Weber v. Hartford Insurance Company et al

Filing 69

ORDER that parties to file and serve a memorandum of law re: whether to allow supplementation of the administrative record no later than 10 days from the date of entry of this order. Parties to file and serve a memorandum of law re: as to the necessity for further discovery no later than 10 days from the date of entry of this order. Signed by Judge Robert C Broomfield on 12/18/08. (DMT, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Lisa Divito Weber, Individually, as Personal Representative of the Estate of Norman Scott Weber, Deceased, and next-friend of Brittany M. Weber and Wittney Nicole Weber, minor children, of Decedent,

) ) ) ) ) ) ) ) ) Plaintiff, ) ) vs. ) ) Hartford Life and Accident ) Insurance company, a ) Connecticut corporation, ) ) Defendant. ) ______________________________)

No. CIV 06-02779 PHX RCB ORDER

Background In this action brought pursuant to the Employee Retirement Income Security Act of 1974, the fundamental issue is whether the death of Norman Scott Weber was an accident, as plaintiff contends, or a suicide, as defendant contends. Primarily because "the

parties have a fundamental disagreement" as to how this case should proceed, doc. 64 at 1:22, they have submitted separate supplemental

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status reports and proposed scheduling orders for the court's consideration (docs. 64 and 65). Although they agree that any

trial herein will be a bench trial subject to de novo review, the parties disagree as to the scope of the record for such trial. They also disagree as to the necessity for additional discovery. Defendant assumes that no further discovery is necessary, but plaintiff contemplates additional discovery. Indeed, her proposed

supplemental pretrial scheduling order includes deadlines for the taking of expert depositions and a discovery cut-off date, to be determined. The December 15, 2008, deadline for a settlement conference has passed. The court assumes by the parties' silence that this Consequently, it is necessary to

matter has not been resolved.

consider the issues which the parties' respective status reports raise, including the proposed deadlines contained therein. Discussion I. Scope of Review Defendants are taking the position that the court should review only the administrative record at trial, whereas plaintiff is seeking to have the court also consider "such additional evidence or testimony [as] the [court] may allow or require to resolve the question of decedent's cause of death[.]" Pl. Supp. Status Report (doc. 65) at 3, ¶ 8:18-20. As defendant suggests,

"[i]n most cases only the evidence that was before the plan administrator should be considered[]" by a reviewing court. See

Kearney v. Standard Ins. Co., 175 F.3d 1084, 1091 (9th Cir. 1999) (internal quotation marks and citation omitted). Or, as the

Kearney Court put it, "the record that was before the administrator -2-

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furnishes the primary basis for review." added).

Id. at 1090 (emphasis

Reviewing only the administrative record is not a hard and fast rule, however. In Mongeluzo v. Baxter Travenol Long Term

Disability Benefit Plan, 46 F.3d 938 (9th Cir. 1995), the Ninth Circuit "recognized that the administrative record need not serve as the exclusive basis for review." 269 F.3d 974, 985 (9th Cir. 2001). Dishman v. Unum Life Ins. Co., Rather, "[a] district court

may, in its discretion, allow evidence that was not before the plan administrator when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision." citation omitted). Id. (internal quotation marks, footnote and "The Mongeluzo court juxtaposed necessity to

situations in which someone at a later time comes up with new evidence that was not presented to the plan administrator." 985, n.46 (internal quotation marks and citation omitted). So, for example, in Kearney the Ninth Circuit held that the district court did not abuse its discretion when it limited its review to the evidence before the plan administrator. There was no Id. at

abuse of discretion, the Ninth Circuit found, for two reasons. First, plaintiff "easily" could have submitted his additional evidence, "pages of an `Occupational Outlook Handbook' published by the U.S. Department of Labor," to the plan administrator, but he did not. Kearney, 175 F.3d at 1091. Second, the Ninth Circuit

found that the additional evidence was not needed for the district court to "conduct an adequate de novo review[,]" of the denial of benefits decision. As an "experienced trial judge[,]" the district

court was aware of "what trial lawyers do[;]" and hence did not -3-

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need the "assistance of a secondary source[]" -- the DOL Handbook -- to inform him on that issue, the Ninth Circuit reasoned. id. In contrast, where "[n]o administrative review preceded [an insurer's] decision to suspend [plaintiff's] benefits[,]" the Ninth Circuit in Dishman, held that the district court did not abuse its discretion in allowing evidence outside the administrative record. Dishman, 269 F.3d at 985. The Ninth Circuit explained that because See

the insurer told plaintiff that "no appeals process applied to him," plaintiff could "hardly" be "fault[ed]" for not submitting materials to the insurer, which he later sought to present to the district court. Id. Similarly, in Friedrich v. Intel Corp., 181

F.3d 1105 (9th Cir. 1999), the Ninth Circuit held that the district court properly allowed additional medical evidence where the plan administrator had "limited [plaintiff] to an administrative record that included only some of [his] medical records and those records were illegible and disorganized." Id. at 1111. That additional

evidence was necessary so that the district court could "conduct an independent de novo review of the benefit claim denial[.]" Id. Another exception to the general rule limiting review to the administrative record is "when a plan administrator operates under a conflict of interest." Harris v. Standard Ins. Co., 2008 WL In that situation, "[t]he

917119, at *12 (D.Or. March 26, 2008).

district court may, in its discretion, consider evidence outside the administrative record to decide the nature, extent, and effect on the decision-making process of any conflict of interest[.]" Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006). Procedural irregularities by plan administrators also -4-

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provide a basis for consideration of "evidence outside the administrative record to supplement gaps in the record caused by th[os]e procedural defalcations." Harris, 2008 WL 917119, at *13

(citing Abatie, 458 F.3d at 972-973). As should be evident by now, the court cannot make a determination as to the need to supplement the administrative record in a vacuum. Therefore, before issuing a Supplemental Pre-

trial Scheduling Order, the court will require the parties to file and serve a memorandum of law, and any accompanying documentation they deem relevant, setting forth the legal and factual bases for their respective positions on whether to allow supplementation of the administrative record. II. Discovery Likewise, the need for additional discovery cannot be resolved in a factual vacuum. In part because the court has not been

apprised of the extent of the administrative record, the need for additional discovery along the lines which plaintiff suggests is not readily apparent. Therefore, the court further requires the

parties to file and serve a memorandum of law and any accompanying documentation they deem relevant, setting forth the legal and factual bases for their respective positions as to the necessity for further discovery. If further discovery is desired, proposed

discovery deadlines shall be included therewith. As set forth above, the court hereby ORDERS: (1) the parties to file and serve a memorandum of law, and any accompanying documentation they deem relevant, setting forth the legal and factual bases for their respective positions on whether to allow supplementation of the administrative record by no later -5-

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than ten (10) days from the date of entry of this order; the court further ORDERS: (2) the parties to file and serve, no later than ten (10) days from the date of entry of this order, a memorandum of law and any accompanying documentation they deem relevant, setting forth the legal and factual bases for their respective positions as to the necessity for further discovery. If further discovery is desired,

proposed discovery deadlines shall be included therewith. DATED this 18th day of December, 2008.

Copies to counsel of record

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