Riley v. Blue Cross & Blue Shield of Mississippi et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 30 Motion for Summary Judgment; granting 33 Motion for Leave to File Response. Signed by District Judge Henry T. Wingate on 7/21/2011 (SM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
TERRI PAIGE RILEY

PLAINTIFF

V.

NO. 3:09CV674HTW-LRA

BLUE CROSS & BLUE SHIELD OF MISSISSIPPI
and THE ELECTRIC POWER ASSOCIATION OF
MISSISSIPPI GROUP BENEFITS TRUST

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Before this court is the motion of defendant Electric Power Association of
Mississippi Group Benefits Trust Plan (“the Plan”) for summary judgment under Rule
56(a) of the Federal Rules of Civil Procedure 1(Docket No. 30). The court also has
before it the motion of plaintiff Terri Paige Riley for leave to file a response to summary
judgment (Docket no. 33). The court held a hearing in this matter on February 25,
2011, at the conclusion of which it granted both motions. In ruling on the motion for
summary judgment, the court has considered the motion (Docket No. 30); the response
of plaintiff, Terri Paige Riley (“Riley”), (Docket No. 33); the Plan’s rebuttal brief (Docket
No. 38) and the Administrative Record (Docket No. 29).
In this action, Riley brings claims against the Plan under the Employee
Retirement Income Security Act of 1974, Title 29 U.S.C. § 1002 et seq. (“ERISA”)
1

Rule 56(a) states:

Motion for Summary Judgment or Partial Summary Judgment. A party may move
for summary judgment, identifying each claim or defense - or the part of each
claim or defense--on which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. The
court should state on the record the reasons for granting or denying the motion.

arising out of the denial of medical benefits under Title 29 U.S.C. § 1132(a)(1)(B)2 and,
furthermore, she makes a claim for breach of fiduciary duty under Title 29 U.S.C.
§ 1132(a)(2).3 For its part, the Plan contends that the undisputed facts and
authoritative law demonstrate: 1) that the decision denying benefits was proper and
should be affirmed; and 2) that the claim for breach of fiduciary duty under ERISA is
barred and otherwise non-meritorious. Satisfied that defendant has shouldered its
burden under Rule 56, this court hereby grants the summary judgment motion of the
Plan for the reasons which follow.
I. STATEMENT OF THE FACTS
On July 31, 2009, Riley underwent a medical procedure to treat her idiopathic
gastroparesis through the use of a device known as a gastric electrical stimulator
(“GES”). Riley subsequently made a claim for medical benefits under her employee
benefit plan. The Plan administrator determined that the GES procedure was not
covered under the current terms of the plan and Riley’s claim was denied. By
comparison, under prior terms of coverage, Riley’s plan had paid medical benefits for

2

Section 1132(a)(1)(B) states:

(a) Persons empowered to bring a civil action. A civil action may be brought-(1) by a participant or beneficiary-....
(B) to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits under
the terms of the plan. . .
3

Section 1132(a)(2) provides:

(a) Persons empowered to bring a civil action. A civil action may be brought-....
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate
relief under section 409 [Title 29 USC § 1109]. . .

2

two previous GES procedures. Aggrieved, she filed this federal court action, principally
seeking to reverse the denial of benefits determination.
Riley is married to an employee of North Central Electric Power Association and,
since 1999, has been a beneficiary of an ERISA-regulated employee welfare benefit
plan provided by her husband’s employer. At some point, Riley was diagnosed with
idiopathic gastroparesis and, in August of 2005, a GES was implanted in Riley for the
treatment of this condition. In December of 2007, the pulse stimulator to the GES failed
and Riley underwent another medical procedure to replace it. At the time of Riley’s
2005 and 2007 procedures, benefit claims under the Plan were being administered by
Cooperative Benefits Administrators, Inc. (“CBA”). Under the terms of coverage
existing at that time, CBA approved payment of benefits for these two procedures.
Subsequently, in September of 2008, the Plan contracted with Blue Cross and
Blue Shield of Mississippi (“Blue Cross”) to perform benefit claims administration and,
at that same time, new terms of coverage were implemented and embodied in the plan
document denominated as:
Electric Power Association of
Mississippi Group Benefits Trust Plan
Plan B
Plan Type: C622
This document was provided to all participants, including Riley. While the Plan
continued to afford benefits for certain medical treatment, at the same time it excluded
certain medical treatment from coverage. In particular, the Plan excluded from
coverage “investigative” services. An “investigative” service is a defined term under the
Plan:
3

The use of any treatment, procedure, facility, equipment, drug, device, or
supply not yet recognized by certifying boards and/or approving or licensing
agencies or published peer review criteria as standard, effective medical
practice for the treatment of the condition being treated.
The Plan unambiguously states that “[b]enefits will not be provided for . . .
services or items which are investigative in nature.”
Separately, the Blue Cross Medical Policy, which is referenced in the Plan,
advises participants such as Riley that GES is excluded from coverage on account of
the fact that it is an investigative service. The literature review underlying the Blue
Cross Medical Policy on GES reveals that no randomized controlled trials and only
small case studies had been conducted on the efficacy of the device. Indeed, the U.S.
Food and Drug Administration (“FDA”) has not approved the use of GES except under
the “humanitarian device exception” which only requires sufficient information to show it
does not pose an unreasonable or significant risk of illness or injury. The FDA
exception applies to treatment intended to benefit fewer than 4,000 patients and, thus,
is exempt from having to provide results of scientifically valid clinical investigations
demonstrating its efficacy. In the case of GES, the FDA exception is solely for the
“Enterra Therapy System” manufactured by Medtronic and no further attempt has been
made since the exemption was given in 2000 to have GES otherwise approved by the
FDA. The FDA has not recognized GES to be “standard, effective medical practice” for
the treatment of gastroparesis. In fact, the FDA specifically requires that labeling for
GES state “that the effectiveness of the device for the specific indication has not been
demonstrated.” Accordingly, the Blue Cross Medical Policy considers GES
“investigational for the treatment of gastroparesis of idiopathic etiology.” No exceptions
to that policy are found under the Plan.
4

Consistent with the Plan’s treatment of GES, Medtronic, the only manufacturer
authorized by the FDA to market a GES system, has not recognized it as being
“standard, effective medical practice” and affirmatively disclaims proof of its efficacy.
The Administrative Record bears this out through Medtronic’s literature on the device
which states, “the effectiveness of this device for this use has not been demonstrated.”
On July 31, 2009, after Riley’s GES failed yet again, she underwent another
GES procedure. This time, her claim for medical benefits was denied under the current
terms of the Plan.
Before having the 2009 procedure, Riley made repeated attempts to have Blue
Cross pre-authorize the payment of medical benefits. But, the Plan did not allow for
such pre-authorization and Riley was repeatedly advised of this in both verbal and
written communications. Riley was specifically informed in writing that “prior
authorizations are not available for services which have not been performed[,]” and that
“[a] determination of benefits for proposed services will be made at the time the claims
are received and processed.”
Riley nonetheless persisted in her attempts to persuade Blue Cross to preauthorize medical benefits for a procedure which had not been performed. In
connection with that, she submitted pre-surgery medical records, a selection of medical
literature on GES and, through a patient advocate, made what she deemed a “preservice appeal” of Blue Cross’s rejection of her request for pre-authorization.
The Plan’s procedural obligations under ERISA and Riley’s right to an appeal
would not surface until after she had her surgery and her post-service claim for medical
benefits was denied. The Administrative Record shows that when Riley’s claim was

5

ultimately denied, she was given an Explanation of Benefits which properly notified her
of the decision and recited her rights under ERISA. After receiving this notification,
Riley did not exercise any of her recited rights, but instead elected to file suit.
Riley’s complaint against the Plan advanced two separate counts: in Count I,
Riley claims that the denial of benefits was presumptively “arbitrary and capricious”
since medical benefits were paid for the two GES procedures she underwent prior to
implementation of the Blue Cross terms of coverage. In Count II, Riley states a claim
for breach of fiduciary duty under §1132(a)(2)4 [§502(a)(2)] of ERISA.
Though not pled by a separate count, Riley’s complaint also asserts she was not
provided a full and fair review of her claim, in violation of ERISA [§ 503, 29 U.S.C.
§ 11335]. Additionally, whereas her complaint does not bear this out, Riley, in
opposition to the Plan’s motion for summary judgment, essentially argues that the Plan
was not given its legally correct interpretation.
II. APPLICABLE STANDARD OF REVIEW
The summary judgment standard for ERISA claims is unique because the court
acts in an appellate capacity reviewing the decisions of the administrator of the plan. In

4

supra

5

Section 1133 states:

In accordance with regulations of the Secretary, every employee benefit plan
shall-(1) provide adequate notice in writing to any participant or beneficiary whose
claim for benefits under the plan has been denied, setting forth the specific
reasons for such denial, written in a manner calculated to be understood by the
participant, and
(2) afford a reasonable opportunity to any participant whose claim for benefits
has been denied for a full and fair review by the appropriate named fiduciary of
the decision denying the claim.

6

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L. Ed.2d
80 (1989), the United States Supreme Court discussed the two possible standards of
review, de novo and abuse of discretion:

Id.

[a] denial of benefits challenged under §1132(a)(1)(B) is to be reviewed
under a de novo standard unless the benefit plan gives the administrator
or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.
In this action, all parties are in agreement that the applicable standard is abuse

of discretion. Likewise, the court finds this is the proper standard, as the Plan fiduciary
has been conferred with full discretionary authority to determine eligibility for benefits
and/or to construe the terms of the Plan.
Under the abuse of discretion standard, “[i]f the plan fiduciary’s decision is
supported by substantial evidence and is not arbitrary and capricious, it must prevail.”
Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 397-98 (5th Cir. 2007) (quoting
Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004)).
“Substantial evidence is more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. In contrast, “[a] decision is arbitrary when made ‘without a rational
connection between the known facts and the decision or between the found facts and
the evidence.’” Lain v. UNUM Life Ins. Co. of America, 279 F.3d 337, 342 (5th Cir. 2002)
(quoting Bellaire General Hospital v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828
(5th Cir. 1996)).
The analysis of the abuse of discretion standard when construing the terms of a
plan involves a two-step process. See Vercher, 379 F.3d at 227. First, the court must

7

determine whether the administrator’s plan interpretation is legally correct. “If the
administrator’s interpretation is legally sound, further analysis is unnecessary because
no abuse of discretion could have occurred.” Chacko v. Sabre, Inc., 473 F.3d 604, 610
(5th Cir. 2006). If it is determined that the administrator’s interpretation was not correct,
“then, and only then, the court must consider whether the administrator’s interpretation
constituted an abuse of discretion.” Curtis v. BellSouth Corp., 149 F. Supp. 2d 268,
273 (S.D. Miss. 2001), citing Jordan v. Cameron Iron Works, Inc., 900 F.2d 53, 56 (5th
Cir. 1990) cert. denied, 498 U.S. 939, 111 S.Ct. 344, 112 L. Ed. 2d 308 (1990)
(emphasis supplied). Even where a plan has not been given its proper legal
interpretation, the benefits determination must be upheld unless it was arbitrary and
capricious. Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (5th Cir. 1992).
III.

SUMMARY JUDGMENT FOR THE PLAN IS APPROPRIATE

A.

THERE IS NO VESTING OF RIGHTS TO EMPLOYEE WELFARE
BENEFITS

Riley argues that coverage of her two prior GES procedures requires her current
plan to cover the 2009 surgery. The Fifth Circuit, however, has long recognized that
“ERISA does not require such ‘vesting’ of the right to a continued level of the same
medical benefits once those are ever included in a welfare benefit plan.” McGann v.
H&H Music Co., 946 F. 2d 401, 405 (5th Cir. 1991). Welfare benefit plans are distinctly
unique from employee pension plans in this regard and, as courts have pointed out, this
is by design. “Congress evidenced its recognition of the need for flexibility in rejecting
the automatic vesting of welfare plans . . . because the costs of such plans are subject
to fluctuating and unpredictable variables.” Wise v. El Paso Nat’l Gas Co., 986 F. 2d
929, 935 (5th Cir. 1993) (citing Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492
8

(2d Cir. 1988)). An employer is under no requirement to maintain benefits at a certain
level, much less at any level; rather, a participant’s eligibility for benefits is determined
under “then existing, current terms of the plan[.]” Id.
For instance, where an employer eliminated medical benefits which were
previously being afforded to an employee under an ERISA-regulated plan, the Fifth
Circuit, in upholding the change in benefits, held that “ERISA does not mandate that
employers provide any particular benefits.” McGann v. H&H Music Co., 946 F. 2d 401,
405, 406 (5th Cir. 1991). The McGann court explained that Congress intended for
employers to “remain free to create, modify and terminate the terms and conditions of
employee benefits plans without governmental interference.” Id.
In response to the Plan’s motion for summary judgment, Riley offers nothing to
dispute the adverse effect of this legal principle on her argument. Riley is vested with
no right to have the Plan cover her 2009 GES procedure merely because she
previously had coverage for similar services. Riley’s current eligibility for benefits is
determined by the terms of the Plan in effect at the time of her 2009 claim. The
touchstone, therefore, is whether the denial of Riley’s 2009 claim constituted an abuse
of discretion under the “then existing, current terms of the Plan,” and the undisputed
material facts answer the question in the negative.
B.

THE PLAN WAS GIVEN A LEGALLY CORRECT INTERPRETATION

Congress expected when it enacted ERISA that a federal common law of rights
and obligations under ERISA-regulated plans would develop. Todd v. AIG Life
Insurance, 47 F.3d 1448, 1452-53 (5th Cir. 1995); Jones v. Georgia Pacific Corporation,
90 F.3d 114, 116 (5th Cir. 1996). Therefore, it is federal common law which governs this

9

case, including the interpretation of the plan provisions at issue. Wegner v. Standard
Insurance Company, 129 F.3d 814, 818 (5th Cir. 1997).
In Firestone Tire & Rubber Company v. Bruch, the United States Supreme Court,
analogizing ERISA plans to trust agreements, stated as follows:
As they do with contractual provisions, courts construe terms in trust
agreements without deferring to either party' interpretation.... The terms of
s
trusts created by written instruments are “determined by the provisions of
the instrument as interpreted in light of all the circumstances and such
other evidence of the intention of the settlor with respect to the trust as is
not inadmissible.” Restatement (Second) of Trusts § 4, Comment d (1959).
Bruch, 489 U.S. at 112, 109 S.Ct. 948.
Next, the general rule of construction pertaining to insurance policies, that of
resolving ambiguities in favor of the insured, applies in the ERISA context. Ramsey v.
Colonial Life Insurance Company of America, 12 F.3d 472, 479 (5th Cir. 1994); Hansen
v. Continental Insurance Company, 940 F.2d 971, 982 (5th Cir. 1991). Otherwise, this
Court follows the traditional principles of contract and trust law, construing a participant'
s
claim “ ‘as it would have any other contract claim-by looking to the terms of the plan and
other manifestations of the parties'
intent.’” Sunbeam-Oster Co., Inc. Group Benefits
Plan for Salaried and Non-Bargaining Hourly Employees v. Whitehurst, 102 F.3d 1368,
1373 (5th Cir.1 996) (quoting Bruch, 489 U.S. at 112, 113, 109 S.Ct. 948).
Here, Riley’s medical records of July 31, 2009, from St. Francis Hospital list her
diagnosis as being idiopathic gastroparesis. The operative procedure itself was
described as the replacement of a new pulse stimulation device for the purpose of
gastric electric stimulation. It was this medical service for which Riley made a claim for
benefits under the Plan.

10

The Plan, in denying the claim, relies on the stated definition of “investigative”
services, the exclusion of coverage for such services and the Blue Cross Medical Policy
which articulates the rationale for the classification of GES as investigative. The Plan
also cites to the FDA’s and Medtronic’s determinations that the effectiveness of GES
has not been demonstrated.
Riley attempts to counter this by arguing that she submitted to Blue Cross other
evidence which disputes the Plan’s treatment of GES as an investigative service. It is a
well-settled principle of ERISA law, however, that so long as the denial of a claim is
based on supporting evidence, “even if disputable,” the administrator’s decision must be
affirmed. Abate v. Hartford, 471 F. Supp. 2d 724, 737 (E.D. Tex. 2006) (citing Vega v.
National Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999)). “The law requires only
that substantial evidence support a plan fiduciary’s decision . . . not that substantial
evidence (or, for that matter, even a preponderance) exists to support the employee’s
claim[.]” Singley, 497 F. Supp. 2d at 817. Even if Riley submitted evidence favorable to
her position, that alone would be insufficient to show that the Plan administrator
incorrectly interpreted the terms of coverage. See Curtis, 149 F. Supp. 2d at 273
(holding, “this court’s authority to reverse a plan administrator’s decision is limited to only
those instances in which the plan administrator abused its discretion.”).
The Court finds that the evidence relied on by Riley does not demonstrate that
the Plan abused its discretion. While Riley points to a letter in the Administrative Record
from one of her physicians who advocates that GES is the standard of care for treating
her gastroparesis, the court finds this insufficient to remove GES from the Plan definition
of “investigative.” The letter from Riley’s physician does not constitute “a certifying

11

board, an approving licensing agency or a published peer review criteria” deeming GES
to be “standard, effective medical practice.” More so, ERISA does not recognize a
“treating physician rule,” and “courts have no warrant to require administrators
automatically to accord special weight to the opinions of a claimant' physician; nor may
s
courts impose on plan administrators a discrete burden of explanation when they credit
reliable evidence that conflicts with a treating physician' evaluation.” Black & Decker
s
Disability Plan v. Nord, 38 U.S. 822, 123 S.Ct. 1965, 1972 (U.S. 2003); Cummings v.
Union Security Insurance Company, 2008 W.L. 410644, *4 (S.D. Miss. 2008) (holding,
“ERISA does not require . . . that administrators give special deference to the opinions of
treating physicians and does not impose a heightened burden of explanation on an
administrator who rejects a treating physician' opinion). Simply put, the letter from
s
Riley’s physician has no talismanic effect to create coverage nor does it demonstrate an
incorrect interpretation of the Plan.
Riley also cites to Medicare and other entities which cover GES procedures as
evidence that GES is not “investigative.” This Court, however, is restrained by ERISA
from reading coverage into a plan merely because other sources have elected to cover
the treatment. It was “Congress’s intent that employers remain free to create . . . the
terms and conditions of employee benefit plans without governmental interference.”
McGann, 946 F. 2d at 407. That other sources may cover GES procedures does not
change the definition in Riley’s plan of an “investigative” service nor her plan’s exclusion
for such services.
In regards to the medical literature which Riley submitted to Blue Cross on GES,
the Court finds that the research surveyed in that literature has not changed the status of

12

GES according to the FDA or its manufacturer. Among other troublesome issues with
this literature (as persuasively pointed out by the Plan in its briefs), the literature
submitted by Riley largely, if not completely, involved small case studies into the
efficacy of GES, yet as of 2009, when Riley submitted her claim, the FDA continued to
require that the labeling for GES state that the effectiveness of the device had not been
demonstrated – thereby meeting the Plan’s definition of “investigative.”
Finally, Riley pleads that GES should not be considered investigative since it
provides her relief from her symptoms caused by gastroparesis. That GES may work for
Riley, however, does not change the Plan’s terms which must be construed under the
rule of law. As the Fifth Circuit aptly stated in an ERISA action involving a plan
beneficiary suffering from incurable Lou Gehrig’s disease – “we can only speak to what
the law commands, not how our sympathy dictates.” King v. Provident Life & Acc. Ins.
Co., 68 F.3d 471, n.9 (5th Cir. (Miss.) 1995). Payment of benefits cannot be compelled
for a non-covered procedure simply because it may provide a plan participant relief from
a particular medical condition. ERISA affords employers the freedom to provide and,
conversely, not to provide certain employee benefits, and “neither Congress nor the
courts are involved in either the decision to establish a plan or in the decision concerning
which benefits a plan should provide.” McGann, 946 F.2d at 407.
The Court finds that the Plan terms are not ambiguous and its provisions are
clear. GES is an “investigative” item or service and, accordingly, is not covered. Since
the administrator’s interpretation of the Plan was correct, it is unnecessary for this Court
to consider whether the administrator’s interpretation constituted an abuse of discretion.
Be that as it may, the Court finds that it cannot be said that the Plan’s decision was

13

made “without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Lain v. UNUM Life Ins. Co. of America, 279
F.3d 337, 342 (5th Cir. 2002) (quoting Bellaire General Hospital v. Blue Cross Blue
Shield of Mich., 97 F.3d 822, 828 (5th Cir. 1996)).
C.

THE PLAN DID NOT COMMIT ANY PROCEDURAL VIOLATIONS
UNDER ERISA

Turning to Riley’s opposition to summary judgment on the alleged ground that she
was denied a full and fair review of her claim, this contention has no merit.
Riley asserts that the Plan administrator committed certain procedural violations
when Blue Cross rejected her request to pre-authorize the 2009 surgery before it was
performed and then by failing to administer what Riley characterizes as her “pre-service
appeal” from that decision. Riley’s position in this regard is flawed. The Plan did not
provide for pre-authorization of the procedure and Riley had no such right to a preservice appeal. “ERISA requires the plan be administered as written and to do
otherwise violates not only the terms of the plan but causes the plan to be in violation of
ERISA.” Huizing v. Metropolitan Life Ins. Co., 2010 WL 1417728, *6 (W.D. Mich. March
31, 2010) (quoting Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239 (4th
Cir. 2008) (citing 29 U.S.C. § 1102(a)(1) (2008))). The Plan’s procedural obligations
under ERISA were triggered when Riley’s post-service claim for medical benefits was
denied, and the Administrative Record shows that the Plan administrator met those
obligations.

14

D.

RILEY’S CLAIM FOR ALLEGED BREACH OF FIDUCIARY DUTY IS
BARRED

Riley asserts a claim for breach of fiduciary duty against the Plan under
§1132(a)(2) [§ 502(a)(2)]. [Docket No. 1 at pp. 25-26]. To this, the court finds that Riley
cannot bring a claim for breach of fiduciary duty against the Plan. Section 1132(a)(2)
[§ 502(a)(2)] provides for actions for relief under § 1109 [§ 409]. Section 1109 [§ 409]
provides for imposition of personal liability on a fiduciary "to make good to such plan any
losses to the plan resulting from each such breach, and to restore to such plan any
profits of such fiduciary which have been made… and shall be subject to such other
equitable or remedial relief as the court may deem appropriate, including removal of
such fiduciary." Id. Recovery from a fiduciary under § 1132(a)(2) [§ 502(a)(2)] is to a
plan' benefit, not the plaintiff' Murphy v. Wal-Mart Associates'
s
s.
Group Health Plan,
928 F. Supp. 700, 710 (E.D. Tex 1996) (even if defendants were fiduciaries, plan
participant could not recover damages under § 501(a)(2), as the recovery would be to
the plan); Metropolitan Life Ins. v. Palmer, 238 F. Supp. 2d 826, 830 (E.D. Tex. 2002)
(equitable relief available to the plan not the individual under § 1132(a)(2)); McDonald v.
Provident Indem. Life Inc. Co., 60 F.3d 234, 237 (5th Cir. 1995) (claim for breach of
fiduciary duty under § 1132(a)(2) is based on harm to the plan, rather than harm to a
particular individual).
The Metropolitan Life court noted that the plaintiff' claim under § 1132(a)(2) did
s
not make sense since relief was only available to the plan and not the individual. Thus,
the court examined § 1132(a)(3)6, which this court does as well, and also finds the claim
6

Section 1132(a)(3) states:

(a) Persons empowered to bring a civil action. A civil action may be brought--

15

is not available to Riley.
As a consequence of seeking benefits under § 1132(a)(1)(B) [§ 502(a)(1)(B)],
Riley is prohibited from bringing a claim for a breach of fiduciary duty. Specifically, "an
ERISA plaintiff may bring a private action for breach of fiduciary duty only when no other
remedy is available under [§ 1132]." Rhorer v. Raythion Eng' & Constructors, Inc., 181
rs
F.3d 634, 639 (5th Cir. 1999) (citing Varity Corp. v. Howe, 516 U.S. 489, 510-16 (1996);
Metropolitan Life Ins. v. Palmer, 238 F. Supp.2d 826, 830 (E.D. Tex. 2002)) (After Varity,
"it is settled law in this circuit that a potential beneficiary may not sue for breach of
fiduciary duty if he has a pending claim under section 1132(a)(1)(B) for benefits
allegedly owed.").
If "an insured has adequate redress for denied benefits through [the] right to bring
suit under section 1132(a)(1), and if [the insured] is seeking the same relief that is
available for a claim for benefits under section 1132(a)(1), [the insured] has no claim for
breach of fiduciary duty under section 1132(a)(3), even if her claim under section
1132(a)(1) is subsequently lost on the merits." Adams v. Prudential Ins. Co. of Am., No.
05-2041, 2005 WL 2669550, at *1 (S.D. Tex. Oct. 19, 2005) (observing that courts
interpreting Varity have "consistently" reached the same result). In Varity, the Supreme
Court emphasized that § 1132(a)(3) is a "catchall" provision that provides relief for
injuries that are not otherwise adequately addressed under ERISA. 516 U.S. at 515, 116
S.Ct. 1065. Following this guidance, the Fifth Circuit has concluded that if a plaintiff can

....
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice
which violates any provision of this title 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 title or the terms of the plan. . .

16

pursue plan benefits under § 1132(a)(1), the plaintiff has an adequate remedy and may
not also pursue a claim under § 1132(a)(3). See Rhorer, 181 F.3d at 639 (upholding
dismissal of the plaintiff' claim that the defendants breached their fiduciary duties by
s
inadequate disclosures in the SPD because in addition to that claim, the plaintiff was
"seeking to recover plan benefits under § 1132(a)(1)(B)" and "the claim to recover plan
benefits [wa]s the predominate cause of action in th[e] suit"); Tolson v. Avondale Indus.,
Inc., 141 F.3d 604, 610 (5th Cir. 1998) ("Because [plaintiff] has adequate relief available
for the alleged improper denial of benefits through his right to sue the Plans directly
under section 1132(a)(1), relief through the application of [s]ection 1132(a)(3) would be
inappropriate."). Khan v. American Int'Group, Inc., 2009 WL 2923048 at *8 (S.D. Tex.
l
2009).
Indeed, in Fisher v. AIG Life Ins. Co., the plaintiff who brought a claim for benefits
under § 1132(a)(1)(B) [§ 502(a)(1)(B)] was specifically barred from bringing a fiduciary
duty claim which claim was based on allegations of not providing him with adequate
notice of certain ERISA rights, as is alleged by Riley in her response papers. Fisher,
2009 WL 3029756 at *6 (N.D. Tex. 2009).
IV. CONCLUSION
This court hereby grants the summary judgment motion of Electric Power
Association of Mississippi Group Benefits Trust Plan, affirming the denial of plaintiff’s
claim for benefits under her employee welfare benefit plan.
Further, this court hereby grants the summary judgment motion of Electric Power
Association of Mississippi Group Benefits Trust Plan on the claim for breach of fiduciary
duty under § 1132(a)(2), as Riley does not bring this claim for the benefit of the Plan, but

17

for her own alleged damages and having brought a claim for benefits under
§ 1132(a)(1)(B), she is barred from bringing this separate action.
The court will enter a Final Judgment in accordance with the local rules.
SO ORDERED AND ADJUDGED, this the 21st day of July, 2011.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE

Civil Action No. 3:09cv674 HTW-LRA
Order Granting Motion for Summary Judgment
Order Granting Motion for Leave to File Response

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