Letourneau v. Life Insurance Company of North America
MEMORANDUM OPINION AND ORDER: denying 13 Motion to Remand to State Court. Signed by Judge Karen K. Caldwell on 11/5/2013. (JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
LIFE INSURANCE COMPANY OF
NORTH AMERICA d/b/a
CIGNA GROUP INSURANCE,
CIVIL ACTION NO. 6:13-CV-00055-KKC
This matter is before the Court on Plaintiff Timothy Letourneau’s motion to remand this
matter to state court. (DE 13). Letourneau asserts several state law claims against Defendant,
Life Insurance Company of North America d/b/a Cigna Group Insurance (“LINA”).1 LINA
removed this matter to federal court alleging that Letourneau’s claims are regulated by the
Employee Retirement Income Security Act of 1974 (“ERISA”). Because both the short term
disability plan (“STD”) and long term disability plan (“LTD”) at issue in this matter are
governed by ERISA, Letourneau’s motion to remand to state court is denied. (DE 13).
Letourneau was employed at Kmart, through Kmart Corporation/Sears Holding
Management Corporation,2 where he was automatically enrolled in STD coverage and elected to
enroll in LTD coverage. (DE 1-3, 13-5, 13-8). Sometime in 2011, Letourneau applied to receive
STD and LTD benefits through Kmart’s insurance provider, LINA. LINA denied Letourneau’s
Both parties refer interchangeably to Defendant as LINA and CIGNA.
Kmart Corporation is wholly owned by Kmart Holding Corporation, which is a wholly owned subsidiary of Sears
claim. (DE 1-3). Letourneau appealed the denial of benefits, and LINA informed Letourneau of
his rights to bring legal action under ERISA following the “adverse benefit determination on
appeal.” (DE 1-3). Letourneau filed suit against LINA in Wayne County, Kentucky Circuit
Court. (DE 1-3). LINA removed this matter to this Court, and Letourneau subsequently filed a
motion to remand to state court. (DE 1-1, DE 13-1).
A district court must conduct a three-step analysis in determining whether a program is
governed by ERISA. Thompson v. Am. Home Assur. Co., 95 F.3d 429, 434 (6th Cir. 1996). First
the court must ascertain whether the program is excluded from ERISA under the “safe harbor”
provision. Id. at 434–35. Second, the court must determine whether a particular program
constitutes a “plan” within the meaning of the Act by inquiring whether, “from the surrounding
circumstances, a reasonable person [could] ascertain the intended benefits, the class of
beneficiaries, the source of financing, and procedures for receiving benefits.” Id. at 435 (internal
quotations omitted). Third, the court must determine “whether the employer ‘established or
maintained’ the plan with the intent of providing benefits to its employees.”
citations omitted). The Court has examined both the LTD and STD plans according to this threestep process.
A. The STD Plan is governed by ERISA.
1. Step One: Safe Harbor Provision
An insurance policy is excluded from ERISA under its safe harbor provision if the plan
meets all four of the following criteria:
(1) the employer makes no contribution to the policy; (2) employee
participation in the policy is completely voluntary; (3) the
employer's sole functions are, without endorsing the policy, to
permit the insurer to publicize the policy to employees, collect
premiums through payroll deductions and remit them to the
insurer; and (4) the employer receives no consideration in
connection with the policy other than reasonable compensation for
administrative services actually rendered in connection with
Id. (citing 29 C.F.R. § 2510.3-1(j)) (emphasis added).
Kmart’s STD program does not fall within ERISA’s safe harbor provision because it was
fully funded by the employer and employee participation was not voluntary. (DE 13-5, 13-8).
As the Kmart benefits pamphlet indicates, “STD coverage continues to be paid for entirely by the
company [Kmart]. You [the employee] do not pay anything for STD coverage.” (DE 13-5).
Because Kmart clearly contributes to the policy, it is therefore not exempt from ERISA under the
safe harbor provision. Helfman v. GE Group Life Assur. Co., 573 F.3d 383, 391 (6th Cir. 2009)
(holding that “if an employer contributes to any employee’s payment of premiums, ERISA must
apply to the entirety of the particular insurance program”).
Letourneau does not contest that he was automatically enrolled in the STD plan or that
Kmart contributed to it. (DE 14; 13-1). Instead, he points to a provision of the employee
handbook, which states that the Sears employee STD plan is a “payroll practice exempt from
That particular portion of the handbook, however, does not apply to
Letoureau or other Kmart employees. The handbook clearly states, “Field and Distribution
Center associates of Kmart Corporation are not eligible for the Sears Holding STD Program, and
should instead refer to the next section of the Handbook entitled Kmart Disability Income Plan
(Kmart Associates) for short-term disability benefit information.” (DE 6-1) (emphasis added).
The employee handbook calls the Kmart STD plan a “welfare benefit plan under the Employee
Retirement Income Security Act. . . .” (DE 13-5). Because the STD program was employer
funded and involuntary, it does not fall within the safe harbor provision.
2. Step Two: Existence of an ERISA “Plan”
“[A]n ERISA plan exists if a reasonable person can ascertain (1) the intended benefits,
(2) the class of beneficiaries, (3) the source of financing, and (4) the procedures for receiving
benefits.” Williams v. WCI Steel Co., Inc., 170 F.3d 598, 602 (6th Cir. 1999). The employee
handbook clearly specifies the intended benefits, group of beneficiaries, source of financing, and
procedures for receiving benefits. (DE 13- 8). A chart in the handbook showcases the employee
benefits. (DE 13-8). There is an eligibility section that explains which Kmart employees are
automatically covered. (DE 13-8). The STD plan description clearly states that employees pay
nothing for the STD plan, and also provides the process for applying for benefits. (DE 13-8).
Thus, the STD plan satisfies step two in the three-step factual inquiry.
3. Step Three: Plan Created to Provide Benefits
Finally, the STD plan easily satisfies the third step in the three-step ERISA inquiry
because Kmart/Sears established and maintained the STD plan to provide benefits to Kmart
employees. In his affidavit, Stanley Aldis, Senior Manager of Benefits Operation for Sears,
explicitly states, “The Sears Holding Corporation Employee Welfare Benefit Plan was
established for the purpose of providing certain employee benefit programs to eligible employees
. . . .” (DE 14-1). The employee handbook notes that the STD plan “is designed to help eligible
Kmart hourly associates cope with an off-the-job Sickness or Injury . . . .” (DE 13-8). Further,
Kmart funded the STD plan, clearly indicating that Kmart/Sears created the plan for the
Therefore, the STD plan does not fall within the ERISA safe harbor provision under step
one and easily satisfies the last two steps of the three-step ERISA inquiry. The STD plan is
governed by ERISA.
B. The LTD plan is governed by ERISA.
The LTD plan also is governed by ERISA, because it too is not excluded from ERISA
under the safe harbor provision and easily meets steps two and three in the ERISA inquiry.
1. Step One: Safe Harbor Provision
“A policy will be exempted under ERISA only if all four of the ‘safe harbor’ criteria are
satisfied.” Thompson, 95 F.3d at 435. The absence of any one of the four safe harbor criteria,
such as the endorsement criteria in the instant case, is enough to exclude the policy from
ERISA’s safe harbor provision. Id. Here, it is clear that Kmart/Sears Holding endorsed the
In considering whether an employer has endorsed a policy within the meaning of the safe
harbor provision, the Sixth Circuit has considered several questions including:
(1) Has the employer played an active role in either determining
which employees will be eligible for coverage or in negotiating the
terms of the policy or the benefits thereunder?
(2) Is the employer named as the plan administrator?
(3) Has the employer provided a plan description that specifically
refers to ERISA or that the plan is governed by ERISA?
(4) Has the employer provided any materials to its employees
suggesting that it has endorsed the plan?
(5) Does the employer participate in processing claims?
Bailey v. Minnesota Life Ins. Co., 2009 WL 803701 at *3 (E.D. Ky. March 24, 2009) (referring
to Thompson 95 F.3d at 437) (internal citations omitted). “A finding of endorsement may be
appropriate upon an affirmative response to one or more of these factors.” Id. (emphasis added);
Booth v. Life Ins. Co. of N. Am., 2006 WL 3306846 at *3 (W.D. Ky. Nov. 9, 2006). The first
factor is not squarely addressed in the record. However, three of the four remaining factors
weigh in favor of endorsement. Throughout each factor, the emphasis is placed “on those
circumstances which would allow an employee to reasonably conclude that the employer had
compromised its neutrality in offering the plan.”
Thompson, 95 F.3d at 437.
examining all the relevant circumstances, there is some factual showing on the record of
substantial employer involvement in the creation or administration of the plan,” then the
employer has endorsed the plan. Id. at 436. In this matter, Kmart endorsed the LTD plan, and
thus, the safe harbor provision does not apply.
Sears Holding Company is named as the plan administrator in the group disability
insurance certificate, in the 2012 employee handbook, and in the Sears Holding Corporation
Employee Benefit Plan, which specifically references the LTD plan by policy number. (DE 138, DE 13-11, Exhibit C, DE 13-10). The LTD plan itself is silent as to a plan administrator. (DE
13-3). The plan, however, recognizes Sears as the “policyholder.” (DE 13-3). Thus, from an
employee perspective, there is at least some reference to Sears. Unlike other cases in which this
Court has found that an employer was named plan administrator in one document but the
insurance company was named as administrator in the insurance document, the LTD policy in
this case is simply silent to the matter. See Bailey, 2009 WL 803701 at *5. In the absence of the
insurance policy contradicting other documentation, the naming of Sears as plan administrator in
at least three other documents favors endorsement.
Further, ERISA is mentioned in the Kmart/Sears LTD plan description. Both the 2010
and 2012 benefits handbooks for full-time hourly associates provide an entire section on the LTD
plan, which lays out the specifics of the policy. (DE 13-5, 13-8). Under the heading “Important
Notes,” the handbook states, “The LTD Plan is a welfare benefit plan under the Employee
Retirement Income Security Act of 1974 . . . This section of the Handbook . . . [is] intended to
constitute a summary plan description in accordance with ERISA.” (DE 13-5, 13-8). The
employee welfare benefit plan also specifically indicates that the LTD plan is governed under
ERISA and specifically provides the group policy number listed on Letourneau’s LTD policy.
Moreover, these references to ERISA in connection to the LTD plan were not just,
“buried in the back of a booklet,” as Letourneau contends, but are notably marked in two
separate locations specifically referencing the LTD plan and even the policy number of the plan.
(DE 13-5, 13-8, 13-11). Letourneau insists that this case is similar to a case where the Court held
that an employer had not endorsed the plan because, among other issues, any mention of ERISA
was buried in the back of a booklet. (DE 13-1). However, in that case, the summary plan did not
mention ERISA, and indicated instead that the insurance plan was governed by the insurance
document, which also made no mention of ERISA. See Bailey, 2009 WL 803701 at *5. In the
instant case, the summary plan clearly states that ERISA applies specifically to the LTD plan.
(DE 13-5, 13-8). “[W]here the employer provides a summary plan description that specifically
refers to ERISA in laying out the employee's rights under the policy or that explicitly states that
the plan is governed by ERISA, the employee is entitled to presume that the employer's actions
indicate involvement sufficient to bring the plan within the ERISA framework.” Thompson, 95
F.3d at 437.
Finally, the LINA denial of coverage letters indicate specifically that ERISA governs.
(DE 13-13). One letter states, “Based on the information provided by your Employer, your claim
is governed by the Employee Retirement Income Act of 1974 . . . .” (DE 13-13). Further, “[y]ou
[employee] have a right to bring a legal action for benefits under . . . ERISA.” While this
mention of ERISA is not within the plan description, it does provide yet another indication that
this claim is governed under ERISA, not state law.
In addition, LINA provided materials suggesting Kmart/Sears endorsed the plan. The fall
2010 benefits news pamphlet is clearly marked with a Kmart and Sears logo. (DE 13-4).
Letourneau alleges that “Cigna [LINA] presumably produced this document,” but provides no
support for why a document bearing only a Kmart and Sears logo, given to Kmart and Sears
employees, would be produced by LINA, or why if the document was produced solely by LINA,
Kmart and Sears logos would be present. (DE 4). Instead, this Court finds it more likely that the
pamphlet was provided to Kmart and Sears employees by Kmart and Sears, and it would matter
little if LINA did assist in creating the document. The benefits news pamphlet states, “CIGNA
[LINA] will be our provider for the Sears Holdings short-term and long-term disability plans.”
(DE 13-4) (emphasis added). As other courts have recognized, “[i]n the difference between ‘our
plan’ and ‘a plan’ lies the quintessential meaning of endorsement.” Tinsley v. Connecticut Gen.
Life Ins. Co., 744 F. Supp.2d 637, 641 (W.D. Ky. 2010) (internal citations omitted). The benefits
news pamphlet also calls the LTD plan “your Sears Holding disability coverage,” and cautions
against what could happen if an employee needed to leave work for an extended period of time
due to sickness or injury. (DE 13-4) (emphasis added). By referring to CIGNA (LINA) as “our
provider,” and by calling the LTD plan “Sears Holding” coverage, Kmart/Sears took ownership
of the plan, and “if a plan or program is the employer’s plan or program, the safe harbor does not
beckon.” Johnson v. Watts Regulator Co., 63 F.3d 1129, 1137 (1st Cir. 1995).
Moreover, the 2012 employee benefit handbook makes similar cautions about being
disabled without coverage and again refers to the LTD plan as the “Sears Holding Long-Term
Disability Insurance Plan.” (DE 13-8). This again shows some ownership of the plan, and also
Letourneau argues that he may not have received the benefits news pamphlet or
handbook. However, the question is not whether Letourneau received and read the employee
documents but whether a reasonable employee would believe that the employer had
compromised its neutrality towards the plan.
Thompson, 95 F.3d at 437.
employee would likely read the benefit news pamphlet or the employee handbook and could
“reasonably conclude that the employer had compromised its neutrality.” Id. References to “our
provider” and the “Sears Holding Long-Term Disability Plan,” as well as the employer’s caution
against the negative effects of not having disability insurance, would cause a reasonable
employee to believe that Kmart/Sears had endorsed the LTD plan.
Under the final endorsement factor, Kmart/Sears did not participate in processing claims.
While Kmart/Sears appears to have provided employees with the logistics of the claims process
in the employee handbook, LINA was actually responsible for the claims process. (DE 13-8).
While this factor weighs against endorsement, it is not conclusive when compared to the
substantial evidence of endorsement under the other three relevant factors in this matter.
Considering all relevant endorsement factors together, Kmart/Sears was substantially
involved in the LTD plan, and viewing the actions of Kmart/Sears from an employee
perspective, it is clear that Kmart/Sears endorsed the plan. The employer-provided summary of
the LTD plan states explicitly that ERISA governs, and this alone is enough for the employee to
“presume that the employer’s actions indicate involvement sufficient to bring the plan within the
Thompson, 95 F.3d at 437.
Considering the additional instances of
endorsement, the safe harbor provision cannot exempt the LTD plan from ERISA.
2. Step Two: Existence of an ERISA “Plan”
Under step two in the three-step ERISA inquiry, the LTD plan is an “ERISA plan.”
Again, “an ERISA plan exists if a reasonable person can ascertain (1) the intended benefits, (2)
the class of beneficiaries, (3) the source of financing, and (4) the procedures for receiving
benefits.” Williams, 170 F.3d at 602. The employee handbook clearly indicates the “amount of
benefits” and the class of beneficiaries.
(DE 13-8). The handbook also provides a chart
describing the plan’s cost to employees and the procedures for applying for benefits. (DE 13-8).
Thus, a reasonable employee could ascertain that the LTD plan was a “plan” for purposes of
3. Step Three: Plan Created to Provide Benefits
Finally, under step three, Kmart/Sears established or maintained the LTD plan to provide
benefits to Sears/Kmart employees.
As Stanley Aldis, the Senior Manager of Benefits
Operations for Sears, explicitly noted in his affidavit, “The Sears Holding Corporation Employee
Welfare Benefit Plan was established for the purpose of providing certain employee benefit
programs to eligible employees . . . .” (DE 14-1). Moreover, the benefits news pamphlet
indicates, “Your [employee’s] Sears Holding disability coverage helps you [employee] to
continue to pay your bills so you can focus on getting well.” (DE 13-4). The logical conclusion
from these facts is that Sears established the LTD plan as part of its overall Employee Welfare
Benefit Plan and intended that the LTD plan benefit its employees.
For the above stated reasons, the Court HEREBY ORDERS that Plaintiff’s motion to
remand this matter to state court is DENIED. (DE 13).
This 5th day of November, 2013.
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