PERRY v. MERTOPOLITAN LIFE INS. CO.

Filing 30

ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE CLAY D LAND on 08/30/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SHARYEL PERRY,

*

Plaintiff,

*

vs.

*

METROPOLITAN LIFE INSURANCE
COMPANY,

*

CASE NO. 4:16-CV-135 (CDL)
*
Defendant.
*
O R D E R
Plaintiff
disability
Insurance

Sharyel

insurance
Company

Perry

policy

was
that

(“MetLife”)

insured

under

issued

to

her

long

term

Metropolitan

Defendant

a

Life

former

employer,

Synovus Financial Corporation, for the benefit of its employees.
Perry alleges that she became disabled in January 2014.
initially

agreed

terminated

her

to

pay

Perry

benefits.

disability

Perry

benefits

appealed,

MetLife

but

contending

later
that

MetLife made factual and procedural errors that resulted in the
improper termination of her disability benefits.

Perry asserts

that MetLife did not render a timely decision on her appeal, and
she filed this action for breach of contract under the civil
enforcement

provisions

of

the

Employee

Retirement

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132.

Income

MetLife filed

a Motion to Dismiss (ECF No. 11), contending that Perry did not
exhaust her administrative remedies before filing suit.

MetLife asserts that Perry’s Complaint should be dismissed
for

failure

to

exhaust

administrative

remedies.

MetLife’s

present motion is not a motion for judgment as a matter of law
based on the administrative record.

Rather, the present Motion

to Dismiss is based on the allegations in Perry’s Complaint and
documents

attached

to

MetLife’s

Motion

to

Dismiss.

MetLife

contends that the Complaint and MetLife’s documents establish
that Perry failed to exhaust her administrative remedies.
FACTUAL BACKGROUND
Perry was employed by Synovus Financial Corporation, and
she was covered under a long term disability insurance policy
issued to Synovus for the benefit of its employees.
ECF

No.

1.

It

is

undisputed

that

Perry

Compl. ¶ 8,

sought

disability

benefits under the MetLife Policy and that MetLife initially
agreed to pay Perry disability benefits starting in April 2014.
In

May

2015,

benefits.

however,

MetLife

terminated

Perry’s

disability

Id. ¶ 17; Def.’s Suppl. Mem. of Law in Supp. of Mot.

to Dismiss Ex. B, Letter from Dyanne Roberts to Sharyel Perry
(May 13, 2015), ECF No. 26-2 (“Denial Letter”).

Perry asserts

that

her

there

had

not

been

“any

improvement

in

physical

condition or her ability to perform her prior job duties at
Synovus.”

Compl. ¶ 17.

The Policy states that an insured like Perry “must submit
[her] appeal to MetLife at the address indicated on the claim

2

form within 180 days of receiving MetLife’s decision.”

Def.’s

Suppl. Mem. of Law in Supp. of Mot. to Dismiss Ex. A, MetLife
Group Policy No. 153679-1-G, ECF No. 26-1 at 73 (“Policy”).

The

Policy further states that the appeal “must be in writing and
must

include

at

least

the

following

information:

Name

of

Employee; Name of the Plan; Reference to the initial decision;
An explanation why you are appealing the initial determination.”
Id.

And it states: “As part of your appeal, you may submit any

written

comments,

documents,

relating to your claim.”

records,

or

other

information

Id.

The Denial Letter MetLife sent to Perry states that Perry
“may appeal [the denial] decision by sending a written request
for

appeal

to

MetLife

Disability”

via

mail,

fax,

or

email

“within 2417 [sic] after [she] receive[s] th[e] denial letter.”
Denial Letter 3.

The letter further states that Perry should

“include in [her] appeal letter the reason(s) [she] believe[s]
the claim was improperly denied.” Id.

It also states that Perry

may “submit any additional comments, documents, records or other
information

relating

appropriate

for

consideration.”
There

is

to

[MetLife]

[her]
to

claim
give

that
[her]

[she]
appeal

deem[s]
proper

Id.
no

dispute

that

Perry

timely

appealed

the

termination of her disability benefits even though the Denial
Letter stated that the appeal was due “within 2417” after Perry

3

received the Denial Letter and did not explain that the Policy
required the appeal to be submitted within 180 days.

On October

28, 2015, 168 days after MetLife mailed Perry the Denial Letter,
Perry sent a detailed Appeal Letter to MetLife via facsimile and
mail.

Compl. ¶ 18; Pl.’s Resp. to Def.’s Mot. to Dismiss Ex. A,

Letter from Michael Grabhorn to MetLife Disability Appeal Unit
(Oct. 28, 2015), ECF No. 27-1 (“Appeal Letter”).

The Appeal

Letter included Perry’s name, Perry’s claim number, the name of
her employer, and a detailed explanation of Perry’s “Issues with
MetLife’s

Termination

Decision.”

Id.

at

1-5.

MetLife

acknowledges that it received the Appeal Letter via facsimile on
October 28, 2015.
2, ECF No. 29.

Def.’s Reply Br. in Supp. of Mot. to Dismiss

MetLife asserts that it received Perry’s CD of

supporting documentation via mail on November 4, 2015, 175 days
after MetLife sent Perry the Denial Letter.1
MetLife
specialist

contends

confirmed

that

on

receipt

November
of

1

Perry’s

12,

2015,

appeal

its

and

appeal

“advised

In support of this assertion, MetLife points to an unauthenticated
claim
activity
chart
excerpt,
which
MetLife
provided
without
explanation.
Def.’s Suppl. Mem. of Law in Supp. of Mot. to Dismiss
Ex. C, Print Claim Activity Excerpt, ECF No. 26-3. Even if the Court
considered this document without converting MetLife’s motion to
dismiss into a summary judgment motion, see Day v. Taylor, 400 F.3d
1272, 1276 (11th Cir. 2005), the chart excerpt does not establish what
MetLife says it does. The chart excerpt appears to be pages 261 and
262 of a 298-page claim activity chart related to a claim number that
begins with 631403177083.
It contains entries for “Incoming Mail –
Appeal” on “Comment Date” October 29, 2015 and “Comment Date” November
5, 2015.
It is not clear from the face of the chart when MetLife
received the CD from Perry.

4

[Perry]

that

MetLife

may

request

an

extension

if

there

special circumstances requiring an extension of time.”
Reply Br. 2.

are

Def.’s

MetLife did not point to any evidence in support

of this assertion.

A MetLife employee sent Perry’s attorney a

letter dated December 8, 2015 stating that the employee had been
assigned

to

Perry’s

appeal.

Pl.’s

Resp.

to

Def.’s

Mot.

to

Dismiss Ex. B, Letter from Jill Brown to Michael Grabhorn (Dec.
8,

2015),

ECF

No.

27-2.

That

letter

did

not

request

an

extension of time for MetLife to consider Perry’s appeal, and it
did

not

request

any

information

from

Perry’s

attorney.

On

December 14, 2015, MetLife’s employee sent Perry’s attorney a
letter

stating

that

MetLife

needed

an

independent

medical

examination to complete its review of Perry’s claim.

Def.’s

Suppl. Mem. of Law in Supp. of Mot. to Dismiss Ex. D, Letter
from Jill Brown to Michael Grabhorn (Dec. 14, 2015), ECF No. 264 (“Extension Letter”).

The Extension Letter further stated

that Perry’s appeal had been placed in a “45 day tolling period”
and that MetLife would continue with its review of Perry’s claim
once it received the independent medical examination report or
the 45 day tolling period expired.

Id.

The Policy states that MetLife will notify an insured “in
writing of its final decision within a reasonable period of
time, but no later than 45 days after MetLife’s receipt of [the
insured’s] written request for review, except that under special

5

circumstances MetLife may have up to an additional 45 days to
provide written notification of the final decision.”
ECF No. 26-1 at 73.

Policy,

The Policy further states that if “an

extension is required, MetLife will notify [the insured] prior
to

the

expiration

of

the

initial

45

day

period,

state

the

reason(s) why such an extension is needed, and state when it
will make its determination.”

Id. (emphasis added).

DISCUSSION
Under
submitted
appeal,

the
an

with

circumstances

Policy

appeal,
one

and

MetLife

45–day

(such

ERISA’s

as

had

regulations,

“45

extension
the

need

days

to

hold

Perry

resolve

available
to

once

for
a

that

‘special

hearing).’”

Heimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 613
(2013)

(quoting

29

C.F.R. §§ 2560.503–1(i)(1)(i),

accord Policy, ECF No. 26-1 at 73.

(i)(3)(i));

If Perry “fail[ed] to submit

necessary information,” then MetLife’s “time for resolving [the]
appeal [could] be tolled again.”

Heimeshoff, 134 S. Ct. at 613

(quoting 29 C.F.R. § 2560.503–1(i)(4)); accord Policy, ECF No.
26-1 at 73.
If MetLife failed “to meet its own deadlines under these
procedures,

[Perry]

administrative

‘shall

remedies.’”

be

deemed

Heimeshoff,

(quoting 29 C.F.R. § 2560.503–1(l)).
internal

review

process,

to

[Perry]

6

have

134

exhausted

S.

Ct.

at

the
613

“Upon exhaustion of the
is

entitled

to

proceed

immediately to judicial review . . . .”

Id.

In other words, if

MetLife did not timely resolve Perry’s appeal, then Perry is
deemed to have exhausted her administrative remedies, and she
was permitted to file this action.
hinges

on

two

questions:

(1)

The parties’ dispute thus

when

did

Perry

appeal

the

termination of her benefits? and (2) did MetLife substantially
comply with ERISA’s deadlines for resolving that appeal?

The

Court will evaluate each question in turn.
I.

When Did Perry File Her Appeal?
The Policy states that MetLife “will conduct a full and

fair review of [the insured’s] claim” after it “receives [the
insured’s] written request appealing the initial determination.”
Policy, ECF No. 26-1 at 73.

The Policy also states that MetLife

will notify the insured “in writing of its final decision within
a reasonable period of time, but no later than 45 days after
MetLife’s
review.”

receipt
Id.

of

[the

insured’s]

written

request

for

Thus, the Policy’s review deadlines are tied to

MetLife’s receipt of the insured’s written request for review.
It

is

undisputed

that

Perry

sent

MetLife

a

Appeal Letter via facsimile on October 28, 2015.

seven-page
That letter

included Perry’s name, Perry’s claim number, the name of her
employer, and a detailed explanation of Perry’s contention that
MetLife wrongfully terminated her disability benefits.
does

not

dispute

that

it

received

7

Perry’s

Appeal

MetLife

Letter

by

facsimile on October 28, 2015.

MetLife argues, however, that

MetLife did not actually receive Perry’s appeal until November
4, 2015, which is when MetLife claims that it received Perry’s
CD of supporting information via mail.2
MetLife did not point to any provision in the Policy to
support its position that an appeal is not deemed filed until an
insured provides documents in support of the appeal.
simply

states

that

an

appeal

“must

be

in

The Policy

writing

and

must

include at least the following information: Name of Employee;
Name

of

the

Plan;

Reference

to

the

initial

decision;

An

explanation why you are appealing the initial determination.”
Id.

The Policy does state that an insured “may submit any

written

comments,

documents,

records,

or

other

relating to [her] claim” as part of her appeal.
Policy does not state that

information
Id.

But the

an insured’s written request for

review must include supporting documents in order to be deemed
“received.”

Moreover,

ERISA’s

regulations

state

that

“the

period of time within which a benefit determination on review is
required to be made shall begin at the time an appeal is filed
in accordance with the reasonable procedures of a plan, without
regard

to

whether

all

the

information

necessary

to

make

benefit determination on review accompanies the filing.”
2

a
29

Again, MetLife did not point to any evidence clearly stating when it
received the CD, but the Court assumes for purposes of this motion
that MetLife received the CD containing supporting documentation on
November 4, 2015.

8

C.F.R. § 2560.503-1(i)(4) (emphasis added).

In summary, nothing

in the Policy or ERISA’s regulations required Perry to submit
her

supporting

deemed

documentation

“received.”

received
received

Perry’s
Perry’s

The

Court

written
Appeal

in

order
thus

request

Letter

via

for

her

appeal

concludes

for

be

on

that

MetLife

when

review

facsimile

to

MetLife

October

28,

2015.
II.

Did MetLife Substantially Comply with ERISA’s Deadlines for
Resolving Perry’s Appeal?
It is undisputed that MetLife did not render a decision on

Perry’s appeal by December 12, 2015, which is forty-five days
after MetLife received Perry’s appeal on October 28, 2015.

It

is also undisputed that MetLife did not seek, in writing or
otherwise, an extension of time to review Perry’s appeal prior
to

December

12,

2015.

Thus,

under

the

Policy

and

ERISA’s

regulations, MetLife failed to resolve Perry’s appeal by the
applicable

deadline.

MetLife

nonetheless

argues

that

it

substantially complied with ERISA’s regulations by sending Perry
a letter dated December 14, 2014 informing Perry that MetLife
needed an independent medical exam and an extension of time to
complete the appeal review.
Neither party pointed to any authority from the Eleventh
Circuit Court of Appeals regarding an ERISA plan administrator’s
substantial compliance with ERISA deadlines, and the Court found

9

none.3
a

The courts that have addressed the issue generally apply

substantial

requirements.

compliance

standard

to

ERISA

deadline

The courts “overlook administrators’ failure to

meet certain procedural requirements when the administrator has
substantially complied with the regulations and the process as a
whole

fulfills

the

broader

accompanying regulations.”

purposes

of

ERISA

and

its

Rasenack ex rel. Tribolet v. AIG

Life Ins. Co., 585 F.3d 1311, 1317 (10th Cir. 2009) (quoting
Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 634 (10th Cir.
2003)).
decision

“[A]n
can

procedural

administrator

only

be

in

requirements

evidence-gathering

who

fails

substantial
if

process

there
in

is

which

to

render

compliance
an
the

a

with

ongoing
claimant

timely
ERISA’s

productive
is

kept

reasonably well-informed as to the status of the claim and the

3

MetLife did point to two Eleventh Circuit cases on substantial
compliance with other types of ERISA regulations.
See Perrino v. S.
Bell Tel. & Tel. Co., 209 F.3d 1309, 1317-18 (11th Cir. 2000) (finding
no abuse of discretion where the district court declined to waive the
plan participant’s exhaustion requirement when the plan technically
violated ERISA regulations on establishing a reasonable claims
procedure but did not deny “meaningful access to an administrative
remedy procedure through which [the plan participants] may receive an
adequate remedy” and thus substantially complied with ERISA’s
requirements); Counts v. Am. Gen. Life & Acc. Ins. Co., 111 F.3d 105,
108-09 (11th Cir. 1997) (finding no abuse of discretion where the
district court declined to excuse the plan participant’s failure to
exhaust administrative remedies because the plan’s termination letter
substantially complied with ERISA notice requirements, even though it
was technically deficient).
Neither Perrino nor Counts addresses
substantial compliance in the context of a plan administrator missing
its deadline to resolve an appeal, which results in the plan
participant being “deemed to have exhausted the administrative
remedies.”
Heimeshoff,
134
S.
Ct.
at
613
(quoting
29 C.F.R. § 2560.503–1(l)).

10

kinds of information that will satisfy the administrator.”
(quoting Gilbertson, 328 F.3d at 636.

Id.

“Pursuant to this test, a

plan administrator is in substantial compliance with a deadline
if the delay is: ‘(1) inconsequential; and (2) in the context of
an

on-going,

administrator

good-faith
and

the

exchange

of

claimant.’”

information
Id.

(quoting

between
Finley

the
v.

Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan,
379 F.3d 1168, 1173-74 (10th Cir. 2004)).
In one case MetLife cited to support its argument on this
point, the district court found that the plan administrator’s
“decision

was

delayed

pending

the

receipt

of

additional

information, either from [the insured’s] family, [the insured’s]
doctors, or from [the insured] herself.”

Lundsten v. Creative

Cmty. Living Servs., Inc. Long Term Disability Plan, No. 13-C108, 2014 WL 2440716, at *5 (E.D. Wis. May 30, 2014).

The

Lundsten court also noted that during the review process, the
insured received six letters regarding the status of her appeal
and had several telephone conversations about her appeal with
the insurer’s representatives.

Id.

Thus, the Lundsten court

concluded that there was “an on-going, good faith exchange of
information,

and

inconsequential.”

the
Id.

resulting
In

another

delay
case

was
MetLife

completely
cited,

the

district court noted that although the insurer’s “decision was
not within the regulatory deadline,” the record revealed that it

11

“was

engaged

in

a

good

faith

attempt

to

comply

with

the

deadlines,” attempted to keep the insured informed regarding the
delay, and “did not ignore [the insured’s] appeal until the last
possible

minute.”

Seger

v.

ReliaStar

Life,

No.

3:04

CV

16/RV/MD, 2005 WL 2249905, at *11 (N.D. Fla. Sept. 14, 2005).
Here, MetLife’s delay in seeking an extension of time to
review Perry’s appeal was inconsequential.

But that is only one

of the two requirements for substantial compliance.

The problem

for MetLife is that it did not point to any evidence that it was
engaged in an on-going exchange of information with Perry that
justified its delay in resolving her appeal.

MetLife did not

point to any evidence that it asked Perry or her doctors for
additional information before it sent the Extension Letter, and
MetLife did not point to any evidence that the delay was caused
because Perry or her doctors failed to respond to MetLife’s
requests.

And, MetLife did not point to any evidence that it

communicated with Perry about a potential delay of her appeal
before it sent the Extension Letter.
Instead,

based

on

what

MetLife

submitted

to

the

Court,

MetLife acknowledged receipt of Perry’s appeal on November 12,
2015,

assigned

the

appeal

to

another

appeal

specialist

on

December 8, 2015, and did nothing to seek additional information
from Perry or her doctors before December 14, 2015.

The present

record simply does not establish that MetLife engaged in good

12

faith efforts to complete the administrative process.
based

on

the

present

record,

MetLife

comply with ERISA’s deadlines.

did

not

Thus,

substantially

Perry is therefore deemed to

have exhausted administrative remedies, and she is entitled to
proceed to judicial review.
CONCLUSION
For

the

reasons

set

forth

Dismiss (ECF No. 11) is denied.

above,

MetLife’s

Motion

to

Within twenty-one days of the

date of this Order, the parties shall confer and submit a joint
proposed scheduling order that sets forth briefing deadlines for
the parties to seek judgment on the administrative record.

If

either party takes the position that discovery is permitted and
warranted in this action, the party shall provide authority for
this position, explain what discovery is needed, and propose a
discovery schedule.
IT IS SO ORDERED, this 30th day of August, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

13