Fortier v. Hartford Life and Accident Insurance Company et al
///ORDER granting in part and denying in part 16 Motion to Dismiss. Motion is denied as to Count I and granted as to Count III. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-322-LM
Opinion No. 2017 DNH 187
Hartford Life and Accident
Insurance Company et al.
O R D E R
Plaintiff Theresa Fortier, a former doctor at the
Dartmouth-Hitchcock Clinic (“DH Clinic”), alleges that
defendants Hartford Life and Accident Insurance Company
(“Hartford”) and the Dartmouth-Hitchcock Clinic Long Term
Disability Plan (“LTD Plan”) unlawfully stopped paying long-term
disability benefits to which she is entitled.
Her first amended
complaint consists of four counts: two brought pursuant to the
Employee Retirement Income Security Act (“ERISA”) to recover
benefits under the LTD Plan (Count I) and a life insurance plan
(Count II); one alleging that a mental illness limitation in the
LTD Plan violates the Americans with Disabilities Act (“ADA”)
and “New Hampshire anti-discrimination laws” (Count III); and
one seeking an award of attorney’s fees and costs (Count IV).
See doc. no. 13.
Defendants move, pursuant to Federal Rule of
Civil procedure 12(b)(6), to dismiss Counts I and III.
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), the court
must accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff's
complaint set forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st
Cir. 2014) (citation omitted).
A claim is facially plausible
“when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
The facts recited in this section are drawn from: (1)
Fortier’s first amended complaint; (2) exhibits attached to that
complaint; and (3) certain documents attached to defendants’
motion to dismiss and reply to Fortier’s objection.
Fortier contends that the court may not consider three of
these documents when conducting its analysis: the LTD Plan
policy, the LTD Plan certificate of insurance, and the
certificate of insurance from a different long-term disability
Doc. nos. 16-2, 16-3, 22-1.
A court may consider
“documents central to plaintiffs’ claims and documents
sufficiently referred to in the complaint.”
Brennan v. Zafgen,
Inc., 853 F.3d 606, 610 (1st Cir. 2017) (original bracketing
omitted) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
Here, the first amended complaint explicitly references
the insurance documents and directly quotes from the LTD Plan
certificate of insurance.
See, e.g., doc. no. 13 ¶¶ 24, 69, 72.
Moreover, these documents are central to Fortier’s claims, as
she seeks to recover benefits under the LTD Plan and argues that
defendants reviewed her claim under the incorrect certificate of
Thus, these documents are properly before the court.
Cf. Prouty v. Hartford Life & Acc. Ins. Co., 997 F. Supp. 2d 85,
89 (D. Mass. 2014) (“Where Plaintiff has not produced the
document forming the basis of her lawsuit, it would be both
unfair and improper to prevent Defendants from referencing that
document in their motions to dismiss.”).
The LTD Plan
The LTD Plan provides long-term disability insurance
coverage for employees of the DH Clinic.
insured by Hartford.
This coverage is fully
The terms of the LTD Plan are contained in
an insurance policy (“LTD policy”) and a certificate of
insurance (“LTD certificate”).
Doc. nos. 16-2; 16-3.
certificate is expressly incorporated into the LTD policy.
no. 16-2 at 8.
The LTD Plan contains a maximum duration of benefits.
doc. no. 16-3 at 3.
For those under the age of 63, the maximum
duration of benefits is “to normal retirement age or 42 months,
Id. (capitalization modified).
circumstances, however, the duration of coverage is limited.
For instance, if a beneficiary is disabled due to mental
illness, then benefits are only payable under the LTD Plan
1) for as long as [the beneficiary is] confined to a
hospital or other place licensed to provide medical
care for the disabling condition; or 2) if not
confined, or after [the beneficiary is] discharged and
still disabled, for a total of 24 month(s) for all
such disabilities during [the beneficiary's] lifetime.
Doc. no. 16-3 at 8 (capitalization modified).
The LTD Plan also contains procedures for appealing the
denial of a claim.
For instance, page 21 of the LTD certificate
states that if a beneficiary’s claim is denied, that beneficiary
“must request review upon written application within 180 days of
receipt of claim denial” regardless of whether that claim
required a determination of disability by Hartford.
16-3 at 15 (numbering omitted).
Page 39 of the LTD certificate
contains similar requirements for determination of disability
claims, stating that a beneficiary’s appeal request “must be in
writing and be received by the Insurance Company no later than
180 days from the date [the beneficiary] received [his/her]
Id. at 33.
Page 39 further states that “[o]n
any wholly or partially denied claim,” the beneficiary “must
appeal once to the Insurance Company for full and fair review”
and must “complete this claim appeal process before [he/she]
file[s] an action in a court.”
Page 40 of the LTD
certificate contains nearly identical procedures for claims not
requiring a determination of disability, except that it
specifies such an appeal be filed “no later than 60 days from
the date [the beneficiary] received [his/her] claim denial”
rather than 180 days.
Id. at 34.
At all times relevant to this case, Fortier was employed as
a physician at the DH Clinic.
Through her employment, Fortier
was a beneficiary and participant under the LTD Plan.
point during her employment, Fortier contracted a virus that
ultimately caused her to suffer permanent cognitive deficits.
These deficits have prevented Fortier from performing the
essential functions of her work as a physician.
And, though she
has received continuous treatment since the onset of her
illness, these deficits have prevented her from returning to her
work at the DH Clinic.
As Fortier has also been unable to
pursue other employment as a result of her illness, she applied
for long-term disability benefits through the LTD Plan.
Hartford and the LTD Plan began paying Fortier long-term
disability benefits on November 2, 2009.
these benefits on November 1, 2011, on the basis that Fortier’s
claim was subject to the 24-month limitation for mental illness
Fortier timely appealed that decision, and her benefits
were reinstated on May 22, 2012.
In July 2013, Fortier’s attorney received a letter from
In this letter, Hartford once again stated that it
had determined that Fortier’s disability was caused by mental
illness and was therefore subject to the mental illness
The letter stated that Fortier’s LTD benefits
accordingly “will cease on 09/13/2013” unless Fortier was
“hospitalized prior to that date,” in which case “her benefits
may be extended.”
Doc. no. 16-4 at 1.
The letter noted that
Fortier was entitled, under ERISA, to appeal the denial of
coverage, but stated that if she wished to do so, she or her
authorized representative “must write to [Hartford] within one
hundred eighty (180) days of receipt of this letter.”
Fortier stopped receiving her benefits under the LTD Plan
on September 13, 2013.
She filed an appeal of Hartford’s
decision to terminate her benefits on March 7, 2014.
appeal was filed 175 days after September 13, 2013, the date on
which Fortier’s benefits were terminated, but 219 days after
July 31, 2013, the last day of the month in which Fortier
concedes she received the July 17, 2013 letter.
On March 25,
2014, Hartford informed Fortier by letter that it would not
review the substance of her appeal because it was untimely.
Fortier’s counsel sent Hartford a letter on July 25, 2014,
stating that in his view, the appeal period ran from September
13, 2013, not July 17, 2013.
Hartford disagreed and refused to
examine the substance of Fortier’s appeal.
Defendants move to dismiss Counts I and III of Fortier’s
first amended complaint.
Fortier brings Count I pursuant to
ERISA and seeks to recover long-term disability benefits under
the LTD Plan.
Defendants contend that this count must be
dismissed because Fortier failed to exhaust her administrative
remedies, as she failed to file a timely appeal under the LTD
In Count III, Fortier contends that the mental illness
limitation violates Titles I and III of the ADA and “New
Hampshire anti-discrimination laws” by providing different
levels of coverage for physically and mentally disabled
Defendants contend that this count must be
dismissed both due to lack of standing and because Fortier has
failed to state a claim upon which relief may be granted.
court considers each count in turn.
The parties’ sole dispute as to Count I revolves around
Under ERISA, every benefit plan must, among other
things, “afford 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
29 U.S.C. § 1133(2).
The Secretary of Labor
(“Secretary”) has promulgated regulations for the administrative
review of claims for plan benefits.
See 29 C.F.R. § 2560.503—1.
Among these is a requirement that every employee benefit plan
“[p]rovide claimants at least 60 days following receipt of a
notification of an adverse benefit determination within which to
appeal the determination.”
Id. § (h)(2)(i).
This period is
extended to “at least 180 days following receipt of a
notification of an adverse benefit determination” when the
employee benefit plan is a “group health plan.”
The regulations further require that the communication of
denial of benefits “spell out the specific reasons for an
“The term ‘group health plan' means an employee welfare
benefit plan providing medical care (as defined in section
213(d) of Title 26) to participants or beneficiaries directly or
through insurance, reimbursement, or otherwise.” 29 U.S.C. §
adverse determination, delineate the particular plan provisions
on which the determination rests, furnish a description of any
additional material necessary to perfect the claim, and provide
a description of the plan's review procedures and applicable
Stephanie C. v. Blue Cross Blue Shield of
Massachusetts HMO Blue, Inc., 813 F.3d 420, 425 (1st Cir. 2016)
(citing 29 C.F.R. § 2560.503–1(g)(1)).
Though a beneficiary may
bring suit challenging the denial of benefits under a plan
subject to ERISA, see 20 U.S.C. § 1132(a), she must first
exhaust her plan’s administrative remedies, see Tetreault v.
Reliance Standard Life Ins. Co., 769 F.3d 49, 52 (1st Cir.
2014); see also Heimeshoff v. Hartford Life & Acc. Ins. Co., 134
S. Ct. 604, 610 (2013) (noting that federal courts of appeals
have “uniformly required that participants exhaust internal
review before bringing a claim for judicial review”).
Defendants contend that Fortier failed to exhaust her
administrative remedies because she did not appeal the denial of
her long-term disability coverage within 180 days of receipt of
the July 17, 2013 letter.
Defendants assert, and Fortier does
not dispute, that her claim required Hartford to make a
determination of disability.
Defendants note that under such
circumstances, the LTD Plan requires a beneficiary to file her
appeal within 180 days of the day she received her claim denial.
Doc. no. 16-3 at 15, 33.
Defendants point to the July 17, 2013
letter, which they contend: (1) informed Fortier that her
benefits would cease on September 13, 2013; (2) explained the
basis for that adverse determination; and (3) indicated that if
Fortier wished to appeal that determination, she or her
representative “must write to [Hartford] within one hundred
eighty (180) days of receipt of this letter.”
See doc. no.
Defendants note that there is no dispute Fortier did not
file her appeal until March 7, 2014, well more than 180 days
after she received the July 17, 2013 letter.
Thus, according to
defendants, Fortier’s appeal was untimely.
In response, Fortier marshals a litany of legal and factual
Though not always clear from her papers where one
argument stops and the next one begins, the court understands
Fortier to make the following four arguments:
(1) that her
appeal was timely as a matter of law because it was filed within
180 days of the day she stopped receiving her benefits under the
LTD Plan; (2) that even if her appeal was untimely, it should be
excused because defendants failed to faithfully copy the LTD
Plan appeals requirements into the July 17, 2013 letter; (3)
that her untimely appeal should be excused due to ambiguities in
the LTD Plan language relating to appeals; and (4) that
dismissal of Count I on exhaustion grounds is inappropriate due
to the application of the New Hampshire “notice-prejudice” rule.2
The court considers each of these arguments in turn.
Timeliness of Fortier’s Appeal
First, Fortier argues that her appeal was timely as a
matter of law because it was filed within 180 days of September
13, 2013, the day she stopped receiving benefits under the LTD
To this end, Fortier alleges that the denial of benefits
in the July 17, 2013 letter was not sufficiently definite to
trigger the appeals period, because the letter suggested that
her benefits could be extended if she were hospitalized before
September 13, 2013.
The court is not persuaded by this
The July 17, 2013 letter contained both a definite
explanation as to why Fortier was no longer entitled to benefits
after September 13, 2013, and a definite statement that
Fortier’s benefits would end on that date.
Doc. no. 16-4 at 1
(“[T]he benefits will cease on 09/13/2013” (emphasis added)).
Fortier does not cite, and the court cannot identify, any
Fortier also raises two related procedural arguments that
she believes preclude dismissal of Count I: (1) that defendants
incorrectly argue that ERISA exhaustion is a jurisdictional
prerequisite when it is in fact an affirmative defense; and (2)
that defendants have not met the heightened requirements for
Rule 12(b)(6) dismissal based on an affirmative defense. The
court need not reach either of these arguments in light of its
authority for the proposition that these statements somehow do
not constitute an “adverse benefit determination” simply because
other provisions of the ERISA plan remained in effect until the
date the benefits were ultimately terminated.
interpretation is contrary to the plain language of the July 17,
2013 letter, the LTD Plan documents, and ERISA itself, all of
which support the conclusion that the appeals period commenced
once Fortier received notification that her benefits were being
See doc. no. 16-3 at 15, 33 (noting that appeals
must be filed within 180 days of the date the beneficiary
receives a denial of coverage); doc. no. 16-4 at 3 (instructing
Fortier or her representative to appeal “within one hundred
eight (180) days of receipt of this letter” (emphasis added));
see also 29 C.F.R. § 2560.503—1(h)(2)(i), (h)(3)(i)
(contemplating appeals period commencing upon “receipt of a
notification of an adverse benefit determination” (emphasis
Thus, absent any contrary authority, there is no basis
to conclude that the appeals period in this case commenced on
any date other than the date on which Fortier received the July
17, 2013 letter.
Recitation of Appeals Terms in July 17, 2013 Letter
Next, Fortier argues that defendants failed to comply with
ERISA because they did not copy the appeal terms from the LTD
Plan documents into the July 17, 2013 letter.
contends that the inclusion of the words “from receipt of this
letter” in the July 17, 2013 letter impermissibly amended the
This argument, too, is unavailing.
There is no requirement under ERISA that a notification of
an adverse benefit determination quote verbatim the appeals
procedure language in the governing ERISA plan document.
Instead, the notification must “set forth, in a manner
calculated to be understood by the claimant - the time limits
applicable to [the plan's review] procedures . . . .”
§ 2560.503—1(g)(1)(iv). The July 17, 2013 letter did exactly
that: it explained, in plain terms, that Fortier or her
representative must appeal within 180 days of the date she
received notification that her claim had been denied.
language tracks closely the requirements in the LTD
That the July 17, 2013 letter took the
additional step of making clear that the letter itself
constituted the operative notification does not alter this
If anything, the inclusion of the phrase “from
receipt of this letter” only enhances the likelihood that
Fortier would understand that the July 17, 2013 letter
constituted an adverse benefit determination and that she had
180 days from receipt thereof to appeal.
the contrary is therefore misplaced.
Fortier’s argument to
Ambiguities in Plan Language
Fortier next argues that her untimely appeal should be
excused due to ambiguities in the LTD Plan language as it
relates to appeals.
Though it is not abundantly clear just what
Fortier believes to be ambiguous about the operative LTD Plan
language, the court construes her papers to assert two distinct
First, Fortier appears to rely upon the fact that
the LTD certification mandates both 180-day and 60-day appeals
periods for claims not requiring Hartford to make a
determination of disability.
id. at 34.
Compare doc. no. 16-3 at 15 with
Fortier does not dispute, however, that she is not
subject to these provisions because her claim required Hartford
to make a determination of disability.
And even if she were,
her appeal would have been untimely regardless of whether a 60day or 180-day appeal period applied.
therefore does not excuse Fortier’s untimely appeal.
Second, Fortier appears to contend that the requirement in
the LTD certificate that a beneficiary or her representative
“appeal once” before filing an action in court is ambiguous.
this end, Fortier suggests that she could reasonably be viewed
as already having “appealed once,” as she filed an appeal of a
previous termination of her benefits in November of 2011.
a reading is inconsistent with the language of the LTD
certificate, however, which states: “On any wholly or partially
denied claim, you or your representative must appeal once to
[Hartford] for a full and fair review.”
Doc. no. 16-3 at 33
This language, by its plain terms, requires a
beneficiary or her representative to “appeal once” to Hartford
on each wholly or partially denied claim.
The LTD certificate
is therefore not ambiguous in this regard.
Lastly, Fortier argues that the court cannot dismiss Count
I on exhaustion grounds because defendants have failed to
demonstrate that they were prejudiced by her untimely appeal.
In support of this argument, Fortier relies on the “noticeprejudice” rule, a doctrine recognized in some states that
requires an insurer to demonstrate prejudice before it can deny
insurance coverage solely on the basis that the insured’s claim
The parties agree that the New Hampshire Supreme Court has
recognized at least a limited form of the notice-prejudice rule
under New Hampshire common law.
See Bianco Prof’l Ass’n v. Home
Ins. Co., 144 N.H. 288, 295 (1999) (citation omitted) (applying
the rule to certain types of liability insurance policies).
And, the parties also agree that in a state where the noticeprejudice rule is recognized, ERISA does not preempt the
application of that rule to an untimely initial claim for
benefits under an ERISA plan.
See UNUM Life Ins. Co. of Am. v.
Ward, 526 U.S. 358, 367–73 (1999) (holding that ERISA does not
preempt California’s notice-prejudice rule because the rule
“regulat[es] insurance” and thus escapes preemption under
ERISA’s savings clause).
Thus, the parties’ dispute requires
the court to answer a narrow question: does New Hampshire’s
notice-prejudice rule apply to untimely ERISA appeals?
Neither the Supreme Court nor the First Circuit (nor,
indeed, any court in this district) has considered this
Of the handful of federal courts that have, a
majority have either held or suggested that the notice-prejudice
rule does not extend to untimely ERISA appeals.
See Edwards v.
Briggs & Stratton Ret. Plan, 639 F.3d 355, 363 (7th Cir. 2011);
Chang v. Liberty Life Assur. Co. of Boston, 247 F. App’x 875,
878 (9th Cir. 2007); Dietz-Clark v. HDR, Inc., No. 3:15-CV-00035
JWS, 2015 WL 6039587, at *2 (D. Alaska Oct. 15, 2015); Knight v.
Provident Life & Acc. Ins. Co., No. 3:12-CV-01226, 2014 WL
460018, at *2 n. 4 (M.D. Tenn. Feb. 5, 2014); Tetreault v.
Reliance Standard Life Ins. Co., No. CIV.A. 10-11420-JLT, 2011
WL 7099961, at *10 (D. Mass. Nov. 28, 2011), report and
recommendation adopted, No. CIV.A. 10-11420-JLT, 2012 WL 245233
(D. Mass. Jan. 25, 2012).
Contrary authority can be found in an
opinion out of the Eastern District of Pennsylvania, in which
the court suggests in dictum that an untimely ERISA appeal would
have been subject to the notice-prejudice rule, and a subsequent
decision out of the Western District of Pennsylvania that
parenthetically quotes that dictum.
See Foley v. Int’l Bhd. of
Elec. Workers Local Union 98 Pension Fund, 91 F. Supp. 2d 797,
803 n. 6 (E.D. Pa. 2000); see also Taylor v. Fortis Benefits
Ins. Co., No. CIV. A. 07-528, 2008 WL 3249940, at *3 (W.D. Pa.
May 1, 2008), report and recommendation adopted, No. 2:07-CV528, 2008 WL 3249655 (W.D. Pa. Aug. 6, 2008), aff’d sub nom.
Taylor, Jr. v. Union Sec. Ins. Co., 332 F. App’x 759 (3d Cir.
Though inclined to agree with the majority position, the
court declines to rule now, as a matter of law, that the noticeprejudice rule is inapplicable to Fortier’s ERISA appeal.
Several considerations militate against resolving this issue
without further briefing.
For one, most of the courts taking
the majority position relied on particular nuances in state
insurance law when concluding that the notice-prejudice rule did
not apply to ERISA appeals.3
Here, no party has addressed how
Both the Edwards and Tetreault courts relied on the fact
that the underlying state notice-prejudice rules only applied to
liability insurance policies. See 639 F.3d at 363; 2011 WL
7099861, at *9. Similarly, the Dietz-Clark court explicitly
noted that Alaska cases “simply do not support application of
the notice-prejudice rule to a deadline of a post-denial appeals
that is mandated by a federal regulation.” 2015 WL 6039587, at
New Hampshire insurance law may be similar to or different from
the law applied in those cases or how the nuances of New
Hampshire law might impact the application of the noticeprejudice rule in this case.
Additionally, nearly all of the
cases addressing this question were decided on summary judgment.4
These facts, when considered in light of the lack of controlling
authority on this issue and the relative paucity of authority
from other jurisdictions, persuade the court to refrain from
ruling on this matter now.
The court therefore defers ruling on the application of the
New Hampshire notice-prejudice rule to this case until the
summary judgment stage.
To the extent defendants renew their
exhaustion argument at that time, and Fortier continues to rely
on the notice-prejudice rule as a basis for defeating
exhaustion, the parties would be well-advised to further develop
this issue in their briefing.
On this basis, defendants’ motion
to dismiss Count I is denied without prejudice.5
Only one of the cases cited above resolved this issue on a
Rule 12(b)(6) motion. See Dietz-Clark, 2015 WL 6039587, at *1.
In addition to her legal arguments, Fortier asserts
numerous fact-based arguments as to why dismissal is improper.
In light of the court’s resolution of the motion to dismiss as
to Count I, the court need not address these factual arguments.
In Count III, Fortier contends that the LTD Plan violates
Titles I and III of the ADA and “New Hampshire antidiscrimination laws” by treating those suffering from mental
disabilities differently than those suffering from physical
Defendants argue that Fortier lacks standing to
bring this claim.
Alternatively, they contend that Fortier has
failed to state a claim upon which relief may be granted.
court declines to reach the standing issue because, even
assuming standing exists, Fortier has not stated a viable claim
Though the First Circuit has not directly considered
whether the ADA is violated when, as here, a long-term
disability insurance plan provides different levels of benefits
for physical and mental disabilities, at least two courts in
this district have answered this question in the negative.
Witham v. Brigham & Women’s Hosp., Inc., No. CIV. 00-268-M, 2001
WL 586717, at *4 (D.N.H. May 31, 2001); Pelletier v. Fleet Fin.
Grp., Inc., No. CIV. 99-245-B, 2000 WL 1513711, at *2 (D.N.H.
Sept. 19, 2000).
In reaching their conclusions, these courts
relied on the reasoning of the Second Circuit’s decision in EEOC
v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000).
Witham, 2001 WL 586717, at *3; Pelletier, 2000 WL 1513711, at
In that case, the Second Circuit considered several
factors, including: (1) the statutory language of Title I; (2)
the ADA’s legislative history; (3) the existence of the ADA’s
safe-harbor provision; (4) regulatory guidance; and (5)
Congress’s awareness of the “historic and nearly universal
practice inherent in the insurance industry of providing
different benefits for different disabilities.”
Island Sav. Bank, 207 F.3d at 151-53; Witham, 2001 WL 586717, at
*3; Pelletier, 2000 WL 1513711, at *3.
The Witham and Pelletier
courts also distinguished Olmstead v. L.C., 527 U.S. 581 (1999),
in which the Supreme Court suggested that the ADA might prohibit
individualized discrimination based on a particular disability
or category of disabilities, concluding that the “reasoning
underlying Olmstead does not invalidate the type of disability
insurance policy at issue . . . .”
See Witham, 2001 WL 586717,
at *3; Pelletier, 2000 WL 1513711, at *3; see also Weyer v.
Twentieth Century Fox Film Corp., 198 F.3d 1104, 1117–18 (9th
Cir. 2000) (“Olmstead does not speak to insurance
classifications . . . [and] [a]pplying Olmstead to insurance
classifications would conflict with the [Supreme] Court's
decisions in Alexander v. Choate and Traynor v. Turnage, which
both endorse distinctions between types of disabilities, and
Congress’s clear instruction in the insurance safe harbor that
the Act was not intended to reach common insurance practices
such as underwriting of risks.”).
In addition to the Second Circuit, there are at least six
other courts of appeals that so hold.
See Weyer, 198 F.3d at
1113-18 (9th Cir. 2000); Kimber v. Thiokol Corp., 196 F.3d 1092,
1101-02 (10th Cir. 1999); Lewis v. Kmart Corp., 180 F.3d 166,
170 (4th Cir. 1999); Ford v. Schering-Plough Corp., 145 F.3d
601, 608 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121
F.3d 1006, 1018 (6th Cir. 1997); EEOC v. CNA Ins. Cos., 96 F.3d
1039, 1044 (7th Cir. 1996).
Although there is a small handful
of contrary district court authority, see, e.g., Fletcher v.
Tufts Univ., 367 F. Supp. 2d 99, 111 (D. Mass. 2005), the
circuits appear to uniformly hold that differential-benefits
claims are not cognizable under the ADA.
While recognizing this weight of authority, Fortier relies
on Sirva Relocation, LLC v. Richie, 794 F.3d 185 (1st Cir.
2015), to argue that dismissal of Count III is improper.
appellant in Sirva, like Fortier here, urged the court to hold
that a differential-benefits claim exists under the ADA.
First Circuit declined in Sirva to rule on the viability of
differential-benefits claims under the ADA, concluding that a
ruling on that issue was unnecessary to resolve the appeal.
The First Circuit nevertheless noted the consensus of
circuit authority holding that no differential-benefits claim
exists under the ADA, as well as the contrarian views held by
some district courts.
Id. at 199.
The First Circuit declined
to describe the appellee’s position as a “slam dunk,” but noted
that “the answer to [the] question seem[ed] much clearer than
the [appellant] admit[ted] . . . .”
Id. at 200.
The court agrees with Fortier that Sirva leaves open the
question of differential-benefits claims under the ADA as a
matter of First Circuit law.
This does not, however, compel the
court to conclude, as Fortier appears to contend, that the First
Circuit was signaling in Sirva that it was inclined to recognize
There is nothing in Sirva (nor, indeed, in any of
the district court opinions recognizing differential-benefits
claims) that persuades the court that Witham and Pelletier were
incorrectly decided or that the court should stray from the
consensus view of the other circuit courts.
Thus, the court
concludes, for the reasons discussed in these prior cases, that
differential-benefits claims are not cognizable under the ADA.
Defendants’ motion is therefore granted as to Count III.6
Though Fortier also alleges that the LTD Plan violates
“New Hampshire anti-discrimination laws,” she has not
identified, either in the first amended complaint or her
filings, any state statutory provision or common-law doctrine
that she believes has been violated. Nor has she explained how a
differential-benefits claim is cognizable under New Hampshire
law. She has therefore failed to provide any state-law basis to
sustain Count III.
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 16) is denied as to Count I and granted as to Count
Landya B. McCafferty
United States District Judge
September 11, 2017
Jonathan M. Feigenbaum, Esq.
Joseph C. Galanes, Esq.
Byrne J. Decker, Esq.
Kaveh S. Shahi, Esq.
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