Killian v. Concert Health Plan

Filing 476

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 8/22/2014.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES E. KILLIAN,
Plaintiff,
vs.
CONCERT HEALTH PLAN, CONCERT HEALTH
PLAN INSURANCE COMPANY, ROYAL
MANAGEMENT CORPORATION HEALTH
INSURANCE PLAN, and ROYAL MANAGEMENT
CORPORATION,
Defendants.

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07 C 4755
Judge Feinerman

MEMORANDUM OPINION AND ORDER
The background of this case, which was brought under the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., is set forth in Killian v. Concert Health Plan,
742 F.3d 651 (7th Cir. 2013) (en banc), familiarity with which is assumed. The Seventh Circuit
remanded the case with instructions to resolve three issues. Id. at 671. Pertinent here, the
Seventh Circuit “reverse[d] the grant of summary judgment on the breach of fiduciary duty claim
with respect to Mr. Killian’s telephone inquiries and remand[ed] to permit the trier of fact to
determine: (1) whether the telephone calls put Concert on adequate notice, thus giving rise to a
duty to disclose material information related to the Killians’ situation, (2) whether Concert
breached this duty and (3) whether the breach harmed Mr. Killian,” and, if Mr. Killian prevails
on liability, for “the district court [to] address the type of remedy available under ERISA.” Id. at
671 & n.50. A bench trial has been set for October 20, 2014. Doc. 404.
Now before the court is Defendants’ motion for summary judgment on the fiduciary duty
claim. Docs. 399, 410. The motion’s principal infirmity is that it asks the court to do

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something—grant summary judgment on the fiduciary duty claim—that is inconsistent with the
Seventh Circuit’s mandate. The Seventh Circuit reversed the district court’s grant of summary
judgment on that claim and remanded for “the trier of fact” to resolve it. It is axiomatic that the
“trier of fact” decides things at a trial, not on summary judgment, and this is so even though the
judge will be the trier of fact at the bench trial.
“Two related principles, the mandate rule and the law of the case doctrine, prohibit a
district court from revisiting certain issues on remand. The mandate rule requires a lower court
to adhere to the commands of a higher court on remand.” United States v. Polland, 56 F.3d 776,
777 (7th Cir. 1995). “For instance, where this court states ‘the sentence is Vacated, and the case
is Remanded for resentencing on the issue of obstruction of justice,’ we held based on the
mandate rule that ‘the only issue properly before the district court was the appropriateness of an
enhancement for obstructing justice.’” United States v. Adams, 746 F.3d 734, 744 (7th Cir.
2014) (quoting Polland, 56 F.3d at 778). Although a district court is not “bound by the higher
court’s dicta … explicit rulings on issues that were before the higher court and explicit directives
by that court to the lower court concerning proceedings on remand are not dicta.” Cole Energy
Dev. Co. v. Ingersoll-Rand Co., 8 F.3d 607, 609 (7th Cir. 1993) (emphasis added). The Seventh
Circuit’s explicit directive is for the trier of fact to make certain determinations at trial regarding
the fiduciary duty claim, and granting summary judgment to Concert would be unfaithful to that
directive.
The motion’s other infirmity, independent of the one just discussed, is that it presses
certain specific arguments—that Mr. Killian suffered no harm from the alleged breach of
fiduciary duty, that Mrs. Killian’s healthcare providers have no viable claim against Mr. Killian
for the unpaid medical bills because the relevant statute of limitations has expired, that the

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Killians would have chosen those providers even if Concert had informed Mr. Killian that they
were out-of-network, and that Concert was under no duty to inform Mr. Killian that the providers
were out-of-network—that the Seventh Circuit explicitly and at length held were not grist for
summary judgment. See Killian, 742 F.3d at 661-70. Defendants have not come close to
establishing that the Seventh Circuit’s conclusions were so wide of the mark, in light of either
the evidence that was before the Seventh Circuit or the additional evidence developed during
post-remand discovery, that this court could or should take a different view on remand. See Cole
Energy Dev. Co., 8 F.3d at 609 (“If it is apparent that the higher court has committed a serious
and demonstrable error, factual or legal …[,] in circumstances where correction by filing a
petition for rehearing in the higher court would not have been feasible …, the lower court can
correct it on remand.”).
This is not to say that Defendants will lose and Mr. Killian will win at trial on the
fiduciary duty claim. The only point here is that Defendants cannot prevail on that claim at
summary judgment, when the record must be viewed in the light most favorable to Mr. Killian.
Accordingly, Defendants’ summary judgment motion is denied.

August 22, 2014
United States District Judge

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