UNUM Life Insurance Company of America v. Pawloski
Filing
50
ORDER granting 32 Plaintiff's Motion for Summary Judgment. Signed by Judge Charlene Edwards Honeywell on 11/26/2014. (AHH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Plaintiff,
v.
Case No: 8:13-cv-2290-T-36MAP
GARY PAWLOSKI,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon Plaintiff Unum Life Insurance Company of
America’s (“Unum”) Motion for Summary Judgment (Doc. 32). Defendant Gary Pawloski failed
to respond to the motion within the time prescribed by the Local Rules. Accordingly, on July 21,
2014, the Court ordered Pawloski to respond to the motion by July 28, 2014, and cautioned that
failure to do so would result in the Court considering the motion as unopposed. Doc. 40. Pawloski
failed to respond to the motion or the Court’s order, so on August 6, 2014, the Court, recognizing
Pawloski’s pro se status, advised him again that his failure to respond to the motion would indicate
that the motion was not opposed. Doc. 42. The Court also warned Pawloski that it would consider
all material facts asserted in the motion to be admitted by him unless he controverted them with
proper evidentiary materials. Id. Despite these admonitions, Pawloski has not responded in any
way to the motion or to the Court’s orders. Accordingly, the Court will treat the motion as
unopposed and the material facts asserted therein as admitted by Pawloski. The Court, having
considered the motion and being fully advised in the premises, will now GRANT Unum’s Motion
for Summary Judgment.
I.
STATEMENT OF FACTS 1
This action arises from the alleged overpayment of benefits by Unum to Pawloski pursuant
to a group long term disability policy issued by Unum to Pawloski’s former employer, Compass
Group USA, Inc. Declaration of Christine Mills (“Mills Decl.”) Ex. 1 (“Policy”). The Policy
provides, in relevant part, that “any deductible sources of income” are to be subtracted from gross
disability payments. Policy at OP-000102-103. The Policy further defines “deductible sources of
income” to include “[t]he amount that [an insured] receive[s] or [is] entitled to receive under a
workers’ compensation law . . . .” Policy at OP-000104. Finally, the Policy provides that, if Unum
determines that the insured may qualify for benefits that fall under certain categories of deductible
sources of income, Unum may deduct estimated amounts of those benefits from the gross disability
payments unless the insured applies for those benefits and signs Unum’s payment option form
agreeing to reimburse Unum for any overpayment caused by an award of such benefits. Policy at
OP-000106-07.
Pawloski began receiving long-term disability benefits payments from Unum effective
April 30, 2007. Mills Decl. ¶ 7.
Initially, he elected to have Unum estimate the amount of
deductible benefits he would receive from other sources and reduce his disability payments by that
amount. Mills Decl. Ex. 2. In February 2008, however, Pawloski changed his election and
requested that Unum issue his payments without reduction in exchange for his agreement to “notify
the Insurer within 48 hours of receiving notice of any and all decisions [regarding deductible
benefits] . . . and to repay any overpayment incurred as a result of receiving any other benefits
1
The Court derives the following Statement of Facts from the declaration and exhibits submitted
in support of Unum’s Motion for Summary Judgment. Because Pawloski has not responded
despite the Court’s multiple notices, the facts contained therein are considered undisputed and
admitted by him. See Fed. R. Civ. P. 56(e).
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from those sources specified in the policy.” Mills Decl. Ex. 4. Pawloski further agreed to
reimburse any overpayment within thirty days of his receipt of such funds, and agreed that if he
did not do so, he would be liable for the full amount of any such overpayment “plus the applicable
statutory interest” and “all reasonable costs (including attorney’s fees) for collection of the
overpaid benefits.” Mills Decl. Ex. 4. Unum subsequently paid Pawloski unreduced benefits until
he reached the maximum benefit period on October 29, 2010. Mills Decl. ¶ 14.
During the period when Pawloski was receiving unreduced benefits from Unum, Unum
repeatedly sought information from Pawloski and the Division of Worker’s Compensation
regarding his workers’ compensation settlement. Mills Decl. ¶ 17. Pawloski indicated that, as of
October 2009, he had not yet reached a workers’ compensation settlement. Mills Decl. ¶ 17, Ex.
10. On September 13, 2010, Pawloski’s attorney notified Unum that a tentative settlement had
finally been reached in Pawloski’s Worker’s Compensation claim, and asked Unum if it would be
pursuing a lien in that matter. Mills Decl. ¶ 18, Ex. 12. In response, Unum stated that, although
it would not place a lien or pursue subrogation against the settlement, it had a right of recovery for
any overpayment of benefits due to other income sources. Mills Decl. ¶ 19, Ex. 13. Pawloski’s
attorney then requested clarification as to whether “other income sources” included workers’
compensation benefits. Mills Decl. ¶ 20, Ex. 14. In response, Unum left Pawloski’s attorney a
voice message clarifying that “other income sources” did include workers’ compensation benefits.
Mills Decl. ¶ 21, Ex. 15.
Over the next 18 months, Unum regularly contacted Pawloski’s Worker’s Compensation
adjusters and attempted to reach Pawloski’s attorney in an effort to obtain the details of Pawloski’s
workers’ compensation settlement. Mills Decl. ¶¶ 22-31. These efforts largely proved to be
fruitless, and, despite its best efforts, Unum was never able to obtain documentation regarding
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Pawloski’s workers’ compensation settlement, either from the adjusters, Pawloski’s attorney, or
Pawloski himself. Mills Decl. ¶¶ 32-36. Through a telephone conversation with a Worker’s
Compensation adjuster in December 2011, however, Unum learned that Pawloski had been
awarded a settlement on October 26, 2011 in the amount of $150,000, with $70,000 set aside for
Medicare, which was backdated and covered the same time period for which Pawloski was
receiving unreduced benefits from Unum. Mills Decl. ¶¶ 30, 32, Exs. 24, 26.
Because it was unable to obtain the details of the settlement, Unum was forced to estimate
the amount of overpayment based on the information it had learned from the Worker’s
Compensation adjuster, and in April 2012, wrote a letter to Pawloski seeking the return of the
overpayment. Mills Decl. ¶¶ 41-42, Exs. 31, 32. After Pawloski failed to respond to that letter,
Unum sent him multiple letters and attempted to call him multiple times seeking repayment of the
overpayment. Mills Decl. ¶¶ 44-49, Exs. 34-38. Pawloski once more failed to respond to those
calls or letters, so Unum filed its Complaint in September 2013 seeking reimbursement of the
overpayment, along with attorney’s fees. Doc. 1. Unum now seeks judgment as a matter of law
that it is entitled to recover the overpayment in the amount of $49,187.58. 2 Doc. 32.
II.
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of stating the basis for its motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson
2
Unum is no longer seeking attorneys’ fees. Doc. 46.
4
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be
discharged if the moving party can show the court that there is “an absence of evidence to support
the nonmoving party’s case.” Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must then
designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues
of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the
nonmoving party,” and a fact is “material” if it may affect the outcome of the suit under governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a
genuine issue of material fact exists, the court must consider all the evidence in the light most
favorable to the nonmoving party. Celotex, 477 U.S. at 323.
Even if the nonmoving party fails to respond, however, a court may not grant summary
judgment based on the mere fact that the motion was unopposed. See United States v. One Piece
of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir.
2004). Rather, the court must consider the merits of the motion, and grant it only “if appropriate.”
Id. at 1101; see also Fed. R. Civ. P. 56(e). Accordingly, although the court “need not sua sponte
review all of the evidentiary materials on file,” it “must ensure that the motion itself is supported
by evidentiary materials. At the least, the district court must review all of the evidentiary materials
submitted in support of the motion for summary judgment. . . . [and] indicate that the merits of the
motion were addressed.” Id. (quotation marks and citations omitted).
III.
DISCUSSION
29 U.S.C. § 1132(a)(3) provides, in relevant part, that “[a] civil action may be brought” by
a plan fiduciary “to obtain [] appropriate equitable relief . . . to enforce . . . the terms of the plan.”
Importantly, this provision requires that the nature of the recovery and the basis of the claim be
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equitable. See Sereboff v. Mid Atlantic Med. Servs., Inc., 547 U.S. 356, 362-63 (2006). A claim
satisfies this requirement if it seeks to impose “a constructive trust or equitable lien on particular
funds or property in the defendant’s possession,” and the agreement identifies “a particular fund,
distinct from the [defendant’s] general assets . . . and a particular share of that fund to which
[plaintiff is] entitled.” Id. at 362, 364 (quotation marks and citations omitted). As the Supreme
Court explained, such a claim is the “modern-day equivalent” of an action in equity to enforce a
“contract-based lien,” or an “equitable lien by agreement.” US Airways, Inc. v. McCutchen, 133
S. Ct. 1537, 1545 (2013) (quotation marks and citation omitted). In Sereboff, the Supreme Court
thus held that a health-plan administrator may enforce a reimbursement provision by bringing suit
under 29 U.S.C. § 1132(a)(3). See generally Sereboff, 547 U.S. at 356-57.
The analysis here is straightforward. Unum is a fiduciary under ERISA that has brought a
suit to enforce the terms of the Policy. The Policy identifies a particular fund distinct from
Pawloski’s general assets to which Unum is entitled—namely, any “deductible sources of
income.” Policy at OP-000102-03. Pawloski’s workers’ compensation settlement, the source of
the fund to which Unum claims that it is entitled, is specifically listed in the Policy as a “deductible
source of income.” Policy at OP-000104. And the particular share of that fund to which Unum
claims that it is entitled is the amount it overpaid Pawloski pursuant to the reimbursement
agreement, which Pawloski agreed to reimburse when he elected to receive unreduced benefits.
An equitable lien by agreement in the amount Unum overpaid Pawloski pursuant to the
reimbursement agreement thus attached to Pawloski’s workers’ compensation settlement as soon
as the fund arose. Therefore, Unum is entitled to recover that amount. Accord Bd. of Trustees of
the Nat’l Elevator Indus. Health Benefit Plan v. Montanile, Case No. 18-cv-80746, 2014 U.S. Dist.
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LEXIS 36309, at *29 (S.D. Fla. Mar. 17, 2014); see also Popowski v. Parrott, 461 F.3d 1367, 1373
(11th Cir. 2006).
Pawloski has suggested that he has already used or otherwise dissipated the specific funds
he received from his workers’ compensation settlement. Doc. 8. But even if he has already used
those specific funds, this would not defeat Unum’s claim. Sereboff did not impose a strict tracing
requirement, see Sereboff, 547 U.S. at 364-65, and to do so under these circumstances would “set
a dangerous precedent” by permitting a plan participant to “decline to deduct any amount for other
future benefits and then [to] spend all money received, knowing that he would not be held
responsible for any overpayment if the funds were dissipated.” Lamb v. Hartford Life and Accident
Ins. Co., 862 F. Supp. 2d 1342, 1354 (M.D. Ga. 2012). Although the Eleventh Circuit has yet to
explicitly decide this issue, it has suggested that, were it to do so, it would follow “the
overwhelming majority of circuit courts [that] have held, after interpreting Sereboff, that a
beneficiary’s dissipation of assets is immaterial when a fiduciary asserts an equitable lien by
agreement,” Montanile, 2014 U.S. Dist. LEXIS 36309, at *30-31 (citing cases). See Popowski,
461 F.3d at 1373 n.8 (“the fact that the third-party recovery triggering the [] Plan’s reimbursement
provision was comingled, even absent tracing, would not have disqualified an equitable lien had
that equitable lien been by agreement”) (emphasis in original). 3
In sum, after reviewing Unum’s Motion for Summary Judgment and the accompanying
memorandum of law, the Declaration of Christine Mills and the accompanying exhibits, the Court
is satisfied that Unum has set forth a claim that is permissible under the law. Further, after
3
The Court also finds of no consequence Unum’s letter to Pawloski’s attorney stating that it
would not place a lien on the settlement. Pawloski has not asserted any equitable defenses for
which this fact might be relevant, and the Court will not sua sponte raise any such defense for
Pawloski.
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reviewing the undisputed facts, it is clear that Unum is entitled to judgment as a matter of law with
regard to its claim for recovery of the overpayment. 4 By failing to respond to Unum’s motion,
Pawloski has admitted that he was unjustly enriched by the overpayment in the amount of
$49,187.58, as calculated by Unum. Mills Decl. Ex. 39. As no genuine issues of material fact
exist, the Court will grant Unum’s Motion for Summary Judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Unum’s Motion for Summary Judgment (Doc. 32) is GRANTED as to its claim
for recovery of the overpayment.
2.
Unum’s vague request for prejudgment statutory interest, embedded in one
sentence in its Motion for Summary Judgment, is DENIED.
3.
Plaintiff Unum is awarded $49,187.58. The Clerk is directed to enter a judgment
in favor of Plaintiff UNUM Life Insurance Company of America and against
Defendant Gary Pawloski in the amount of $49,187.58.
4.
The Clerk is further directed to close this case.
DONE AND ORDERED in Tampa, Florida on November 26, 2014.
4
The Court, however, will deny Unum’s request for “the applicable statutory interest,” which is
embedded in the last sentence of its memorandum in support of its Motion for Summary
Judgment. “The award of an amount of prejudgment interest in an ERISA case is a matter
‘committed to the sound discretion of the trial court.’” Florence Nightingale Nursing Serv., Inc.
v. Blue Cross/Blue Shield of Ala., 41 F.3d 1476, 1484 (11th Cir. 1995) (citation omitted). Here,
Unum has failed to state the authority pursuant to which it is seeking statutory interest, the rate of
the applicable statutory interest that it is seeking, and the time period over which it is seeking the
statutory interest, and has failed to cite any legal authority supporting that it is entitled to such.
Accordingly, the Court in its discretion will deny the request.
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Copies to:
Counsel of Record
Unrepresented Parties
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