Young v. UnitedHealth Group Life Insurance Plan et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/31/2014. (JLC)

FILED
2014 Oct-31 AM 10:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHARON YOUNG,
Plaintiff,
v.
UNITEDHEALTH GROUP LIFE
INS. PLAN, et al,
Defendants.

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) Case No.: 2:13-CV-1738-VEH
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MEMORANDUM OPINION
On September 20, 2013, the plaintiff, Sharon Young, brought this action under
the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (“ERISA”),
to recover benefits she alleges are due to her under the UnitedHealth Group Life
Insurance Plan (“the Plan”) (Count One). (Doc. 1 at 10-12). More specifically, the
plaintiff seeks Accidental Death and Dismemberment (“AD&D”) benefits for the
death of her husband, who had both life insurance and AD&D coverage under the
Plan. The plaintiff also seeks ERISA penalties, under 29 U.S.C. § 1132(c) and 29
C.F.R. 2560.503-1(h)(2)(iii), for the defendants’ alleged failure to provide “all
documents, records and other information relevant to claimant’s claim for benefits”
(Count Two). (Doc. 1 at 13).

The complaint names as defendants the Plan, United Health Group, Inc.
(“UHG”), UnitedHealthcare Insurance Company (“UHIC”), and United Healthcare
Services, Inc. (“UHS”). Each of the latter three defendants is described as “a
‘fiduciary’ of [t]he Plan” (doc. 1 at 3, 4), but their individual roles are not further or
clearly defined therein. They are referred to in the complaint collectively as “United
Healthcare.”
The case comes before the court on the defendants’ motion for summary
judgment. (Doc. 15). Contained within the plaintiff’s response to the motion is a
“request” that this court reconsider an earlier order denying discovery. (Doc. 27 at 1621). For the reasons stated herein, the request will be DENIED, the motion for
summary judgment will be GRANTED, and this case will be DISMISSED with
prejudice.
I.

STANDARD
A.

Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
2

affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
3

may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
4

may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
B.

ERISA Framework

ERISA does not contain a standard of review for actions brought under 28
U.S.C. § 1132(a)(1)(B) challenging benefit eligibility determinations. Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 108-09 (1989) (“Although it is a
‘comprehensive and reticulated statute,’ ERISA does not set out the appropriate
standard of review for actions . . . challenging benefit eligibility determinations.”).
Moreover, the case law that has developed over time governing such standards has
significantly evolved. A history of the evolution of these standards is useful to track
its development and shed light on the current framework.
In Firestone, the Supreme Court initially established three distinct standards
for courts to employ when reviewing an ERISA plan administrator’s benefits
decision: “(1) de novo where the plan does not grant the administrator discretion; (2)
5

arbitrary and capricious where the plan grants the administrator discretion; and (3)
heightened arbitrary and capricious where the plan grants the administrator discretion
and the administrator has a conflict of interest.” Capone v. Aetna Life Ins. Co., 592
F.3d 1189, 1195 (11th Cir. 2010) (citing Buckley v. Metro. Life, 115 F.3d 936, 939
(11th Cir. 1997) (discussing Firestone, 489 U.S. at 115)). In Williams v. Bellsouth
Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004), overruled on other grounds
by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352 (11th Cir. 2008), the
Eleventh Circuit fleshed out the Firestone test into a six-step framework designed to
guide courts in evaluating a plan administrator’s benefits decision in ERISA actions.
When the Eleventh Circuit created the Williams test, the sixth step of the sequential
framework required courts reviewing a plan administrator’s decision to apply a
heightened arbitrary and capricious standard if the plan administrator operated under
a conflict of interest. See id. The Eleventh Circuit later modified this step in response
to the Supreme Court’s ruling in Metropolitan Life Insurance Co. v. Glenn, 554 U.S.
105, 115-17 (2008), which concluded that a conflict of interest should be weighed
merely as “one factor” in determining whether an administrator abused its discretion.
See Doyle, 542 F.3d at 1359 (“As we now show, Glenn implicitly overrules and
conflicts with our precedent requiring courts to review under the heightened standard
a conflicted administrator’s benefits decision.”). The Eleventh Circuit’s current
6

iteration of the Firestone standard-of-review framework is found in Blankenship v.
Metro. Life Ins. Co., 644 F.3d 1350 (11th Cir. 2011), cert. denied, 132 S. Ct. 849:
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong” (i.e., the court
disagrees with the administrator’s decision); if it is not, then end the
inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de novo wrong,” then
determine whether he was vested with discretion in reviewing claims;
if not, end judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo wrong” and he was
vested with discretion in reviewing claims, then determine whether
“reasonable” grounds supported it (hence, review his decision under the
more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse
the administrator’s decision; if reasonable grounds do exist, then
determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the
decision.
(6) If there is a conflict, the conflict should merely be a factor for the
court to take into account when determining whether an administrator’s
decision was arbitrary and capricious.
Id. at 1355.1 All steps of the analysis are “potentially at issue” where a plan vests
discretion to the plan administrator to make benefits determinations. See id. at 1356
n.7. Conversely, then, where a plan does not confer discretion, the court simply

1

“In ERISA cases, the phrases ‘arbitrary and capricious’ and ‘abuse of discretion’ are
used interchangeably.” Blankenship, 644 F.3d at 1355 n.5.
7

applies the de novo review standard established by the Supreme Court in Firestone.
See 489 U.S. at 115 (“[W]e hold that a denial of benefits challenged under §
1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan.”).
II.

FACTS
A.

The Plan

As part of the Plan, UHG sponsors an Accidental Death and Dismemberment
plan (“the AD&D Plan”) for the benefit of its eligible employees and their
dependents. The AD&D Plan is governed by ERISA.2,3
2

The parties define “the Plan” differently. The court uses “the Plan” when referring to the
larger Life Insurance Plan, and “the AD&D Plan” when referring to the AD&D portion of the
Life Insurance Plan.
3

The facts in this paragraph are offered by the defendants in their memorandum in
support of their motion. (Doc. 16 at 3). The plaintiff writes in response to this fact:
1. Young admits that the Plan’s Form 5500 filed with the Department of Labor
identifies UnitedHealth Group Inc. (“[UHG]”) as the “plan sponsor.” Young also
admits that the Plan is governed by ERISA. Except as expressly admitted herein,
[d]efendants’ assertion of fact as to paragraph 1 is denied.
(Doc. 27 at 7). The court’s summary judgment scheduling order provides:
Any statements of fact that are disputed by the non-moving party must be
followed by a specific reference to those portions of the evidentiary record upon
which the dispute is based. All material facts set forth in the statement required of
the moving party will be deemed to be admitted for summary judgment purposes
unless controverted by the response of the party opposing summary judgment.
8

UHG is the Plan Administrator and, under the Plan, has “the sole and exclusive
authority and discretion to interpret the benefit plans’ terms and benefits under them,
and to make factual and legal decisions about them.” (Doc. 17-1 at 13). According to
the Plan, “[b]enefits are paid through insurance coverage that [UHG] purchases from
its affiliate, [UHIC].” (Doc. 17-3 at 25). The Plan states that the “Insurance Carrier”
is UHS. (Doc. 17-3 at 25).
The Plan states that UHG, as Plan Administrator, “has authority to delegate,
and has delegated, certain authority and duties to other parties who are third-party
administrators, fiduciaries and/or trustees.” (Doc. 17-1 at 13). UHG claims that it “has
delegated its authority to administer the Plan to UHIC, the third-party who insures the
plan.” (Doc. 16 at 3). The plaintiff disputes “that UHG[] has properly and expressly
delegated its Plan authority to [UHIC]” (doc. 27 at 7), but acknowledges that UHIC
has issued an insurance policy which provides the benefits at issue in this case.4 The
following language from the insurance policy issued by UHIC provides that UHIC
has discretion to make benefits decisions:

(Doc. 3 at 17) (emphasis in original). The general statement by the plaintiff that “[e]xcept as
expressly admitted herein, [d]efendants’ assertion of fact as to paragraph 1 is denied,” fails to
identify what specific portion of the fact is disputed, and also fails to provide a specific reference
to the record which supports the dispute. The entire statement is thus deemed to be admitted for
purposes of the motion for summary judgment.
4

The full text of the policy can be found in the record at documents 17-6 and 17-7.
9

Discretionary Authority: When making a benefit determination under
the Policy, [UHIC has] discretionary authority to determine the Covered
Person’s or Dependent’s eligibility, if applicable, for benefits and to
interpret the terms and provisions of the Policy.
(Doc. 17-6 at 29). Still, the plaintiff disputes “that this quoted language is a legally
valid grant of discretionary authority under ERISA.” (Doc. 27 at 8).
Regarding eligibility for AD&D benefits, the insurance policy provides that,
before benefits are payable, the Covered Person must give UHIC proof that:
a.

“Injury occurred while the insurance was in force under this

section;”
b.

“loss occurred within 365 days after the Injury;” and

c.

“loss was due to Injury independent of all other causes.”

((Doc. 17-7 at 6) (emphasis added). The insurance policy defines Injury as: “A bodily
Injury resulting directly from an accident and independently of all other causes.”
(Doc. 17-6 at 28) (emphasis added). The term “accident” is not defined in the policy.
One “limitation” identified in the Policy addresses intoxication in express language
and reads as follows: “Limitations: We will not pay a benefit for a loss caused
directly or indirectly by: … 6. driving while intoxicated, as defined by the
applicable state law where the loss occurred.” (Doc. 17-7 at 2) (bold in the original).
No other language addressing intoxication exists in the policy.

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B.

Mrs. Young’s Claim for Benefits

Sharon Young works for UHS as a customer service representative. Through
her job, she is eligible to purchase life insurance under the Plan. Because Mrs. Young
is covered, her spouse Johnny Leon Young was also able to obtain coverage. At some
point, Mrs. Young elected $20,000 in life insurance for her husband. When she made
her election, she also elected the optional AD&D coverage. Under the terms of the
AD&D Plan, the optional AD&D coverage doubles the life insurance policy amount
if a “Covered Individual” dies “as the result of a Covered Injury.” (Doc. 17-2 at 61).
Therefore, in addition to $20,000 in life insurance coverage, the plaintiff’s husband
had $20,000 of AD&D coverage.5
Johnny Young died on September 30, 2012. The police report prepared on
September 30, 2012, states that Mr. Young’s “friend stated that he had not seen [him]
since the day prior.” (Doc. 17-9 at 34). The police report also shows that Mr. Young
was not behind the wheel of a car when he was found dead and therefore was not
“driving” as that term is used in the aforementioned policy limitation.
An autopsy was performed on October 1, 2012. The coroner’s report noted that
“[t]oxicological analysis detected a blood ethanol concentration of 0.36 g/dL, a

5

The plaintiff disputes the $20,000 figure only “to the extent that this statement ignores
the interest that has accrued since payment of this benefit was first due.” (Doc. 27 at 8).
11

concentration greater than the level at which an individual is considered legally
intoxicated if driving a motor vehicle.” (Doc. 17-5 at 6). The report also noted that
Mr. Young “was found dead face down with his body leaning against a low retaining
wall. He had evidently fallen and came to rest with his shoulders and face in a
downward position and his trunk and legs extending directly upward. Remaining in
this position would compromise a person’s ability to breathe properly.” (Doc. 17-5
at 6). The coroner then concluded that “Johnny Leon Young died as a result of
positional asphyxia. Ethanol intoxication contributed to this death.” (Doc. 17-5 at 6).
The Death Certificate also identified Johnny Young’s cause of death as “positional
asphyxia” and listed “ethanol intoxication” as another “significant condition[]
contributing to death.” (Doc. 17-4 at 25).6
Mrs. Young submitted a claim for life insurance and AD&D benefits on
October 11, 2012. In a letter dated October 23, 2012, UHIC informed Mrs. Young
that it would pay her the full amount of her husband’s life insurance policy, $20,000,
plus interest, minus $5,273.95 which Mr. Young had assigned to Davenport & Harris
6

The plaintiff denies the facts in this paragraph only “where [they are] inconsistent with
[the Coroner’s] Report as a whole.” (Doc. 27 at 9, ¶¶ 9, 10, 11, 12, 13). As previously noted (see
note 3 supra), the court’s summary judgment scheduling order requires a much more specific
objection. (See, doc. 3 at 17). Because of the failure to specifically deny any particular fact, the
court deems the facts in this paragraph, offered by the defendants, to be admitted. The court also
notes that the facts accurately quote the materials discussed therein. There has been no objection
to the use of those materials, or the statements therein, in ruling on the motion for summary
judgment.
12

Funeral Home Inc. (Doc. 17-4 at 27).
The AD&D benefits were another matter. By a separate letter, also dated
October 23, 2012, UHIC requested additional information so that it could further
evaluate Mrs. Young’s claim for AD&D benefits. (Doc. 17-4 at 28). In particular,
UHIC sought: 1) a copy of the police report related to Mr. Young’s death, and 2) a
copy of the coroner’s report and toxicology results. (Doc. 17-4 at 28).7
On October 26, 2012,UHIC wrote a letter to the plaintiff advising her that her
“claim is not payable since Mr. Young’s cause of death was not independent of all
other causes.” (Doc. 17-5 at 11). The letter quoted the policy language which
provides that there is coverage for Mr. Young’s death as long as his death “was due
to Injury independent of all other causes.” (Doc. 17-5 at 11). It also advised the
plaintiff that UHIC had considered the issues related to alcohol which were discussed
in the aforementioned death certificate and autopsy report, and were also discussed
in the October 16, 2012, toxicological analysis report mentioned in the autopsy

7

In response to this fact, which was offered by the defendants, the plaintiff writes: “The
letter says nothing about the [d]efendants’ reasons for making the request and, in the absence of
discovery testing the completeness of the claim file, there is no evidence that [sic] showing these
materials to have been the only materials considered or relied upon by the [d]efendants when this
claim was decided.” (Doc. 27 at 10). This seems to be a “run-on” sentence which does not make
any sense to the court. However, to the extent that the plaintiff is arguing that she needs
additional discovery prior to responding to the motion for summary judgment, the court has
previously considered and denied her request. (Docs. 19, 25). As noted below, the request is
again denied.
13

report. (Doc. 17-5 at 11).8 The letter concluded that “since Mr. Young’s fall and
Positional Asphyxia was not considered independent of all other causes . . . we are
unable to approve your claim for accidental death benefits.” (Doc. 17-5 at 12).
By letter dated January 7, 2013, Mrs. Young appealed UHIC’s decision. By
letter dated February 19, 2013, UHIC requested that Mrs. Young “contact [it] within
30 days of receipt of [the] letter to advise if you intend to provide additional
information for us to consider in the appeal review.” (Doc. 17-7 at 21). Sixty-two
days later, on April 22, 2013, UHIC sent Mrs. Young another letter explaining, inter
alia, that it had not received any additional information, but that Mrs. Young would
have an additional fifteen days to submit evidence in support of her appeal. (Doc. 1712 at 4).

8

Again, the coroner’s report noted that:

– “[t]oxicological analysis detected a blood ethanol concentration of 0.36 g/dL, a
concentration greater than the level at which an individual us considered legally
intoxicated if driving a motor vehicle,” (doc. 17-5 at 6);
– “[Mr. Young] was found dead face down with his body leaning against a low retaining
wall. He had evidently fallen and came to rest with his shoulders and face in a downward
position and his trunk and legs extending directly upward. Remaining in this position
would compromise a person’s ability to breathe properly” (doc. 17-5 at 6); and
– “Johnny Leon Young died as a result of positional asphyxia. Ethanol intoxication
contributed to this death” (doc. 17-5 at 6);
The Death Certificate also identified Johnny Young’s cause of death as “positional asphyxia” and
listed “ethanol intoxication” as another “significant condition[] contributing to death.” (Doc. 174 at 25).
14

Through her lawyer, and in response to the April 22nd letter, Mrs. Young
submitted photographs showing Johnny Young’s body as he was found by the police.
This was the only evidence that Mrs. Young submitted. Additionally, Mrs. Young’s
attorney argued in his cover letter that UHIC had misinterpreted the policy in making
its decision and that UHIC had erroneously applied the “driving while intoxicated”
exclusion. Mrs. Young’s attorney concluded his letter by saying: “You have no
evidence of intoxication at the time of the injury and no reasonable basis for
continuing to deny the claim.” (Doc. 17-12 at 6-7).
By letter dated May 24, 2013, UHIC again denied the plaintiff’s claim, citing
the provision requiring that Mr. Young’s death result from an “Injury independent of
all other causes.” (Doc. 17-13 at 29). UHIC then explained in the letter: “Please be
advised we are not denying the claim based on an exclusion for driving while
intoxicated; we are aware Mr. Young was not driving. We are denying the claim
because Mr. Young’s death was not due to bodily injury independent of all other
causes as ethanol intoxication contributed to his death.” (Doc. 17-13 at 30).
C.

Mrs. Young’s Claim for Failure To Provide ERISA Documents

The Summary Plan Description (“SPD”) contained in the United Healthcare
Services, Inc. employee handbook explains:
If you have questions about your benefits under any of the plans, you
15

can get additional information in a variety of ways. For example, for
more information about any of the plans or benefits in this Benefits
Handbook, or to get copies of plan summaries, SPDs or official plan
documents, you can refer to “HRdirect > Health & Wellness” on the
United HRdirect Web site or contact United HRdirect at
1-800-561-0861.
(Doc. 17-3 at 21). Additionally, the SPD directs employees to send requests for
documents to the following address:
Contact for Plan Documents
UnitedHealth Group Incorporated
c/o United HRdirect
P.O. Box 744919
Houston, TX 77274
Phone: [phone]
(Doc. 17-3 at 25).
On January 7, 2013, Mrs. Young’s lawyer requested certain ERISA documents,
including the insurance policy, the SPD, and any other relevant documents “specified
within 29 U.S.C. § 1001 et. seq. and 29 C.F.R. § 2560.503-1.” (Doc. 17-5 at 13). Mrs.
Young’s lawyer sent this request to United Healthcare, P.O. Box 1459, Minneapolis,
MN 55440. (Doc. 17-5 at 13). At some point between January 22, 2013, and
February 5, 2013, Mrs. Young’s lawyer sent another letter to Ms. Debbie Mullis
saying that United Healthcare had confused Mrs. Young’s document request with a
subpoena. (Doc. 17-6 at 7) On February 15, 2013, Mrs. Young spoke with Ms.
Kimberly Blais about Mrs. Young’s document request. Ms. Blais informed Mrs.
16

Young’s attorney that she would forward the document request to the appropriate
department. Both Mrs. Young’s attorney and UHIC confirmed this conversation in
writing. (Doc. 17-7 at 20-21). UHIC’s letter confirming the conversation, sent on
February 19, 2013, informed Mrs. Young’s lawyer that “Your request for the
Summary Plan Description and additional documents has been forwarded to the
Human Resource Department at UnitedHealth Group for response. You will be
receiving a response from them under separate cover.” (Doc. 17-7 at 21).
Additionally, UHIC’s letter of February 19, 2013, included a copy of the Certificate
of Coverage for its insurance policy with United Healthcare Services, Inc. and stated
that it included “ a copy of [the] claim file.” (Doc. 17-7 at 21). On March 1, 2013,
UnitedHealth Group sent Mrs. Young a copy of the SPD, and the most recent Form
5500, and an additional copy of the Certificate of Coverage.
In response to Mrs. Young’s ERISA production request sent January 7, 2013,
the defendants did not produce, and still have not produced, their claims manual and
internal memoranda advising as to how the policy should be interpreted.
III.

ANALYSIS
A.

Discovery Is Not Appropriate in This Case

In the plaintiff’s response to the motion she first states “[b]efore getting to the
merits of the [d]efendants’ motion . . . Young asks the [c]ourt to revisit the
17

prematurity of that motion given the posture of this case.” (Doc. 27 at 4).
1.

The Plaintiff’s Request Does Not Meet the Standard for
Reconsideration

As implied by the plaintiff’s use of the term “revisit,” the court has denied this
same request once before. (See doc. 25 – “ORDER granting 18 Motion for Protective
Order; denying 19 Motion for Relief under Rule 56(d); denying 20 Motion to
Compel. All discovery in this case is stayed pending further order of this court.”).
Because the court has already ruled on this issue, it will treat the plaintiff’s request
as a motion for reconsideration.
The undersigned has noted previously that
[i]n the interests of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed
sparingly. See United States v. Bailey, 288 F.Supp.2d 1261, 1267
(M.D.Fla.2003); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812 F.Supp.
522, 524 (E.D.Pa.1992); Spellman v. Haley, No. 97–T–640–N, 2004 WL
866837, at *2 (M.D.Ala. Feb. 22, 2002) (“[L]itigants should not use
motions to reconsider as a knee-jerk reaction to an adverse ruling.”)
(citation omitted). Indeed, as a general rule, “[a] motion to reconsider is
only available when a party presents the court with evidence of an
intervening change in controlling law, the availability of new evidence,
or the need to correct clear error or manifest injustice.” Summit Med.
Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala.2003).
It is well established in this circuit that “[a]dditional facts and
arguments that should have been raised in the first instance are not
appropriate grounds for a motion for reconsideration.” Rossi v. Troy
State University, 330 F.Supp.2d 1240, 1249 (M.D.Ala.2002) (denying
motion to reconsider when plaintiff failed to submit evidence in question
18

prior to entry of order and failed to show good cause why he could not
have done so). Furthermore, the Eleventh Circuit has declared that “a
motion to reconsider should not be used by the parties to set forth new
theories of law.” Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th
Cir.1997); see also Russell Petroleum Corp. v. Environ Products, Inc.,
333 F.Supp.2d 1228, 1234 (M.D.Ala.2004) (relying on Mays to deny
motion to reconsider when movant advanced several new arguments);
Coppage v. U.S. Postal Service, 129 F.Supp.2d 1378, 1379–81
(M.D.Ga.2001) (similar); Richards v. United States, 67 F.Supp.2d 1321,
1322 (M.D.Ala.1999) (same).
Notwithstanding these limitations, reconsideration is appropriate
to correct manifest errors of law or fact. See Fed.R.Civ.P. 60(b); Caisse
Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269
(7th Cir.1996) (“Motions for reconsideration serve a limited function:
to correct manifest errors of law or fact or to present newly discovered
evidence.”); Summit, 284 F.Supp.2d at 1355 (“A motion to reconsider
is only available when a party presents the court with evidence of an
intervening change in controlling law, the availability of new evidence,
or the need to correct clear error or manifest injustice.”). The grant or
denial of a motion to reconsider is left to the discretion of the district
court. See Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th
Cir.2000).
Busby v. JRHBW Realty, Inc. d/b/a RealtySouth, 642 F. Supp. 2d 1283, 1286 (N.D.
Ala. 2009) (Hopkins, J.) (footnotes omitted). The plaintiff’s request to “revisit” this
issue does not satisfy (or even argue) this standard, and the court affirmatively finds
that it is not satisfied. The request is due to be denied for that reason alone.
2.

Even Considering the Arguments in the Plaintiff’s Brief
Response to the Motion for Summary Judgment,9 the Request

9

In the instant request, the plaintiff writes that she incorporates into her arguments “the
reasons argued in Docs. 22, 23, and 24.” (Doc. 27 at 20). Document 22 is the defendants’ “Reply
19

Is Due To Be Denied
The plaintiff contends that “[t]he procedural prematurity of the [d]efendants’
summary judgment motion arises directly from . . . [the ERISA] six-step analysis.”
(Doc. 27 at 16). After setting out that analysis, she writes:
The [d]efendants’ motion reverses [the first two steps of the ERISA
analysis] by contending first that they acted under a valid grant of
discretionary authority, which of course is in accordance with Step Two.
They then argue in turn that the discretion accorded to them means that
the Court’s review over the de novo correctness of their claims decision
– which occurs under Step One -- is confined to the “record” they have
filed with the Court.
(Doc. 27 at 17). By way of review, and for ease of reference, the court notes that “step
one” requires the court to “[a]pply the de novo standard to determine whether the
claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees
with the administrator’s decision); if it is not, then end the inquiry and affirm the
decision.” Blankenship, 644 F.3d at 1355. “Step two” is only consulted if the court
determines that the administrator’s decision was de novo wrong. Thereafter, the

in Support of Their Motion for a Protective Order,” and document 23 is the defendants’
“Response to Plaintiff’s Motion for Relief under Federal Rule of Civil Procedure 56(d) and
Motion to Compel.” The court will assume that the plaintiff did not intend to incorporate by
reference the defendants’ arguments against her request for discovery, but instead sought to
incorporate both document 24, which is the plaintiff’s “Reply in Support of Her Motion for
Relief under Rule 56(d) and Her Motion to Compel,” as well as document 21, which is the
plaintiff’s “Consolidated Memorandum of Law in Support of Discovery Prior to Disposition of
Defendants’ Motion For Summary Judgment and Response in Opposition to Defendants’ Motion
for Protective Order.” The court will not revisit the incorporated arguments here. The request is
DENIED to the extent that it is based on those previously considered grounds.
20

second step requires the court to “determine whether [the administrator] was vested
with discretion in reviewing claims; if not, [the court must] end judicial inquiry and
reverse the decision.” Id. The plaintiff argues that the defendants’ supposed
“reversal” of the first two steps
raises two questions the Court must resolve, both as a matter of
procedure under the Williams analytical framework and as a matter of
fundamental fairness to Young: (1) Did the Defendants make a
discretionary claims decision in the first instance, such that the Court’s
review for “de novo correctness” is confined to that information that was
known to the ERISA administrator at the time it made its decision? and
(2) If the Defendants did make a discretionary decision and the Court’s
review record is indeed limited, is the record the [d]efendants have
presented to the Court complete?
(Doc. 27 at 17). The plaintiff argues that these questions cannot be answered without
discovery.
First, the defendants have not reversed the first two steps of the ERISA
analysis. In their brief in support of the motion for summary judgment, the defendants
begin by clearly stating that “the Court is asked to go no further than Step One.”
(Doc. 16 at 13). “[Eleventh Circuit] law is clear; even under the first step of the
analysis, where the court determines whether the administrator was wrong under a ‘de
novo’ standard, ‘[w]e are limited to the record that was before [the administrator]
when it made its decision.’” Gipson v. Admin. Comm. Of Delta Air Lines, Inc., 350
F. App'x 389, 394 (11th Cir. 2009) (quoting Glazer v. Reliance Standard Life Ins.,
21

524 F.3d 1241, 1247 (11th Cir.2008)). As shown below, the decision of the
administrator was not de novo wrong. Accordingly, it is unnecessary to determine
whether the defendants “ma[de] a discretionary claims decision in the first
instance.”10, 11
10

The confusion was created because, after discussing the first step of the ERISA review,
the defendants then, for the first time in their brief, discuss the scope of the record to be
considered in the next step writing “[a]dditionally, because both the SPD and the insurance
policy granted UHIC discretion to make benefits decisions, the scope of this court’s review is
limited to the information known to the administrator at the time it made its decision.” (Doc. 16
at 13) (emphasis added). Because the defendants did not mention the scope of the record to be
considered at the first stage of the review, the plaintiff apparently assumed that this court’s
review is confined to the record that was before the administrator only if “the [d]efendants
ma[de] a discretionary claims decision in the first instance.” That is not the law.
11

The plaintiff argues:

The first question is no different than the issue addressed in Anderson v. Unum
Life Ins. Co. of Am., 414 F. Supp. 2d 1079 (M.D. Ala. 2006). As Judge DeMent
correctly held in that case, proving the existence of discretion under the Step Two
of the Williams [analysis] involves two showings: (1) that there is a valid, express
grant of discretionary authority in the Plan documents to the third-party claims
administrator and (2) that the third-party claims administrator identified in that
grant of authority is the same entity that actually decided the claim. Id. at 1100.
Here, the second question remains entirely unknown due to the existing discovery
prohibition in this action. Without discovery showing how the Defendants move
claims through their system and proving who employed those persons who
decided this claim, Young is unable to respond fully to assertion that summary
judgment should be entered against certain Defendants on the basis they are not
“proper parties.” See Def.’s Mem. at 18-19. This, in turn, also impacts the
discretion question.
(Doc. 27 at 17-18). The plaintiff’s citation to Anderson is unpersuasive because, as noted, the
court need not determine whether there was a grant of discretionary authority. Further, the court
agrees that “[p]roof of who is the plan administrator may come from . . . the factual
circumstances surrounding the administration of the plan, even if these factual circumstances
contradict the designation in the plan document.” Hamilton v. Allen-Bradley Co., 244 F.3d 819,
824 (11th Cir. 2001). However, discovery on, and a resolution of, this issue is unnecessary in
light of the court’s holding that the administrator’s decision, whichever entity made it, was de
22

The plaintiff calls the second question, whether the record is complete, “the
most pressing and urgent from Young’s standpoint because it is already known that
the [d]efendants have not produced all the documents ‘relevant’ to her claim under
29 C.F.R. § 2560.503-1(m)(8).” (Doc. 27 at 18). In this argument, the plaintiff first
confuses the issue of whether the defendants complied with the regulations to
produce all “relevant” documents, with the altogether different issue of whether the
record before this court contains everything which was before the administrator at the
time it made its decision. The plaintiff points to no evidence considered by the
administrator which is not in the current record. The court affirmatively finds that the
record here is the same as what was before the administrator at the time it made its
decision.12
Still, the plaintiff argues she needs documentation concerning
the Defendants’ claims procedures, which the Court will note are not
part of the “record” the Defendants have filed with the Court.
...

novo correct.
12

Importantly, even if the court could consider, at the de novo step, extrinsic evidence
relating to whether there is coverage, or could order discovery regarding same, the plaintiff has
pointed to no such evidence, nor has she explained how any such evidence, if found, could help
her case. See, Wayton v. United Mine Workers of Am. Health & Ret. Funds, 568 F. App'x 738,
743 (11th Cir. 2014) (citing Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir.1989) (ERISA
plaintiff denied discovery where he failed to indicate how discovery would have aided his claim).
23

Because claims manuals address interpretation of policy
provisions (like those at issue here) and otherwise set forth the rules for
the administration of given insurance policies serving as “plan
documents,” they are directly relevant and subject to production.
Without them, the court will be making an uninformed decision ignoring
plainly relevant evidence showing whether the administrator’s
interpretation in this instance impermissibly deviates from
interpretations given to these same terms in other claims.
(Doc. 27 at 19) (emphasis in original). The plaintiff does not state at what step of the
ERISA analysis this information would be relevant.13 It seems clear, however, that the
plaintiff is seeking to show the impact of a potential conflict of interest on the claims
decision. However, in cases such as this one, where the review ends at the de novo
step, such information is not relevant. See, Blair v. Metro. Life Ins. Co., 569 F. App’x
827, 832 (11th Cir. 2014) (“We agree with the district court that Blair’s discovery
request was unnecessary to resolve the case because the court correctly found that
MetLife's decision to terminate LTD benefits was de novo correct. This finding ends
the analysis at step one. Accordingly, the court did not need to weigh MetLife's
admitted conflict because that analysis is only necessary at the sixth and final step of
our Circuit’s multi-step test for reviewing ERISA plan administrator's benefit
decisions.”). Notably, neither of the two cases cited by the plaintiff concern

13

It has been noted that “the applicable standard of review will . . . shape the permissible
scope of discovery in ERISA cases.” Featherstone v. Metro. Life Ins. Co., 223 F.R.D. 647, 651
(N.D. Fla. 2004).
24

discovery at the de novo step. See, Cagle v. Bruner, 112 F.3d 1510, 1518 (11th Cir.
1997) (in the context of the “arbitrary and capricious standard of review,” the court
noted that discovery would be appropriate to determine whether “the Fund's
interpretation of the plan was made rationally and in good faith.”); Melech v. Life Ins.
Co. of N. Am., 857 F. Supp. 2d 1281, 1285 (S.D. Ala. 2012) (allowing discovery of
plan documents where there was an “admitted” conflict of interest).14
The plaintiff also states that
the “record,” of course, also includes plan documents that are subject to
Young’s 29 U.S.C. § 1132(c) [Count Two] claim. At this time, Young
simply cannot know for sure what she lacks, and therefore needs
discovery to ascertain whether the [d]efendants’ representation that all
‘plan instruments’ have indeed been produced.
(Doc. 27 at 20). The only specific document she requests in this regard is “a
document affirmatively showing UHIC to have been granted authority by the named
administrator.” (Doc. 27 at 20). She continues:
there is only the policy itself which speaks to this, but the policy is no
better than a random person proclaiming that they are the agent of
another. Without an express agency agreement, there is no agency
relationship. The same goes for grants of discretionary authority; there
must be an instrument showing an express grant.

14

Of course, the plaintiff might be arguing that the information is relevant to something
other than a conflict of interest issue. If that is so, her argument fails because she has not
explained how the requested discovery would impact the determination of whether the
administrator’s decision was de novo correct. Further, it is not the court’s place to make
arguments for the plaintiff and the court certainly cannot read her mind.
25

(Doc. 27 at 20). Rule 26 of the Federal Rules of Civil Procedure provides that
“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Because, as this court has
already noted, it is unnecessary to determine at step one of the ERISA analysis.
whether the defendants “ma[de] a discretionary claims decision in the first instance,”
it is unclear what relevance this information has to the plaintiff’s claims for benefits.
Further the plaintiff has made no showing that the documents would be of the type
which the defendants were required to produce under 29 U.S.C. § 1132(c).15
The request to revisit the issue of discovery will be denied in all respects.
B.

The Decision To Deny Benefits Was De Novo Correct
1.

The Uncontroverted Evidence Establishes That the Plaintiff
Has Not Proven Coverage

The evidence in this case establishes that the decision of the claims
administrator was de novo correct. The AD&D policy requires that the plaintiff would
recover if her insured sustained “[a] bodily Injury resulting directly from an accident
and independently of all other causes.” (Doc. 17-6 at 28) (emphasis added).
Importantly, the provision is not exclusion, as argued by the plaintiff,16 but is in fact

15

In light of the fact that the court finds this claim to be without merit (see below), the
discovery issue on this point is moot.
16

See, doc. 27 at 22-23.
26

a prerequisite or condition to coverage. The plaintiff bears the burden to show that
she is covered by the provision. See, Horton v. Reliance Standard Life Ins. Co., 141
F.3d 1038, 1040 (11th Cir. 1998) (plaintiff suing under ERISA benefits bears the
burden of proving his entitlement to contractual benefits). The plaintiff has provided
no evidence that her husband’s death was due to an accident that was independent of
all other causes, including alcohol. She has produced no evidence to counter all of the
evidence which establishes that alcohol was a contributing cause.17
In Veal v. Nationwide Life Ins. Co., No. 5:09-CV-356/RS/MD, 2010 WL
1380170 (N.D. Fla. Mar. 31, 2010), the district court, construing similar policy
language, reached the same result this court now reaches. In Veal, the AD&D policy
at issue provided coverage for an “injury,” which the policy defined as “bodily injury
caused by the direct result of an Accident occurring while an Insured’s coverage is
in effect under this Policy which results independently of all other causes in a covered
loss.” (Doc. 27-1 at 4) (italics in original).18 There was also an exclusion “for any loss
resulting in whole or part from, or contributed to by, or as a natural or probable

17

In particular, the Coroner’s report found that “Johnny Leon Young died as a result of
positional asphyxia [and that] [e]thanol intoxication contributed to this death.” (Doc. 17-5 at 6).
Further, the Death Certificate also identified Johnny Young’s cause of death as “positional
asphyxia” and listed “ethanol intoxication” as another “significant condition[] contributing to
death.” (Doc. 17-4 at 25).
18

The plaintiff has provided a PACER version of the policy which was at issue in Veal.
27

consequence of . . . .[t]he Insured being deemed and presumed, under the law of the
locale in which the Injury is sustained, to be under the influence of alcohol or
intoxicating liquors.” Veal, 2010 WL 1380170, at *1. The Veal court found that
the record supports the administrator's finding that Mr. Veal’s fall while
intoxicated did not constitute a covered “injury caused by the direct
result of an accident ... which results independently of all other causes
in a covered loss.” The record also supports the administrator’s finding
that the health and alcohol exclusions applied. The record shows that
Mr. Veal was an alcoholic and that alcohol contributed to his death.
Veal, 2010 WL 1380170, at *2 (emphasis added). This court is persuaded by the
opinion in Veal that its logic is sound.19
2.

The Policy Language Is Not Ambiguous

The plaintiff argues that the insurance policy in this case is ambiguous. If so,
“application of the rule of contra proferentem is appropriate in resolving ambiguities
in insurance contracts regulated by ERISA. . . . Application of this rule requires us
to construe ambiguities against the drafter[.]” Lee v. Blue Cross/Blue Shield of
Alabama, 10 F.3d 1547, 1551 (11th Cir. 1994).
ERISA itself provides no guidance on what constitutes an “ambiguity.” The

19

The plaintiff insists that Veal is distinguishable because, she claims, the court found
coverage to be excluded. (Doc. 27 at 28). However, it is clear from the holding that the court
found both that the condition precedent to coverage was not satisfied and that coverage was
excluded. Further, the court rejects the plaintiff’s argument that the “foreseeability” language in
the Veal policy, which she contends is absent in the instant policy, had some effect on the
decision. There is no such indication in the Veal court’s holding.
28

Eleventh Circuit has noted:
Although comprehensive in many respects, ERISA is silent on matters
of contract interpretation. The courts have thus produced a body of
federal common law providing such guidance. Horton v. Reliance
Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th Cir.1998) (“Courts
have the authority ‘to develop a body of federal common law to govern
issues in ERISA actions not covered by the act itself.’ ”) (citation
omitted). When crafting this body of common law, “courts must
examine whether the rule, if adopted, would further ERISA's scheme
and goals.” Id.
Dixon v. Life Ins. Co. Of N. Am., 389 F.3d 1179, 1183 (11th Cir. 2004). “ERISA has
two central goals: (1) protection of the interests of employees and their beneficiaries
in employee benefit plans, id.; and (2) uniformity in the administration of employee
benefit plans.” Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th
Cir. 1998) (citation omitted).
The plaintiff insists that the policy’s failure to define the term “accident”
results in a “classic ambiguity over what the term ‘accident’ means.’” (Doc. 27 at 21).
First, the plaintiff has not explained why the term “accident” is ambiguous simply
because it is undefined.20 The plaintiff also writes:
20

It has been noted that

the mere fact that a word or a phrase used in a provision in an insurance policy is
not defined in the policy does not mean that the word or phrase is inherently
ambiguous. . . . If a word or phrase is not defined in the policy, then the court
should construe the word or phrase according to the meaning a person of ordinary
intelligence would reasonably give it. . . . The court should not define words it is
construing based on technical or legal terms.
29

“An insurance contract is ambiguous if it is susceptible to two or more
reasonable interpretations that can fairly be made. When one of these
interpretations results in coverage and another results in exclusion,
ambiguity exists in the insurance policy.” Dahl-Eimers v. Mut. of
Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir. 1993)(citations
omitted). This is exactly what is before the Court. That being the case,
the policy’s terms must be construed against the drafter, and a claimant’s
reasonable interpretation must be viewed as correct. White v. Coca-Cola
Co., 542 F.3d 848, 855 (11th Cir. 2008)(citing Lee v. Blue Cross/Blue
Shield of Alabama, 10 F.3d 1547, 1551 (11th Cir. 1994)).
(Doc. 27 at 22). This boilerplate language21 fails to set out exactly which
“interpretation” of the term “accident” provides for coverage, probably because there
is none in this instance.22 In any case, coverage was not denied based on the definition
of an “accident.” It was denied because Mr. Young’s accident was not “independent

Lambert v. Coregis Ins. Co., 950 So. 2d 1156, 1161-62 (Ala. 2006). While Lambert is neither a
federal case nor an ERISA case, the Eleventh Circuit has held that “federal courts may look to
state law as a model because of the states’ greater experience in interpreting insurance contracts
and resolving coverage disputes.” Horton, 141 F.3d 1038, 1041 (11th Cir. 1998).
21

The court notes that it is by no means settled that this is the “law” which applies to this
issue. There are many different views on what makes a contract ambiguous. The Dahl-Eimers
case, reflects one of them. Notably, it is not an ERISA case, but it has been cited many times in
the ERISA context. See, e.g. Sanctuary Surgical Ctr., Inc. v. Aetna Inc., 546 F. App'x 846, 854
(11th Cir. 2013) cert. denied sub nom. Sanctuary Surgical Ctr., Inc. v. Aetna Health, Inc., 134 S.
Ct. 1557, 188 L. Ed. 2d 559 (2014); Billings v. UNUM Life Ins. Co. of Am., 459 F.3d 1088, 1094
(11th Cir. 2006); Charlebois Deubler v. Prudential Ins. Co. of Am., No. 6:11 CV 1307 ORL 37,
2012 WL 7687693, at *8 (M.D. Fla. Nov. 1, 2012) report and recommendation adopted in part,
overruled in part, No. 6:11 CV 1307 ORL 37, 2013 WL 980260 (M.D. Fla. Mar. 13, 2013);
Monday v. Grp. Benefits Plan for Employees of Martin Brower Co., No.: 06 CV 1979 WSD,
2007 WL 4592097, at *7 (N.D. Ga. Dec. 28, 2007).
22

The plaintiff does state, in a cursory manner, that “accident” could mean “accidental
result,” or “accidental means.” However, she fails to explain how either of those meanings results
in AD&D coverage under the facts of this case.
30

of all other causes.”23
3.

The Fact That Intoxication Is Mentioned in a Separate
Exclusion Does Not Limit the Policy

The plaintiff next argues that, because “intoxication” is only discussed in the
policy in the context of driving under the influence, that it cannot also be an “other
cause” as noted by the defendants in their denial of the AD&D claim. (Doc. 27 at 23).
The plaintiff writes:
Against the backdrop of “injury” being an undefined term, the
Policy sets forth specific coverage exclusions giving special treatment
to nine separate circumstances that may arise where despite there
otherwise being an “injury” under the insuring clause. The lone
exception involving intoxication reads as follows:
Limitations: We will not pay a benefit for a loss caused
directly or indirectly by: … 6. driving while intoxicated, as
defined by the applicable state law where the loss occurred.
Doc. 17-7 at p. 7.
When reading the policy as a whole, the significance of this
exception is that its very existence means that under principles of
contract construction, the [d]efendants’ interpretation of the insuring
clause as also addressing intoxication is untenable. If the [d]efendants
were correct that the insuring clause and specifically its definition of
injury could be read to exclude accidents involving intoxication from
coverage, there would be no need in the same policy to state also that
23

The plaintiff does not appear to claim that the “independently of all other causes”
language is ambiguous. Even if she had, the court notes that there is authority where similar
language was not construed in favor of the plaintiff to provide coverage. See, Dixon v. Life
Insurance Com. Of North America, 389 F. 3d 1179, 1180 (11th Cir. 2004) (construing “directly
and from no other causes, result[s] in a covered loss”).
31

accidents involving intoxication plus operation of motor vehicles are
excluded, too. The [d]efendants’ interpretation violates the canon of
contract construction providing that a policy must be read as a whole in
an effort to give every provision of the policy effect, avoiding any
interpretation that renders a particular provision superfluous or
meaningless. Johnson v. American United Life Ins. Co., 716 F.3d 813,
819-820 (4th Cir. 2013). At the very least, with the policy’s lone
mention of intoxication being in the limitation quoted above, the
[d]efendants’ reading does not meet the reasonable expectations of the
typical insured. Ruttenberg v. United States Life Ins. Co. in City of New
York, 413 F.3d 652, 668 (7th Cir. 2005).
(Doc. 27 at 23-24).
The court finds no merit in this argument. It has been noted that “insurance
policies are notorious for their simultaneous use of both belts and suspenders, and
some overlap is to be expected.” Certain Interested Underwriters at Lloyd's, London
v. Stolberg, 680 F.3d 61, 68 (1st Cir. 2012). Just because the two provisions at issue
may overlap does not make either of them ambiguous.24
C.

The Statutory Penalties Claim in Count Two Has Been Abandoned

In Count Two, the plaintiff seeks ERISA penalties, under 29 U.S.C. § 1132(c)
and 29 C.F.R. 2560.503-1(h)(2)(iii), for the defendants’ alleged failure to provide “all
documents, records and other information relevant to claimant’s claim for benefits”
(Count Two). (Doc. 1 at 13). Other than to argue that she needs discovery on this

24

The defendants are clear that they “do not contend that this Court should read a
foreseeability requirement into the definition of ‘accident’.” (Doc. 28 at 10, n. 6). Accordingly,
the court will not address the plaintiff’s argument on that point. (See, doc. 27 at 25-26).
32

claim, an argument which the court has rejected, the plaintiff has failed to respond to
the defendant’s motion for summary judgment on this issue. The court therefore
deems that claim to be abandoned. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d
1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not presented
in initial response to motion for summary judgment); Bute v. Schuller International,
Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim
abandoned); see also Coalition for the Abolition of Marijuana Prohibition v. City of
Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the
district court is sufficient to find the issue has been abandoned); Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Hudson v. Norfolk
Southern Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001); cf. McMaster v.
United States, 177 F.3d 936, 940-41 (11th Cir. 1999) (claim may be considered
abandoned when district court is presented with no argument concerning a claim
included in the plaintiff’s complaint); Road Sprinkler Fitters Local Union No. 669
v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that
a district court “could properly treat as abandoned a claim alleged in the complaint
but not even raised as a ground for summary judgment”).25

25

Further, the court is under no independent obligation to develop grounds in opposition
to summary judgment on behalf of the plaintiff as “the onus is upon the parties to formulate
arguments[.]” Dunmar, 43 F.3d at 599 (citation omitted); see also id. (“There is no burden upon
33

Further, the regulations cited by the plaintiff “do not apply to [a claim under]
§ 1132(c)(1), but rather apply to § 1133, which establishes the types of claims
procedures that administrators are required to maintain.” Byars v. Coca Cola Co., 517
F.3d 1256, 1270 (11th Cir. 2008); see also, 29 C.F.R. § 2560.503-1(a) (“In
accordance with the authority of sections 503 and 505 of the Employee Retirement
Income Security Act of 1974 (ERISA or the Act), 29 U.S.C. 1133, 1135, this section
sets forth minimum requirements for employee benefit plan procedures pertaining to
claims for benefits by participants and beneficiaries.”); Disanto v. Wells Fargo & Co.,
No. 8:05CV1031 T27MSS, 2007 WL 2460732, at *16 (M.D. Fla. Aug. 24, 2007)
(“This Court agrees that the penalties sought by [p]laintiff for any failure by Wells
Fargo to provide [p]laintiff’s entire claim file pursuant to agency regulation 29 C.F.R.
§ 2560.503-1(h)(2)(iii) are not authorized by § 1132(c).”). The plaintiff has not
shown what information, required to be produced by 28 U.S.C. § 1132(c), was not.
Summary judgment is alternatively appropriate as to Count Two for this reason.
IV.

CONCLUSION
Based on the foregoing, the plaintiff’s request to revisit the discovery issue will

be DENIED, the motion for summary judgment will be GRANTED, and this case

the district court to distill every potential argument that could be made based upon the materials
before it on summary judgment.”) (citation omitted)).
34

will be DISMISSED with prejudice. A separate final order will be entered.
DONE and ORDERED this 31st day of October, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

35