Myers v. Mutual of Omaha Life Insurance Company

Filing 43

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion for Attorney's Fees is granted, in part. Plaintiff's Motions for Rule 60 relief and to supplement the record are denied. Not later than 14 days from the issuance of this Order, Plaintiff's counsel shall file supplemental materials showing that its requested rates are reasonable for the area. Plaintiff's counsel shall also submit a memorandum specifying the total amount of attorneys fees and detailing those items for which reimbursement is sought. Defendant shall respond in 7 days. Judge Benita Y. Pearson on 3/23/2017. Related document(s) 34 , 37 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TINA MYERS,
Plaintiff,
v.
MUTUAL OF OMAHA LIFE INSURANCE
COMPANY,
Defendant.

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CASE NO. 4:14CV2421

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF Nos. 34 and 37]

Pending before the Court are Plaintiff’s Motion for Attorneys Fees and Rule 60(a) Relief
(ECF No. 34) and Motion to Supplement the Record (ECF No. 37). For the following reasons,
Plaintiff’s Motion for Attorneys Fees is granted, in part. Plaintiff’s motions for Rule 60 relief
and to supplement the record are denied.
I. Motion for Attorney’s Fees (ECF No. 34)
A district court may, in its discretion, allow reasonable attorney’s fees and costs to either
party in an action by an ERISA plan participant. 29 U.S.C. § 1132(g)(1). “[A] party need not be
a typical ‘prevailing party’ to be eligible for fees but must only achieve ‘some degree of success
on the merits.’” Ciaramitaro v. Unum Life Ins. Co. of Am., 521 F. App’x 430, 436 (6th Cir.
2013) (citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252–53 (2010) (“[A] fee
claimant need not be a “prevailing party” to be eligible for an attorney's fees award under §
1132(g)(1).”). In this case, Plaintiff achieved “some degree success on the merits” when her
claim was remanded to the Plan Administrator. ECF No. 32 at PageID #: 1208.

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In determining whether attorney’s fees are appropriate, the Sixth Circuit has instructed
courts to consider five factors: (1) the degree of the opposing party’s culpability or bad faith; (2)
the opposing party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an
award on other persons under similar circumstances; (4) whether the party requesting fees sought
to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve
significant legal questions regarding ERISA; and (5) the relative merits of the parties’ positions.
Moon v. Unum Provident Corp., 461 F.3d 639, 642–43 (6th Cir. 2006). “No single factor is
determinative, and thus, the district court must consider each factor before exercising its
discretion.” Id. at 643 (citing Schwartz v. Gregori, 160 F.3d 1116, 1119 (6th Cir. 1998)). In the
Sixth Circuit, there is no presumption in favor of awarding attorney’s fees in ERISA cases. Id.
(citing Maurer v. Joy Tech., Inc., 212 F.3d 907, 919 (6th Cir. 2000)). The Court considers each
factor in turn.
A. Degree of Culpability
The Sixth Circuit has found an insurance company’s exclusive reliance on an interested,
non-treating physician’s opinion, ignorance of substantial evidence, findings based on select
information in the administrative record, and repeated denial of claims to be evidence of
culpability or bad faith. See, e.g., Moon v. Unum Provident Corp., 461 F.3d 639 at 643–44 (6th
Cir. 2006); Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 809–10 (6th Cir. 2002).
Although the Court did not find evidence of bad faith, the Court’s findings reflect
Defendant’s culpability. The Court determined that the Plan Administrator acted arbitrarily and
capriciously because it failed to explain why it chose to believe interested, non-treating

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physicians, rather than accepting Plaintiff’s physician’s conclusions.1 ECF No. 32 at PageID #:
1219. The Court also found that the Plan Administrator selectively relied on Plaintiff’s doctor’s
notes, “quoting language favorable to the non-disability assessment while inadequately
explaining its basis for rejecting [the treating physician’s] observations favorable to Myers.” Id.
at PageID #: 1217–20; see also Brooking v. Hartford Life & Acc. Ins. Co., No. 04-95-KSF, 2007
WL 781333, at *7 (E.D. Ky. Mar. 12, 2007) (interpreting Moon to require a finding of culpability
when the defendant ignored substantial evidence in the administrative record). For these reasons,
the Court finds that Defendant’s culpability weighs in favor of awarding attorney’s fees to
Plaintiff.
B. Ability to Satisfy an Award
Plaintiff argues that, as a large insurance company doing business nationally, Defendant
has the resources to pay Plaintiff’s attorney’s fees. ECF No. 34 at PageID #: 1227. Defendant
does not dispute this argument. See ECF No. 35 at PageID #: 1233–38. The Court finds that this
factor weighs in favor of awarding attorney’s fees.

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Now, Defendant argues that its decision was not rendered in bad faith, because
its reviewing physician considered the findings of Plaintiff’s treating physician. ECF No.
35 at PageID #: 1233–35. A reviewing court must evaluate the plan administrator’s
ultimate decision under the “arbitrary and capricious” standard. Farhner v. United
Transp. Union Discipline Income Prot. Program, 645 F.3d 338, 342 (6th Cir. 2011);
Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998). Otherwise
put, it is not enough that the evidence was in the record—the Court must ask whether the
Plaintiff received a full and fair review and a decision that was the result of “a deliberate
principled reasoning process.” Schwalm v. Guardian Life Ins. Co. of Am., 626 F.3d 299,
308 (6th Cir. 2010).
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C. Deterrent Effect
An award of fees may deter plan administrators from “failing to provide the necessary full
and fair review.” See McKay v. Reliance Standard Life Ins. Co., 428 F. App’x 537, 545 (6th Cir.
2011). The Sixth Circuit has noted that deterrence is especially appropriate when a plan
administrator “performs a cursory review of a claim for benefits or bases its denial on unreliable
medical evidence.” Shelby County Heath Care Corp. v. Majestic Star Casino, 581 F.3d 355, 378
(6th Cir. 2009) (citing Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 531–32 (6th Cir. 2008)
(“[B]efore terminating a plan participant’s benefits, a plan administrator should ensure that the
opinions upon which they rely to make their decisions to terminate are based on a thorough
review of the administrative record.”). Furthermore, a court should consider whether the facts
are “so unique that they fail to serve any deterrence value to other insurance companies under
similar circumstances.” Moon, 461 F.3d at 645.
In this case, the Court determined that Defendant did not conduct a thorough review of
the record. ECF No. 32 at PageID #: 1217–20. Awarding fees would deter future plan
administrators from failing to fully and fairly review similar cases. Although Defendant argues
that this is a unique case, and, therefore, would have limited applicability, the Court finds
otherwise. An award of fees would discourage other plan administrators from selectively
reviewing the record, ECF No. 32 at PageID #: 1218, or failing to explain their reliance on a
non-treating physician’s opinion, ECF No. 32 at PageID #: 1219—common issues in ERISA
cases. Accordingly, the Court finds that this factor weighs in favor of Plaintiff.

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D. Common Benefit
Plaintiff admits that she sought benefits only for herself, but argues that awarding fees
would “make[] it less likely that other plan administrators will try this tactic of attrition in
unfairly reviewing the evidence.” ECF No. 34 at PageID #: 1228–29. She does not argue that
she instituted the litigation to resolve significant legal issues. Id. Because Plaintiff sought only
to benefit herself, and because the case does not involve the resolution of significant ERISA
questions, this factor weighs against awarding attorney’s fees. See Moon, 461 F.3d at 645 (6th
Cir. 2006); Foltice v. Guardsman Prods. Inc., 98 F.3d 933, 937 (6th Cir. 1996).
E. Relative Merits of Parties’ Positions
In evaluating the parties’ merits, even a prevailing party is not automatically entitled to
attorney’s fees, “especially [when] the case involved ‘closely contested issues.’” Trs. of Detroit
Carpenters Fringe Benefit Funds v. Patrie Constr. Co., 618 F. App’x 246, 260 (6th Cir. 2015)
(citing Majestic Star Casino, 581 F.3d at 378). Instead, the Court must weigh the relative merits
of the parties’ positions. Courts have considered whether the arguments were brought in bad
faith, or if they were “no more devoid of merit than any other losing litigant.” E.g., Majestic Star
Casino, 581 F.3d at 378 (citing Armistead v. Vernitron Corp., 944 F.2d 1287, 1304 (6th Cir.
1991), abrogated on other grounds by M & G Polymers USA, LLC v. Tackett, 135 S. Ct. 926
(2015)).
In this case, although the Court remanded the claim to the Plan Administrator, the Court
also noted that the record was not indisputably clear, but there was a large amount of evidence
that received little attention from the Plan Administrator. ECF No. 32 at PageID #: 1222. Nor is

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there evidence that Defendant denied Plaintiff’s claim in bad faith. For these reasons, the Court
finds that this factor weighs against awarding fees.
F. Summary
The Court grants the Motion for Attorney’s Fees, in part. Three of the five factors weigh
in favor of awarding fees. When compared with Sixth Circuit precedent, there is sufficient
evidence of culpability in Defendant’s decision making to warrant fees. Additionally, it is likely
that an award would deter future non-compliance.
Plaintiff’s counsel has submitted a Memorandum, Affidavits, and Documentation in
support of its fees. ECF No. 41. Although Plaintiff’s counsel provides a list of items billed to
Plaintiff, Plaintiff’s counsel does not specify for which of these items it seeks reimbursement.
Nor has Plaintiff’s counsel submitted documents demonstrating the prevailing market rate for
similar services in the area. Plaintiff’s counsel’s own affidavits that its fees are reasonable does
not suffice.
The Court is, therefore, unable to determine the appropriate amount of fees under the
lodestar method as required. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (courts
multiply the attorney’s reasonable hourly rate by the number of reasonable hours worked); U.S.
Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997) (district courts must
determine whether the hours expended were reasonable and that the hourly rates are customary);
WHG TM Corp. v. Patel, No. 5:07CV3087 2008 WL 495794, at *2 (N.D.Ohio Feb. 22, 2008).
Accordingly, within fourteen days of this Order, Plaintiff’s counsel shall file with the Court
supplemental materials showing that its requested rates are reasonable for the area. Plaintiff’s
counsel shall also submit a memorandum specifying the total amount of attorneys fees and
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detailing the items for which reimbursement is sought, for the Court’s further consideration.
Defendant shall respond in seven days.
II. Motion for Rule 60 Relief (ECF No. 34)
Plaintiff moves for relief under Fed. R. Civ. P. 60, arguing the Court erred by not placing
a time limit on its remand order; failing to determine whether Plaintiff will be entitled to submit
new evidence; and not deciding whether Plaintiff will have appellate rights. ECF No. 34 at
PageID #: 1230. Plaintiff moves the Court to direct Defendant to pay retroactive benefits as well
as monthly disability benefits while the remand is pending. Id. Plaintiff also requests 180 days
to appeal Defendant’s next decision, as well as the right to submit new evidence. Id.
Although her Motion is titled “Motion for Rule 60(A) Relief,” Plaintiff cites Rule 60(a)
and 60(b). Id. at PageID #: 1230–31. Regardless of what might be scrivener’s error, Plaintiff is
not entitled to relief under either prong of Rule 60.
Fed. R. Civ. P. 60(a) permits courts to “correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of the
record.” Fed. R. Civ. P. 60(a). Plaintiff asks the Court for an overhaul of its original judgment.
This type of relief is not contemplated by Rule 60(a), which only allows courts to fix errors that
would not change the nature of the judgment. See Braun v. Ultimate Jetcharters, LLC, 828 F.3d
501, 515 (6th Cir. 2016) (citing In re Walter, 282 F.3d 434, 440 (6th Cir. 2002) (“The basic
purpose of the [Rule 60(a)] is to authorize the court to correct errors that are mechanical in
nature.”)). Therefore, Plaintiff’s Motion for Rule 60(a) relief is denied.
Nor can Plaintiff seek relief under Fed. R. Civ. P. 60(b). Rule 60(b) allows a Court to
relieve a party from a final judgment for the following reasons: “(1) mistake, inadvertence,
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surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.” Fed. R. Civ. P.
60(b). Plaintiff does not argue that the Rule 60(b) circumstances apply. Instead, she argues
broadly that she is “concerned about a slow or even vindictive approach by Defendant in any
review process, attendant with further delay of any benefit resolution.” ECF No. 34 at PageID #:
1229.
In sum, Plaintiff’s argument establishes no basis for relief. Instead, she merely expresses
her dissatisfaction with the Court’s decision and requests an entirely different judgment.2
Because Plaintiff offers no reason the Court should alter its judgment, the Court denies the
Motion for Rule 60(b) relief.

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The Court expressly declined to award retroactive benefits in its Memorandum
of Opinion and Order, after having considered its authority to either remand the decision
or award benefits retroactively. ECF No. 32 at PageID #: 1221. It noted that a court
typically only awards benefits retroactively when the plaintiff has clearly established
disability under the plan. Id. (citing Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 171
(6th Cir. 2007); Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501,
513 (6th Cir. 2005)). The Court found that the problem was with the plan’s decisionmaking process rather than its conclusion, and remanded the decision. Id. (citing Elliot v.
Metro. Life. Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006)).
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IV. Motion to Supplement the Record (ECF No. 37)
Plaintiff moves to supplement the record with evidence of her successful claim for Social
Security benefits. ECF No. 37. Under the arbitrary and capricious standard of review, a court
may only consider the evidence that was before the plan administrator at the time it made its
decision. Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir. 1998).
Furthermore, “[w]hen a claimant fails to submit evidence within the established time frame, the
claimant is barred from supplementing the administrative record except in limited circumstances
to support a procedural challenge.” Hawkins v. Cmty. Legal Aid Servs., Inc., No.
4:13-cv-00729-JRA, 2014 WL 3749412, at *10 (N.D. Ohio July 30, 2014) (citing Wilkins, 150
F.3d at 619 (Gilman, J., concurring) (giving examples of a procedural challenge, such as “an
alleged lack of due process afforded by the administrator or alleged bias on its part.”).
Plaintiff’s application for Social Security benefits was approved July 22, 2016—over two
years after the Plan Administrator’s final decision had been rendered. ECF No. 37 at PageID #:
1247; see also ECF No. 32 at PageID #: 1214–15 (June 12, 2014 letter informing Plaintiff that
her appeal was denied). Plaintiff does not argue that the Social Security decision was part of the
evidence considered by the Plan Administrator at the time of its decision. Nor does Plaintiff
submit these documents for the limited purpose of supporting a procedural challenge. Plaintiff’s
only argument is that supplementing the record would be “meritorious” because Defendant has
not taken any action in this case. ECF No. 37 at PageID #: 1247.
Because the additional documentary evidence proffered was not part of the record when
the Plan Administrator made its decision, and Plaintiff has not argued that it supports a
procedural challenge, the Motion to Supplement is denied. See Storms, 156 F. App’x at 760
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(affirming denial of motion to supplement with documents demonstrating plaintiff was awarded
Social Security benefits after the closure of the record); Hawkins, 2014 WL 3749412, at *10
(striking Social Security documents created six months after the administrative record closed);
Blajei v. Sedgwick Claims Mgmt. Servs., Inc., 721 F. Supp. 2d 584, 598–99 (E.D. Mich. 2010)
(finding Social Security disability benefits award offered to show that defendants erred in
denying benefits was not procedural in nature, and striking the evidence).
IV. Conclusion
For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees is granted, in part.
Plaintiff’s Motions for Rule 60 relief and to supplement the record are denied. Not later than
fourteen days from the issuance of this Order, Plaintiff’s counsel shall file supplemental
materials showing that its requested rates are reasonable for the area. Plaintiff’s counsel shall
also submit a memorandum specifying the total amount of attorneys fees and detailing those
items for which reimbursement is sought. Defendant shall respond in seven days.

IT IS SO ORDERED.

March 23, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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