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ERISA and Life Insurance News Covering ERISA and Life, Health and Disability Insurance Litigation

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Request for Information Did Not Constitute Request for Appeal of Denied Claim under ERISA Application of Five-Factor Test to Deny Competing Claims for Attorney’s Fees Did Not Contravene Hardt Letters Refusing to Sign Subrogation Agreement Did Not Constitute an Appeal, and They Were Otherwise Untimely

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Insured’s Incapacity Does Not Excuse Non-Payment of Premiums, Absent a Policy Provision to the Contrary

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Death from Heat Exposure after Fall from Motorized Scooter Was Covered under Accidental Death Policy

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Availability of Equitable Remedies under ERISA Permitted Amended Pleadings and Additional Evidence

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ERISA Plan Awarded Full Reimbursement of Benefits and Attorney’s Fees against Personal Injury Lawyer

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Plaintiff Can Pursue Claim for Breach of Fiduciary Duty Based on Misrepresentation by Plan Administrator

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TRICARE Contractor’s Recoupment of Funds Not Barred by Voluntary Payment Doctrine Assurances of Repayment May Be Sufficient to Toll ERISA’s Statute of Limitation for Breach of Fiduciary Duty Claim

DECEMBER 2012

Circuits Split over Whether ERISA Section 510 Applies to Retaliation Claims Based on Informal Complaints ERISA’s anti-retaliation provision makes it unlawful for an employer to discharge or discriminate against a plan participant “because he KDVJLYHQLQIRUPDWLRQRUKDVWHVWL¿HGRULVDERXWWRWHVWLI\LQDQ\ inquiry or proceeding relating to [the Act].” ERISA § 510, 29 U.S.C. § 1140. An issue that has divided the federal circuit courts is whether the phrase “inquiry or proceeding” limits the protection of § 510 only to persons who testify or provide information in formal proceedings – such as trials and administrative hearings – or whether it extends also to an employee’s informal unsolicited complaint that his employer has violated ERISA.

Six circuit courts have considered the question, some with more analysis than others, and they are split 3-3 on whether § 510 affords a cause of action to plan participants who claim that they suffered retaliation because of informal workplace complaints concerning ERISA violations. The Second, Third, and Fourth Circuits have held that the term “inquiry or proceeding” refers to formal proceedings, or at least to a request for information – “an inquiry” – from an employee’s supervisors. The Fifth, Seventh, and Ninth Circuits, however, have taken a more expansive view, holding that § 510 applies also to retaliation claims based on informal complaints or questions raised by an employee concerning the administration of an ERISA plan. CONTINUED ON PAGE 2>>


CONTINUED FROM PAGE 1>> Ninth Circuit 7KH ÂżUVW WR DGGUHVV WKH LVVXH ZDV WKH Ninth Circuit Court of Appeals. In Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir. 1993), a bank employee complained to her supervisors that the bank had violated the reporting and disclosure requirements and the ÂżGXFLDU\ VWDQGDUGV RI (5,6$  7KH HPSOR\HH ZDV ÂżUHG DQG VKH ÂżOHG D wrongful discharge action, relying solely on a Hawaii whistleblower statute. The district court held that the employee’s state law claim was preempted by ERISA. The Ninth Circuit agreed, but it recharacterized the claim as one for retaliation under § 510 of ERISA, which the court said could be “fairly construedâ€? to protect a person in the plaintiff’s position, because § 510 was “clearly meant to protect whistle blowers.â€? Id. at 411.

anticipatory discharge discourages the whistle blower before the whistle is even blown.� Id. The case was remanded to the district court for trial. Fifth Circuit The next year, the Fifth Circuit became the next to address the scope of § 510 – although in very cursory fashion – in Anderson v. Electric Data Systems Corp., 11 F.3d 1311 (5th Cir. 1994). Similar to the complaint in Hashimoto, the plaintiff sued for wrongful discharge under Texas law, contending that he KDG EHHQ ¿UHG EHFDXVH KH UHIXVHG WR commit illegal acts involving employersponsored pension plans, and because he reported another employee’s ERISA violation. Based on ERISA preemption of the state law claim, the district court granted summary judgment to the employer.

On appeal, the employee did not directly challenge the grant of summary judgment, but instead asked the The court concluded that the statute appellate court to remand his case to provided a remedy under the state court, arguing that the district circumstances presented, describing court lacked subject matter jurisdiction complaints such as the one made by since his complaint did not allege any WKH SODLQWLII DV Âł>W@KH QRUPDO ÂżUVW VWHS violations of ERISA. in giving information or testifying.â€? Id. Under a more restrictive view of the Although the plaintiff alleged that his statute, the court said, “the process discharge was in response to what was of giving information or testifying only an informal complaint, the Fifth [would be] interrupted at its start: the Circuit held that his claim fell within

the protection of ERISA § 510, which “prohibits the discharge or other adverse treatment of any person because he has given information or testimony relating to ERISA.â€? Id. at 1315. With almost no further discussion of the statute, the FRXUWDIÂżUPHGWKHGLVWULFWFRXUWÂśVJUDQW of summary judgment to the employer on ERISA preemption grounds. Fourth Circuit The issue was next presented nearly a decade later. In King v. Marriott International, Inc., 337 F.3d 421 (4th Cir. 2003), the Fourth Circuit became WKH ÂżUVW WR KROG WKDW †  GRHV QRW protect unsolicited informal complaints. The plaintiff complained to her VXSHUYLVRU DQG RWKHU 0DUULRWW RIÂżFLDOV about the anticipated transfer of funds from an employer-sponsored medical plan into a general corporate reserve DFFRXQW  :KHQ VKH ZDV ÂżUHG WKH plaintiff asserted an anti-retaliation claim under § 510 of ERISA as well as a claim under Maryland law. The district court granted summary judgment to the employer, concluding that the SODLQWLII KDG QRW SUHVHQWHG VXIÂżFLHQW proof of a causal connection between her complaint and her termination. On appeal, the Fourth Circuit squarely addressed the question of whether the plaintiff’s unsolicited informal complaint came within the protection of § 510. The court held that it did not, stating: The most immediate question is the proper scope of the phrase “inquiry or proceeding.â€? In interpreting a very similar provision of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., we concluded that the term “proceedingâ€? referred only to administrative or legal proceedings, and not to the making of an intracompany complaint ‌. In particular, we explained, “testifyâ€? and “instituteâ€? both connote a formality that does not attend an employee’s oral complaint to his supervisor ‌. In the instant case, as well, the use RI WKH SKUDVH ÂłWHVWLÂżHG RU LV DERXW to testifyâ€? does suggest that the phrase “inquiries or proceedingsâ€? referenced in section 510 is limited

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to the legal or administrative, or at least to something more formal than written or oral complaints made to a supervisor. The phrase “given information� does no more than insure that even the provision of non-testimonial information (such as incriminating documents) in an inquiry or proceeding would be covered.

510 and the Fair Labor Standards Act. The district court dismissed the § 510 claim, concluding that the allegations of WKHFRPSODLQWZHUHLQVXIÂżFLHQWWRVWDWH a claim under § 510 because they did not establish the existence of “a formal, external inquiry.â€? 2003 U.S. Dist. LEXIS 18341, at *7.

The Second Circuit reversed, stating that “[w]hile ‘proceeding’ refers to the progression of a lawsuit or other 337 F.3d at 427 (citations omitted). business before a court, agency, or Because there was no allegation that RWKHU RIÂżFLDO ERG\ ÂľLQTXLU\Âś UHIHUV WKHSODLQWLIIKDGWHVWLÂżHGRUZDVDERXW broadly to any request for information.â€? to testify, or that he had provided 402 F.3d at 329. “[T]he proper focus,â€? information in connection with any legal the court said, “is not on the formality or or administrative proceeding, the court informality of the circumstances under concluded that § 510 did not apply and which an individual gives information, that ERISA did not provide a cause of but rather on whether the circumstances action. In doing so, the Fourth Circuit can fairly be deemed to constitute an distinguished Hashimoto and Anderson ‘inquiry.’â€? Id. at 330. and found them to be unpersuasive. The court concluded: Second Circuit Certainly, if [the plaintiff] can demonstrate that she was contacted Two years later, in Nicolaou v. Horizon to meet with Koenigsberg in order to Media, Inc., 402 F.3d 325 (2d Cir. 2005), give information about the alleged the Second Circuit also held that § 510 underfunding of the Plan, her actions does not protect unsolicited informal would fall within the protection of complaints. The key to the decision Section 510. Thus, the district court was not the lack of a formal proceeding, erred in concluding that, as a matter however, but the fact that the plaintiff’s of law, [the plaintiff’s] allegations complaint was unsolicited, rather than could not survive a motion to having been made in response to an dismiss because they do not “inquiryâ€? by the employer. establish the existence of a “formal, external inquiry.â€? The meeting with Thus, the Second Circuit disagreed with Koenigsberg was something less the Fourth Circuit that a “formalâ€? inquiry, than a formal proceeding, but we in the context of a trial or administrative EHOLHYHLWZDVVXIÂżFLHQWWRFRQVWLWXWH hearing, was required before an an “inquiryâ€? within the meaning of employee could invoke the protection of Section 510. § 510. The court agreed, however, that § 510 requires more than merely giving information. Rather, the information Id. (citation omitted). The case was must be given in response to an inquiry UHPDQGHGVRWKDWWKHSODLQWLIIFRXOGÂżOH an amended complaint. from the employee’s supervisors. In Nicolaou, the plaintiff was discharged after she complained about underfunding of an employer-sponsored 401(k) plan. The plaintiff had taken her complaint to an attorney for her employer, who apparently undertook an investigation, and then met with the company’s president, Koenigsberg, apparently at the attorney’s request. The plaintiff sued her former employer, asserting claims under both ERISA §

Third Circuit The next appellate court to consider the issue was the Third Circuit in Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217 (3d Cir. 2010), cert. denied, 131 S.Ct. 1604 (2011). As the Fourth and Second Circuits had done, the court held that § 510 of ERISA does not protect unsolicited complaints by an employee. The plaintiff brought an anti-retaliation

claim under § 510 and a common law wrongful discharge claim, contending WKDW VKH ZDV ÂżUHG EHFDXVH VKH complained to management about company violations of ERISA. The district court held that the complaint failed to state a claim under § 510, because the employee’s complaints to management were not part of an inquiry or proceeding. The Third Circuit agreed, stating: $Q ÂłLQTXLU\´ LV JHQHUDOO\ GHÂżQHG as “[a] request for information.â€? Here, Edwards does not allege that anyone approached her requesting information regarding a potential ERISA violation. Rather, she made her complaint voluntarily, of her own accord. Under these circumstances, the information that Edwards relayed to management was not part of an inquiry under the term’s plain meaning. ‌ Neither is Edwards’s conduct encompassed by the term “proceeding.â€? A “proceedingâ€? is FRPPRQO\ GHÂżQHG DV Âł>W@KH UHJXODU and orderly progression of a lawsuitâ€? or the “procedural means for seeking redress from a tribunal or agency.â€? Here, there is no suggestion that any such formal action has occurred. 610 F.3d at 223 (citations omitted) (quoting Black’s Law Dictionary 864, 1324 (9th ed. 2009)). The court adopted the Fourth Circuit’s construction of the phrase “inquiry or proceeding,â€? stating: As the King court noted, even beyond the plain meaning of “inquiryâ€? and ÂłSURFHHGLQJ´ WKH SKUDVH ÂłWHVWLÂżHG CONTINUED ON PAGE 4>> 3


CONTINUED FROM PAGE 3>> or is about to testifyâ€? implies that the phrase “inquiry or proceedingâ€? is limited to more formal actions. Not all anti-retaliation statutes are so limited. In drafting [§ 510], Congress could have used broad language similar to that present in the antiretaliation provision in Section 704(a) of Title VII, which extends broad protection to employees that have “opposed any practice made an unlawful employment practice by [Title VII.].â€? Congress declined to do so, and, like the court in KingZHÂżQG this choice to be persuasive.

directors, he received checks for the missing funds plus interest, but Junior Achievement later terminated his employment several months before his anticipated retirement date.

“nothing more than a question.� Id. at 815.

The Seventh Circuit concluded that “the best reading of § 510 is one that divides the world into the informal sphere of In a lawsuit against Junior Achievement, giving information in or in response George alleged that his questions to inquiries and the formal sphere of about the failure to deposit funds into testifying in proceedings. This means his retirement and health savings that an employee’s grievance is within § DFFRXQWVOHGWRKLVÂżULQJLQYLRODWLRQRI 510’s scope whether or not the employer ERISA’s anti-retaliation provision. Junior solicited information.â€? Id. at 817. Achievement argued that § 510 did not apply, because George had simply raised The court added, however, that the the issue informally, not in the context anti-retaliation provision should not be of a formal inquiry. The district court read to cover “trivial bellyaches – the agreed and entered summary judgment statute requires the retaliation to be for the employer. 2011 U.S. Dist. LEXIS ‘because’ of a protected activity,â€? and Id. (citations omitted). The court also 111846 (S.D. Ind. Sept. 28, 2011). “the grievance must be a plausible one, VSHFLÂżFDOO\UHMHFWHGWKHPRUHH[SDQVLYH though not necessarily one on which the view of § 510 adopted by the Ninth and Describing ERISA’s anti-retaliation employee is correct.â€? Id. Fifth Circuits, stating: provision as “a mess of unpunctuated conjunctions and prepositions,â€? 694 F.3d ,Q *HRUJHÂśV FDVH KH QRWLÂżHG KLV [W]e agree with the Fourth Circuit at 814, the Seventh Circuit resolved the employer of a potential breach of its that the Ninth and Fifth Circuit ambiguous text in favor of protecting ÂżGXFLDU\ GXWLHV DQG DVNHG ZKDW ZRXOG opinions in Hasimoto and Anderson, the employee, rejecting the employer’s be done to remedy the breach. “Those respectively, are not compelling. argument that § 510 did not apply conversations involved an ‘inquiry,’ as Neither court examined the statutory because there had been no “inquiryâ€? we understand that word,â€? the court language of Section 510 in detail: the within the meaning of the statute. said, “because Junior Achievement Fifth Circuit gave the issue cursory responded to them rather than ignoring treatment, and the Ninth Circuit “The phrase ‘has given information them.â€? Id. appeared to focus its analysis on the RU KDV WHVWLÂżHG RU LV DERXW WR WHVWLI\Âś adoption of a “fair interpretation ‌.â€? provides context that helps us The case was remanded to the district understand ‘inquiry,’â€? the court said. court to “decide whether there is some Id. (citations omitted). “The clause ‘has given information’ other ground on which this case may be covers every kind of communication, resolved short of trial, or whether a trial Seventh Circuit ZKLOHÂľKDVWHVWLÂżHGRULVDERXWWRWHVWLI\Âś on causation is necessary.â€? Id. denotes a type of communication in a In the most recent examination of the more formal setting, such as a trial or Conclusion issue, the Seventh Circuit took a more administrative hearing.â€? Id. expansive view of § 510, joining the There is a split among the six circuit Ninth and Fifth Circuits in holding that it Thus, “[t]he latter language implies a courts of appeals that have considered provides a cause of action for retaliation level of formality – but not necessarily whether § 510 of ERISA protects based on an employee’s unsolicited formality in ‘giv[ing] information,’â€? employees from retaliation in response informal complaint. George v. Junior the court said. “A natural inference to an employee’s informal questions or Achievement of Central Indiana, Inc., from the fact that the statute refers complaints. 694 F.3d 812 (7th Cir. 2012). to ‘giv[ing] information’ in addition to testifying is that ‘giv[ing] information’ The Seventh Circuit has joined the George was a vice president of Junior covers informal communications – and, Fifth and Ninth Circuits in holding Achievement. When he discovered if informal communications are covered, that informal inquiries initiated by an that money withheld from his pay had ‘inquiry’ cannot be limited to formal employee are covered. The Second not been deposited into his retirement proceedings.â€? Id. Circuit has held that § 510 applies if account and his health savings account, information is provided in response to he complained to company executives. The court observed that while an an inquiry initiated by the employer, He also contacted the U.S. Department “inquiryâ€? could refer to something while the Third and Fourth Circuits have RI /DERU EXW GLG QRW ÂżOH D ZULWWHQ RIÂżFLDO ÂłVXFK DV WKH LQYHVWLJDWLRQ WKDW concluded that the phrase “inquiry or complaint. the Department of Labor conducts proceedingâ€? requires a formal trial or EHIRUH GHFLGLQJ ZKHWKHU WR ÂżOH VXLW administrative proceeding. After George raised the issue with two under ERISA,â€? it also could mean members of the company’s board of 4


Request for Information Did Not Constitute Request for Appeal of Denied Claim under ERISA Am. Dental Assoc. v. Wellpoint Health Networks, Inc., 2012 U.S. App. LEXIS 22007 (11th Cir. Oct. 23, 2012) 3ODLQWLII D SHULRGRQWLVW ÂżOHG D SXWDWLYH class action against WellPoint Health 1HWZRUNVDOOHJLQJWKDWLWXVHGDĂ€DZHG method in determining the “usual, customary, and reasonableâ€? amount of reimbursement to patients for dental services.

explaining that payments were made in accordance with the Health Insurance Association of America fee schedule. Plaintiff did not contact Wellpoint again EHIRUHÂżOLQJWKHODZVXLW

:HOOSRLQW ÂżOHG D PRWLRQ IRU VXPPDU\ judgment, asserting that plaintiff failed %HIRUH ÂżOLQJ WKH ODZVXLW SODLQWLII KDG to exhaust his administrative remedies received payment and an explanation under ERISA. Plaintiff argued that his RI EHQHÂżWV IURP :HOOSRLQW IRU VHUYLFHV letter requesting information served as provided to a particular patient, for which the administrative appeal. the patient had received only a partial reimbursement. The EOB stated that the The Eleventh Circuit upheld the district SURYLGHUFRXOGÂżOHIRUUHFRQVLGHUDWLRQRQ court’s award of summary judgment in a patient’s behalf. favor of Wellpoint, noting that plaintiff’s letter did not challenge the partial denial Plaintiff wrote to Wellpoint requesting RI EHQHÂżWV RU UHTXHVW WKDW :HOOSRLQW information about how it calculated its perform any kind of review. The court rates. Wellpoint responded with a letter held that a “rear-guard attempt to

turn a request for information ‌ into a demand for administrative review must be rejected.â€? The Eleventh Circuit also held that plaintiff failed to establish that pursuing Wellpoint’s administrative appeal process would have been futile. Because plaintiff failed even to initiate the administrative review process, the district court was left to speculate whether Wellpoint would have conducted a thorough and adequate review of a hypothetical administrative appeal. In short, “[m]ere VSHFXODWLRQ LV QRW HQRXJK WR IXOÂżOO WKH futility exception ‌,â€? the court said.

Application of Five-Factor Test to Deny Competing Claims for Attorney’s Fees Did Not Contravene Hardt Cross v. Quality Mgmt. Group, LLC, 2012 U.S. App. LEXIS 20250 (11th Cir. Sept. 27, 2012) Cross claimed that she was 100% vested LQ SHQVLRQ EHQH¿WV XQGHU GHIHQGDQWVœ GH¿QHG EHQH¿W SODQ ZKLOH WKH SODQ claimed that her vesting was at 60%. The parties settled the action, using a 75% vesting calculation, and then each moved for attorney’s fees under ERISA, 29 U.S.C. § 1132(g)(1). Exercising its discretion, the district court denied both motions.

130 S.Ct. 2149 (2010), and (2) the court HUUHGLQÂżQGLQJWKDWGHIHQGDQWVKDGQRW acted in bad faith in assessing her claim and in litigating the case. Defendants argued that the district court abused its GLVFUHWLRQLQDSSO\LQJWKHÂżYHIDFWRUWHVW to deny their claim for fees.

The Eleventh Circuit rejected Cross’s argument that the district court should have ended its inquiry when it On appeal, Cross argued that in denying determined that she had obtained “some her motion (1) the district court applied degree of success on the merits,â€? and D ÂżYHIDFWRU WHVW LQ FRQWUDYHQWLRQ RI held that the court had taken the exact Hardt v. Reliance Standard Life Ins. Co., approach approved by the Supreme Court in Hardt: [T]he Supreme Court in Hardt GLUHFWHG ÂżUVW WKDW ÂłD IHHV FODLPDQW must show ‘some degree of success on the merits’ before a court may award attorney’s fees under § 1132(g)(1).â€? It then said: “We do not foreclose the possibility that once a claimant has VDWLVÂżHG WKLV UHTXLUHPHQW DQG WKXV becomes eligible for a fees award under § 1132(g)(1), a court may FRQVLGHUÂŤÂżYHIDFWRUVÂŤLQGHFLGLQJ whether to award attorney’s fees.â€?

The Eleventh Circuit held that the district court correctly determined that Cross had obtained “some degree of success on the meritsâ€? because she ultimately achieved 15% more vesting in the plan than defendants had claimed she was entitled to receive. The appellate court also held that the district court did not err in its application RI WKH ÂżYHIDFWRU WHVW SDUWLFXODUO\ LQ rejecting both parties’ claims of bad faith and in weighing the relative merits of their claims. The court noted that “[b]oth parties’ positions had some merit, but neither had relatively more merit than the other.â€?

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Letters Refusing to Sign Subrogation Agreement Did Not Constitute an Appeal, and They Were Otherwise Untimely Fla. Health Sciences Ctr. v. Total Plastics, Inc., 2012 U.S. App. LEXIS 22770 (11th Cir. Nov. 6, 2012) Kristy Schwade and her son were his medical expenses. Later, in June 2007, SDUWLFLSDQWV LQ D PHGLFDO EHQHÂżWV SODQ the plan administrator sent Schwade a funded by her former employer. letter stating that it could not process her claim unless she completed a The plan’s subrogation rights were set questionnaire about her son’s injury out in the summary plan description and signed a subrogation agreement. (“SPDâ€?), which made clear that the The subrogation agreement warned plan administrator had no obligation Schwade that failure to execute the WR SURYLGH PHGLFDO EHQHÂżWV LI WKH agreement would relieve the plan of all participant did not sign a subrogation REOLJDWLRQV WR SD\ EHQHÂżWV   6FKZDGH agreement or execute other documents did not respond to the letter. needed to protect the plan’s subrogation rights. Between August and November 2007, the plan administrator sent Schwade 54 The SPD also established the EOB forms, 48 of which explained that administrative appeal procedure required the claim had been denied based on her before a participant could take any legal failure to provide accident information. action against the plan, including a 180- (DFK(2%IRUPH[SODLQHGKRZWRÂżOHDQ day appeal deadline, and stated that any appeal, and the deadline to do so. EHQHÂżWVGHQLDOZRXOGEHSURYLGHGLQDQ H[SODQDWLRQRIEHQHÂżWV Âł(2%´ IRUP After the last appeal deadline expired, Schwade’s attorney wrote the plan Schwade’s son was injured by his administrator, complaining that it had daycare provider. Initially, the plan paid ignored Schwade’s claim for the “sole reasonâ€? that she would not sign a “boilerplateâ€? subrogation agreement, the terms of which the attorney found unacceptable. The attorney later sent several letters stating that the plan’s subrogation rights limited Schwade’s ability to recover damages for her son’s injuries in a civil action. He proposed instead that the plan and Schwade split any such recovery. The plan did not respond to the letters.

When Schwade was sued by a medical provider for services rendered, she ÂżOHGDWKLUGSDUW\FRPSODLQWDJDLQVWWKH plan. The plan administrator moved for summary judgment, arguing that Schwade had failed to exhaust her administrative remedies under the plan. The district court granted summary judgment to the administrator. In upholding the district court’s decision, the Eleventh Circuit rejected Schwade’s argument that her attorney’s “written expressions of disagreement with the GHQLDO RI EHQHÂżWV´ DPRXQWHG WR DQ administrative appeal, and noted that the attorney’s letters, even if they could be considered an appeal, were untimely. Schwade also argued that she was excused from exhausting her administrative remedies because the plan administrator failed to follow its own claims procedures. The Eleventh Circuit rejected this argument, noting that the only remedy for such failure was to remand the case to the administrator, which Schwade had not requested. Additionally, the court rejected Schwade’s argument that an appeal would have been futile, because she failed even to attempt an administrative remedy, and she pled “only bare allegations of futility,â€? rather than the “clear and positiveâ€? showing of futility required in the Eleventh Circuit.

Insured’s Incapacity Does Not Excuse Non-Payment of Premiums, Absent a Policy Provision to the Contrary Elter v. Principal Life Ins. Co., No. 5:11-CV-00118-H (E.D.N.C. Sept. 25, 2012) Principal Life Insurance Company issued a $650,000 term life insurance SROLF\ WR 'U (OWHU ZKR SDLG WKH ¿UVW premium on February 7, 2007. Future premium payments were due annually thereafter. Dr. Elter designated his wife DVEHQH¿FLDU\XQGHUWKHSROLF\ Dr. Elter underwent cancer surgery in Baltimore, Maryland, on January 10, 2008, and was expected to return home 6

to North Carolina ten days after the surgery. Due to medical complications, however, Dr. and Mrs. Elter did not return to North Carolina until March 15, 2008. On January 17, 2008, Principal Life mailed to Dr. Elter a notice of premium due on February 5, 2008. When the premium was not paid by the due date, Principal Life sent a letter notifying Dr. Elter that his policy had entered the

grace period and would terminate if the premium was not received by March 7, 2008. Receiving no payment, Principal /LIH QRWLÂżHG 'U (OWHU E\ OHWWHU GDWHG March 7, 2008, that his policy had terminated. On March 16, 2008, the day after the Elters returned to North Carolina, Mrs. Elter discovered the March 7, 2008, termination notice. At the direction of their insurance agent, the premium


payment was mailed to Principal Life. Principal Life returned the late premium payment by letter dated March 21, 2008, informing Dr. Elter that the policy had terminated and providing instructions regarding the reinstatement process. The Elters took no further action with respect to the policy, and Dr. Elter died on September 18, 2009. On February 7, 2011, after being QRWLÂżHG E\ WKH 1RUWK &DUROLQD Department of Insurance that it did not have authority to require Principal Life to reinstate the FRYHUDJH0UV(OWHUÂżOHGVXLW WR UHFRYHU GHDWK EHQHÂżWV under the policy. The issues presented on summary judgment were: “(1) whether Dr. Elter’s alleged incapacity excused his failure to make in a timely fashion the February 5, 2008 premium payment; and (2) whether Principal complied with the notice requirements of North Carolina General Statute § 58-58-120.â€? Mrs. Elter contended “that Dr. Elter’s alleged incapacity at the time the premium payment was due and throughout the thirty-one-day grace

period excuses his failure to timely make the February 5, 2008 premium payment.� The Court distinguished Dr. Elter’s policy from those that include provisions for waiver of premium in case of disability, noting that “courts have consistently acknowledged that there is a material distinction between a failure to provide proof of disability and a failure to pay a premium.�

The court also held that the contract law doctrine of impossibility of performance was inapplicable, because “[t]he condition of payment of the premium is a ‘material part of the exchange’ so that it cannot be excused by incapacity.�

Finally, the court noted “that insurance treatises uniformly recognize that the law does not excuse non-payment of premiums when due based on incapacity, absent a provision in the policy to the contrary.â€? Mrs. Elter further argued that Principal Life failed to comply with North Carolina’s lapse notice statute, and that a oneyear statutory grace period applied, rather than the 31-day grace period provided by the policy. Section 58-58-120, “at base, requires the insurer to provide the insured with the necessary information to avoid default and to inform the insured of the consequences of failure to timely pay the premium.â€? The court held that Principal Life’s January 17, 2008, SUHPLXP QRWLFH ÂłZDV VXIÂżFLHQW to satisfy § 58-58-120â€? and rejected Mrs. Elter’s argument that the notice had to recite the statutory language verbatim. The notice served the statutory purpose of placing Dr. Elter on notice of the consequences of nonpayment of premium. The court thus granted summary judgment in favor of Principal Life. The case is on appeal in the Fourth Circuit.

Death from Heat Exposure after Fall from Motorized Scooter Was Covered under Accidental Death Policy Genal v. Prudential Ins. Co. of Am., 2012 U.S. Dist. LEXIS 96390 (D.S.C. July 12, 2012) *HQDOZDVWKHEHQHÂżFLDU\RID ERISA-governed accidental death insurance policy insuring his 74-year-old father, Gregory Genal, who died in 2010. The father had suffered from multiple sclerosis for approximately 25 years and used a wheelchair and a motorized scooter.

to by multiple sclerosis. Prudential relied on a policy provision stating that EHQHÂżWV ZHUH SD\DEOH RQO\ IRU ORVV RI life resulting directly from an accidental bodily injury and from no other cause, and on an exclusion for death resulting directly or indirectly from sickness.

Prudential’s medical director opined there were two events resulting in the GHDWK  7KH ÂżUVW ZDV WKH IDOO IURP WKH scooter, but there was no evidence of physical trauma from the fall. Second, because the insured was unable to get up, he was exposed to two days of environmental heat. Prudential argued that “but forâ€? the multiple sclerosis, the insured would have been able to remove Prudential denied Genal’s claim for himself from exposure to the elements DFFLGHQWDO GHDWK EHQHÂżWV FRQFOXGLQJ after he fell. that the death was caused or contributed CONTINUED ON PAGE 8>> The father was found unresponsive in his backyard with his scooter nearby in the grass. The police and medical examiner concluded that he had fallen from the scooter. The medical examiner listed the cause of death as “Environmental Heat Exposure Complicating Multiple Sclerosis.â€?

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CONTINUED FROM PAGE 7>> The district court analyzed the claim under a two-part test previously adopted by the Fourth Circuit Court of Appeals. First, a court is to determine whether there was a pre-existing disease, predisposition, or susceptibility to injury, and then whether it substantially contributed to the loss. See Adkins v. Reliance Standard Life Ins. Co., 917 F.2d 794 (4th Cir. 1990); Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1028 (4th Cir. 1993) (when policy language limits coverage to losses caused by accident “directly and independently of all other causes,â€? a pre-existing condition which contributes to the loss does not bar recovery under an ERISA policy unless the pre-existing condition “substantially contributed to the disability or lossâ€?). Thus, a “direct and independent causeâ€? does not mean that a plaintiff must prove that an accident was the sole cause of death. Rather, Genal only needed to establish that his father’s multiple sclerosis did not “substantially contributeâ€? to the death. See Pegram v. Prudential Ins. Co., 2009 U.S. Dist. LEXIS 56672 (E.D. Va. 2009). The court noted that the father’s death was triggered by his fall from the scooter, not by his multiple sclerosis. But for the fall, he would not have died. Therefore, the fall substantially contributed to his death. However, Prudential’s expert concluded that the insured died directly from heat exposure, and from no other cause. Had the insured fallen in his home, he would not have been subjected to heat exposure. Therefore, the multiple sclerosis did not substantially contribute to his death. Second, the court concluded that the sickness exclusion was not applicable, because the insured’s pre-existing SK\VLFDOLQÂżUPLW\GLGQRWVXEVWDQWLDOO\ FRQWULEXWH WR KLV GHDWK  6SHFLÂżFDOO\ after his fall from the scooter, the insured’s multiple sclerosis did not ZRUVHQ RU Ă€DUH XS WR OHDG WR KLV demise. Rather, it was the fall and heat exposure which directly contributed to his death. Accordingly, the court held the exclusion did not apply and that Genal’s claim for accidental death EHQHÂżWVZDVSD\DEOH 8

Availability of Equitable Remedies under ERISA Permitted Amended Pleadings and Additional Evidence Israel v. Prudential Ins. Co., 2012 U.S. Dist. LEXIS 106107 (D.S.C. July 31, 2012) As a participant in his employer’s ERISA plan, Israel selected term life insurance to cover his wife. Under the terms of WKHSODQDVSRXVHZKRZDVDÂłTXDOLÂżHG dependentâ€? would lose coverage in the event of a divorce from the participating 13683 (4th Cir. July 5, 2012), made clear that equitable relief is available employee. to a plaintiff pursuing a claim under § ,QDQDIÂżGDYLWWKDWZDVQRWSDUWRIWKH 1132(a)(3), and that they constituted administrative record, Israel alleged new controlling case law that had issued that after he and his wife separated DIWHU,VUDHOÂśVFRPSODLQWZDVÂżOHG in September 2009, he called his HPSOR\HUÂśVEHQHÂżWVGHSDUWPHQWDQGZDV The court also permitted Israel’s told he could continue his wife’s group DIÂżGDYLWFRQFHUQLQJWKH1RYHPEHU life insurance during the separation conversation during which he allegedly and after the divorce. Because the was told he could continue group life defendants had no record of the call, insurance coverage for his ex-wife they vigorously denied the alleged through the separation and after the divorce. Relying on Quesinberry v. Life conversation. Insurance Co. of North America, 987 F.2d ,VUDHOÂśV GLYRUFH ZDV ÂżQDO LQ $SULO  1017 (4th Cir. 1993), the court found that and his ex-wife died in July 2010. WKHIDFWVDOOHJHGLQWKHDIÂżGDYLWZHQWWR Prudential accepted premiums during the heart of the equitable relief issues the separation and after the divorce. and therefore constituted additional When Israel submitted a claim for life evidence necessary to determine the LQVXUDQFH EHQHÂżWV VKRUWO\ DIWHU KLV H[ outcome of the case. wife’s death, Prudential denied the claim because, as a result of the divorce, Finally, although the court granted ,VUDHOÂśVH[ZLIHZDVQRORQJHUDTXDOLÂżHG the defendants’ motion for summary dependent eligible for coverage. judgment on Israel’s claim for a return of premiums (they had long since ,VUDHO ÂżOHG D FRPSODLQW LQ VWDWH FRXUW been returned) and his claim for death DVVHUWLQJ FODLPV IRU EHQHÂżWV DQG EHQHÂżWV XQGHU WKH SROLF\ WKH FRXUW attorney’s fees under ERISA, and state law denied the defendants’ motion for claims for negligence, gross negligence, summary judgment on the remaining and negligent misrepresentation. After equitable claims. the case was removed to federal court, Israel sought to amend his complaint to The court held that Israel’s claims dismiss the state law causes of action, to for equitable relief under § 1132(a) add claims for a return of premiums and (3) required “intensive factual IRUEUHDFKRIÂżGXFLDU\GXW\DQGWRVHHN determinations‌ ,â€? including whether the the equitable remedies of reformation, alleged November 2009 telephone call estoppel, and a return of premiums took place, whether Israel was reliably under 29 U.S.C. § 1132(a)(3). informed that his ex-wife’s coverage would continue after their divorce, and The district court permitted Israel to whether Israel received a copy of the amend his complaint to seek additional summary plan document or the policy equitable remedies under ERISA. The language that would have put him on court concluded that the Supreme notice as to the policy terms. The court’s Court’s decision in Cigna Corporation RUGHULQGLFDWHVWKDWFRQĂ€LFWLQJHYLGHQFH v. Amara, 131 S.Ct. 1866, 179 L. Ed. was presented about these questions, 2d 843 (2011), and the Fourth Circuit’s thus making summary judgment decision in McCravy v. Metropolitan Life improper on the claims for equitable Insurance Co., 2012 U.S. App. LEXIS relief.


(5,6$3ODQ$ZDUGHG)XOO5HLPEXUVHPHQWRI%HQH¿WV and Attorney’s Fees against Personal Injury Lawyer AirTran Airways, Inc. v. Elem, Case No. 1:10-cv-03673-ODE (N.D. Ga. Oct. 22, 2012) AirTran sued Elem and her personal injury attorney under section 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3), for reimbursement of more than $131,000 LQVHOIIXQGHGKHDOWKSODQEHQH¿WVSDLG E\$LU7UDQWR(OHP7KHEHQH¿WVZHUH for medical expenses incurred by Elem due to injuries sustained in a motor vehicle accident. (OHP ¿OHG D SHUVRQDO LQMXU\ ODZVXLW against the responsible driver. Despite the fact that AirTran provided Elem and her attorney with notice of the plan’s subrogation and reimbursement rights, the personal injury lawsuit was settled and the settlement funds were distributed to Elem and the attorney without reimbursing the plan. The personal injury lawsuit settled for $500,000, but the attorney reported to AirTran that the case had settled for only $25,000, and asked AirTran to accept $4,500 to resolve the reimbursement claim. AirTran discovered the true amount of the settlement, and invoked section 502(a)(3) to impose an equitable lien to recover the full amount RIEHQH¿WVIURPWKHVHWWOHPHQWIXQGVLQ the possession of Elem and the attorney, along with attorney’s fees and costs under section 502(g)(1) of ERISA.

U.S. Airways v. McCutchen, 663 F.3d 671 (3d Cir. 2011), in which the Third 7KH SDUWLHV ÂżOHG FURVVPRWLRQV IRU Circuit disagreed with O’Hara, the court summary judgment. AirTran argued elected to “proceed under existing that it was entitled to full reimbursement Eleventh Circuit precedent.â€? from the settlement fund under Zurich Am. Ins. Co. v. O’Hara, 604 F.3d 1232 The court further rejected Elem’s (11th Cir. 2010). Elem and her attorney argument that her knee condition preargued that the plan should not be existed the motor vehicle accident, reimbursed, most notably because QRWLQJ WKDW (OHP KDG WHVWLÂżHG WR WKH (1) Elem had not been “made wholeâ€? contrary in her personal injury lawsuit “to by the settlement, and therefore, maximize the damages she could obtainâ€? reimbursement to the plan did not in that action. Elem had previously constitute “appropriate equitable relief,â€? denied under oath that a pre-existing and (2) a large portion of the plan injury contributed to her damages from EHQHÂżWVSDLGWR(OHPDOOHJHGO\ZHUHIRU the accident. But “[n]ow that the issue treatment of a knee condition that pre- [was] what Ms. Elem has to pay back for her medical coverage,â€? the court noted existed the motor vehicle accident. that Elem and her attorney “changed The court granted summary judgment their story in an attempt to exclude to AirTran, noting that the plan expressly alleged pre-existing injuries from her disclaimed application of the “make reimbursement obligations.â€? The court ZKROH´GRFWULQHFRGLÂżHGLQ*HRUJLDÂśVVR invoked judicial estoppel to prevent called anti-subrogation statute, O.C.G.A. “[t]his calculated change of positionâ€? § 33-24-56.1. Because the plan was in response to the “exigencies of the self-funded by AirTran, the Georgia law moment.â€? was preempted by ERISA. Finally, the court awarded attorney’s The court noted O’Hara’s UHDIÂżUPDWLRQ fees to AirTran against the attorney and that in the Eleventh Circuit the “make KLV ODZ ÂżUP ÂżQGLQJ WKDW KH ÂłZHQW WR wholeâ€? doctrine is a “default rule that substantial lengths to avoid disclosingâ€? DSSOLHV RQO\ LQ WKH DEVHQFH RI VSHFLÂżF $475,000 of the settlement, and further, and unambiguous language precluding that “under clear Eleventh Circuit [its application].â€? While noting the precedent, the make whole doctrine Supreme Court’s grant of certiorari in never even arguably applied.â€?

9


Plaintiff Can Pursue Claim for Breach of Fiduciary Duty Based on Misrepresentation by Plan Administrator 6WULFNODQGY$7 78PEUHOOD%HQHÂżW3ODQ1R 2012 U.S. Dist. LEXIS 141457 (W.D.N.C. Oct. 1, 2012) Strickland became disabled and retired in 1998, but he remained eligible for JURXS KHDOWK EHQHÂżWV XQGHU DQ (5,6$ plan. Strickland then applied for social VHFXULW\EHQHÂżWV

eligible for it. Strickland had not done so, and once the plan administrator LGHQWLÂżHGWKHGHÂżFLHQF\LWUHFRYHUHGWKH payments previously made to the medical providers. Those medical providers then sent bills to Strickland and demanded SD\PHQW  $IWHU WKH GHQLDO RI EHQHÂżWV was upheld on administrative review of WKHFODLPV6WULFNODQGÂżOHGVXLW

relief� was appropriate equitable relief, and therefore Strickland was not precluded from recovery based on the written terms of the plan.

However, the court found genuine issues of material fact that precluded the grant of Strickland’s motion for summary judgment. Strickland alleged that the plan administrator told him he 7KH SDUWLHV ÂżOHG FURVVPRWLRQV IRU did not need Medicare Part B coverage, summary judgment, both of which the yet transcripts of two telephone conversations showed that Strickland court denied. referred only to representations by the First, the court denied the plan’s motion, Social Security Administration. holding that Strickland was entitled to seek equitable relief, even if he had a Similarly, there was a dispute over In 2006, Strickland underwent knee remedy under another provision of ZKHWKHU WKH DGPLQLVWUDWRU FRQÂżUPHG The court stated that “[i]n Strickland’s coverage. There was also and shoulder surgery. The plan ERISA. DGPLQLVWUDWRU ÂżUVW GHQLHG 6WULFNODQGÂśV light of the Supreme Court’s decision an unresolved issue of whether the FODLPV IRU EHQHÂżWV EHFDXVH LW EHOLHYHG in Amara ‌ and the Fourth Circuit’s administrator’s original payment of the the claims would be covered by workers’ interpretation in McCravy, ‌. equitable claims affected the reasonableness of Strickland’s reliance on the alleged compensation. When that proved to relief is now available.â€? misrepresentations. Strickland’s suit be untrue, the administrator paid the In addition, the court held that Strickland could go forward but would not be claims as the presumed primary payor. was not required to raise his breach of decided at the summary judgment However, under the terms of the plan, ÂżGXFLDU\FODLPGXULQJWKHDGPLQLVWUDWLYH stage. Strickland was required to enroll in SURFHHGLQJV  7KH FRXUW VSHFLÂżFDOO\ Medicare Part B as soon as he became noted that surcharge or “make-whole The Social Security Administration apparently told Strickland that the plan would continue as his primary KHDOWK EHQHÂżWV SD\RU WKDW 0HGLFDUH would be the secondary payor, and that Medicare Part B coverage was therefore unnecessary. Strickland alleged that the plan administrator told him the same thing. As a result, Strickland purchased only Medicare Part A coverage.

TRICARE Contractor’s Recoupment of Funds Not Barred by Voluntary Payment Doctrine The Medical Center, Inc. v. Humana Military Healthcare Services, Inc., 2012 U.S. Dist. LEXIS 112823 (M.D. Ga. Aug. 10, 2012) Humana Military Healthcare Services, as a TRICARE contractor, and PGBA LLC, as a subcontractor, recouped claim overpayments that had been made to The Medical Center by offsetting the overpayments against future claim payments. The Medical Center sued and argued primarily that HMHS was barred from recovering the overpayments under a state law voluntary payment doctrine. Under the Hospital Agreement between HMHS and the Medical Center, the hospital agreed to abide by all TRICARE policies and procedures. The Hospital Agreement authorized “HMHS to deduct monies that may otherwise be due 10

and payable to [Medical Center] from any outstanding monies that [Medical Center] may, for any reason, owe to HMHS.â€? The TRICARE Handbook requested that a provider “return any duplicate payments or overpayments made for DFODLPIRUD75,&$5(EHQHÂżFLDU\´DQG it provided that if such overpayments were not returned “then PGBA may, after written notice, offset the amount of double payment against future claim payments.â€? HMHS and PGBA moved for summary judgment on the grounds of federal preemption and that the voluntary

payment doctrine did not apply in light of the contractual agreements between HMHS and The Medical Center. The court agreed with the latter argument, concluding that “because a contractual agreement exists between Medical Center and HMHS providing for the offset of overpayments against future claims, the voluntary payment doctrine does not make the overpayments nonrefundable to HMHS.� In light of its ruling on state law grounds, the court found it unnecessary to reach the preemption issue.


$VVXUDQFHVRI5HSD\PHQW0D\%H6XIÂżFLHQWWR7ROO(5,6$ÂśV Statute of Limitation for Breach of Fiduciary Duty Claim D.E.W. Plumbing Incorporated v. Domestic Mortgage, Inc., 2012 U.S. Dist. LEXIS 92136 (N.D. Ga. July 3, 2012) '(: 3OXPELQJ VSRQVRUHG D GHÂżQHG contribution pension plan, of which Fishman was the plan administrator. It was undisputed that Fishman loaned $45,000 of the plan’s assets to Domestic Mortgage, a company owned and controlled by Fishman and his children. )XUWKHU)LVKPDQÂłWRRNDIÂżUPDWLYHVWHSV to conceal the prohibited transaction ‌ by reviewing, signing and approving false ÂżQDQFLDOVWDWHPHQWVDQG)RUPWD[ UHWXUQVSUHSDUHGE\KLVDFFRXQWLQJÂżUP a three-year statute of limitation for ‌.â€? EUHDFKRIÂżGXFLDU\GXW\FODLPVÂłH[FHSW that in the case of fraud or concealment, D.E.W. Plumbing sued Fishman and such action may be commenced not Domestic Mortgage for breach of later than six years after the date of ÂżGXFLDU\ GXW\ EDVHG RQ D SURKLELWHG discovery of such breach or violation.â€? transaction between the plan and a “party in interest,â€? in violation of ERISA, %HFDXVH WKH FRPSODLQW ZDV ÂżOHG RQ 29 U.S.C. § 1106(a). August 19, 2010, the court said, “the earliest possible date that the Plaintiffs The only issue before the district court on could have acquired actual knowledge a motion for partial summary judgment of the breach and still not have been was whether the claim was time-barred barred by the statute of limitations is under 29 U.S.C. § 1113, which provides August 19, 2004.â€?

The parties disputed whether D.E.W. Plumbing had actual knowledge of the breach “in late 2004 or as early as February 2001.â€? The district court assumed for the purpose of the motion that D.E.W. Plumbing had actual notice in February 2001 in order to address the “equitable tolling doctrine that is read into every federal statute of limitations, which may halt the statute of limitations while the defendant conceals his bad behavior.â€? Fishman had acknowledged his liability and had assured D.E.W. Plumbing of repayment if it refrained from suing him in 2005, in August 2008, and in January 2009. The court found that “[t]his may be enough to toll the statute of limitations,â€? but declined to decide the issue on summary judgment because LW KDG EHHQ UDLVHG IRU WKH ÂżUVW WLPH LQ D.E.W. Plumbing’s reply brief.

A Message from the editors

Sanders Carter

Kent Coppage

Aaron Pohlmann

:H KRSH WKDW \RX ¿QG WKH ODWHVW HGLWLRQ RI (5,6$ DQG /LIH ,QVXUDQFH 1HZV informative. Covering issues as varied as ERISA’s anti-retaliation provision and the role of a state law voluntary payment doctrine in TRICARE recoupment claims, the current issue includes contributions from the Smith Moore Leatherwood attorneys pictured below.

Contributors to this Issue

From left to right: Matthew Creech (Greensboro, NC), Nikole Crow (Atlanta, Ga), Kip Nelson (Greensboro, NC), Jennifer Rathman (Atlanta, Ga), Peter Rutledge (Greenville, SC), and Neil Thomson (Charleston, SC).

11


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ERISA and Life Insurance Litigation Smith Moore Leatherwood’s ERISA and Life Insurance Litigation Team has earned a national reputation for excellence. The Team is comprised of attorneys who have represented ERISA entities and insurers in hundreds of cases in federal and state courts throughout the nation. In addition to claims brought XQGHU(5,6$WKH¿UPœVDWWRUQH\VGHIHQGDEURDGYDULHW\RIDFWLRQVLQFOXGLQJWKRVHEURXJKWXQGHU federal and state RICO Acts, the ADA, class actions, discriminatory underwriting claims, actions involving allegations of agent misconduct, and breach of contract claims for the recovery of life, DFFLGHQWDOGHDWKGLVDELOLW\DQGKHDOWKLQVXUDQFHEHQH¿WV

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