Howington v. Smurfit-Stone Container Corporation/Smurfit-Stone Container Corporation Pension Plan for Hourly Employees

Filing 41

ORDER denying 35 Motion to Strike; denying 27 Motion for Summary Judgment. Signed by Judge Kristi K. DuBose on 2/13/12. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES HOWINGTON, JR.,
Plaintiff,
vs.
SMURFIT-STONE CONTAINER
CORPORATION and SMURFIT-STONE
CONTAINER CORPORATION
PENSION PLAN FOR HOURLY
EMPLOYEES,
Defendant.

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CIVIL ACTION NO. 11-0136-KD-M

ORDER
This action is before the Court on the defendants Smurfit-Stone Container Enterprises,
Inc.,1 (Smurfit) and Smurfit-Stone Container Corporation Pension Plan for Hourly Employees’
(the Pension Plan) motion for summary judgment and brief in support, response filed by plaintiff
James Howington, Jr., and defendants’ reply. (Docs. 27, 28, 29, 34, 36). Upon consideration
and for the reasons set forth herein, the motion for summary judgment is DENIED.
I. Background
Howington filed this action pursuant to the Employee Retirement Income Security Act
(ERISA) as codified at 29 U .S.C. § 1001, et seq, to recover disability benefits due under the
terms of the Smurfit-Stone Container Corporation Pension Plan for Hourly Employees.
Howington alleges that he became totally and permanently disabled while working for Smurfit
but the Pension Plan refused to pay benefits on basis that he became disabled after leaving
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Defendants state that Smurfit is now merged with RockTenn CP, LLC, and that it
retains all the rights and obligations of Smurfit.

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employment on September 27, 2007. Defendants answer that Howington’s award of Social
Security disability benefits show an onset of disability date of October 28, 2007 and based on
that date, Howington became disabled after he left employment. Therefore, his application for
benefits was not wrongfully denied.
I. Findings of Fact2
Howington was an hourly employee at Smurfit’s paper mill in Brewton, Alabama and he
participated in the Pension Plan for hourly employees. (Doc. 1). Howington’s last day of work
for Smurfit was September 27, 2007. (Doc. 1). On September 30, 2007, the paper mill was sold
to Georgia Pacific Corporation but Howington’s pension remained with the Smurfit Pension
Plan. (Doc. 1, Doc. 14, Answer, p. 8).
In January, 2008, Howington applied for Social Security disability. (Doc. 1). On June 2,
2009, he was awarded Social Security Disability benefits. (Doc. 34-2). The Administrative Law
Judge (ALJ) found that Howington had “not engaged in substantial gainful activity since October
28, 2007, the alleged onset date[.]” (Doc. 34-2, p. 5) and that he “has been under a disability as
defined in the Social Security Act since October 28, 2007, the alleged onset date of disability.”
(Doc. 34-2, p. 7).
After the award, Howington applied for long term disability through the Pension Plan.
(Doc. 28-3, ¶ 5, Affidavit of Cheryl Curik, former Manager of Retirement Plans and
Compliance for Smurfit). On September 1, 2009, Howington’s claim was denied on basis that
the Social Security decision indicated he became disabled October 28, 2007, after he left
2

On motion for summary judgment, the Court must construe the record and all evidence
and factual inferences, in the light most favorable to the nonmoving party and resolve all
reasonable doubts in regard to the facts in favor of the non-movant. See Skop v. City of Atlanta,
485 F.3d 1130, 1136 (11th Cir. 2007).

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employment with Smurfit. (Id. ¶ 8; Doc. 1, p. 2, ¶ 13; Doc. 22, p. 13, Exhibit B to Howington’s
response to the motion for judgment on the pleadings). The unsigned letter explained that
Howington may appeal the decision and that if he “decided[d] to appeal, please provide any
documentation that you believe supports your claim.” (Doc. 22, p. 13, Exhibit B).
On or near October 27, 2009, Howington wrote the Pension Plan explaining that he made
a mistake as to the date he last worked for Smurfit when he applied for Social Security disability
benefits. (doc. 37, p. 4, Exhibit A). Howington wrote that he enclosed with his appeal “the sheet
that I had filled out for social security with the mistake” (Id.) He also asked for help with this
matter and also asked the Pension Plan to contact him should the Committee need more
information. (Id).
At some time after July 13, 2010, Howington was notified that the decision was affirmed
on appeal by the Smurfit-Stone Administrative Committee. (Doc. 22, Exhibits C, p. 14, Letter
from Smurfit Stone Pension Service Center, dated July 13, 2010). In this letter, Curik explained
that the Administrative Committee reviewed Howington’s claim, his Social Security disability
award, his personnel file, and the applicable Pension Plan document. (Id).
In December 2010, Howington’s counsel wrote the Service Center about the denial (Doc.
37, p. 7-8, Exhibit B, Letter to Curik dated December 9, 2010). Counsel offered to provide
medical records in support of the onset date. Pension Plan counsel responded that the denial
would be reconsidered if Howington provided “a revised Social Security determination stating
that he was disabled on September 27, 2007.” (Doc. 22, Exhibit E, p. 16).
On January 13, 2011, counsel for Howington responded that the time limit had passed to
amend the SSA decision and provided the full ALJ decision to Pension Plan Counsel (doc. 37, p.
9-10). In March 2011, Pension Plan Counsel responded that benefits were not available because

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“[a]ccording to the determination, Mr. Howington’s disability began after he left [Smurfit’s]
employment.” (Doc. 37, p. 11). Pension Plan Counsel also explained that a “condition of
eligibility . . . is that a participant be disabled while in active employment.” (Id.)
Howington states that the date of last substantial gainful activity in the Social Security
decision is incorrect. (Docs. 1, 34, response to motion for summary judgment). Howington
states that he returned to the paper mill to access his 401-K Plan in October 2007, and this
confused him as to the date of last employment and led to his “mistakenly”3 stating in his Social
Security application that “he became disabled on October 28, 2007 rather than the correct date,
which was September 27, 2007.” (Doc. 34-1, p. 2, Howington Affidavit).
Section 5.16 of the Pension Plan defines disability as follows:
Disability Defined. Except as otherwise provided in a Supplement, a Member
who becomes disabled while in the active employment of the Company shall be
deemed to be disabled for purposes of the Plan if through an unavoidable cause:
(a) he has been disabled by illness or injury so as to be incapable of engaging in
any occupation or employment for remuneration or profit; (b) such disability shall
have been continued for a period of at least five consecutive months, and (c) the
Member has received a federal Social Security Disability award or a premium
waiver or death benefit only continuation coverage under the Company’s life
insurance carrier. For purposes of this Section 5.16, the phrase “active
employment” means that on the date of onset of disability, the Member (i) was on
the active payroll of the Employer; and (ii) was not on a leave of absence as
defined under Article III.
(Doc. 28-3, p. 33, Pension Plan p. 23).
The Pension Plan provides for an Administrative Committee of at least three members to
serve as the Plan Administrator, and sets forth, in part, the following:

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Howington admits to his mistake and for purposes of summary judgment, the Court
will accept his admission as fact that he made a mistake. See note. 3.

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Section 11.2 Committee’s Powers. The Committee shall have such powers as
may be necessary to discharge its duties hereunder, including, but not limited to,
the following powers, rights, discretion and duties:
11.2(a) Interpretation of Plan and Trust Fund The Committee shall have the
power, right and duty to construe and interpret the Plan and Trust Fund provisions
in its discretion and to determine all questions . . . including . . . eligibility for
Plan benefits and the rights of Employees . . . to benefits under the Plan . . .
11.2(c) Benefit Determinations. The Committee shall have the power, right and
duty to make determinations as to the rights of Employees, Members,
Beneficiaries and other persons to benefits under the Plan and to afford any
Member or Beneficiary dissatisfied with such determination with rights pursuant
to a claims procedure adopted by the Committee.
(doc. 28-3, p. 46).
As to the Claims Procedure, the Pension Plan sets forth in relevant part, as follows:
11.5(a) Each person eligible for a benefit under the Plan will make a claim for his
or her benefit by submitting an appropriate form to the Committee. Each such
person will also furnish the Committee with such documents, evidence, data, or
information in support of his or her claim as the Committee considers necessary
or desirable.
(doc. 28-3, p. 48). The Pension Plan also provides for a review if the claim is denied (Id.)
Upon review of a denial, the reviewer shall
take into consideration all comments, documents, records, and other information
submitted by the claimant in support of the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.
(Id., p. 49 at § 11.5(d)).
II. Conclusions of law
A. Summary judgment standard
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must
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(A) cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) show[] that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1)(A)(B).
The party seeking summary judgment bears “the initial burden to show the district court,
by reference to materials on file, that there are no genuine issues of material fact that should be
decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party
seeking summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Clark, 929 F.2d at 608 quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).
Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant
to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) citing Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S.Ct. 2505 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,
90 S.Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment
if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163 (11th
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Cir. 1995) quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Overall, the Court must “resolve all issues of material fact in favor of the [non-movant],
and then determine the legal question of whether the [movant] is entitled to judgment as a matter
of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004)
citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003).
However, the mere existence of any factual dispute will not automatically necessitate
denial of a motion for summary judgment; rather, only factual disputes that are material preclude
entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358
F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It is genuine if
the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.”
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
Also, “what is considered to be ‘facts’ at the summary judgment stage may not turn out to be the
actual facts if the case goes to trial, but those are the facts at this stage of the proceeding for
summary judgment purposes.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).
B. The ERISA standard of review
“ERISA does not set out standards under which district courts must review an
administrator's decision to deny benefits.” Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d
1352, 1355 (11th Cir. 2008) citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109,
109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989). The Court of Appeals for the Eleventh Circuit
developed a six-step review process which was modified in response to the decision in
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343 (2008). After Glenn, this
circuit no longer requires district courts to apply a heightened standard of review to a conflicted

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plan administrator’s decision (the sixth step). Doyle, 542 F. 3d at 1360. 4
Eliminating the heightened standard of review in the sixth step, the review process
proceeds as follows:
(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, end 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, then end the
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.
Blankenship v. Metropolitan Life Ins. Co., 644 F. 3d 1350, 1355 (11th Cir. 2011) cert. denied,
132 S. Ct. 849 (2011) (amending the sixth step); see Doyle, 542 F. 3d at 1356, (the sixth step was
“(6) If there is a conflict of interest, then apply heightened arbitrary and capricious review to the
decision to affirm or deny it.”) (citations omitted); see also Tippitt v. Reliance Standard Life Ins.
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Now, “the existence of a conflict of interest should merely be a factor for the district
court to take into account when determining whether an administrator's decision was arbitrary
and capricious.” Doyle, 542 F. 3d at 1360. Thus, while this court “must take into account an
administrative conflict when determining whether an administrator's decision was arbitrary and
capricious, the burden remains on the plaintiff to show the decision was arbitrary; it is not the
defendant's burden to prove its decision was not tainted by self-interest.” Id.

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Co., 457 F.3d 1227, 1231-32 (11th Cir. 2006). “A pertinent conflict of interest exists where the
ERISA plan administrator both makes eligibility decisions and pays awarded benefits out of its
own funds.” Id., 644 F.3d at 1355. Moreover, where the “plan administrator” has “discretion in
reviewing claims under the Plan . . . all of the steps . . . are potentially at issue”. See
Blankenship, 644 F. 3d at 1356 n.7.
C. Analysis
Motion to strike
In paragraphs four and five of their motion to strike, defendants move to strike certain
portions of paragraphs three and four of Howington’s affidavit. (Doc. 35). Defendants argue that
Howington’s statements as to what the Plan advised him or told him are inadmissible hearsay to
which no exception applies. However, it appears that Rule 801(d) of the Federal Rules of
Evidence may be applicable. The Rule identifies “[s]tatements that are not hearsay” and that
[a] statement that meets the following conditions is not hearsay: (2) An Opposing
Party’s Statement. The statement is offered against an opposing party and: (D)
was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed . . . [t]he statement must be considered but does
not by itself establish . . . the existence or scope of the relationship under (D)[.]”
Fed. R. Evid. 801(d)(2)(D). Accordingly, for purposes of summary judgment, these statements
may be admissible hearsay and the motion to strike is DENIED as to the alleged statements made
to Howington by The Plan.
Defendants also move to strike paragraphs one and two from Howington’s affidavit.
(doc. 35, p. 1-3.) The motion is DENIED as to Howington’s explanation for the incorrect date.
Howington’s explanation may seem conclusory but it is based on his personal knowledge. As to
the lack of a factual basis for his assertion of mistake, the evidence before the Court indicates
that Howington’s employment ended on September 27, 2007, and that the ALJ found that
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Howington had not engaged in substantial gainful activity since October 28, 2007. This supports
his statement that he was confused as to his date last employed. Howington explains his
confusion by reference to his return to the paper mill to obtain funds from his 401(k) Plan.
Defendants also move to strike the portion of these paragraphs wherein Howington
speculates as to how the ALJ reached his decision and speculates that the ALJ would have
changed the date had Howington requested. The motion also moves to strike as hearsay without
exception, certain information Howington heard from his attorney. In paragraph two,
Howington states that “]i]t is my understanding from my attorney that had [there been a
disability hearing], the [ALJ] would have allowed me to amend my onset date from October 28,
2007 to September 27, 2007.” (doc. 34-1, p. 2). The motion to strike is MOOT as to these
portions of the affidavit because the Court did not rely upon these allegations in reaching its
decision on summary judgment.
Motion for summary judgment
As a preliminary consideration, there does not appear to be a conflict of interest.
Howington argues that the Plan Administrator has a conflict of interest because benefits are paid
by defendant Smurfit. However, defendants explain that benefits are paid from a trust and not by
defendant Smurfit or the Pension Plan.5
The parties agree that the Plan Administrator has discretion to interpret the Pension Plan
(step two). The Pension Plan grants that discretion to the Administrative Committee which
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The Pension Plan Document defines “Trust Fund” to “mean[] the fund established
under the Trust Agreement by contributions made by the Employees, and from which retirement
benefits may be paid.” (doc. 28-3, p. 17, Pension Plan Document, p. 7). The “Trust Agreement
means the trust agreement made and entered into by the Company with the Trustee” (Id.) The
“Trustee means the trustee under the trust agreement which establishes the Trust Fund, or its
successor or successors.” (Id.)

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serves as the Plan Administrator. (“The Committee shall have the power, right and duty to
construe and interpret the Plan and Trust Fund provisions in its discretion and to determine all
questions . . . including . . . eligibility for Plan benefits and the rights of Employees . . . to
benefits under the Plan . . . “) (Doc. 28-3, p. 46, ¶11.2(a)). Therefore, if the Court disagrees with
the Plan Administrator’s decision at step one, and proceeds to step three, then the Court must
apply a deferential arbitrary and capricious standard and determine whether the decision was
rational and made in good faith, but not whether it was right.
Step one - de novo review
Defendants argue that the evidence before the Plan Committee, i.e., the Social Security
decision, established that Howington became disabled after he left employment with Smurfit.
Defendants also argue that Howington knew he could present additional documents such as his
medical records but declined to do so.
Howington admits that he gave an incorrect date of last employment when he completed
the Social Security benefit application. Howington argues that the Plan Administrator’s decision
is wrong because of reliance upon this incorrect date. Howington also argues that the Plan
Administrator refused to review his medical records or allow him to submit additional evidence
to show that he was disabled before he left employment but instead relied upon three pages of
the Social Security disability decision which was based upon the incorrect date.
At the first step of the analysis, the Court applies “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)” Blankenship, 644 F. 3d at 1355. “[W]hen the court makes its
own determination of whether the administrator was “wrong” to deny benefits under the first step
of the Williams analysis, the court applies the terms of the policy.” Ruple v. Hartford Life and

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Acc. Ins. Co., 340 Fed.Appx. 604, 611 (11th Cir. 2009); citing 29 U.S.C. § 1104(a)(1)(D) and
Oliver v. Coca-Cola Co., 497 F.3d 1181, 1195 (11th Cir. 2007).
Thus, the Court begins with the plain language of § 5.16 of the Pension Plan which
defines disability. The section requires that the employee was employed on the date of onset of
disability. (Doc. 28-3, p. 33). The section also requires that the employee “received a federal
Social Security Disability award or a premium waiver or death benefit only continuation
coverage under the Company’s life insurance carrier.” (Doc. 28-3, p. 33).
The section does not require the Plan Committee or the Plan Administrator on appeal to
adopt the date of onset from the Social Security award. They retained the discretion to determine
an award of benefits under the Plan. (“The Committee shall have the power, right and duty to
construe and interpret the Plan and Trust Fund provisions in its discretion and to determine all
questions . . . including . . . eligibility for Plan benefits and the rights of Employees . . . to
benefits under the Plan . . . “)6 (Doc. 28-3, p. 46, ¶11.2(a)). Howington presented a “question” to
the Plan Administrator on appeal when he informed the Plan that he had put the wrong date on
his Social Security Application.
Pursuant to the regulations governing Social Security disability determinations, a person
cannot be found disabled so long as they are engaged in substantial gainful activity. See 20
C.F.R. § 4-4.1520(b) (“If you are working and the work you are doing is substantial gainful
activity, we will find that you are not disabled regardless of your medical condition or your age,
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This seems to contradict Pension Plan Counsel’s statement to Howington in the letter
of March 2, 2011 “. . . the Plan administrator does not make its own disability determinations.
Instead, the administrator relies on external disability determination by either the Social Security
Administration or the carrier under SSCC’s life insurance program. In the absence of a
determination of the type required by the Plan, Mr. Howington’s request for a disability pension
is denied.” (Doc. 37, p. 11).

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education, and work experience.”).7 When Howington gave the SSA the wrong date last
employed, that date became the date of onset of disability. It appears that but for his mistake, the
Pension Plan would have awarded disability benefits.
Additionally, “29 U.S.C. § 1104(a)(1), mandates that a fiduciary shall ‘discharge his
duties with respect to a plan solely in the interest of the participants and beneficiaries and ... (B)
with the care, skill, prudence, and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such matters would use ....’” Capone v.
Aetna Life Ins. Co., 592 F.3d 1189, 1199-1200 (11th Cir. 2010) (finding that Aetna “had the
responsibility to fully investigate Capone's claims before denying benefits. Aetna failed to
adequately address the issues raised in Capone's appeal and the denial of benefits without a
proper investigation was de novo wrong.”).
Upon consideration of the Plan language, and viewing the facts in the light most
favorable to the non-movant Howington, the Court finds that there remains an issue of fact as to
whether the decision was based on mistaken information as to the date of last employment and
therefore, was incorrect.
The Court now proceeds to step three to determine whether there are reasonable grounds
to support the decision. To do so, the Court must apply the deferential arbitrary and capricious
standard. Defendants argue that the Plan Administrator acted reasonably in relying upon the
SSA’s determination of the onset of disability date. Defendants argue that Howington should
have submitted any additional evidence including his medical records when he appealed the Plan
Administrator’s decision and that on appeal, the Plan Administrator did not have an obligation to
7

This regulation is cited in the ALJ decision. (doc. 34-2, p. 5) (“The claimant has not
engaged in substantial gainful activity since October 28, 2007, the alleged onset date (20 CFR
404.1520(b) and 404.1571, et seq.)”).

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obtain additional information for Howington.
Howington states that he “wasn’t allowed to submit medical records in my initial
application for disability with the Plan.” (doc. 34-1, p. 3). He also argues that the Pension Plan
acted arbitrarily and capriciously, committed a procedural irregularity, and did not provide him a
full and fair review because the Pension Plan accepted the onset date and did not investigate his
claim or request his medical records and refused to allow him to submit the medical records or
additional evidence in support of his claim.
The Court finds that it would be arbitrary and capricious to refuse to consider the
underlying medical records to support the disability onset date. It is Howington’s burden to
prove the Pension Plan acted arbitrarily and capriciously. In this case, meeting that burden turns
on an issue of credibility which precludes summary judgment.
III. Conclusion
In accordance with the foregoing, defendants’ motion for summary judgment is
DENIED.
Defendants incorporate by reference their earlier motion for judgment on the pleadings.
Thus, to the extent that defendants’ motion for summary judgment is based on the motion for
judgment on the pleadings, the motion for summary judgment is DENIED for the reasons set
forth in the order denying the motion for judgment on the pleading (Doc. 26).
DONE and ORDERED this 13th day of February, 2012.

s / Kristi K DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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