You already know that in ERISA cases the court has discretion to award reasonable attorney fees if the claimant shows “some degree of success on the merits” and this success is more than ‘trivial success on the merits’ or ‘purely procedural.’”

So, what happens when the Court remands the claim for further consideration by the administrator, and on remand the claim is still denied? 

Is the Claimant still entitled to attorney fees, even though the remand failed to change the outcome of the claim denial? Yes.

Here’s the case of Host v. First Unum Life Insurance Company, 2019 WL 343255 (D. Mass. January 28, 2019) that highlights the point.

FACTS: Host brought suit after Unum denied his claim for ERISA-governed long term disability benefits. The Court remanded the decision, stating that Unum should conduct “a more thorough inquiry” by “compel[ling] Deutsche Bank to provide any information reasonably required to resolve a benefits claim.”

Unum then reviewed on remand, and denied the claim again. Host then sought attorney fees.

ISSUE:  Whether Plaintiff was entitled to attorney fees when, on remand, his disability claim was denied again?


  1.  “[A] court has the discretion to award ‘a reasonable attorney’s fee and costs of action to either party.’”  Op. at 2.
  2.  “However, a ‘claimant must show some degree of success on the merits before a court may award attorney fees [and] this success must be more than ‘trivial success on the merits’ or ‘purely procedural.’” Op. at 2.
  3.  “Although Unum’s ultimate denial of benefits on remand may be relevant to the Court’s calculation of attorney’s fees, that fact should not prevent Host from recovering fees for getting a second chance at making his case.”  Op. at 3.
  4. “Regardless of what occurred after the remand order, Host successfully demonstrated that Unum’s initial decision was defective, and he is eligible to recover reasonable attorney’s fees as a result of that success.”  Op. at 3.