then concluded “in the absence of psychiatric/psychological records or a telephone conference with her psychologist, an opinion as to whether her psychiatric status limited her functional capacity cannot be provided.” Wells Fargo then affirmed the denial, and Harrison sued.
TRIAL COURT HELD: The Claim was properly denied because there was insufficient evidence of impairment, and Wells Fargo did not abuse its discretion in denying the claim.
ISSUE: Whether Wells Fargo had an obligation to obtain records from treaters it knew about, or should have advised claimant of what specific records were missing?
FOURTH CIRCUIT HELD: REVERSED.
- Wells Fargo failed to contact Harrison’s psychologist even though it was on notice that Harrison was seeking treatment from the psychologist, and had a medical release to obtain information from that treater.
- “While the primary responsibility for providing medical proof of disability undoubtedly rests with the claimant, a plan administrator cannot be willfully blind to medical information that may confirm the beneficiary’s theory of disability where there is no evidence in the record to refute that theory.” Op. at 12.
- “[A]dministrators [must] notify a claimant of specific information that they were aware was missing and that was material to the success of the claim.” Op. at 13.
- NOTE: In cases where there is “sufficient evidence in the existing record to refute claimant’s theory of disability, then a plan administrator is not ‘under a duty to secure evidence [to the contrary]’ under such circumstances.” Op. at 14-15.
- “Nothing in our decision requires plan administrators to scour the countryside in search of evidence to bolster a petitioner’s case…. “[T]here is no open-ended duty…to ‘look all over…for a doctor whose testimony might contradict the medical reports from reliable physicians that ha[ve] been submitted.” Op. at 14.
- In this case, Wells Fargo was “repeatedly put on notice that Harrison was seeking psychiatric treatment.” The record did not refute Harrison’s claim of disability. Op. at 16.
- It was “perfectly reasonable for Harrison to assume” that the plan, armed with the release to obtain records from Harrison’s treating psychologist would have obtained those records for consideration in the appeal. Op. at 18.
- Wells Fargo never made it clear to Harrison that records from her treating psychologist were missing and needed. Op. at 19.
KEY TAKE AWAY: This is an expanding trend in the circuits. When the record does not refute the claimant’s alleged disability, and you are on notice of a treater who may have information related to the claim, either: (1) obtain a release and secure the “readily-available” records, or (2) alert the claimant of what specific records are missing.
What happens when a claim denial letter was issued, but the claimant denies ever receiving it, and the administrator can’t produce it?
How does that affect the statute of limitations?
Here’s the case of Witt v. Met Life Ins. Co., __ F.3d __, 2014 WL 6655794 (November 25, 2014)
FACTS: Witt made a claim for ERISA-governed disability benefits in 1997. MetLife administered the claim and on May 1, 1997 issued a letter terminating benefits because Witt failed to provide adequate medical records.
For 12 years Witt did not challenge the termination of benefits. Then, in 2009 Witt wanted to know where his benefits were. He claimed he never received the termination letter. MetLife was unable to produce a copy of the denial letter and agreed to review Witt’s claim, and additional records from 1997-2009. For over a year Met Life heard nothing, and then received some additional records. On May 4, 2012 Met Life upheld its decision to leave Witt’s claim terminated because the newer records also failed to show functional impairment. Witt then sued.
ISSUE: Witt claimed he never received MetLife’s 1997 letter terminating benefits, so the limitations period should start as of May 4, 2012, when MetLife issued a final denial.
HELD: Claim was barred by the statute of limitations
- Congress did not specify a limitations period for ERISA claims. Alabama’s six year statute was applied. Op. at 8
- The limitations period begins when the cause of action accrues. Op. at 8
- “[A] cause of action accrues—and the limitations period begins to run—when the claimant has reason to know that the claim administrator has clearly repudiated the claim or amount sought.” Op. at 9.
- MetLife’s decision to cease providing benefit payments after April 30,1997, and for 12 years thereafter, constitutes “clear and continuing repudiation of Witt’s rights[.]” Op. at 10.
- MetLife clearly repudiated Witt’s benefits claim by May 1, 1998. “We reject Witt’s attempt to exploit MetLife’s failure to locate a 12-year-old document where Witt had reason to know of the acts giving rise to his cause of action, regardless of whether he received the 1997 letter.” Op. at 10, 13.
- By agreeing to review the terminated claim, MetLife did not waive the statute of limitations defense. “[R]equiring ERISA claim administrators to expressly base their reconsideration of a stale claim on timeliness grounds is likely to lead to plans declining to offer courtesy reviews, or any reopening of the administrative process—for fear of waiving a statutory timeliness defense.” Op. at 12-13.
Plan fiduciaries may create a fiduciary duty in stock drop cases by incorporating filings with the Securities and Exchange Commission into the Summary Plan Description.
We have been waiting for the Ninth Circuit to rule on a big case concerning stock drop cases.
Here’s the case of Harris v. Amgen, __ F.3d __ (October 30, 2014) (PDF)(Reversing dismissal of stock drop case: incorporation of the securities filings by reference into the Summary Plan Description created fiduciary duty that may be relied upon in ERISA-governed stock drop case.)
Current and former employees of Amgen participated in ERISA-governed retirement savings plans that qualified as “individual account plans.” The Amgen Common Stock Fund was included as an investment option. Participants brought an ERISA class action after they lost money in their retirement savings accounts when the value of Amgen’s common stock dropped.
DISTRICT COURT HELD. The district court dismissed the breach of fiduciary duty claim and the lawsuit relying on the presumption that offering company stock as an investment option is prudent (commonly known as the “Moench presumption”).
NINTH CIRCUIT PROCEDURAL POSTURE. There is a long appeal history. In 2013, the Ninth Circuit reversed the district court’s dismissal and held that the presumption of prudence did not apply because the plans did not mandate or require investment in employer stock, applying the presumption criteria applicable at the time. The U.S. Supreme Court then granted certiorari and vacated and remanded the case for reconsideration in light of the Supreme Court’s June 25, 2014 decision in Fifth Third Bancorp v. Dudenhoeffer.
NINTH CIRCUIT REVERSES/RATIONALE. The Ninth Circuit again reversed the district court’s dismissal.
- The U.S. Supreme Court held in Fifth Third Bancorp v. Dudenhoeffer, __ U.S. __ (2014) that there is no presumption of prudence for employee stock ownership plan fiduciaries, except in certain limited circumstances.
- Plaintiffs did not have to satisfy the criteria (under prior law) to show that the presumption of prudence was inapplicable.
- Plaintiffs properly stated a claim that the defendants failed to act prudently, and violated their ERISA fiduciary duties, by continuing to offer Amgen common stock as an investment option when they knew or should have known that the stock was being sold at an artificially inflated price.
- If defendants had disclosed adverse safety test results regarding its drug products, they would have concurrently satisfied duties under both the securities laws and ERISA.
- Fiduciaries are under no obligation to violate securities laws in order to satisfy their ERISA fiduciary duties.
- The Summary Plan Descriptions (SPD) incorporated Amgen’s securities filings, including its financial statements, by reference. Consequently, the Ninth Circuit rejected defendants’ argument that assertions made in documents filed with the Securities and Exchange Commission were not made in a fiduciary capacity. Defendants’ preparation and distribution of the SPDs, including the incorporation of the securities filings by reference, were acts performed in their fiduciary capacities, and could be used in the ERISA case.
Many ERISA plans have venue provisions. The Secretary of Labor has argued in litigation, however, that these provisions are “incompatible with ERISA.”
Are venue selection provisions in ERISA plans enforceable? YES.
Here’s the case of Smith v. Aegon Companies Pension Plan, __F.3d __ (2014 WL 5125633) (6th Cir. October 14, 2014)(PDF).
FACTS: Smith retired in 2000. In 2007, the Plan was amended to add a venue provision which stated that a “participant or Beneficiary shall only bring an action in connection with the Plan in Federal District Court in Cedar Rapids, Iowa.” In 2011 the Plan informed Smith he had been overpaid $153,283 in ERISA-governed pension benefits. Smith disagreed and eventually brought suit in the federal court in the Western District of Kentucky. The Plan moved to dismiss, based on the venue provision.
SIXTH CIRCUIT HELD (Split decision): Venue selection clause in ERISA plan was enforceable.
- The Secretary of Labor submitted an amicus brief contending venue selection clauses are “incompatible with ERISA.” The Secretary of Labor’s interpretation is “NOT entitled to deference[.]” Op. at 4 (Emph. added).
- “’An [agency] interpretation contained in a brief—like interpretations contained in opinion letters, policy statements, agency manuals and enforcement guidelines—lacks the force of law and is therefore not entitled to Chevron deference.’” Op. at 5.
- The position in the Secretary of Labor’s amicus brief is “not entitled to Skidmore deference.” The Secretary “is no more expert than this Court is in determining whether a statute proscribes venue selection.” Op. at 7.
- “The Secretary of Labor has taken no position, even an informal one, against the enforceability of venue or forum selection…for thirty-nine years….The Secretary’s new interpretation is not consistent with prior acquiescence[.]” Op. at 7.
- “A majority of courts…have upheld the validity of venue selection clauses in ERISA-governed plans.” Op. at 10.
Can the Plan get reimbursed even when the beneficiary’s settlement funds have been disbursed or commingled?
Yes in the 11th Circuit. But watch out in the 9th Circuit.
Here’s the case of AirTran Airways Inc. v. Elem, __ F.3d __ 2014 WL 4694776 (11th Cir. September 23, 2014)(Willful refusal to abide by the terms of the ERISA plan could not destroy the equitable lien that attached before the beneficiary divided the funds with her attorney. The Court rejects Bilyeu v. Morgan Stanley LTD Plan, 683 F.3d 1083 (9th Cir. 2012).)
FACTS: Elem was a participant of the AirTran self-funded welfare benefit plan. Elem sustained injuries in an auto accident, and the plan paid out over $131,000 in medical expenses. The plan designated Elem as a “constructive trustee” over any payments recovered. Elem also acknowledged the plan had a “first priority claim” to all payments made by a third party “even if that third party failed to pay the full amount of her damages.” Elem then sued the tortfeasor and settled for $500,000. When AirTran sought reimbursement, Elem’s attorney misrepresented that the lawsuit settled for only $25,000. AirTran sued for reimbursement.
ISSUE: Whether an equitable lien requires reimbursement after beneficiary has disbursed and commingled settlement funds?
11th Cir. HELD: YES.
- ERISA allows for “appropriate equitable relief.” AirTran sought “to enforce the equitable lien by agreement created by the plan. As soon as [the tortfeasor] gave Elem the settlement funds, AirTran ‘could follow it into the hands of Elem and [her attorney].’” Op. at 8.
- “A remedy of money damages is quintessentially a remedy at law….But when a plan seeks ‘specifically identifiable funds’ in the ‘possession and control’ of a beneficiary, such restitution is equitable in nature.” Op. at 9.
- “[A]ll that matters is that the beneficiary did, at some point, have possession and control of the specific portion of the particular fund sought by the insurer. Once [Elem] possessed these funds, the equitable lien by agreement attached….” Op. at 10.
- The Court rejects the 9th Circuit analysis in Bilyeu v. Morgan Stanley LTD Plan, 683 F.3d 1083 (9th Cir. 2012). “It matters not whether the settlement funds have been disbursed or commingled with other funds.” Op. at 10.
- “[E]ven though Elem willfully refused to abide by the terms of the AirTran plan, her dereliction as a constructive trustee could not destroy the lien that attached before Elem divided the funds with her attorney.” Op. at 11 (Emph. in original).
- AirTran was awarded attorney fees. “[A]n award of attorney fees in this circumstance would help deter others from cheating their employee benefit plan.” Op. at 19.
What happens when the district court orders a remand to the ERISA plan administrator?
Can you appeal it? It depends on the circuit.
Here’s the case of Mead v. Reliastar Life Insurance Company, __ F.3d __ (2nd Cir. September 16, 2014) (Remand in this case was not a final order from which an appeal may be brought).
FACTS: Mead sought ERISA-governed long term disability benefits, which were denied by claims administrator Reliastar. After she filed suit, the district court remanded to Reliastar to calculate the amount of benefits owed. Reliastar appealed, but Mead argued the remand was not a “final decision” from which an appeal can be taken.
ISSUE: Whether an order remanding the claim to the ERISA administrator constitutes a “final decision” from which an appeal may be taken?
2nd Circuit HELD: NO. Appeal Dismissed—Remand decisions are not “immediately appealable.”
- “[S]ister circuits are split on the issue….[T]he First, Fourth, Sixth, Eighth and Eleventh circuits hold that because an ERISA remand order contemplates further proceedings before the plan administrator, it is not ‘final’ and therefore may not be immediately appealed except when the familiar collateral order doctrine applies.” Op. at 7.
- “[T]he Third, Ninth and Tenth [circuits]…permit immediate appeals in certain circumstances.” “[T]he Seventh Circuit… also permits immediate appeals in certain situations.” Op. at 8.
- “Taking into consideration our prior case law and the various analytical approaches used by our sister circuits, we now hold that remands to ERISA plan administrators are not ‘final’ because in the ordinary case, they contemplate further proceedings by the plan administrator.” Op. at 10.
- “We decline, however, to adopt a hard and fast rule that such orders are never immediately appealable[.]“ Op. at 10.
- “[A]fter a determination by the plan administrator on remand, either party may seek to reopen the district court proceedings and obtain a final judgment.” Op. at 11.
You already know that in ERISA cases a court may, in its discretion, award attorney fees if a party achieved “some degree of success on the merits.”
Is the mere filing of a lawsuit, before Plaintiff’s ERISA-governed disability benefit claim is granted, sufficient to win an award attorney fees? NO.
Here’s the case of Koloff v. MetLife Ins. Co, 2014 WL 3420990 (E. D. Cal. July 14, 2014) [PDF].
FACTS: Koloff brought suit seeking disability benefits under an ERISA-governed plan. The Court dismissed the case (without prejudice) because Koloff had failed to exhaust administrative remedies. On December 5, 2013, MetLife informed Plaintiff’s counsel it was sending payment on benefits and asked for information to the net amounts, because of the offset for Social Security benefits. On December 17, 2013, Koloff brought a second lawsuit seeking disability benefits. On December 20, 2013, MetLife sent Koloff the letter approving her disability claim.
Koloff then moved for attorney fees, contending she achieved “some success on the merits.”
DISTRICT COURT HELD: Plaintiff’s Motion for Attorney Fees Denied.
- The Plaintiff’s attorney’s time records strongly suggest that “he knew of MetLife’s intention to approve the claim prior to the filing of the complaint on December 17, 2013….” The administrative record corroborates this, noting the December 5, 2013 conversation in which MetLife advised that it was “getting a check out.” Op. at 7.
- “[T]he Court finds MetLife made the decision to approve plaintiff’s long term disability benefits by December 5, 2013 and, more importantly, made clear to plaintiff’s counsel that the only thing to do was determine the net amount to be paid which would occur once counsel provided MetLife the SSDI and EDD [offset] figures.” Op. at 8.
- “Because there was no dispute as to the merits of the action before the complaint was filed, Plaintiff has shown no “injury in fact.” Op. at 8-9.
- Under ERISA, “fees and costs may be awarded to any party ‘who has achieved some degree of success on the merits.’” A claimant “does not satisfy that requirement by achieving ‘trivial success on the merits’ or a ‘purely procedural victory[.]’” Op. at 10.
- Plaintiff’s counsel should not get attorney fees in her first lawsuit, which was dismissed without prejudice. “[W]hen an individual fails to exhaust administrative remedies, ‘the proper remedy is dismissal without prejudice.’” The dismissal here was not analogous to a remand. Op. at 10.
- “[F]ees expended during administrative processes are not recoverable.” Op. at 12, Fn. 13
- “T]he Ninth Circuit has not yet determined whether the catalyst theory [for seeking attorney fees] is viable in an ERISA action in light of Buckhannon[.]” Op. at 12.
- [T]he facts do not demonstrate that the suit was [a catalyst] or linked to the decision to approve plaintiff’s benefits….Plaintiff’s counsel was informed that benefits would be paid before the litigation was initiated.” Op. at 13-14.
You have seen this issue before: The court remands the ERISA-governed long term disability claim for further consideration by the claims administrator because the administrative record was insufficient for de novo review.
Is a court’s remand for further review of an ERISA-governed claim by the claims administrator a sufficient “degree of success on the merits” to qualify for an award of attorney fees and costs?
Is merely “surviving to fight another day” the same as winning the war or winning a significant battle? Maybe so.
Here’s the case of Gross v. Sun Life Assurance Company of Canada, __ F.3d __ (1st Cir. Slip. Op. August 14, 2014) (PDF).
You should read this opinion, and the dissenting opinion, because it outlines arguments (and cites the cases nationally) on both sides of the issue…
FACTS: Gross, age 34, claimed fibromyalgia disabled her and she sought long term disability benefits. The claim was denied based in part on surveillance. The court held that de novo review applied, but remanded to the claims administrator because the administrative record was insufficient for de novo review. Plaintiff’s counsel sought $261,000+ in fees and costs.
FIRST CIRCUIT HELD: (Split decision with dissenting opinion)
- “Under ERISA, a court ‘in its discretion may allow a reasonable attorney’s fee and costs to either party’ in a benefits proceeding. Op. at 5.
- To obtain fees the fee-seeker does not have to show she is a “prevailing party, but only that the ‘claimant show some degree of success on the merits.’” Op. at 5.
- The United States Supreme Court “declined…to decide ‘whether a remand order, without more, constitutes some degree of success on the merits’ sufficient to make a party eligible for attorney fees under [ERISA].’” Op. a 6.
- “Most courts…have held that a remand to the plan administrator…is sufficient success on the merits to establish eligibility for fees….” Op. at 7-8 (Cases cited).
- Some federal districts courts in Colorado, Michigan, Florida have held remand does not justify fees because remand is “a purely procedural victory” and claimant has yet to achieve any “degree of success on the merits.” Op. at 8-9 (Cases cited).
- “A remand to the claims administrator for reconsideration of benefits entitlement ordinarily will reflect the court’s judgment that the plaintiff’s claim is sufficiently meritorious that it must be reevaluated fairly and fully.” Op. at 10.
- The Court rejected Sun Life’s argument that an award of some amount of benefits is necessary to establish “some degree of success.” Op. at 10-11.
- DISSENT: Remands alone are insufficient “success” to award fees because: “Surviving to fight another day is not the same as winning the war (or even the same as winning a significant battle).” Op. at 31.
- DISSENT: “[T]he merits issue in this case is whether the plaintiff is entitled to benefits (and, if so, to what extent). As long as the plaintiff secures some benefits as a result of litigation, she will be eligible for a fee award. At [remand], however, the benefits claim is entirely up in the air. We simply do not know whether her claim will prove to be successful in whole, in part, or not at all.“ Op. at 32. (Emph. added).
Does your ERISA claim benefit denial letter preserve the contractual limitations defense?
If your denial letter fails to expressly state the contractual limitations timeframe, it might not preserve that defense.
Here’s the case of Moyer v. Met Life Ins. Co., __ F.3d __ (6th Cir. August 7 2014)(2-1 decision).
FACTS. Moyer made a claim in 2005 for disability under an ERISA-governed Long Term Disability Plan. The plan had a contractual limitation provision which states: “[n]o lawsuit may be started more than 3 years after the time proof [of a claim] must be given.” Met Life initially approved the claim. In 2007, Met Life determined Moyer could perform work in “any occupation.” Met Life denied the appeal on June 20, 2008. The denial letter included notice of the right to judicial review, but did not expressly state that a three year contractual time limit applied. Moyer sued Met Life on February 20, 2012.
DISTRICT COURT HELD: Case dismissed because the plan contained a three-year limitations period for filing suit. The Plan provided constructive notice of the time limit.
SIXTH CIRCUIT HELD: REVERSED (SPLIT DECISION)
- 29 C.F.R. Section 2560.503-1 requires ERISA-governed denial letters to provide “the time limits applicable to [the plan’s review procedures], including a statement of the claimant’s right to bring a civil action….” Op. at 4 (Emphasis in original).
- The applicable time limits for bringing a civil action “must be provided” in the benefit determination letter. Id.
- The “failure to include the judicial review time limits in the adverse benefit determination letter renders the letter not in substantial compliance with [ERISA] Section 1133.” Op. at 5.
- DISSENT. “Ample authority counsels against the majority’s approach.” Dissent at 8.
- DISSENT. “[C]ourts elsewhere split on whether the regulation requires a claim-denial letter to inform a plan participant of both their right to bring a civil action and the action’s limitations period. [T]he purpose of Section 1133 is limited to assuring review by the plan fiduciary.” Dissent at 9 (Emphasis in original and cases cited.)
- DISSENT. “The majority gives short shrift to the ‘substantial compliance’ test.” Dissent at 9.