Filing 26

MEMORANDUM OPINION/ORDER denying 15 Motion to Dismiss; that defendant shall answer the Amended Complaint within 21 days. Signed by Judge Kevin McNulty on 2/21/17. (DD, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civ. No. 16-1566 (KM) SHANNON PASTER MCGUIRE, Plaintiff, : MEMORANDUM OPINION and ORDER V. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant. MCNULTY, U.S.D.J.: The plaintiff, Shannon Paster McGuire, has filed an Amended Complaint (ECF no. 9, referred to herein as the Complaint), claiming that the defendant, Hartford Life and Accident Insurance Company, wrongfully terminated her long term disability insurance benefits after paying them for some five years. This matter comes before the court on Hartford’ motion (ECF no. 15) to dismiss Count 2 of this ERISA Complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, the motion will be denied. Count 1 of the Complaint asserts a claim under ERISA section 502(a)(1)(B), 29 U.S.C. § 1 132(a)(1)(B). It alleges that Hartford’s decision terminating benefits was arbitrary and capricious, was not based on substantial evidence, was reached without full and fair review, and was infected by a conflict of interest. Count 1 demands a declaration of disability and payment of long term disability benefits. § Count 2 of the Complaint asserts a breach of fiduciary duty under ERISA 502(a)(3)(B), 29 U.S.C. § 1 132(a)(3)(B). It alleges that Hartford failed to 1 properly investigate the claim, failed to give proper cons ideration to the evidence, disregarded the opinion of McGuire’s treating phys icians, and failed to consider the award of Social Security Disability bene fits. Count 2 demands “all equitable ‘make whole’ relief.” Hartford essentially seeks dismissal of Count 2 because it is duplicative of Count 1. There is case law, having its origin in See Varity Corp. v. Howe, 516 U.S. 489, 507-15, 116 S. Ct. 1065 (1986), which disal lows redundant claims under § 502(a)(1)(B) and 502(a)(3). It is true that these two statutory sections reflect a law/equity distinction, and that the purely legal remedy of damages is not available under § 502(a)(3). See icL; Great-West Life & Annuity Ins. Co. u. Knudson, 534 U.S. 204, 122 S. Ct. 708 (2002) (dam ages at law unavailable under § 502(a)(3)). In positioning the case for trial, the Court will surely eliminate redundant claims. In doing so, it will require a demonstration of how the relief demanded under Count 2 differs, if at all, from that under Count 1. Now, however, we are at the pleading stage. The Complaint pleads that it seeks damages under Count 1, and equitable “mak e whole” remedies under Count 2. Count 2 is explicitly pled “[i]n the alternativ e,” which is generally 1 ERISA section 502(a), 29 U.S.C. § 1132(a), which encompasses the subsections cited in Counts 1 and 2, , reads as follows: (a) Persons empowered to bring a civil actio n. A civil action may be brought— (1) by a participant or beneficiary— (B) to recover benefits due to him under the term s of his plan, to enforce his rights under the terms of the plan , or to clarify his rights to future benefits under the terms of the plan; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equi table relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. 2 permissible under the Federal Rules. See Fed. R. Civ. P. 8(d). For now, that is enough; I will not force a premature election. Once discovery is complete, it may turn out that Count 1 is viable, that Count 2 is viable, that both are, or that neither is. The Court is reluctant to dismiss a count as redundant, only to face a later contention that the remaining count must be dismissed for some other reason. Claims of redundancy, if not moot, may best be handled on a full record. See Shah v. Horizon Blue Cross Blue Shield, Civ. No. 15-8590, 2016 WL 4499551 at *10 (D.N.J. Aug. 25, 2016) (finding dismissal premature, and holding that Varity does not create a rule precluding the assertion of alterna tive claims or requiring dismissal at the Rule 12(b)(6) stage of duplicative claims under ERISA § 502(a)(1)(B) and 502(a)(3)). Hartford’s motion to dismiss Count 2 is therefore denied, but without prejudice to renewal of its contentions in the context of summary judgment. ORDER Accordingly, IT IS this 21st day of February, 2017 ORDERED that the motion of Hartford (ECF no. 15) to dismiss the Amended Complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), is DENIED; and it is further ORDERED that defendant shall answer the Amended Complaint within 21 days. H N. KEVIN MCNULTY, 3 U.S>I

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