DIX v. TOTAL PETROCHEMICALS USA, INC., PENSION PLAN
Filing
65
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/30/2012. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PHILIP A. DIX, individually
and behalf of all others
similarly situated,
HON. JEROME B. SIMANDLE
Civil No. 10-3196 (JBS/JS)
Plaintiff,
OPINION
v.
TOTAL PETROCHEMICALS USA,
INC., PENSION PLAN,
Defendants.
APPEARANCES:
Lisa J. Rodriguez, Esq.
TRUJILLO RODRIGUEZ & RICHARDS, LLC
258 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiff Philip A. Dix
Craig Stuart Friedman, Esq.
Karen Rosenfield, Esq.
JONES DAY
222 East 41st Street
New York, NY 10017
Attorney for Defendant Total Petrochemicals USA, Inc.,
Pension Plan
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter is before the Court on a motion by Defendant
Total Petrochemicals USA, Inc., Pension Plan ("Defendant" or "The
Plan") for summary judgment.
[Docket Item 52.]
The instant
putative class action arises out of the Plaintiff Philip A. Dix's
("Plaintiff") election and receipt of a lump sum payment of his
pension plan.
Mr. Dix argues that his lump sum payment did not
include the present value of any cost of living adjustments he
would have received had he elected payment in the form of a
monthly annuity.
Consequently, after filing his administrative
claim disputing this lump sum payment amount on December 7, 2009,
Plaintiff brought this action, on behalf of himself and all
others similarly situated, on June 23, 2010, against the
Defendant pursuant to the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1132(e), arguing that the Plan violated
ERISA and several Internal Revenue Service regulations by failing
to include cost of living adjustments in his lump sum pension
payment.
[Docket Item 1.]
The central issue presently before the court is whether
Plaintiff's action was filed within the applicable statute of
limitations period.
The parties dispute which statute of
limitations applies to this action as well as the accrual date of
Plaintiff's claim.
For the reasons discussed below, the court concludes that a
six-year statute of limitations applies and Plaintiff's cause of
action accrued, at the latest, on November 14, 2003, when the
Plan informed Mr. Dix of the final calculation of the disputed
lump sum payment.
His claim is time-barred because he did not
file his administrative claim until December 7, 2009, outside the
limitations period.
Accordingly, the court will grant the
2
Defendant's motion for summary judgment and dismiss Plaintiff's
complaint.
II.
BACKGROUND
Plaintiff Philip Dix filed this putative class action
individually and on behalf of all others similarly situated.
Plaintiff is a resident of New Jersey and began employment at
Rohm & Haas Company ("Rohm & Haas") in 1967.
of Facts ¶ 1.)
(Def.'s Statement
Plaintiff participated in the Rohm & Haas Pension
Plan while he was employed with Rohm & Haas.
of Facts ¶ 2.)
(Def.'s Statement
In 1994, Plaintiff received a Summary Plan
Description ("SPD") from Rohm & Haas explaining his pension
benefits.
(Pl.'s Resp. to Def.'s Statement of Material Facts at
¶ 41.)
Subsequently, Plaintiff was employed by Elf Atochem, N.A.,
Inc. ("Elf Atochem") and ATOFINA Chemicals, Inc. ("Atofina")
after corporate transactions and name changes.
of Facts ¶ 3.)
(Def.'s Statement
Because Plaintiff's employer changed due to these
corporate transactions, initially the Elf Atochem, N.A.
Retirement Benefits Plan, later renamed ATOFINA Chemicals, Inc.
Retirement Benefit Plan ("Atofina Plan"), and subsequently
renamed the Arkema Inc., Retirement Benefits Plan, and ultimately
the Total Petrochemicals USA, Inc. Pension Plan ("The Plan" or
"Defendant") assumed the obligations of the Rohm & Haas Pension
3
Plan as to Plaintiff and other participants.
(Statement of Facts
¶ 4.)
On January 1, 2004, Plaintiff terminated his employment with
Atofina by retiring under a special Early Retirement Incentive
Program.
(Statement of Facts ¶ 5, ¶ 8.)
he was age 57 and 8 months.
When Plaintiff retired,
(Statement of Facts ¶ 6.)
Under the
Atofina Plan, "normal retirement date" was defined as "the first
day of the month following the month in which the Employee
attains age 65, or the date on which the Employee attains age 65
if such date is the first day of any calendar month."
(Pl.'s
Resp. to Def.'s Statement of Material Facts at ¶ 7; Def.'s Ex. 1,
Atofina Chemicals, Inc. Retirement Benefits Plan at 4.)
As part
of the Early Retirement Incentive Program, the Plaintiff was
permitted to retire early and take a pension and in addition,
Plaintiff received an enhanced pension benefit that added 5 years
to his age and/or years of credited service as well as additional
supplements.
(Rudd Decl., Ex. 2; Def.'s Statement of Material
Facts ¶ 9.)
At the time Plaintiff terminated his employment, he was
eligible for a pension benefit from the Atofina Plan, a portion
of which was attributable to his prior employment at Rohm & Haas,
and a portion of which was attributable to his later employment
at Atofina.
(Rudd. Dec. Ex. 2; Def.'s Statement of Material
Facts ¶ 10.)
Plaintiff had several options of how he could
4
receive his Rohm & Haas pension benefit under the Atofina Plan,
including different types of annuities or a lump sum payment.
(Pl.'s Resp. to Def.'s Statement of Material Facts, ¶ 11.)
In a letter dated November 10, 2003, Plaintiff was informed
by Defendant that his total lump sum payment was $505,495.00 with
a payment date of January 1, 2004. (Pl.'s Ex. I.)
This letter
discussed the different payment options Plaintiff could elect to
receive his Rohm and Haas pension, including annuities and a lump
sum distribution.
This letter also enclosed all the forms
necessary for Plaintiff to elect his payment option, including a
spousal consent form if he should elect a lump sum distribution.
Id.
Plaintiff elected to receive his Rohm & Haas pension in the
form of a lump sum payment, specifically, "a single payment of
the actuarial equivalent present value of the benefit that
[plaintiff] would otherwise be entitled to receive in the form of
monthly annuity payments." (Pl.'s Resp. to Def.'s Statement of
Material Facts ¶ 16.)
In order to receive his pension in the
form of a single lump sum payment, Plaintiff and his wife were
required to sign a consent form.
The consent form stated:
I, Philip A. Dix (Participant), hereby consent, pursuant
to Article IV of the ATOFINA Chemicals, Inc. Retirement
Benefits Plan (the "Plan") to the Plan's distribution to
me in a single payment of the actuarial equivalent
present value of the benefit that I would otherwise be
entitled to receive in the form of monthly annuity
payments. I understand that by choosing my benefit in
the form of a single payment, the Plan will be fully
5
discharged of its obligations to me and to my spouse, and
I (we) will have no right or entitlement to any future
benefits from the Plan.
(Pl.'s Resp. to Def.'s Statement of Material Facts ¶ 18; Pikofsky
Dec. Ex. 5.)
This consent form was executed by both Plaintiff
and his wife before a notary public on November 14, 2003.
By November 24, 2003, Plaintiff received a Statement of
Estimated Benefits that indicated his single lump sum payment
from the Atofina Plan was estimated to be $505, 494.67.
(Pl.'s
Resp. to Def.'s Statement of Material Facts ¶ 17; Rudd Dec. Ex.
2.)
This Statement of Estimated Benefits dated November 7, 2003,
included a table explaining the "RandH accrued benefit" (Rohm and
Haas Pension Plan) which specifically illustrated Plaintiff's
various payment options for receiving his accrued benefit through
different annuities or a lump sum.
(Rudd Dec. Ex. 2.)
Underneath this table, the following paragraph, with bolded
language in the original, appears:
The portion of your pension benefit attributable to your
RandH accrued benefit will be increased as of each March
31st subsequent to the later of your retirement or
attainment of age 60. The amount of such increase will
be the lesser of 3% or the increase in the CPI. You will
not be entitled to this cost-of-living adjustment if you
elect (with your spouse's written consent) to receive
your RandH accrued benefit in the form of a lump sum.
Id.
In addition to this Statement of Estimated Benefits,
Plaintiff was provided with several prior statements of estimated
benefits from July 31, 2001 through October 23, 2003, all of
which included the above paragraph and bolded language.
6
(Pl.'s
Resp. to Def.'s Statement of Material Facts ¶ 17; Pikofsky Decl.
Exs. 1-4.)
On November 24, 2003, Plaintiff and his wife signed a
Retirement Benefits Request Form pursuant to the Early Retirement
Incentive Program.
(Rudd Decl. Ex. 2.)
This signed form
indicated Plaintiff elected to receive his Rohm & Haas benefit as
a lump sum payment totaling $505,495.00.
(Rudd Decl. Ex. 2.)
This application was approved on December 17, 2003.
(Rudd Decl.
Ex. 2.)
The Atofina Plan sent a check for $505,495.00 to
Prudential/Wexford Clearing Services ("Prudential") for deposit
in Plaintiff's IRA account on January 2, 2004.
(Pl.'s Ex. C.)
Prudential received this check on January 12, 2004, after which
it was credited to Plaintiff's IRA account.
(Pl.'s Ex. C.)
Six years later, on December 7, 2009, Plaintiff filed an
administrative claim with the Defendant complaining that his lump
sum payment did not include the value of a cost-of-living
adjustment ("COLA").
(Rudd. Decl. Ex. 2.)
Specifically,
Plaintiff made a "formal claim under the Total Petrochemicals
USA, Inc., Pension Plan for miscalculation of his pension
benefits."
(Id. at 1.)
Plaintiff argued that the "lump sum
distribution the Atofina Plan paid Mr. Dix did not include the
value of the COLA. . . . By failing to include the value of the
COLA in Mr. Dix's lump sum distribution, the Plan failed to pay
7
the present value of his normal retirement benefit, because the
lump sum did not reflect the true value of the COLA-enhanced
annuity he would otherwise have received at normal retirement
age."
(Rudd Ex. 2 at 3-4.)
The Defendant denied Plaintiff's administrative claim on
April 5, 2010. (Pl.'s Resp. to Defendant's Statement of Material
Facts ¶ 33; Rudd. Decl. Ex. 3.)
On May 27, 2010, after
corresponding with the Plan, Plaintiff filed an internal
administrative appeal of the denial of his claim.
(Pl.'s Resp.
to Defendant's Statement of Material Facts ¶ 36; Rudd. Decl. Ex.
6.)
On June 18, 2010, the Plan denied Plaintiff's appeal.
(Pl.'s Resp. to Defendant's Statement of Material Facts ¶ 38;
Rudd. Decl. Ex. 7.)
2010.
Plaintiff received this denial on June 21,
(Pl.'s Ex. F.)
Plaintiff then filed the instant lawsuit on June 23, 2010,
on behalf of himself and all others similarly situated.
Item 1.]
[Docket
In response, Defendant filed a motion to dismiss based
on statute of limitations grounds.
[Docket Item 11.]
The court
denied this motion because it incorporated documents outside the
complaint and was procedurally improper.
[Docket Item 19.]
However, this denial was without prejudice to the Defendant refiling the motion as a motion for summary judgment.
Items 19 and 20.]
[Docket
The parties then completed limited discovery
on the statute of limitations issue.
8
[Docket Item 23.]
The
Defendant then filed the instant motion for summary judgment
arguing the complaint is untimely and barred by the statute of
limitations.
III.
[Docket Item 52.]
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate “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.”
P. 56(a).
Fed. R. Civ.
A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
fact is "material" only if it might affect the outcome of the
suit under the applicable rule of law.
Id.
Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment.
Id.
The Court will view any evidence in favor
of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party.
Cromartie, 526 U.S. 541, 552 (1999).
Hunt v.
See also Scott v. Harris,
550 U.S. 372, 378 (2007) (The district court must “view the facts
and draw reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.”).
B. Analysis
1. Applicable Statute of Limitations
9
The issue of the statute of limitations applicable to this
action first arose on Defendant's motion to dismiss.
In arguing
this motion, both parties agreed that the longest applicable
statute of limitations was six years.
[Docket Item 19 at 1.]
In the instant motion, the Defendant maintains that
Plaintiff's claim is a claim for benefits under ERISA §
502(a)(1)(B).
Therefore, since ERISA does not provide a specific
statute of limitations for non-fiduciary claims, the court
borrows the most analogous state statute of limitations from the
forum and Defendants note that courts in this district have
adopted New Jersey's 6-year statute of limitations for breach of
contract suits.
The Plaintiff, in opposition, does not address whether New
Jersey or Pennsylvania's statute of limitations should apply to
his claim.
The Plaintiff does not dispute that his one count
complaint is a claim for benefits pursuant to 29 U.S.C. §
1132(a)(1)(B), ERISA § 502(a)(1)(B), and is therefore a nonfiduciary claim.
Instead, Plaintiff argues that ERISA,
specifically 29 U.S.C. § 1132(a)(1)(B), imposes no statute of
limitations on his claim and consequently, "in keeping with trust
law," no limitations period applies and his claim is therefore
timely regardless of when he filed it. (Pl.'s Opp. at 9.)
In
support of this argument, Plaintiff cites a Supreme Court case
10
from 1885,1 which was clearly decided well before the adoption of
ERISA and irrelevant to the instant analysis, and Hahnemann Univ.
Hosp. v. All Shore, Inc., 514 F.3d 300, 305 (3d Cir. 2008).
Hahnemann, however, does not support Plaintiff's argument.
In
fact, the Hahnemann decision held that Pennsylvania's four year
statute of limitations applied to a claim to recover unpaid
benefits under ERISA and explained:
Hahnemann claims that it is entitled to recover unpaid
benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) of ERISA.
This section allows a plan participant or a beneficiary
"to recover benefits due to him under the terms of the
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." Id. ERISA does not include a specific
statute of limitations for claims brought under this
statutory provision. However, we have stated that, "[a]s
a general rule, when Congress omits a statute of
limitations for a federal cause of action, courts
'borrow' the local time limitation most analogous to the
case at hand." Gluck v. Unisys Corp., 960 F.2d 1168, 1179
(3d Cir. 1992)(internal quotation marks and citations
omitted). The statutory limitation most applicable to a
claim for benefits under Section 1132(a)(1)(B) is a
breach of contract claim. See id. at 1181. In
Pennsylvania, a breach of contract claim has a statute
of limitations of four years. 42 Pa. Cons. Stat. Ann. §
5525(a)(8). The parties are allowed to contract for a
shorter limitation period, so long as the contractual
period is not manifestly unreasonable. See, e.g., Hosp.
Support Servs., Ltd. v. Kemper Group, Inc., 889 F.2d 1311
(3d Cir. 1989).
Id. at 305.
Therefore, Plaintiff's argument that no statute of
limitations applies to his claim, in addition to being
1
Philippi v. Philippi, 115 U.S. 151, 156-57 (1885).
11
inconsistent with Plaintiff's previous filings with this court,2
is without merit.
ERISA provides a statute of limitations for claims alleging
a breach of fiduciary duty under ERISA § 404(a).
However, ERISA
does not contain a statute of limitations for non-fiduciary
claims, such as the one present in this case, alleging a
miscalculation of benefits.
212, 220 (3d Cir. 2005).
Romero v. Allstate Corp., 404 F.3d
Moreover, since ERISA was enacted in
1974, it is not subject to 28 U.S.C. § 1658, which provides a
default limitations period of four years for all claims arising
under an act of Congress which were enacted after December 1,
1990.
Syed v. Hercules, Inc., 214 F.3d 155, 158 (3d Cir. 2000).
Therefore, federal courts apply the statute of limitations from
"the forum state claim most analogous to the ERISA claim at hand"
when analyzing the timeliness of non-fiduciary claims.
404 F.3d at 220.3
Romero,
New Jersey's six-year statute of limitations
2
Plaintiff argued in his opposition brief to Defendant's
motion to dismiss that "the Court first determines when
plaintiff's claim accrued and then determines whether plaintiff
filed his claim within the applicable six-year statute of
limitation." [Docket Item 16, Pl's Opp. to Def.'s Mot. to
Dismiss, at 11.]
3
A court may also apply a statute of limitations which is
expressly set forth in the plan to analyze the timeliness of a
claim for benefits so long as the plan's limitations period is
reasonable. Hahnemann, 514 F.3d at 306. However, it is
undisputed by the parties that the Plan in this case provides no
express limitations period. Therefore, the court must borrow the
most analogous state law limitations period in analyzing the
timeliness of Plaintiff's claim.
12
which governs contract claims is most analogous to this case and
is applicable to Plaintiff's claim for ERISA benefits.
See Kapp
v. Trucking Employees of North Jersey Welfare Fund, Inc., 426
Fed. Appx. 126, 129 (3d Cir. 2011); Sturgis v. Mattel, 525 F.
Supp. 2d 695 (D.N.J. 2007); N.J. Stat. Ann. § 2A:14-1.4
2. Accrual of Plaintiff's Cause of Action
The remaining issue before the court is to determine when
Plaintiff's cause of action accrued.
1. Parties' Arguments
The Defendant argues Plaintiff's cause of action accrued at
the latest on November 24, 2003, when Plaintiff signed his
4
The Defendant argues in a footnote that Pennsylvania's
statute of limitations should apply because the Atofina Plan
which paid Plaintiff's benefit is administered in Pennsylvania.
The Defendant cites to Syed, 214 F.3d at 160 and an unpublished
District of New Jersey case, Jackson v. Chevron Corp. Long Term
Disability Org., Inc., 2006 WL 231595 (D.N.J. Jan. 30, 2006) in
support of its argument. In Jackson, the court discussed
applying a federal choice of law analysis to determine which
state's statute of limitations applied. This analysis required
the court to address several factors including the place of
contracting, the place of negotiation, the place of performance,
the location of the subject matter of the contract and the
location of the parties. Jackson, 2006 WL 231595 at *4. The
district court in Jackson could not engage in this analysis on
deciding the pending motion to dismiss because the necessary
documents were not properly before the court and the limitations
bar was not apparent on the face of the complaint. Id.
Here, the Defendant brings up this argument in the last
footnote of its brief and does not address the relevant factors
cited by the Jackson court which are necessary to resolve a
choice of law dispute. Because this issue was not fully briefed
or properly addressed in the Defendant's moving papers, the court
will not discuss whether Pennsylvania's statute of limitations
should apply to this action.
13
Retirement Benefits Request Early Retirement Incentive Program
form.
The Defendant argues that the information provided with
the form left no doubt as to the lack of a cost of living
adjustment ("COLA") when accepting a lump sum payment and clearly
repudiated Plaintiff's claim.
Specifically, Plaintiff received a
Statement of Benefits in November 2003 which was included with
the early retirement request form which expressly stated:
The portion of your pension benefit attributable to your
RandH accrued benefit will be increased as of each March
31st subsequent to the later of your retirement or
attainment of age 60. The amount of such increase will
be the lesser of 3% or the increase in the CPI. You will
not be entitled to this cost-of-living adjustment if you
elect (with your spouse's written consent) to receive
your RandH accrued benefit in the form of a lump sum.
(Rudd Dec. Ex. 2.)
Defendant argues this language clearly
repudiated any claim Defendant might have made for a COLA payment
if he elected to receive a lump sum distribution of his pension
benefit.
This language was included on all of Plaintiff's
explanation of benefits statements from 2001 to 2003, as noted
above.
Defendant further argues that the November 14, 2003 consent
form, signed by the Plaintiff and notarized, is not a
contradictory document and reiterates that Plaintiff would not
receive a COLA if he elected a lump sum distribution.
Importantly, Defendant contends that the consent form expressly
references and incorporates Article IV of the Atofina Plan.
article of the Plan states "Appendices to the Plan contain
14
This
special rules regarding . . . benefits for Participants who were
employed by companies that were acquired by Atofina."
Decl. Ex. 1 at 22.)
(Rudd
Appendix N of the Atofina Plan applies to
the Plaintiff as a former Rohm & Haas employee and expressly
states that the cost of living adjustments shall not apply if the
employee has elected to receive his pension benefit in the form a
of a single lump sum payment.
(Rudd Decl. Ex. 1 at N3.)
Consequently, the Defendants argue the consent form did not
contradict the previous language in the explanation of benefits
expressly stating that COLAs were not included in a lump sum
payment.
In addition, Defendant attaches the 1994 Rohm and Haas SPD
in support of its argument that it was clear to the Plaintiff
that a lump sum pension payment did not include a COLA.
The
Defendant argues that the 1994 SPD further corroborates
Defendant's interpretation of the language in the 2001 to 2003
benefits statements and the November 2003 consent form which
Defendant maintains clearly repudiated Plaintiff's claim.
Therefore, since Plaintiff's complaint was filed more than
six years after Plaintiff's claim accrued, Defendant argues
Plaintiff's complaint is barred by the statute of limitations.
The Plaintiff, in contrast, argues that his claim did not
accrue until June 21, 2010, when he received Defendant's formal
denial of his administrative claim.
15
The Plaintiff relies on
Romero v. Allstate Corp., 404 F.3d at 222, to support his
argument.
Since the Plaintiff filed the complaint two days after
receiving Defendant's final denial of his administrative claim,
Plaintiff argues his claim is timely.
To the extent Defendant argues the Plan clearly repudiated
his claim that COLA payments should be included in his lump sum
pension, Plaintiff argues that the language of the explanation of
benefit statements from 2001 to 2003 was not clear.
In
particular, Plaintiff argues these statements include the
following language: "You will not be entitled to this cost-ofliving adjustment if you elect (with your spouse's written
consent) to receive your RandH accrued benefit in the form of a
lump sum."
(Rudd Dec. Ex. 2)(emphasis added).
Plaintiff argues
the use of the pronoun "this" refers to the previous sentence
which describes an increase to the accrued pension benefit as of
each March 31st in an amount lesser of 3% or the increase in the
CPI.
Since this description explains a future increase,
Plaintiff argues he had no notice that a COLA payment was not
included in the present value of his lump sum.
Consequently,
Plaintiff maintains that the Atofina plan did not clearly state
that a COLA payment was not part of Plaintiff's accrued benefit
nor did the Atofina plan clearly state that the present value of
the lump sum did not include a COLA payment and therefore the
statement of benefits cannot be considered a clear repudiation of
16
his claim.
Plaintiff similarly argues the language of the November 14,
2003 consent form is ambiguous and misleading.
The Plaintiff
notes that the consent form states Plaintiff chose to receive his
pension in a "single payment of the actuarial equivalent present
value of the benefit that I would otherwise be entitled to
receive in the form of monthly annuity payments." (Pikofsky Dec.
Ex. 5.)
Plaintiff argues it is undisputed that he was entitled
to receive COLAs if he took a monthly annuity.
Therefore,
Plaintiff argues the consent form promises him the "actuarial
equivalent present value" of his pension benefit, including
COLAs.
Not only does this fall short of the clear repudiation
standard, Plaintiff argues this was misleading and should result
in equitably tolling Plaintiff's claim.
The Plaintiff argues that the consent form's reference to
Article IV of the Plan is irrelevant to determining whether the
Plan clearly repudiated his claim.
Plaintiff maintains that the
Defendant did not provide him with a copy of Article IV of the
Atofina Plan.
In addition, Plaintiff argues that the Plan does
not state anywhere that the actuarial equivalent present value of
COLAs is not included in the lump sums; rather, it only says
participants who elect lump sums will not get future increases to
their pension.
Therefore, Plaintiff maintains the consent form
does not clearly repudiate his claim.
17
Plaintiff also argues that his claim could not have accrued
when he signed the retirement benefits request form on November
23, 2004 because this form was simply an application for benefits
and could not begin running the limitations period.
Further,
Plaintiff argues no election of benefits can occur until he
submitted his application and Plaintiff argues there is no proof
that he submitted his application prior to December 9, 2003.
Therefore, Plaintiff's claim should be considered timely.
Finally, Plaintiff maintains that his claim did not accrue
until the final denial of his administrative appeal.
Plaintiff
relies on the requirement to exhaust administrative remedies
prior to filing suit and the well established rule that statutes
of limitations are tolled during the ERISA administrative claims
process.
Paterson v. Metro. Life Ins. Co., 330 F. Supp. 2d 548,
551 (W.D. Pa. 2004).
Therefore, Plaintiff contends his claim is
timely.
The Defendant filed a reply brief and reiterated its
argument that Plaintiff's complaint is barred by the statute of
limitations.
First, Defendant argues that the statute of
limitations begins to run on clear repudiation, and a formal
application for or denial of a benefit is not necessary.
The
Defendant maintains that the Third Circuit does not require the
claims procedure to be completed before a claim can accrue and
the statute of limitations begins to run.
18
Miller v. Fortis
Benefits Insurance Co., 475 F.3d 516, 520-21 (3d Cir.
2007)(holding that no formal denial is needed for clear
repudiation).
The Defendant further argues that there is no
conflict between the exhaustion requirement and the statute of
limitations because a participant may exhaust his administrative
remedies after her claim accrues but within the limitations
period and thus satisfy both requirements.
Second, Defendant maintains that the bold language in the
statement of estimated benefits clearly indicated that lump sum
recipients do not receive COLAs.
Defendant maintains that
Plaintiff's signature on the early requirement request form on
November 24, 2003 should be interpreted as evidence that
Plaintiff had conducted reasonable due diligence and had read the
documents provided with the benefit request.
Defendant relies on
Miller, 475 F.3d at 522, wherein the Third Circuit explained that
a participant must exercise reasonable diligence to ensure the
accuracy of his award.
Defendant also argues that Plaintiff's interpretation of the
bold language is unreasonable.
Defendant argues that a phrase is
ambiguous if "it is subject to reasonable alternative
interpretations."
Bill Gray Enters., Inc. Emp. Health & Welfare
Plan v. Gourley, 248 F.3d 206, 218 (3d Cir. 2001).
Defendant
argues that while Plaintiff "suggests that the word 'this' refers
only to the annual nature of the COLA and not to the COLA itself,
19
the reasonable reader would assume that the word 'this' refers to
the COLA itself and would understand that if he selected an
annuity, he would get an annual COLA, but that if he selected a
lump sum payment, he would not get any COLA at all."
(Def.'s
Reply at 9.)
Defendant further supports this argument by referring to the
other information in the Statement, specifically, the table
including the monthly amounts and the lump sum payment.
This
table lists the monthly amounts and includes a row indicating the
lump sum amount that equates to the monthly amounts.
The monthly
amounts listed in the table do not include a COLA and the lump
sum figure does not include a COLA. (Rudd Ex. 2.)
The Defendant
argues that the figures included in this table put the contested
language below the table into context:
The portion of your pension benefit attributable to your
RandH accrued benefit will be increased as of each March
31st subsequent to the later of your retirement or
attainment of age 60. The amount of such increase will
be the lesser of 3% or the increase in the CPI. You will
not be entitled to this cost-of-living adjustment if you
elect (with your spouse's written consent) to receive
your RandH accrued benefit in the form of a lump sum.
(Rudd Ex. 2.)
When this language is viewed in conjunction with the figures in
the table, the Defendant argues it is clear to a reasonable
reader that the monthly amounts in the table will be increased
annually by a COLA, but that a lump sum payment would not include
a COLA.
20
The Defendant also argues that the November 14, 2003 consent
form further supports its clear repudiation argument.
The
Defendant maintains that the consent form, when read in
conjunction with the Plan Documents, 1994 SPD and the statement
of estimated benefits, clearly discloses that a pension recipient
will not receive a COLA if he elects to receive his benefit in a
single lump sum payment.
The Defendant also contends that
equitable tolling is not warranted here because the consent form
does not mislead the Plaintiff and the Plaintiff has not
presented extraordinary circumstances.
Kapp, 426 Fed. F. Appx.
at 130.
The Defendant concludes its reply by stating that the
Plaintiff did not exercise reasonable diligence as required under
Third Circuit case law.
The Defendant maintains that the
Plaintiff should not now be permitted to put forth unreasonable
interpretations of the clear language in the 1994 SPD, statements
of estimated benefits and consent form to avoid the statute of
limitations.
2.
Accrual of Non-Fiduciary Claim for ERISA
Benefits
It is well established that the accrual date of an ERISA
non-fiduciary claim for benefits is determined as a matter of
federal common law.
520.
Romero, 404 F.3d at 221; Miller, 475 F.3d at
Federal courts utilize the discovery rule to determine when
a claim accrues for limitations purposes.
21
Romero, 404 F.3d at
222.
The discovery rule generally provides that "a claim will
accrue when the plaintiff discovers, or with due diligence should
have discovered, the injury that forms the basis for the claim."
Id.
With respect to ERISA claims, the discovery rule has become
known as the clear repudiation rule.
Specifically, a non-
fiduciary claim for benefits under ERISA accrues "when a claim
for benefits has been denied."
Id.
However, "a formal denial is
not required if there has already been a repudiation of the
benefits by the fiduciary which was clear and made known to the
beneficiary."
Miller, 475 F.3d at 520-21.
The Third Circuit has
explained:
the clear repudiation rule does not require a formal
denial to trigger the statute of limitations. To the
contrary, the rule includes other forms of repudiation
when a beneficiary knows or should know he has a cause of
action. As Romero clearly states, the clear repudiation
rule avoids a myriad of ills that would accompany any
rule that required the denial of a formal application for
benefits before a claim accrues.
Id. at 521 (citations omitted).
In refusing to adopt a rule
which required a formal denial of a claim for a claim to accrue,
and instead holding that a claim accrues upon reasonable
discovery, the Third Circuit reasoned:
[S]tatutes of limitations are intended to encourage
"rapid resolution of disputes, repose for defendants, and
avoidance of litigation involving lost or distorted
evidence."
Romero, 404 F.3d at 223.
These aims are
served when the accrual date anchors the limitations
period to a plaintiff's reasonable discovery of
actionable harm. This ensures that evidence is preserved
and claims are efficiently adjudicated. In contrast, a
statute of limitations not based on reasonable discovery
22
is effectively no limitation at all. Such would be the
case if we held that Miller's cause of action accrued
only upon Fortis's formal denial of his adjustment claim.
Under this rule, a plaintiff could receive benefit checks
for decades before deciding to investigate the accuracy
of his award -- a plaintiff could thereby trigger the
statute of limitations at his own discretion, creating an
indefinite limitations period. We decline to invite such
a result.
Id. at 522.
The Third Circuit requires a plan beneficiary to be
vigilant and failure to investigate an erroneous benefit
determination after receiving notice of a plan's calculation of
benefits will not toll the statute of limitations.
Id. at 523.
When a beneficiary receives an erroneous calculation of his
award, "the beneficiary should exercise reasonable diligence to
ensure the accuracy of his award."
Id. at 522.
In this case, Plaintiff's claim that his lump sum payment
should have included the present value of COLAs was clearly
repudiated by the Plan in the 1994 SPD, the subsequent statement
of estimated benefits from 2001 to 2003 and most importantly the
November 2003 consent form.
First, the Rohm & Haas 1994 SPD, which Plaintiff admits
receiving, clearly stated that an employee would not receive COLA
payments if he elected to receive his pension benefit in the form
of a lump sum.5
5
Contrary to Plaintiff's representation in his brief that
the 1994 SPD mentions COLAs once, in fact, the 1994 SPD discusses
COLA payments three times and dedicates an entire section to
explaining the significance of COLA payments and how an employee
will forgo COLAs if they elect a lump sum distribution of their
23
This Plan's language, cited in the margin, is clear and is
only susceptible to one reasonable interpretation:
If an
employee elects to receive the Rohm & Haas pension in the form of
a lump sum, the employee foregoes receiving COLAs.
This language
pension.
The first reference to COLAs is mentioned in describing the
optional forms of payment available to an employee. Under "lump
sum payment," the SPD explains, "Under this option, the entire
present value of your lifetime pension benefit is paid to you in
a single lump sum. Neither you, nor anyone else will receive any
further benefits from the Pension Plan, including cost-of living
increases." (Pikofsky Decl. Ex. 7 at ARK_00370.) This language
clearly and plainly notifies employees that they will not receive
COLAs if they elect a lump sum. Plaintiff's argument that this
language means that COLAs are included as part of an employee's
entire lifetime pension benefit is contrary to the plain language
of the Plan.
In addition, just two pages later, the Plan devotes an
entire section of the SPD specifically to discussing COLAs. The
Plaintiff ignores this section entirely in his brief and does not
address the clear repudiation of Plaintiff's claim contained in
this language. This section of the 1994 SPD is entitled "Costof-Living Adjustments." First, the 1994 SPD defines "cost-ofliving adjustments" as "related to increases in the CPI as
revised (the Urban Wage Earners and Clerical Workers Consumer
Price Index.) The maximum yearly adjustment is 3%." (Pikofsky
Decl. Ex. 7 at ARK_00372.) This section goes further to explain
when a participant will receive a COLA: "Increases take effect on
March 31 of each year." Id. Finally, this section expressly
discusses whether a participant will receive a COLA if he elects
distribution in the form of a lump sum. Specifically, in this
section the Plan sets forth in following format:
LUMP-SUM PENSIONS
Cost-of-living increases apply only to monthly pension
benefits.
They are not available if you take your
pension in a lump sum.
(Pikofsky Decl. Ex. 7 at ARK_00372.)
Furthermore, in italic print, this section of the 1994 SPD
states: "You forego cost-of-living increases if you take a lump
sum pension." Id.
24
refutes Plaintiff's claim that his lump sum pension benefit
should have included the present value of cost-of-living
increases.
The Plaintiff admits to receiving this document from
Rohm & Haas in 1994.
Plan language negating Plaintiff's later
claim is, at the least, a precursor of repudiation.6
It is not
necessary to decide whether such Plan language can serve to
repudiate an unasserted claim for benefits, because later
communications to Mr. Dix do so.
This clear statement of the unavailability of COLAs to those
who elect a lump-sum benefit was further reinforced by Atofina
after it assumed the administration of the Rohm & Haas plan
through the issuance of the "ATOFINA Early Retirement Incentive
Program Statement of Estimated Benefits."
These statements were
issued to the Plaintiff in 2001 and throughout 2003.
All of
these statements included the same specially formatted language:
The portion of your pension benefit attributable to your
RandH accrued benefit will be increased as of each March
31st subsequent to the later of your retirement or
attainment of age 60. The amount of such increase will
be the lesser of 3% or the increase in the CPI. You will
not be entitled to this cost-of-living adjustment if you
elect (with your spouse's written consent) to receive
6
The court's interpretation of the 1994 SPD is further
supported by the recent decision from the Seventh Circuit,
Williams v. Rohm and Haas Pension Plan, 497 F.3d 710 (7th Cir.
2007), where the Seventh Circuit held that the 1994 Rohm and Haas
Plan, the same Plan at issue in this case, did not include COLAs
in lump sum distributions and therefore violated ERISA. In that
case, the parties agreed and the court found that "the plain
terms of the Plan exclude the COLA from a participant's accrued
benefit." Williams, 497 F.3d at 712.
25
your RandH accrued benefit in the form of a lump sum.
(Pikofsky Decl. Exs. 1, 2, 3, 4 and 5 at 5)(hereinafter "Bolded
Language").
There are a few important things to note about this Bolded
Language.
First, it defines "cost-of-living adjustment" the same
as the 1994 SPD.
In particular, it notes that COLAs are
increases measured by the increase in the CPI with a maximum
increase of 3%.
This Bolded Language also reiterates that COLAs
will take effect on March 31st of each year.
Finally, this
Bolded Language clearly indicates that COLAs are not available to
participants who elect to receive their pension benefit in the
form of a lump sum.
Plaintiff's argument -- that the word "this" preceding
"cost-of-living adjustment" means that the Bolded Language does
not clearly state that the lump sum does not include the present
actuarial value of the COLAs -- is confusing and unpersuasive.
The plain reading of the Bolded Language unequivocally states
that COLAs are not available to employees who receive their
pensions in the form of a lump sum.
Moreover, when this Bolded
Language is read in conjunction with the 1994 SPD, it echos the
same description of the COLA, the same timing of the COLA and the
same warning that lump sum recipients would forego any COLA
increase.
Plaintiff's linguistic argument about the word "this" in the
26
Bolded Language is based on a false premise which assumes the
existence of two types of COLAs under the Rohm and Haas Plan - a
COLA applicable to annuities and a COLA applicable to lump sums.
This premise is flawed because the 1994 SPD made clear that there
was only one type of COLA and it was defined to apply only to
annuities.
Lump sum payments were expressly excluded from the
definition of "cost-of-living adjustments" under the Plan.
Consequently, the word "this," does not create ambiguity in the
Statements of Estimated Benefits, but rather reinforces that
COLAs are only available to employees who receive their pension
in the form of annuities.
Aside from the Bolded Language, these Statements of
Estimated Benefits contained detailed calculations of Plaintiff's
pension benefits under the Atofina Plan as well as Plaintiff's
previous pension benefits under the Rohm and Haas Accrued
Benefit, which Atofina was administering.
The amount of
Plaintiff's Rohm & Haas Accrued Benefit was set forth in a table
detailing the amount of 5-year, 10-year, 15-year, and 20-year
certain and continuous annuities as compared to the amount of a
lump sum.
The Bolded Language discussed above explaining the
COLA is placed directly under this table.
The table was
expressly entitled "Options for Your RandH Accrued Benefit."
(Pikofsky Decl. Exs. 1, 2, 3, 4 and 5 at 5.)
It is clear from the monetary figures set forth in the table
27
that neither the annuity amounts or the lump sum amount contained
COLAs.
The fact that COLAs were not contained in the table is
reinforced by the Bolded Language directly below the table which
indicated the monthly annuity amount in the table would be
increased as of March 31st each year because of COLAs.
Therefore, it was clear from the Plan and repeatedly made known
to the Plaintiff that the lump sum amount of his pension benefit
as represented in his Statement of Estimated Benefits, would not
and did not contain a COLA payment.
The Plaintiff was notified of the actual final amount of his
lump sum pension payment in November 2003, as evidenced by a
letter from Defendant to Plaintiff dated November 10, 2003.
(Pl.'s Ex. I.)
This letter confirmed that Plaintiff's lump sum
payment of his pension plan was calculated as $505,495.00.
This
figure corresponds with the figure on Plaintiff's October 23,
2003 Statement of Estimated Benefits ($505,494.67) and
Plaintiff's November 7, 2003 Statement of Estimated Benefits
($505,494.67).
(Pikofsky Ex. 4; Rudd Ex. 2.)
Since the lump sum
figure in the Statements of Estimated Benefits did not include a
COLA, and Plaintiff's final calculated lump sum payment
corresponded with the Statements of Estimated Benefits, Plaintiff
was put on notice that the lump sum payment he would receive
would not include a COLA.
The letter from the Defendant to Plaintiff dated November
28
10, 2003 is significant to the court's analysis.
This letter was
sent to the Plaintiff to inform Plaintiff of "information
pertinent to your retirement under the ATOFINA Chemicals, Inc.
Early Retirement Incentive Program, effective January 1, 2004."
(Pl.'s Ex. I at 1.)
First, this letter stated unequivocally
that, "The lump sum value of your (Rohm and Haas) benefit is
$505,495.00 for a payment date of January 1, 2004."
at 2.)
(Pl.'s Ex. I
This letter also included several forms, including a
statement showing various payment options and the spousal consent
form signed by Plaintiff on November 14, 2003.7
Accordingly,
since the Plaintiff signed and executed the spousal consent form
as of November 14, 2003, the court can infer that Plaintiff had
received this letter at the latest, on November 14, 2003, and was
informed of his final calculated lump sum as of November 14,
2003.
Finally, this letter also provided Plaintiff with a direct
phone number to a Plan representative should the Plaintiff have
any questions regarding his retirement benefits.
5.)
(Pl.'s Ex. I at
There is no evidence that Plaintiff called or requested more
information regarding the calculation of his lump sum benefit
7
The letter indicates that the following items were
attached: copy of Plaintiff's benefit calculations, statement
showing various payment options, detailed instructions for
election payment options, and forms you need to complete,
dependent upon the payment option chosen. (Pl.'s Ex. I at 1.)
Plaintiff did not include any of the enclosures in his exhibit.
29
under the Rohm & Haas Plan.
As mentioned above, the Plaintiff signed the Spousal Consent
Form required for receipt of his lump sum payment on November 14,
2003 before a notary.
This form was provided to the Plaintiff as
an enclosure to the November 10, 2003 letter.8
This form states:
I, Philip A. Dix (Participant), hereby consent, pursuant
to Article IV of the ATOFINA Chemicals, Inc. Retirement
Benefits Plan (the "Plan") to the Plan's distribution to
me in a single payment of the actuarial equivalent
present value of the benefit that I would otherwise be
entitled to receive in the form of monthly annuity
payments. I understand that by choosing my benefit in
the form of a single payment, the Plan will be fully
discharged of its obligations to me and to my spouse, and
I (we) will have no right or entitlement to any future
benefits from the Plan.
(Pikofsky Decl., Ex. 5.)
This consent form further repudiates Plaintiff's claim that
COLAs were included in a lump sum payment.
Plaintiff's argument
that he interpreted the "actuarial equivalent present value of
the benefit" to mean that COLAs were included in his lump sum
payment is without merit because it ignores the consent form's
incorporation of Article IV of the ATOFINA Plan.
Article IV of
the ATOFINA Plan is entitled "Forms of Benefits" and immediately
states:
8
The letter indicates that the forms a participant must
complete to elect a payment option were enclosed. The letter
then explains that the spousal consent form must be signed and
notarized to elect a lump sum payment. Four days after the date
of the letter, the Plaintiff signed and notarized the spousal
consent form. Therefore, the court concludes that this form was
included as an attachment to the November 10, 2003 letter.
30
Set forth below are the general rules regarding the forms
of retirement benefits available under the Plan.
The
Appendices to the Plan contain special rules regarding
the forms of benefits for Participants who were employed
by companies that were acquired by or otherwise became
affiliated with ATOFINA Chemicals, Inc.
(Rudd. Decl. Ex. 1 at 22.)
Appendix N governs Plaintiff's Rohm &
Haas benefit and states: Notwithstanding any other provisions of
the Plan, the following special rules apply to each Employee who
. . . was an employee of Rohm and Haas Company . . . and an
active participant in the Rohm and Haas Pension Plan. . . "
(Rudd. Decl. Ex. 1 at N1.)
This Appendix provides a special
section to address cost of living adjustments.
This section
states:
The portion of an AtoHaas Employee's benefit attributable
to his RandH Past Service Benefit shall be increased as
of March 31st of each year subsequent to the later of
such person's retirement or attainment of age 60. . . .
The cost of living adjustments described above shall not
apply, however, if the AtoHaas Employee (or, if
applicable, the AtoHaas Employee's surviving spouse), has
elected to receive benefits in the form of a single lump
sum payment.
(Rudd. Decl. Ex. 1 at N3.)
This language, like the language in the 1994 SPD and the
Bolded Language in the Statements of Estimated Benefits, clearly
repudiates Plaintiff's claim that he was entitled to a cost of
living adjustment when he received his lump sum pension payment.
This language clearly and unequivocally states that COLAs are not
applicable to participants who elect a lump sum distribution.
Therefore, any interpretation of "actuarial equivalent
31
present value of the benefit" must be interpreted with reference
to Article IV of the ATOFINA plan.
Importantly, the section
entitled "Cost of Living Adjustments" quoted above is wholly
separate from the section explaining "Accrued Benefit" and
"Actuarial Equivalence for Lump Sum Payments."
Since neither the
"Accrued Benefit" section or the "Actuarial Equivalence for Lump
Sum Payments" section reference COLAs, and COLAs are addressed in
their own secion separate and distinct from both of these terms,
it is clear that the term "actuarial equivalent present value of
the benefit" does not refer in any way to COLAs and does not
include any COLA payment.
Plaintiff argues that he was not provided with a copy of the
Plan and therefore cannot be deemed to have knowledge of it.
This argument ignores the Plaintiff's responsibility to exercise
due diligence.
The Plaintiff does not allege that he was
prevented from requesting a copy of the Plan or that he requested
the plan documents and was refused.
Rather, Plaintiff presents
no evidence that he exercised any diligence whatsoever to
determine what Article IV of the Plan document contained and
consequently, blindly signed the consent form.
This is
insufficient to toll the statute of limitations, especially when
the Plan contained nothing inconsistent with the clear previous
advice that lump sum payments of benefits would not include
COLAs.
32
In addition, this consent form was sent to the Plaintiff
with a detailed letter and direct contact information for a plan
representative.
There is no evidence in the record that
Plaintiff reached out to the plan representative or took any
steps to learn what Article IV of the plan contained.
Under
these circumstances, there is no basis for suggesting any
misrepresentation on the part of the Defendant that might
equitably save Plaintiff's claim from being barred by the statute
of limitations.
Therefore, in summary, the court concludes that Plaintiff's
claim for benefits accrued, at the latest, on November 14, 2003,
when Plaintiff can be presumed to have received the November 10,
2003 letter which notified Plaintiff of the final calculation of
his lump sum benefit.
By this time, the Plaintiff had received
the 1994 Rohm & Haas SPD which clearly stated that a participant
in the plan who elected to receive a pension as a lump sum
distribution would forego cost-of-living increases.
The
Plaintiff had also received multiple Statements of Estimated
Benefits from 2001-2003 which included the same Bolded Language
in each statement which echoed the language in the 1994 SPD and
informed Plaintiff that COLAs did not apply if the Plaintiff
elected a lump sum payment.
These statements also provided a
table of figures calculating an annuity payment and lump sum
payment, and none of these figures included COLAs in the
33
estimate.
In a letter dated November 10, 2003, the Plaintiff received
the final calculation of his lump sum pension benefit which
corresponded to the figure in his Statement of Estimated Benefits
that did not include a COLA.
This letter provided the Plaintiff
with, among other things, the Spousal Consent Form as well as
direct contact information for a plan representative should the
Plaintiff have any questions or concerns.
The Plaintiff signed the spousal consent form on November
14, 2003, electing the lump sum benefit.
This consent form
incorporated by reference Article IV of the ATOFINA Plan.
The
plan documents explained, in an Appendix to Article IV, that the
Rohm & Haas plan did not provide COLAs for lump sum
distributions.
The language in the Appendix echoed the language
in the 1994 SPD and the multiple Statements of Estimated Benefits
received by Plaintiff from 2001 to 2003.
There is no evidence in the record that Plaintiff exercised
any diligence whatsoever in requesting plan documents or speaking
to a representative about whether COLAs were included in the
calculation of his lump sum benefit.
The Plan made clear
repeatedly since 1994 that a participant would not receive a COLA
if the participant elected to receive a lump sum benefit.
The
Plaintiff's belated linguistic arguments are contrary to the
plain wording of the Plan.
34
In addition, the court rejects Plaintiff's argument that his
claim did not accrue until he actually received his lump sum
payment in his IRA account on January 12, 2004.
The Defendant
sent a check for $505,495.00 to Prudential/Wexford Clearing
Services ("Prudential") for deposit in Plaintiff's IRA account on
January 2, 2004 (Pl.'s Ex. C) which Prudential received on
January 12, 2004.
The amount of the check, $505,495.00, is the
identical amount Plaintiff was informed of in the November 10,
2003 letter.
The Plan clearly informed Plaintiff in the letter
that "[t]he lump sum value of your (Rohm and Haas) benefit is
$505,495.00 for a payment date of January 1, 2004."
at 2.)
(Pl.'s Ex. I
This notification was clear and unequivocal and
sufficient to put Plaintiff on notice that the amount of his lump
sum payment did not include COLAs.
Consequently, Plaintiff's
claim accrued, at the latest, when he was informed by the Plan of
the final calculated lump sum payment, not when he formally
received payment in the identical amount.
Similarly, the court rejects Plaintiff's argument that his
claim did not accrue until he received the formal denial of his
administrative claim on June 21, 2010.
As noted above, Third
Circuit case law is clear that "a formal denial is not required
if there has already been a repudiation of the benefits by the
fiduciary which was clear and made known to the beneficiary."
Miller, 475 F.3d at 520-21.
In this case, as discussed above, it
35
was clear and made known to the Plaintiff by November 14, 2003,
at the latest, that his lump sum payment did not include COLAs.
Such a holding does not make Plaintiff a "watchdog" for
potential plan errors or abuses.
Miller, 475 F.3d at 523.
Rather, the November 10, 2003 letter was sufficient to inform the
Plaintiff that the Plan determined his entitlement and this
triggered Plaintiff's need to be vigilant.
Requiring Plaintiff
to investigate his benefit determination within the six year
limitations period "does not impose on him a burdensome oversight
role."
Id.
The terms of the Plan were clear and were made known
repeatedly to the Plaintiff from 1994 through 2003.
The
Plaintiff received the final calculation of his lump sum payment
in a letter dated November 10, 2003 which was received by the
Plaintiff no later than November 14, 2003.
At the latest,
Plaintiff's claim accrued on November 14, 2003.
Therefore, for
the Plaintiff to have pursued his claim within the six year
statute of limitations, he would have had to file his
administrative claim with the Plan no later than November 14,
2009.
The Plaintiff did not file his administrative complaint
until December 7, 2009.
Accordingly, Plaintiff's claim is barred
by the statute of limitations.
The Defendant's motion for summary judgement will be
granted.
36
IV.
CONCLUSION
For the reasons discussed above, the Defendant's motion for
summary judgment will be granted.
The Plaintiff's complaint was
filed beyond the six year limitations period and is therefore
barred.
The accompanying Order will be entered.
November 30, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
37
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