Rochow v. Life Insurance Company of North America
Filing
180
ORDER granting in part 152 Motion for Prejudgment Interest. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TODD R. ROCHOW, et al.,
Case No. 04-73628
Plaintiffs,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
v.
LIFE INSURANCE COMPANY OF NORTH
AMERICA,
U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN
Defendant.
/
ORDER GRANTING PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST IN PART
[152]
On March 15, 2015, the Sixth Circuit vacated this Court’s decision granting
a disgorgement award under §502(a)(3) and remanded the case “for consideration
of whether and, if so, to what extent, award of prejudgment interest is warranted
under §502(a)(1)(B) to make Rochow whole.” Rochow v. Life Ins. Co. of N. Am.,
780 F.3d 364, 376 (6th Cir.), cert. denied, 136 S. Ct. 480, 193 L. Ed. 2d 350
(2015). On January 19, 2016, Plaintiffs filed a Motion for Interest [152], requesting
the Court order Defendant to follow its internal claims policies and procedures, and
to award interest at a rate of 12%. Defendant responded [154] on March 1, 2016
and Plaintiff replied on April 7, 2016 [161]. Defendant filed a sur-reply on May 16,
2016. The Court conducted a hearing on the motion on September 22, 2016. For
the reasons stated below, Plaintiff’s Motion for Interest is GRANTED in part.
Page 1 of 19
FACTUAL BACKGROUND
The facts presented are as summarized by the Sixth Circuit:
In mid–2000, the late Daniel J. Rochow (“Rochow”), a principal of
Universico Insurance Company (“Universico”), sold his interest in
Universico to Arthur J. Gallagher & Co. (“Gallagher”) and became
President of Gallagher. As an employee of Gallagher, Rochow was
covered under Life Insurance Company of North America (“LINA”)
policy number LK 30214. LINA's policy provided for disability
benefits if an employee gave “satisfactory proof” that “solely because
of Injury or Sickness [the employee is] unable to perform all material
duties of [his or her] Regular Occupation or a Qualified
Alternative[.]” See Rochow v. LINA (“Rochow I ”), 482 F.3d 860,
863–64 (6th Cir.2007).
In 2001, Rochow began to experience short term memory loss,
occasional chills, sporadic sweating, and stress at work. Id. In July
2001, Gallagher demoted Rochow from President to Sales Executive–
Account Manager because Rochow could no longer perform his duties
as President. Id. Rochow continued to have difficulties, and as a result
of his inability to perform his job, Gallagher forced Rochow to resign
effective January 2, 2002. Id. In February 2002, Rochow experienced
periods of amnesia and was hospitalized. Id. During his February
2002 hospital stay, Rochow was diagnosed with HSV–Encephalitis, a
rare and severely debilitating brain infection. Id.
On or about December 31, 2002, Rochow filed a claim for long term
disability benefits. LINA denied Rochow benefits, stating that
Rochow's employment ended before his disability began. Rochow I,
482 F.3d at 864.
Rochow appealed LINA's denial and included medical records from
2001 that stated Rochow was suffering short-term memory loss during
2001. In denying Rochow's appeal, LINA noted that Rochow
experienced the effects of encephalitis during 2001 but denied
coverage because Rochow continued to work and was not disabled
until February 2002. Rochow I, 482 F.3d at 864.
Page 2 of 19
Rochow again appealed and…LINA again denied Rochow's claims…
Rochow appealed the denial a third time. LINA denied his claim for
the final time stating Rochow had not presented any medical records
to support his inability to work prior to the date he was terminated.
On September 17, 2004, Rochow filed a complaint against Cigna
Group Insurance, LINA's parent company, in the United States
District Court for the Eastern District of Michigan. Compl., ECF No.
1. The complaint states two claims under ERISA § 502(a)(3), 29
U.S.C. § 1132(a)(3): one to recover full benefits due to the failure to
pay benefits in violation of the terms of the plan and one to remedy
the alleged breach of fiduciary duty in ERISA Section 404(a), 29
U.S.C. § 1104(a).
Defendant moved for judgment on the record and Plaintiff moved for
summary judgment. On June 24, 2005, Judge Tarnow of the United
States District Court for the Eastern District of Michigan heard oral
arguments on the parties' motions. At the conclusion of oral argument,
Judge Tarnow stated on the record that LINA acted arbitrarily and
capriciously in finding Rochow was not disabled while still employed
and that Rochow had prevailed. In a one page order which
incorporated the reasoning stated on the record, the Court granted
Rochow's motion and denied LINA's motion. The same day, the
district court clerk filed a judgment which purported to dismiss the
case and was signed by the district court clerk and Judge Tarnow.
LINA appealed the June 24, 2005 Order denying Defendant's motion
and granting Plaintiff's motion…On April 3, 2007, a panel of this
Court affirmed Judge Tarnow's Order. Rochow I, 482 F.3d at
866…On the same day, the clerk for this Court entered judgment
stating “the order of the district court is AFFIRMED.” The clerk of
this Court issued the mandate on April 26, 2007, and it was filed May
3, 2007…
…On November 10, 2008, LINA filed a statement of resolved and
unresolved issues and Plaintiff filed motions for attorneys' fees and
costs and equitable accounting. LINA's statement of issues
represented that the parties still disputed several issues, including
whether Plaintiff was entitled to a disgorgement of profits.
Page 3 of 19
Plaintiff also filed a motion seeking an equitable accounting and a
request for disgorgement. In that motion, Plaintiff argued Rochow's
estate was entitled to disgorgement of profits because LINA breached
its fiduciary duties, and disgorgement was necessary to prevent
LINA's unjust enrichment resulting from profits it earned on the
wrongfully retained benefits…
In June 2009, the district court granted Plaintiff's motion for an
equitable accounting of profits and disgorgement of the same…
…After the parties briefed the issue, the district court conducted an
evidentiary hearing in November 2011 on the issue of calculation of
profits for disgorgement…Following additional briefing and oral
argument, the district court issued its decision on calculation of profits
for disgorgement in March 2012…
…On December 6, 2013, a panel of this court affirmed the
disgorgement award, holding that disgorgement was properly ordered
under ERISA § 502(a)(3) for LINA's breach of fiduciary duty and that
Rochow's claim for such relief was not an impermissible repackaging
of a claim for wrongful denial of benefits under § 502(a)(1)(B). Id. at
423…LINA's petition for en banc rehearing was granted on February
19, 2014, vacating the panel's decision in Rochow II.
Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 366–69 (6th Cir.), cert. denied,
136 S. Ct. 480, 193 L. Ed. 2d 350 (2015).
Following the en banc rehearing, the Sixth Circuit vacated the Court’s
disgorgement award and remanded for consideration of whether and, if so, to what
extent, award of prejudgment interest is warranted under §502(a)(1)(B) to make
Rochow whole. Id.
Page 4 of 19
ANALYSIS
The issues before the Court in Plaintiff’s Motion for Prejudgment Interest
include the following: (1) whether Plaintiff is entitled to prejudgment interest; (2)
if the Court determines that Plaintiff is entitled to prejudgment interest, at what rate
should the interest be awarded in order to make Plaintiff whole, while also not
violating Sixth Circuit precedent prohibiting award at an excessive prejudgment
interest rate which would “contravene ERISA's remedial goal of simply placing the
plaintiff in the position he or she would have occupied but for the defendant's
wrongdoing.” Schumacher v. AK Steel Corp. Retirement Accumulation Pension
Plan, 711 F.3d 675, 686 (6th Cir.2013); (3) when a judgment is final for the
purposes of post-judgment interest; and (4) if Plaintiff explicitly waived the
entitlement to post-judgment interest.
1. ENTITLEMENT TO PREJUDGMENT INTEREST
On the remand from the Sixth Circuit, the Court must determine if Plaintiff
is entitled to prejudgment interest.” Rochow v. Life Ins. Co. of N. Am., 780 F.3d
364, 376 (6th Cir.), cert. denied, 136 S. Ct. 480, 193 L. Ed. 2d 350 (2015).
Defendants argue that Plaintiff is not entitled to prejudgment interest because, in
contravention of the mandate, no evidence that an award of prejudgment interest is
needed to make it whole has been offered. Defendants further argue that, since
prejudgment interest is compensatory, the amount awarded “depends on how much
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Plaintiff lost by not having possession of the funds in question,” for example, and
that “no evidence as to how much he earned on funds he actually invested during
the relevant time period or how much he would have earned on the benefit
payments had they been paid to him when originally due,” has been provided.
There is no right to prejudgment interest under ERISA and a Plaintiff must
show that the benefits were wrongfully withheld to be awarded a compensatory
prejudgment interest award. Ciaramitaro v. Unum Life Ins. Co. of Am., 521 F.
App'x 430, 435 (6th Cir. 2013). Since “[a]n award of prejudgment interest in the
ERISA context is compensatory, not punitive… a finding of wrongdoing by the
defendant is not a prerequisite to such an award.” To award prejudgment interest, a
Court need only find that benefits were “incorrectly withheld.” Id, citing Wells v.
U.S. Steel, 76 F.3d 731, 737 (6th Cir.1996). It is within the Court’s discretion to
decide whether to award prejudgment interest and at what rate. Id.
Given the precedent surrounding the awarding of prejudgment interest, the
Defendants place undue emphasis on the phrase “make whole” in the mandate
from the Sixth Circuit. In the Rochow II opinion itself, the Sixth Circuit invoked
the phrase “make whole” when holding that any prejudgment interest award
should, per Sixth Circuit precedent, not be so excessive as to overcompensate and
be, in effect, punitive, but also not so exceedingly low as to “fail to make the
plaintiff whole.” Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 376 (6th Cir.),
Page 6 of 19
cert. denied, 136 S. Ct. 480, 193 L. Ed. 2d 350 (2015) (emphasis added), citing
Schumacher v. AK Steel Corp. Retirement Accumulation Pension Plan, 711 F.3d
675, 686 (6th Cir.2013). Therefore, in context, there is no viable argument that this
phrase means that Plaintiff must show evidence of what rate would make them
whole, rather it is meant to inform the Court’s analysis, when determining what
prejudgment interest rate should be applied, to ensure that the rate selected is not
punitive but still adequate to compensate the Plaintiff.
In this case, because Rochow sought disability benefits from Defendant
beginning in 2002 and did not receive any benefit payment until October 2007, the
Court held that Defendant violated ERISA, both by its failure to pay benefits due
and its breach of fiduciary duty. Under these circumstances, there can be no
question that Defendant incorrectly and wrongfully withheld benefits, from the
moment that they refused to recognize Rochow as disabled. Plaintiff is accordingly
entitled to prejudgment interest.
There is no indication that the phrase “make whole” requires a detailed
evidentiary demonstration of what use the beneficiary would have made of the
money had he received it, and there is no precedent in the Sixth Circuit that such a
showing is required in ERISA cases, or more generally in civil litigation.
Therefore, Plaintiff is entitled to prejudgment interest because benefits incorrectly
were withheld.
Page 7 of 19
2. PREJUDGMENT INTEREST RATE
Plaintiff argues that it is entitled to a 12% prejudgment interest rate. It is
asserted that Defendant has its own internal claims policies and procedures that
establish Plaintiff should be awarded a 12% prejudgment interest rate per MCL
§500.2006. Additionally, Plaintiff argues that MCL §500.2006 is not preempted by
ERISA. In response, Defendant denies that the document produced by Plaintiff
reflects any internal policy. Rather, it contends that the document merely describes
“certain state laws regarding interest that may or may not apply in any given case
and that have their own specific requirements.” [154 at 13]. Defendant also argues
that not only is MCL §500.2006 preempted by ERISA, but that the interest rate is
punitive, relying upon Ford v. Uniroyal Pension Plan, 154 F.3d 613, 616 (6th
Cir.1998), which expressly held that a 12% rate is preempted by ERISA because it
is punitive and would result in an excessive prejudgment award.
The document Plaintiff argues to be a policy is entitled “Claims Policies and
Procedures: Interest on Claim Payments,” and it “summarizes and provides
procedures for state statutes which require interest to be paid on insurance claims.”
[152-2]. The document identifies the states “with requirements that interest be paid
on insurance proceeds in certain circumstances.” Id. Michigan is listed with a 12%
per year rate. The rest of the document discusses how to comply with the various
state laws, should they apply to claims. The document also states that certain cases
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should be referred through litigation coordinators, including “instances where the
claimant or the claimant’s representative may argue that an interest rate statute is
applicable where we have determined it is not, either because of differences in
products affected or territorial scope.” [152-2 at 7]. There is nothing in the
document that provides that all claims, in all states with listed statutes, will have
those particular interest rates applied. Instead, the alleged policy clearly
contemplates that it will not be used in all circumstances, even in those states
having state statutes concerning interest to be paid on insurance proceeds.
Additionally, Plaintiff has not directed this Court’s attention to any case law
supporting the proposition that, even if the exhibit was to be considered a policy
manual, that it would be controlling on the issue of ERISA prejudgment rates.
Further no Sixth Circuit decisions have been presented to support the proposition
that the Court should use its discretion in awarding prejudgment interest and order
an ERISA fiduciary to enforce their policy of awarding a certain rate, especially in
the face of Sixth Circuit precedent that dictates that the requested amount per
Michigan statute would be preempted as punitive in violation of the remedial
scheme of ERISA.
In Ford v. Uniroyal Pension Plan, the Sixth Circuit recognized that
“incorporation of state standards in the calculation of prejudgment interest could
frustrate ERISA's remedial scheme.” 154 F.3d 613, 617 (6th Cir. 1998). The Court
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proceeded to find that a 12% prejudgment interest rate under MCL §600.6013 was
preempted by ERISA, because it would be significantly higher than the rate
authorized under 28 U.S.C. §1961, and would overcompensate a Plaintiff. Id at
618. Specifically, the Court noted that the state statute mandating a 12%
prejudgment interest rate was created with the purpose, not only to compensate
Plaintiffs for the delay in receiving money damages, but also to compensate
Plaintiffs for litigation expenses. Id. Since the District Court separately provided
for attorney’s fees, this rate would thus overcompensate Plaintiff and be punitive.
Plaintiff argues that requested 12% rate is mandated by MCL §500.2006 and
thus is not preempted by ERISA under the holding in Ford. However, the Ford
decision squarely applies, and establishes that MCL §500.2006 is subject to ERISA
preemption as conflicting with its remedial scheme. Beyond the fact that the rate
sought here is identical to the one found preempted in Ford as being punitive,
MCL §500.2006 was created with “[t]he purpose…to penalize insurers for dilatory
practices in settling meritorious claims, not to compensate a plaintiff for delay in
recovering benefits to which the plaintiff is ultimately determined to be entitled.”
Dep't of Transp. v. Initial Transp., Inc., 276 Mich. App. 318, 330–31, 740 N.W.2d
720, 728 (2007) (citations omitted), (rev'd in part on other grounds). This plainly
punitive purpose is in direct opposition to the purpose of ERISA, and is thus
preempted under Ford.
Page 10 of 19
In terms of setting the prejudgment interest rate, Plaintiff has provided no
other option beyond the 12%. The Defendant presents two options. The first would
calculate the rate under 28 U.S.C. §1961, based on one-year treasury rates.
According to exhibits provided by Defendant, the applicable one-year Treasury
rate from July 2002 through June 2005 is 1.85%, which would yield a total
prejudgment interest amount of $11,172.42 (from July 2002 through June 2009,
the rate is 2.74%, yielding a total amount of $75,709.56). The second rate
suggested by Defendant would adopt this Court’s methodology in the Pipefitters
Local 636 Fund v. Blue Cross Blue Shield of Michigan, No. 04-73400, 2012 WL
3887174 (E.D. Mich. Sept. 7, 2012), aff'd sub nom. Pipefitters Local 636 Ins. Fund
v. Blue Cross & Blue Shield of Michigan, 722 F.3d 861 (6th Cir. 2013). In that
case, the award was based on five-year Treasury rates plus one percent, in
accordance with MCL §600.6013. Id at *4. For the present case, per Defendant’s
exhibit, from July 2002 through June 2005, application of the applicable rate under
MCLA §600.6013 (4.38%) to the stream of benefits payments due before final
judgment, and compounding annually, would yield a total prejudgment interest of
$26,375 (from July 2002 through June 2009, the amount would be $142,031.85).
This Court has determined to adopt the method previously employed in
Pipefitters Local 636 Fund as the calculation formula for prejudgment interest in
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this case. Id. The applicable time period for the prejudgment interest rate is
discussed below. See Part 4.
3. ENTITLEMENT TO POST-JUDGMENT INTEREST
Defendant argues that Plaintiff effectively waived its right to post-judgment
interest at the November 17, 2015 conference, when in response to this Court’s
question, “So you’re not going to make a claim for post-judgment interest,”
Plaintiff’s Counsel replied “It’s not possible, no, because there is no judgment.”
Defendant argues that this statement, combined with the fact that Plaintiff does not
address post-judgment interest in its Motion, necessarily has resulted in its waiver.
Plaintiff responds that it did not waive the post-judgment interest when it made that
statement. It further asserts that post-judgment interest was not addressed in the
Motion because it was not necessary to request such interest.
Defendant has not directed this Court’s attention to any legal authority
supporting its position that post judgment interest can be waived. To the contrary,
“28 U.S.C. § 1961(a) requires district courts to award post-judgment interest on all
money judgments.” Spizizen v. Nat'l City Corp., 516 F. App'x 426, 432 (6th Cir.
2013) (emphasis added). Moreover, the Seventh Circuit, which did address this
issue, held that “post-judgment interest is awarded by automatic statutory
provision. To expressly award post-judgment interest is superfluous.” Pace
Commc'ns, Inc. v. Moonlight Design, Inc., 31 F.3d 587, 591 (7th Cir. 1994). This
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Court concurs that there was no need to expressly request post-judgment interest in
the motion.
The Court also does not interpret the statement made by the Plaintiff at the
conference to constitute a waiver. It seems clear that Plaintiff’s counsel did not
consider the judgment to be final without the awarding of prejudgment interest, so
there was no need to request post-judgment interest from the Court. Therefore,
Plaintiff is entitled to post-judgment interest under 28 U.S.C. § 1961(a).
4. TIMING OF POST-JUDGMENT INTEREST AND PREJUDGMENT
INTEREST
Defendant argues that, if the Court finds that Plaintiff did not waive the right
to post-judgment interest, it should be awarded from the time of the Order granting
summary judgment on June 24, 2005. In the alternative, Defendant argues that the
latest that prejudgment interest entitlement would run is through June 26, 20091,
the date that the Court quantified the amount of LTD benefits owed to Plaintiff.
Plaintiff contends that any judgment is not “final” for the purposes of post
judgment interest until the issue of whether Plaintiff is entitled to prejudgment
interest is decided by the Court. Plaintiff argues that since that has not yet
happened, post-judgment interest has not yet been triggered.
1
The Order entered in June 2009 regarding quantification of benefits owed was
actually entered June 16, 2009 [67].
Page 13 of 19
“[P]rejudgment interest should run up until the point where the federal postjudgment interest provisions are triggered.” Stryker Corp. v. XL Ins. Am., 735 F.3d
349, 361 (6th Cir. 2012). Post-judgment “shall be allowed on any money judgment
in a civil case recovered in a district court…calculated from the date of the entry of
the judgment.” 28 U.S.C. §1961(a).
In Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990), the
Supreme Court addressed the issue of when a judgment on the merits was final. In
that case, an initial trial resulted in entry of judgment for $5,445,000 in damages.
When the District Court determined that the damages were unsupported by
evidence, the original judgment was vacated, and a limited retrial on damages was
conducted, with a new judgment entered in the amount of $9,567,939. The
Supreme Court held that post-judgment interest would begin running after the
second judgment, because, before that final judgment, the damages had not been
“‘ascertained’ in any meaningful way.” Id. However, this case did not address the
question of whether other monetary elements, such as attorney fees and
prejudgment interest, were part of the underlying damage and thus a part of a final
judgment and entitled to post-judgment interest.
The Sixth Circuit has addressed the question of whether post-judgment interest
should be awarded on an entire judgment that included prejudgment interest in
Caffey v. Unum Life Ins. Co., 302 F. 3d 576 (6th Cir. 2002). The Court explicitly
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found that “Plaintiff is entitled to post-judgment interest on the district court's
award of prejudgment interest.” Id at 586. The Court recognized and favorably
cited decisions from various other Circuits “that post-judgment interest should be
awarded on the entire amount of the judgment, including any prejudgment
interest,” since “[p]rejudgment interest is part of the underlying damage award;
and ‘[u]nder § 1961, post-judgment interest should be awarded on the entire
amount of the judgment.’” Id, citing approvingly Quesinberry v. Life Ins. Co. of N.
Am., 987 F.2d 1017, 1031 (4th Cir.1993) (en banc); Bancamerica Commercial
Corp. v. Mosher Steel of Kans., Inc., 103 F.3d 80, 82 (10th Cir.1996); Air
Separation, Inc. v. Underwriters at Lloyd's of London, 45 F.3d 288, 291 (9th
Cir.1995); Ins. Co. of N. Am. v. Lexow, 937 F.2d 569, 572 n. 4 (11th Cir.1991).
The Court explained that since post-judgment interest is meant to compensate
Plaintiff for loss from the “time between the ascertainment of the damage and the
payment by the Defendant.” Caffey v. Unum Life Ins. Co., 302 F.3d 576, 587 (6th
Cir. 2002). In the context of determining the timing of prejudgment and
postjudgment interest, the Court found that this purpose was best served by having:
Post-judgment interest began to run on the district court's prejudgment
interest award on March 2, 2000, when plaintiff's unconditional legal
entitlement to prejudgment interest was initially established.
Id.
Page 15 of 19
Stryker Corp. v. XL Ins. Am also supports Caffey’s findings concerning
appropriate prejudgment and post-judgment interest timing. 735 F.3d 349, 361 (6th
Cir. 2012). As the Court in Stryker explained, the final judgment occurred when
the District Court entered a judgment that “contained findings relating to the
amount of prejudgment interest that the First Interest Opinion did not completely
vacate.” Id.
The Court contrasted its findings to another Sixth Circuit decision, Scotts
Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788 (6th Cir.2005). In that case, the
first judgment was followed by two subsequent judgments that modified the total
award, but did not set aside the conclusions of the first judgment. Id at 362. The
Sixth Circuit found that the final judgment must be employed for the cut-off for
prejudgment interest, despite the fact that none of the subsequent judgments
modified the conclusions of the first judgment, but merely modified the total
award. This opinion “merely aligned the accrual of prejudgment interest with the
date that prejudgment interest was first awarded” and thus damages were
sufficiently ascertained at this Order because entitlement to prejudgment interest
was determined. Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788 (6th
Cir.2005).
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The decisions in Caffey, Scott and Stryker all demonstrate that a judgment is
considered final for the purposes of post-judgment interest, not only once the
amount of damages on the underlying merits of a claim are ascertained, but with
respect to prejudgment interest, a judgment is final once the issue of entitlement is
determined.
Defendant argues that the Court’s Order on June 24, 2005 or, in the
alternative, the Court’s Order of June 2009, must be considered to be the final
judgment in this case. “Judgment” has been interpreted by the Sixth Circuit, for
the purposes of the statute, to mean “any judgment that is not entirely set aside.”
Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 429 (6th
Cir.1999). “[A] final judgment for money must, at least, determine, or specify the
means for determining, the amount.” United States v. F. & M. Schaefer Brewing
Co., 356 U.S. 227, 233–34 (1958).
In this case, the issue of entitlement to prejudgment interest had not been
determined, per the mandate issued by the Sixth Circuit on March 5, 2015. Rochow
v. Life Ins. Co. of N. Am., 780 F.3d 364, 366 (6th Cir.), cert. denied, 136 S. Ct. 480,
193 L. Ed. 2d 350 (2015). The Order of June 2005 merely found that Defendant’s
“determination was arbitrary and capricious and unsupported by the administrative
record.” Rochow v. Life Ins. Co. of N. Am., 482 F.3d 860, 862 (6th Cir. 2007). This
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clearly was not a money judgment, and thus could not trigger post-judgment
interest under 28 U.S.C. §1961.
The Order of June 2009 similarly does not trigger post-judgment interest
because it is not a final order. This Order dealt with several pending Motions
including, inter alia, the issue of how to determine the calculation of the benefits
owed to Plaintiff and the issue of disgorgement [67]. This again is not a final
money judgment, because the Sixth Circuit reversed the Court’s award of
disgorgement in Rochow II. Per Sixth Circuit precedent, the judgment is not final
until the full damages, including fees and interest, have been ascertained. With the
reversal of the disgorgement award and the mandate to determine Plaintiff’s
entitlement to prejudgment interest, postjudgment interest has not been triggered.
Therefore, Plaintiff is entitled to prejudgment interest up to the entry of this Order,
and then post-judgment interest begins subsequently.
CONCLUSION
In conclusion, the Court finds that Plaintiff is entitled to prejudgment
interest. Post-judgment interest will be triggered by the entry of this Order which
determines the entitlement to prejudgment interest.
The Court adopts the interest rate method it employed in Pipefitters Local
636 Fund v. Blue Cross Blue Shield of Michigan, No. 04-73400, 2012 WL
3887174 (E.D. Mich. Sept. 7, 2012), aff'd sub nom. Pipefitters Local 636 Ins. Fund
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v. Blue Cross & Blue Shield of Michigan, 722 F.3d 861 (6th Cir. 2013) for
determining prejudgment interest. Defendant provided the Court with amounts for
prejudgment awards using this method of calculation. However, it has not provided
a calculation for the time period of prejudgment interest found by the Court in this
Order. Therefore, Defendant is ordered to provide the Plaintiff and the Court with
their calculation of prejudgment interest for the time period of July 2002 through
September 2016.
IT IS ORDERED that Plaintiff’s Motion for Interest is GRANTED in
part.
IT IS FURTHER ORDERED that Defendant shall provide the Court with
their calculation of prejudgment interest under the Pipefitters Local 636 Fund v.
Blue Cross Blue Shield of Michigan, No. 04-73400, 2012 WL 3887174 (E.D.
Mich. Sept. 7, 2012), aff'd sub nom. Pipefitters Local 636 Ins. Fund v. Blue Cross
& Blue Shield of Michigan, 722 F.3d 861 (6th Cir. 2013) method for the time
period of July 2002 through September 2016.
SO ORDERED.
Dated: September 29, 2016
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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