Hewitt v. Western and Southern Financial Group Flexible Benefits Plan et al
MEMORANDUM OPINION & ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss DE 8 be SUSTAINED and Plaintiff's Motion for Summary Judgment DE 13 be OVERRULED. IT IS FURTHER ORDERED that this matter be DISMISSED WITH PREJUDICE and this matter STRICKEN from the docket of this Court. Signed by Judge Henry R. Wilhoit, Jr on 5/1/17.(KSS)cc: COR, Hewitt (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-120-HRW
ALLEN R. HEWITT,
MEMORANDUM OPINION AND ORDER
WESTERN AND SOUTHERN FINANCIAL GROUP
FLEXIBLY BENEFITS PLAN
THE WESTERN AND SOUTHERN LIFE INSURANCE CO.,
This matter is before the Court upon Defendants' Motion to Dismiss [Docket No. 8] as
well as Plaintiffs Motion for Summaty Judgment [Docket No. 13]. The motions have been fully
briefed by the parties [Docket Nos. 15, 18 and 19]. For the reasons set fmth herein, the Court
finds that the Complaint fails to state a claim upon which relief may be granted and this matter
will, therefore, be dismissed.
This is a civil action filed pursuant to the Employee Retirement Income Security Act
("ERISA") to recover benefits Plaintiff alleges he is owed from Defendants for a medical
According to the Complaint, Plaintiff began his employment with Defendant The
Western and Southern Life Insurance Company ("WSLIC") in November 2014.
thereafter, he joined the Western and Southern Financial Group Flexible Benefits Plan ("Plan"),
which provides certain benefits to its members, including medical coverage. The Plan is
governed by ERISA and a copy of it is attached to Plaintiffs Complaint [Docket No. 1-6, 7, 8
With regard to medical coverage, and as it pertains to this case, the Plan provides
reimbursement for medical expanses that are deemed necessaiy and appropriate, and are not
experimental in nature. Further, the Plan prohibits a member from filing a lawsuit reflating to
coverage more than six months following a denial of a claim for coverage. The Plan provides in
"[Njo action, including, but not limited to administrative, claim or suit
relating to or arising out of the Plan may be commenced or maintained
more than six months after the later of the employer's initial claim
decision or the employer's decision 011 review."
(Id. at §14.13 (emphasis added).)
In his Complaint Plaintiff alleges that prior to his employment with WSLIC, he was
diagnosed with several medical conditions related to the second toe of his right foot: a fractured
second metatarsal on his right foot, second Metatarsophalangeal Joint ("MPJ") capsnlitis and
On September 25, 2015, Plaintiff requested that the Plan provide coverage for a second
MP J arthroplasty surgery. Western Southern reviewed the request, including commissioning an
outside expert, Dr. Allan Bernstein, DPM, to review Plaintiffs medical records and request.
Dr. Bernstein opined that the surgery was not medically necessaiy but, rather, experimental.
Via letter dated October 2, 2015, a representative from the Benefits Department of the
Plan advised Plaintiff that his claim was denied. A copy of this letter is attached to the
Complaint [Docket No. 1-3). Defendants explained that "the surgety is considered to be
experimental I investigative and not medically necessaty." Id. The request was also denied as
medical records indicated that Mr. Hewitt's condition was "asymptomatic" and there was no
documentation of"conservative treatment failure." Id. In the denial letter, Defendants explained
that Mr. Hewitt could appeal his decision within 180 days, and that "any action, claim or suit
relating to, or arising out of the Plan must be co111111e11ced or maintained six months after the
date of this letter or the decision
appeal." Id. (emphasis added).
Plaintiff appealed this decision on October 14, 2015. This appeal, was denied on
November 6, 2015. Once again, its letter of denial, the Benefits Appeals Committee reminded
Mr. Hewitt "that, in accordance with the Plan, no action, including but not limited to
administrative, claim or suit relating to or arising out of the Plan, may be commenced or
maintained more than six months following the Benefits Appeals Committee's decision on
Beginning in mid-November, and continuing until May, Plaintiff continued to write to
Defendants regarding his claim:
In a letter dated November 19, 2015, Defendants provided Mr. Hewitt with
documents he requested, and reminded Mr. Hewitt of the six month limitations
period under the Plan.
In a letter dated Januaiy 13, 2016, Defendants denied Mr. Hewitt's request for
further review of his claims, and explained "there is 110 allowance for a second
level of appeal, and there is 110 jitrther means of review available." Defendants
again reminded Mr. Hewitt that no action could be maintained more than six
months following the Benefit Appeals Committee's decision on review.
In a February 2, 2016 letter providing Mr. Hewitt with additional requested
documents, Defendants again reminded Mr. Hewitt that he could not file a lawsuit
more than six months following the Benefit Appeals Committee's decision on
In a letter dated Febmary 19, 2016, Defendants responded to Mr. Hewitt's further
inquiries, and again reminded him of the applicable limitations period.
In a letter dated March 18, 2016, Defendants again denied Mr. Hewitt's request
for a second level of review on his claim, explaining that "the Plan's
administrative remedies have been exhausted, there is 110 allowance for a
second level of appeal for this claim, and there is no fitrther means of review
available. Again, the letter reminded Mr. Hewitt about the applicable six-month
limitations period in the Plan.
In a letter dated April 21, 2016, Defendants again informed Mr. Hewitt that they
would not be revisiting the prior decisions on his claim, and again infom1ed him
of the applicable six-month limitations period.
Finally, in a May 6, 2016 letter, Defendants again informed Mr. Hewitt that
he had already "exhausted the administrative remedies available under the Plan."
And one last time, Defendants informed Mr. Hewitt about the applicable
limitations period: "Again, I want to emphasize that in accordance with the Plan,
no action, including but not limited administrative, claim or suit
relating to or arising out of the Plan may be commenced or maintained more than
6 months following the Benefits Appeal Committee's decision on review."
Copies of all this correspondence are attached to Plaintiffs Complaint.
Ultimately, on September 28, 2016, ten months following the denial of his appeal,
Plaintiff filed the instant lawsuit.
Defendants seek dismissal of this action, arguing that it is time-barred.
In scrntinizing a complaint under Rule 12(b)(6), the Court is required to "accept all well-
pleaded factual allegations of the complaint as trne and constrne the complaint in the light most
favorable to the plaintiff." Dubay v. Wells, 506 F.3d 422, 426 (6th Cir.2007). A complaint will
withstand a motion to dismiss if it "contain[s) sufficient factual matter, accepted as trne, to state
a claim to relief that is plausible on its face." Ashcrof v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009).
Plaintiff has asserted three claims under ERIS A arising out of the denial of his claim
for medical benefits: (1) for recovery ofbenefits; (2) for breach of fiduciary duty; and (3) for an
award of costs and fees. However, according to the terms of the Plan, he had six months
following the denial of his appeal within which to file a lawsuit. Here, it is undisputed that, by
virtue of his membership in the Plan, Plaintiff and Defendants agreed that any lawsuit
must be brought within six months after the denial of his internal appeal. Plaintiff admits
that his appeal was denied on November 6, 2015 and this lawsuit was filed more than ten
months later, on September 26, 2016. Therefore, his claims are time-barred and thus, subject to
The Court notes that it is well established that parties may agree to a contractual
limitations period in which to bring a lawsuit arising out of a claim made to an ERISA plan, even
ifthe period is sh01ier than the analogous state statute of limitations. Heimeshoffv. Hartford Life
Accident Ins. Co., 134 S.Ct. 6-4, 610 (2013). See also, Claeys v. Aetna Life Ins. Co., 548 F.
App'x 344, 346 (6th Cir. 2013) (upholding dismissal of an ERISA breach of fiduciaty duty claim
under the Plan's shortened limitations period). Indeed, federal courts have routinely upheld
limitations in ERISA plans even shorter than six months. See e.g., See, e.g., Dye v. Assocs. First
Cap. Corp. Long-Term Disab. Plan, 243 F. App'x 808, 809-10 (5th Cir. 2007), Northlake Reg'/
Med. Ctr. v. WajJ/e House Sys. Employee Benefit Plan, 160 F.3d 1301, 1304 (1 lth Cir. 1998) and
Segerdahl v. Segerdahl Cmp. ESOP, 2006 U.S. Dist. LEXIS 30054, *34-35 (N.D. Ill.
Apr. 17, 2006).
Nor can a case be made for equitable tolling of the period of limitations. "Equitable
tolling is thus narrowly applied." Id. (citation omitted); see Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, (1990) ("Federal courts have typically extended equitable relief only sparingly."). A
court considers five factors when determining whether equitable tolling of a limitations period is
justified. Bro>vn v. Owens Corning Inv. Review Comm., 622 F.3d 564, 575 (6th Cir. 2010) Those
factors are (1) lack of notice of the filing requirement, (2) lack of constmctive knowledge of the
filing requirement, (3) diligence in pursuing one's rights, (4) absence of prejudice to the
defendant, and (5) the plaintiff's reasonableness in remaining ignorant of the particular legal
requirement. Id. (quoting Truitt v. Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). Plaintiff
has not and cannot satisfy any of these factors. Plaintiff cannot credibly argue that he was not
fully and fairly wanned of the six-month period in which to file a lawsuit. It was reiterated, over
and over, in the correspondence Plaintiff attached to his Complaint.
Although Plaintiff contends that the Plan was, somehow, a contract of adhesion and/or
ambiguous, neither argument has merit. There is no evidence in the record to support.
Finally, Plaintiff appears to suggest that the letters he sent Defendants following the
denial of appeal, had the effect of tolling the limitations period. Yet, there is no law to support
Simply put, despite knowing of the deadline, Plaintiff, for whatever reason, did not
adhere to it.
Plaintiff claims are time-barred and, thus, must be dismissed.
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
[Docket No. 8] be SUSTAINED and Plaintiffs Motion for Summaiy Judgment [Docket No.
13] be OVERRULED.
IT IS FURTHER ORDERED that this matter be DISMISSED WITH PREJUDICE
and this matter STRICKEN from the docket of this Comt.
R. WI/bolt. Jr,.
United States District Judge
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