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?

DISTRICT COURT HELD: Yes.

  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.

 

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Photo of Mike Reilly Mike Reilly

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment…

Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.