Andujar v. Sun Life Assurance Company of Canada

Filing 24

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/20/2014. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GEORGE ANDUJAR,

)
)
Plaintiff,
)
)
v.
)
)
SUN LIFE ASSURANCE COMPANY )
OF CANADA,
)
)
Defendant.

No. 14 C 2792

MEMORANDUM OPINION AND ORDER
Plaintiff

George

Andujar,

a

longtime

employee

of

Acme

Finishing Company, Inc., became disabled and unable to return to
work after being hospitalized for respiratory failure on March
8,

2013.

For

the

first

three

months

of

his

disability,

plaintiff received benefits under his employer-sponsored short
term disability plan, of which defendant, Sun Life Assurance
Company of Canada, is the administrator.

Unable to return to

work after exhausting his short term benefits, plaintiff applied
for benefits under his employer’s long term disability plan,
also administered by defendant.

Those benefits were denied, the

appeals process was exhausted, and this suit, brought pursuant
to the Employee Retirement Income Security Act of 1974 (“ERISA”)
ensued.

Plaintiff asserts two ERISA claims.
' 502(a)(1)(B)

of

the

statute,

which

The first is based on
provides

that

a

plan

participant may bring a civil action:
to enforce his rights under the terms of the plan, or
to clarify his rights to future benefits under the
terms of the plan.
29

U.S.C.

§

1132(a)(1)(B).

The

second

seeks

relief

under

' 502(a)(3), which provides that a participant may bring a civil
action:
(A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan,
or (B) to obtain other appropriate equitable relief
(i) to redress such violations or (ii) to enforce any
provisions of this subchapter or the terms of the
plan.
29 U.S.C. § 1132(a)(3).
Before

me

is

defendant’s

motion

to

dismiss

the

latter

claim, which I grant for the reasons that follow.
I.
After

reciting

the

names

of

the

parties

and

counsel,

plaintiff’s complaint jumps straight to the caption “Count I,”
which

contains,

allegations

in

addition

supporting

the

to

the

action

jurisdictional
in

this

and

venue

a

short

forum,

description of the case and the parties, and a “statement of
facts” setting forth defendant’s wrongdoing.
plaintiff

summarizes

his

employment

In this section,

history,

the

medical

conditions that rendered him disabled, and his application for,

2

and receipt of, short term disability benefits.

Cmplt. ¶¶ 8-10.

Plaintiff then describes his application for, and denial of,
long term benefits.

These allegations include details about the

materials plaintiff submitted in support of his application for
long

term

disability

benefits

defendant relied in its denial.

and
Id.

the

materials

at ¶¶ 11-21.

on

which

Count I ends

with the assertions that defendant’s denial of benefits violates
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008) (a case
brought

pursuant

' 502(a)(1)(B)),

to

and

that

plaintiff’s

administrative appeals have been exhausted. Id. at ¶¶ 22-23.
Count

II

contains

a

mere

four

paragraphs,

the

first

of

which states, “[p]laintiff reasserts and incorporates paragraphs
1-23 above as though fully set forth herein.”

In the remaining

paragraphs of this count, plaintiff asserts that defendant was
an ERISA fiduciary; that as such, defendant owed plaintiff the
duty “to act solely in the interest of participants and for the
exclusive purpose of providing benefits to participants”; and
that “the foregoing course of conduct” amounts to a breach of
fiduciary duty under ' 503(a)(3) of ERISA.
To
ordering

redress

his

defendant

Plaintiff

“in

benefits

to

an

injuries,

to

pay

amount

which

he

is

plaintiff

long-term

equal

Cmplt. at ¶¶ 24-28.

to

the

entitled,”

seeks

disability

a

benefits

contractual
including

judgment

amount

to
of

prejudgment

interest on all benefits that have accrued prior to the date of
3

judgment,

and

conditions

continuing

specified

in

as

long

the

as

policy.

plaintiff
Plaintiff

attorney’s fees pursuant to 29 U.S.C. ' 1132(g).
the

event

the

unjust

enrichment

meets

exceeds

also

the
seeks

Finally, “in

the

amount

of

prejudgment interest,” plaintiff seeks, pursuant to ' 502(a)(3),
the “disgorgement of unjust enrichment at Sun Life’s rate of
return

on

interest.”

equity…in

an

amount

in

excess

of

the

prejudgment

Cmplt. at 8.

Defendant raises multiple arguments for dismissal of count
II.

Its lead argument is that because plaintiff’s fiduciary

breach claim merely “repackages” his denial of benefits claim,
the two claims cannot be brought together.

For

this

argument,

defendant relies on Varity Corp. v. Howe, 516 U.S. 489 (1996),
and Mondry v. American Family Mut. Ins. Co., 557 F.3d 781 (7th
Cir. 2009), as well as an abundance of cases applying these
authorities in this district.
In

Varity,

“catchall”

the

provision

Court
that

characterized
acts

“as

a

' 502(a)(3)

safety

net,

as

a

offering

appropriate equitable relief for injuries caused by violations
that § 502 does not elsewhere adequately remedy.” Id. at 512.
The

Court

went

on

to

explain

that

“where

Congress

elsewhere

provided adequate relief for a beneficiary’s injury, there will
likely be no need for further equitable relief, in which case
such relief normally would not be ‘appropriate.’”
4

Id. at 515.

Although

the

Seventh

whether,

under

Circuit

Varity,

a

has

benefits

not

expressly

claim

under

determined

' 502(a)(1)(B)

precludes a claim for equitable relief pursuant to ' 502(a)(3),
it acknowledged in Mondry that “a majority of the circuits are
of the view that if relief is available to a plan participant
under subsection (a)(1)(B), then that relief is un available
under

subsection

(a)(3).”

Mondry,

557

F.3d

at

805

(original

emphasis).
Cases in this district dismissing ' 502(a)(3) claims brought
concurrently

with

' 502(a)(1)(B)

claims

are

legion,

and

they

continue to accumulate.

See Gibbs v. Paul Revere Life Insurance

Co.,

WL

13

C

8878,

2014

3891762

(N.D.

Ill.

Aug.

8,

2104)

(Leinenweber, J.); Jacquez v. Health and Welfare Dept. of the
Construction and General Laborer’s Dist. Counsel of Chicago and
Vicinity, No. 13 C 9221, slip. op. at 1-2 (N.D. Ill. Jun 18,
2014 (Darrah, J.); Sexton v. Standard Ins. Co., No. 13 C 7761,
2014 WL 1745420 (N.D. Ill. Apr. 30, 2014) (Guzmán, J.); Nemitz
v. Metropolitan Life Ins. Co., No. 12 C 8039, 2013 WL 3944292
(N.D.

Ill.

July

31,

2013)

(Kendall,

J.);

Roque

v.

Roofers’

Unions Welfare Trust Fund, No. 12 C 3788, 2013 WL 2242455 (N.D.
Ill. May 21, 2013) (Durkin, J.) (citing Schatzel v. Cent. States
SE.

&

SW.

Areas

Pension

Fund,

941

F.Supp.2d

999,

2013

WL

1729479, at *8 (N.D. Ill. 2013); Schultz v. Prud. Ins. Co. of
Am., 678 F. Supp. 2d 771, 779–80 (N.D. Ill. 2010); Hakim v.
5

Accenture United States Pension Plan, 656 F.Supp.2d 801, 810–11
(N.D. Ill. 2009) (citing cases); Krase v. Life Ins. Co. of N.
Am., No. 11 C 7659, 2012 WL 4483506, at *3 (N.D. Ill. Sept. 27,
2012) (Grady, J.); Zuckerman v. United of Omaha Life Ins. Co.,
No. 09 C 4819, 2010 WL 2927694, at *6–7 (N.D. Ill. July 21,
2010) (Dow, J.); Rice v. Humana Ins. Co., No. 07 C 7175, 2007 WL
1655285, at *3–4 (N.D. Ill. June 4, 2007) (Conlon, J.); Moffat
v. Unicare Midwest Plan Group 314541, No. 04 C 5685, 2005 WL
1766372, at *5 (N.D. Ill. July 25, 2005) (St. Eve, J.); Jurgovan
v. ITI Enters, No. 03 C 4627, 2004 WL 1427115, at *4 (N.D. Ill.
June 23, 2004) (Manning, J.); Erikson v. Ungaretti & Harris–
Exclusive Provider Plan, No. 03 C 5466, 2003 WL 22836462, at *3
(N.D. Ill. Nov. 24, 2003) (Aspen, J.)).
In

the

face

of

this

unrelenting

torrent

of

adverse

decisions, plaintiff raises two arguments: first, that none of
these

cases

equitable

strictly

claim

forecloses

the

' 502(a)(3)

under

possibility

could

ever

that

be

an

brought

concurrently with a claim for benefits under ' 502(a)(1)(B), and
second, that Mondry, properly construed, supports the view that
both

claims

should

plaintiff is correct.
the

precedent

“does

be

allowed

here.

On

the

first

point,

Indeed, as Judge Durkin noted in Roque,
not

foreclose

simultaneous

claims

under

' 502(a)(1)(B) and ' 502(a)(3),” as “the door remains open for an
ERISA plaintiff to bring a claim under both sections if the
6

claims are truly distinct.”

Roque, 2013 WL 2242455 at *7.

See

also Zuckerman, 2010 WL 2927694, at * 5 (simultaneous claims
appropriate

where

they

address

injuries”)(citing

Gore

v.

Disability

477

F.3d

Plan,

El

“separate

Paso

833,

Energy

839–40

and

Corp.

(6th

distinct
Long

Cir.

Term

2007)).

Nevertheless, courts have concluded that where, as here, the two
claims “rely on identical factual allegations, the ' 502(a)(3)
claim must be dismissed.”

Zuckerman, 2010 WL 2927694 at *5

(citing Jones v. American General Life and Acc. Ins. Co., 370
F.3d

1065,

1073

(11th

Cir.

2004)

(“the

relevant

concern

in

Varity, in considering whether the plaintiffs had stated a claim
under Section 502(a)(3), was whether the plaintiffs also had a
cause of action, based on the same allegations, under Section
502(a)(1)(B)

or

provisions”))

and

plaintiff’s

§

ERISA’s
Moffat

other

2005

502(a)(3)

more

WL

claim

specific

1766372,
where

the

supported plaintiff’s § 502(a)(1)(B) claim)).
does

not

identify

any

cases

in

which

a

at

*5

remedial
(dismissing

same

allegations

Indeed, plaintiff
court

has

allowed

concurrent claims under ' 502(a)(3) and ' 502(a)(1)(b) where the
claims are supported by identical underlying allegations.
Moreover,

plaintiff’s

reliance

on

Mondry

is

misplaced.

Plaintiff argues that because his ' 502(a)(3) claim seeks relief
he could not obtain under ' 502(a)(1)(b), the claims are not
duplicative.

Plaintiff

focuses
7

on

the

portion

of

Mondry

in

which the court concluded that the plaintiff had a viable claim
under ' 502(a)(3) for “the lost time value” of the money she
should have received in benefits, noting that she “could not
have

sought

this

form

of

relief

under

[' 502(a)(1)(B)],

for

absent a provision in the plan that grants her the right to
interest

on

past-due

benefits

…

restitution

of

this

sort

is

considered an extra-contractual remedy that is beyond the scope
of that section.” 557 F.3d 781.

But Mondry was not a suit to

compel the payment of benefits under ' 502(a)(1)(B) at all, as
the plaintiff had already prevailed in her administrative appeal
before bringing suit.
acknowledged

that

' 502(a)(1)(B).

Indeed, the Seventh Circuit has expressly

prejudgment

interest

is

available

under

See Fritcher v. Health Care Service Corp., 301

F.3d 811, 819-20 (7th Cir. 2002) (citing Gorenstein Enters.,
Inc. v. Quality Care–USA, Inc., 874 F.2d 431, 436 (7th Cir.
1989) (“prejudgment interest should be presumptively available
to victims of federal law violations. Without it, compensation
of

the

plaintiff

is

incomplete

and

the

defendant

has

an

incentive to delay.”) and Rivera v. Benefit Trust Life Ins. Co.,
921 F.2d 692, 696 (7th Cir. 1991) (“presumption in favor of
prejudgment interest awards is specifically applicable to ERISA
cases.”)).
In Mondry, the plaintiff asserted ' 502(c)(3) to recover the
interest

that

had

accrued

on

her
8

past-due

benefits

over

the

sixteen months she spent wrangling with her employer and the
plan administrator over the production of documents the latter
contended (erroneously, as it turned out) supported the denial
of

her

claim.

already

The

established

' 1024(b)(4)

for

court
her

its

explained

employer’s

failure

to

that

the

liability
produce

plaintiff

under

the

29

had

U.S.C.

relevant

plan

documents, but that the statutory penalties for that violation
were insufficient to compensate her for her injuries resulting
from “the lengthy delay in obtaining the documents.”
557

F.3d

at

790.

In

that

context,

the

court

Mondry,

concluded

that

' 502(a)(3) offered an appropriate equitable remedy to make the
plaintiff whole. 1

Nothing in Mondry suggests that ' 502(a)(3) is

appropriately used, as plaintiff seeks to do here, “to prevent
the

wrongdoer

Opp., at 10.

from

enriching

himself

by

his

wrongs.”

Pl.’s

Indeed, plaintiff cites no case in which any court

has done so.
In fact, while plaintiff acknowledges that punitive damages
are unavailable under ERISA, and characterizes the disgorgement
he

seeks

in

his

' 502(c)(3)

claim

as

“remedial,”

the

very

authority on which he relies, SEC v. Blatt, 583 F.2d 1325, 1334
(5th Cir. 1978), explained that “[t]he court’s power to order
1

Moreover, the basis for the plaintiff’s fiduciary
her employer’s failure to produce plan documents,
its misrepresentations about the contents of those
separate and distinct from any contractual claim
she might have had under ' 502(a)(1)(B).
9

breach claim—
coupled with
documents—was
for benefits

disgorgement extends only to the amount with interest by which
the defendant profited from his wrongdoing.
would constitute a penalty assessment.”

Any further sum

Under this rationale,

remedial, non-punitive disgorgement in this case amounts to the
benefits

plaintiff

claims

defendant

wrongly

interest defendant earned on those benefits.

withheld,

plus

That is the same

relief he is entitled to seek under ' 502(a)(1)(B).
III.
For the foregoing reasons, defendant’s motion to dismiss
count II of the complaint is granted.
ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 19, 2014

10