Taylor v. The Prudential Insurance Company of America et al

Filing 22

***THIS DOCUMENT REPLACES 21 , WHICH HAD INCORRECT PDF DOCUMENT ATTACHED*** Memorandum Opinion and Order granting 6 MOTION of Wrigley to Dismiss Counts Two and Three and MOTION to Strike jury demand; granting 9 MOTION of Prudential to Dismiss Counts Two and Three, as set out herein. Signed by District Judge Tom S. Lee on 1/4/13 (LWE) Signed by District Judge Tom S. Lee on 1/4/13 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
THERESA A. TAYLOR

PLAINTIFF

VS.

CIVIL ACTION NO. 3:12CV702TSL-MTP

THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA AND
WRIGLEY SALES COMPANY, LLC,
f/k/a WM. WRIGLEY JR. CO., A
WHOLLY-OWNED SUBSIDIARY OF
MARS, INCORPORATED

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff Theresa A. Taylor filed the present action under
the Employee Retirement Income Security Act (ERISA), 29 U.S.C.
§ 1001, et seq., challenging the denial of her claim for shortand long-term disability benefits under an employee benefit plan
offered by her employer, Wrigley Sales Company, LLC, pursuant to a
policy issued and administered by The Prudential Insurance Company
of America.
follows:

Plaintiff’s complaint consists of four counts, as

Count one, brought pursuant to ERISA § 502(a)(1)(B), 29

U.S.C. § 1132(a)(1)(B), alleges that plaintiff is disabled and is
therefore entitled to benefits under the terms of the ERISA plan.
Count two, brought under ERISA § 502(a)(3), 29 U.S.C. §
1132(a)(3), alleges that Prudential breached its fiduciary duties
under ERISA by denying her claim for benefits and is also liable
for breaches of Wrigley, its co-fiduciary.

Count three is a claim

for negligence and bad faith under Mississippi law.
four is a demand for attorney’s fees.

And count

This cause is presently

before the court on defendant Prudential’s

motion pursuant to

Federal Rule of Civil Procedure 12(b)(6), to dismiss counts two
and three, and the separate motion of defendant Wrigley under Rule
12(b)(6) to dismiss counts two and three and to dismiss all claims
in the complaint seeking recovery for emotional distress,
punitive, and other extracontractual damages and under Rule 12(f)
to strike plaintiff’s demand for a jury trial.
In response to defendants’ motions, plaintiff acknowledges
that her state law tort claims in count three (of negligence, bad
faith and for punitive or exemplary damages) are preempted by
ERISA and she thus does not oppose the motions to dismiss count
three.

She also acknowledges in response to Wrigley’s motion to

strike that she has no right to a jury trial of her claim(s) under
ERISA and she thus stipulates to a non-jury trial before the court
as to all triable issues.

Finally, she stipulates that she does

not assert any claim against Wrigley for breach of fiduciary duty
since Wrigley has admitted that Prudential was the plan
administrator and thus was charged with and retained sole
responsibility for determination of whether she was “disabled”
within the meaning of the policy.

In the end, plaintiff opposes

only Prudential’s motion to dismiss count two.

The court, having

considered the parties’ memoranda of authorities relative to this
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claim, concludes that the motion to dismiss is well taken and
should be granted.
ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), pursuant to which
count two is brought, permits actions for “appropriate equitable
relief.”

In Varity Corp. v. Howe, the Supreme Court stated the

following:
[T]he statute [29 U.S.C. § 1132(a)(3)] authorizes
“appropriate” equitable relief. We should expect that
courts, in fashioning “appropriate” equitable relief,
will keep in mind the “special nature and purpose of
employee benefit plans,” and will respect the “policy
choices reflected in the inclusion of certain remedies
and the exclusion of others.” Thus, we should expect
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.”
516 U.S. 489, 515, 116 S. Ct. 1065, 1079, 134 L. Ed. 2d 130 (1996)
(internal citations omitted).
“In the wake of Varity, the Fifth Circuit has held that ERISA
plan participants who can avail themselves of potential remedies
authorized by § 502(a)(1)(B) cannot additionally pursue equitable
relief for breach of fiduciary duty under § 502(a)(2) or §
502(a)(3).”

Smith v. Hartford Life and Acc. Ins. Co., Civil

Action No. 2:11cv35KS–MTP, 2011 WL 5864544, 4 (S.D. Miss. Nov. 22,
2011).

See also Walsh v. Lifer Ins. Co. of North America, Civil

Action No. 08-791, 2008 WL 2026107, 2-3 (E.D. La. May 9, 2008)
(“Following Varity, when a plaintiff has brought claims under both
Sections 1132(a)(1)(B) and 1132(a)(3), the Fifth Circuit has
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instructed that dismissal of the Section 1132(a)(3) claim is
proper because there is appropriate relief available under Section
1132(a)(1)(B)”).

See, e.g., Tolson v. Avondale Indus., 141 F.3d

604, 610–11 (5th Cir. 1998) (adopting district court's analysis
that “[b]ecause Tolson has adequate relief available for the
alleged improper denial of benefits through his right to sue the
Plans directly under § 1132(a)(1), relief through the application
of § 1132(a)(3) would be inappropriate.”); Rhorer v. Raytheon
Eng'rs and Constructors, Inc., 181 F.3d 634, 639 (5th Cir. 1999)
(“[I]t is readily apparent from Rhorer's complaint that her claim
to recover plan benefits is the predominant cause of action in
this suit.

Accordingly, because § 1132(a)(1)(B) affords Rhorer an

avenue for legal redress, she may not simultaneously maintain her
claim for breach of fiduciary duty.”); Estate of Bratton v. Nat'l
Union Fire Ins. Co., 215 F.3d 516, 526 (5th Cir. 2000) (“Finally,
the plaintiff in this purported § 502(a)(3) action is seeking only
disability benefits allegedly due under the [] policy for which §
502(a)(1)(B) affords an adequate remedy.

Accordingly, the

plaintiff cannot use a § 502(a)(3) Varity action in this case to
preserve the district court's judgment.”); McCall v. Burlington N.
Santa Fe Co., 237 F.3d 506, 512 (5th Cir. 2000) cert. denied by
122 S. Ct. 57 (2001) (citing Corcoran v. United Heathcare, Inc.,
965 F.2d 1321, 1335 (5th Cir. 1992) (the appropriate remedy for
benefits due under a plan is a “claim for denial of benefits under
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§ 502(a)(1)(B) rather than a fiduciary duty claim brought pursuant
to § 502(a)(3).”)); Musmeci v. Schwegmann Giant Super Markets,
Inc., 332 F.3d 339, 349 n.5 (5th Cir. 2003)(pointing out that
because plaintiffs were found to have an adequate remedy at law
under section 1132(a)(1)(B), they were foreclosed from equitable
relief under (a)(3)).
In response to Prudential’s motion, plaintiff does not deny
that her breach of fiduciary claim is duplicative of her claim for
wrongful denial of benefits; she nonetheless contends that she
should not be foreclosed from simultaneously pursuing claims under
§§ 502(a)(1)(B) and 502(a)(3).

However, plaintiff’s argument in

opposition to Prudential’s motion relies entirely on authority
from other jurisdictions, which she implicitly acknowledges is
contrary to Fifth Circuit law, stating, as she does,
“Notwithstanding the Fifth Circuit’s holding in Tolson ...,
interpreting Varity Corp., other Courts recognize that ‘a
plaintiff may simultaneously assert claims under Sections
502(a)(1)(B) and 502(a)(3).’” Plaintiff goes on to suggest that
Fifth Circuit cases on this issue have been wrongly decided:
“[T]he holding in Tolson has been extrapolated into a ‘rule’ in
the Fifth Circuit that a claimant may not assert claims under
section 502(a)(3) when also pursuing claims for benefits under the
policy pursuant to section 502(a)(1). ... [S]uch a rule is
inconsistent with and overstates the Supreme Court’s holding in
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Varity Corp.”

Regardless of plaintiff’s view as to the

correctness of Fifth Circuit authority on the issue presented,
however, Fifth Circuit case law “could not be clearer.”

Hobbs v..

Stroh Brewery Co., 189 F. Supp. 2d 559, 565–66 (S.D. Miss. 2001);
see also Walsh, 2008 WL 2026107, at 3 (observing that “recent
federal cases have said that it is ‘settled law’ in the Fifth
Circuit that a plaintiff who brings a lawsuit for benefits may not
also bring a claim under § 1132(a)(3) for breach of fiduciary
duty”) (citing Metro. Life Ins. Co. v. Palmer, 238 F. Supp. 2d
826, 830 (E.D. Tex. 2002)(in turn citing Constantine v. Am.
Airlines Pension Benefit, 162 F. Supp. 2d 552, 557 (N.D. Tex.
2001)).

Therefore, Prudential’s motion to dismiss count two will

be granted.
Based on the foregoing, it is ordered that Prudential’s
motion to dismiss Count Two and Three is granted, as is Wrigley’s
motion to dismiss Counts Two and Three and to strike plaintiff’s
jury demand.
SO ORDERED this 4th

day of January , 2013.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

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