Asher et al v. Battelle Memorial Institute et al

Filing 28

OPINION AND ORDER granting 7 Motion to Dismiss; deferring ruling on 16 Motion for Summary Judgment; granting 17 Motion ; denying 23 Motion ; denying 26 Motion for Summary Judgment. Signed by Judge James L. Graham on 9/30/2016. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Aaron Asher, et al.,
Plaintiffs,
v.

Case No. 2:15-cv-1097

Battelle Memorial Institute,
et al.,
Defendants.
OPINION AND ORDER
This is an action filed pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001, et seq.
Donny Asher was employed by defendant Battelle Memorial Institute
(“Battelle”), and was a participant in the Group Accident Insurance
for Staff Members of Battelle Memorial Institute (“the “Plan”).
Plan benefits were provided pursuant to the Voluntary Accident
Insurance Program (“the Policy”) issued to Battelle by defendant
Federal Insurance Company.

Plaintiffs Aaron Asher and Michael

Asher are two of Donny Asher’s designated beneficiaries, the third
being Judreta A. Beardsley. After Donny Asher was killed on August
25, 2011, while piloting his private plane, the beneficiaries
applied for benefits under the Plan.

Federal denied the claims

based upon its interpretation and application of the “Aircraft
Pilot or Crew” exclusion in the Policy.

Aaron and Michael Asher

filed their complaint in the Franklin County, Ohio, Court of Common
Pleas,

asserting

a

claim

for

benefits

under

29

U.S.C.

§1132(a)(1)(B) (Claim One) and a claim for breach of fiduciary duty
under 29 U.S.C. §1132(a)(3)(B).
this court.

Defendants removed the action to

This case is now before the court for a ruling on the

pending motions.
I. Status of Judreta Beardsley
On July 26, 2013, Judreta Beardsley contacted Federal about
initiating a claim under the Policy.

By letter dated August 5,

2013, Federal denied her claim based upon the “Aircraft Pilot or
Crew” exclusion.

Beardsley did not file an administrative appeal

from the denial of her claim.

Beardsley was not named as a

plaintiff in the complaint filed by the Ashers on February 27,
2015.

On May 3, 2016, Beardsley, acting pro se, filed a motion for

judgment on the administrative record and motion for summary
judgment (Doc. 23), in which she characterized herself as a
plaintiff.

On June 29, she filed a supplement (Doc. 26) to her

earlier motion.
In their May 27, 2016, and July 25, 2016, responses to
Beardsley’s filings, defendants stated that they would not oppose
permitting Beardsley to intervene as a plaintiff in this case
pursuant to Fed. R. Civ. P. 24 so long as the court would not
reopen the briefing on the pending cross-motions for judgment.
Defendants stated that although Beardsley did not exhaust her
administrative remedies, the Ashers did exhaust their remedies and
the

court

has

a

complete

administrative

record

before

it.

Defendants noted that “it would appear to make little sense to
preclude Beardsley from becoming a plaintiff who would also be
bound by this Court’s judgment, to the extent that is what she is
seeking by her Motion.”

Doc. 24, p. 4; Doc. 27, p. p. 5.

The

Asher plaintiffs have filed no response to Beardsley’s motions or
to defendants’ responses to those motions.
further pleadings.

2

Beardsley has filed no

The court will construe Beardsley’s motions as including a
request for leave to intervene in this case as a party plaintiff,
and will grant the request for intervention.
II. Administrative Record
The record reveals that Donny Asher, a participant in the
Plan, was killed on August 25, 2011, while piloting his private
airplane.

On July 26, 2013, Judreta Beardsley spoke with someone

at the Claim Service Center of the Chubb Group of Insurance
Companies (“Chubb”), which processes claims under the Policy issued
by Federal, a member of the Chubb Group. Beardsley stated that she
wanted to file a claim under the Policy as Asher’s beneficiary. AR
151.

By letter dated August 5, 2013, Chubb notified Beardsley of

its decision that her claim was denied due to lack of coverage
under the Policy.

AR 185.

Chubb referred to the Policy, Section

VI, General Exclusions, which sets forth exclusions which “apply to
all benefits or Hazards under this policy.”

AR 186.

Chubb quoted

from the “Aircraft Pilot or Crew” exclusion, which provides in part
as follows:
Aircraft Pilot or Crew
This insurance does not apply to any Accident, Accidental
Bodily Injury or Loss caused by or resulting from,
directly or indirectly, a Primary Insured Person riding
as a passenger in, entering, or exiting any aircraft
while acting or training as a pilot or crew member.
AR 186.

The letter noted that to recover benefits under the

policy, it must be demonstrated that an accident resulted in
accidental bodily injury or death, and that benefits are not
otherwise excluded under the Policy.

The letter further advised

that Asher was the licensed pilot of the aircraft which crashed,
resulting in his death, and that the aircraft was not owned, leased
3

or operated by Battelle, the policyholder.

Chubb concluded that

the “Aircraft Pilot or Crew” exclusion applied, and that the
requisite burden of proof for payment of benefits under the policy
had not been provided.

AR 187.

No appeal from this denial of

benefits was pursued.
By letter dated June 16, 2014, counsel representing Michael
and Aaron Asher notified Chubb that he was filing a claim for
benefits under the Policy on their behalf.

AR 221.

By letter

dated October 8, 2014, Chubb notified counsel that no coverage was
provided under the Policy for the death of Donny Asher. The letter
quoted the “Aircraft Pilot or Crew” exclusion, and concluded that
since Asher was the pilot of the aircraft, the exclusion would
apply. AR 270-272.

By letter dated November 8, 2014, counsel

notified Chubb of his intent to appeal the decision denying
benefits.

AR 279-280.

was later sent to Chubb.

An appeal letter dated November 18, 2014,
AR 298-304.

By letter dated December 9,

2014, counsel was notified that the appeal had been sent to the
appeal committee for review.

AR 325.

By letter dated February 10, 2015, counsel for the Ashers was
notified of the decision of Federal’s ERISA Review Committee (“the
Committee”) affirming the decision to deny benefits.

AR 352-355.

The letter noted that it was undisputed that Donny Asher was
involved in a crash with an aircraft that he owned and operated as
the pilot.
exclusion.

AR 352.

The letter quoted the “Aircraft Pilot or Crew”

AR 353-354.

The Review Committee concluded that the

“Aircraft Pilot or Crew” exclusion was “directly on point” and that
the exception to the exclusion for aircraft owned, leased or
operated by Battelle did not apply because the aircraft was owned

4

by Asher and was not being operated on behalf of Battelle.

AR 354.

On appeal, counsel argued that the words “while acting or
training as a pilot or crew member” should be read as modifying
only

the

exiting.”

words

immediately

before

that

phrase,

namely,

“or

Thus, counsel contended that the exclusion only applied

when death occurred as an insured person, while acting or training
as a pilot, was exiting the aircraft, not when he was performing
any other actions such as flying the plane.

The Review Committee

rejected this interpretation of the exclusion:
This is not a reasonable interpretation of the language.
The words “any aircraft” and “while acting or training as
a pilot or crew member” are the qualifiers for three
criteria: riding as a passenger in, entering or exiting.
Your interpretation that such qualifiers apply only to
the third criteria of “exiting” would leave the other
criteria without proper qualification.
Further, your
interpretation ignores the other paragraphs in the
Aircraft Pilot or Crew exclusion, and the language must
be considered as a whole.
AR 354.

The Committee concluded that “there is no intent to cover

any loss when the loss (1) involves an aircraft that is not owned,
leased or operated on behalf of the Battelle Memorial Institute,
and (2) involves an insured that is acting or training as a pilot
or crew member.”

AR 354.

The Committee stated that because Asher

“was piloting his own aircraft at the time of his death, there is
no coverage under the policy for Mr. Asher’s death.”

AR 354.

III. Denial of Benefits Claim
A. Standard of Review
A. Applicability of Arbitrary and Capricious Standard of Review
A plan administrator’s denial of benefits is reviewed de novo
unless the benefit plan specifically gives the plan administrator
discretionary authority to determine eligibility for benefits or to
5

construe the terms of the plan.

Morrison v. Marsh & McLennan

Companies, Inc., 439 F.3d 295, 300 (6th Cir. 2006). Where an ERISA
plan gives the plan administrator such discretionary authority, the
administrator’s

decision

capricious standard.

is

reviewed

under

the

arbitrary

and

Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111 (1989).
The Policy in this case defines “Proof of Loss” as meaning
“written evidence acceptable to Us that an Accident, Accidental
Bodily Injury or Loss has occurred.”

AR 41.

“FEDERAL INSURANCE COMPANY.”

The Sixth Circuit has held

AR 44.

“Us” is defined as

that the requirement to provide “satisfactory proof” or similar
phrases is sufficiently clear to grant discretion to administrators
and fiduciaries.

See Frazier v. Life Insurance Co. of North

America, 725 F.3d 560, 567 (6th Cir. 2013); see also Deel v. United
of Omaha Life Ins. Co., No. 11-12751, 2012 WL 928349 at *8 (E.D.
Mich. Feb. 27, 2012)(discretion granted to administrator where
policy required “acceptable proof of loss”)(adopted by 2012 WL
917569 (E.D. Mich. Mar. 19, 2012)).

The similar language in the

policy in this case is sufficient to confer discretionary authority
on Federal, and the arbitrary and capricious standard of review
applies.

The court notes that it would arrive at the same result

in this case under de novo review.
B. Federal’s Decision
Review

under

the

“extremely deferential.”

arbitrary

and

capricious

standard

is

McClain v. Eaton Corp. Disability Plan,

740 F.3d 1059, 1064 (6th Cir. 2014).

“Review under the arbitrary

and capricious standard is the least demanding form of judicial
review of an administrative action; it requires only an explanation

6

based on substantial evidence that results from a deliberate and
principled reasoning process.” Morrison, 439 F.3d at 300; see also
Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir.
2003)(“When it is possible to offer a reasoned explanation, based
on the evidence, for a particular outcome, that outcome is not
arbitrary or capricious.”); Williams v. International Paper Co.,
227

F.3d

706,

712

(6th

Cir.

2000)(if

there

is

a

reasonable

explanation for the administrator’s decision denying benefits in
light of the plan’s provisions, then the decision is neither
arbitrary nor capricious).

This is true regardless of whether an

equally rational interpretation is offered by the plan participant.
Gismondi v. United Techs. Corp., 408 F.3d 295, 298 (6th Cir. 2005).
“The arbitrary and capricious standard requires courts to review
the plan provisions and the record evidence and determine if the
administrator’s decision was ‘rational.’” Schwalm v. Guardian Life
Ins. Co. of America, 626 F.3d 299, 308 (6th Cir. 2010).

In

reviewing the administrator’s decision, the court’s review is
limited to the administrative record which was before the plan
administrator at the time of the benefit determination.

Schwalm,

626 F.3d at 308.1
The Policy covers 24-hour business and pleasure hazards,
defined as “all circumstances, subject to the terms and conditions
of the policy, to which an Insured Person may be exposed.”

AR 13.

The Policy also includes exclusions to address situations which are

1

In contrast, when applying a de novo standard in the ERISA
context, the role of the court reviewing a denial of benefits is to
determine whether the administrator made a correct decision with no
deference or presumption of correctness afforded to the
administrator’s decision. Hoover v. Provident Life & Acc. Ins.
Co., 290 F.3d 801, 808-09 (6th Cir. 2002).
7

beyond the scope of risk contemplated under the Policy.

One such

exclusion is the one at issue here, which provides as follows:
Aircraft Pilot or Crew
This insurance does not apply to any Accident, Accidental
Bodily Injury or Loss caused by or resulting from,
directly or indirectly, a Primary Insured Person riding
as a passenger in, entering, or exiting any aircraft
while acting or training as a pilot or crew member.
This exclusion shall not apply:
1) to a Primary Insured Person riding as a passenger in,
entering, or exiting the Policyholder’s Owned Aircraft,
Leased Aircraft or Operated Aircraft while such Primary
Insured Person is acting or training as a pilot or crew
member by or on behalf of the Policyholder, but only if
such Primary Insured Person is certified and licensed by
a governmental authority with competent jurisdiction to
operate or serve as crew on such Owned Aircraft, Leased
Aircraft or Operated Aircraft.
2) to any passengers who temporarily perform pilot or
crew functions in a life threatening emergency.
AR 27. This exclusion recognizes that acting as “Aircraft Pilot or
Crew” entails a degree of risk significantly greater than that
involved in most business and pleasure activities.

This exclusion

is reasonably read as excluding from coverage an insured who is
piloting an airplane, the exception being where the insured is a
certified pilot flying a plane owned, leased, or operated by
Battelle.
This exclusion correlates with another exclusion entitled
“Owned Aircraft, Leased Aircraft, or Operated Aircraft.”

This

provision excludes liability for injury or loss to an insured
person “being in, entering, or exiting any aircraft: 1) owned,
leased or operated by [Battelle] or on [Battelle’s] behalf, or 2)
operated by an employee of [Battelle] on [Battelle’s] behalf”
8

unless the aircraft is listed on the Policy and is “piloted by a
certified pilot licensed to operate such aircraft.”

AR 26-27.

Read together, these exclusions show an intent to cover accidents
involving any insured, including pilots and crew, traveling in a
listed aircraft owned, leased or operated by Battelle which is
piloted by a certified pilot.

It makes sense that Battelle would

want to cover its employees who are engaged in business activities
on behalf of Battelle while using Battelle aircraft.

Similarly,

the “Aircraft Pilot or Crew” exclusion operates to exclude from
coverage accidents involving an insured who is “acting or training
as a pilot or crew member” while “a passenger in, entering, or
exiting any aircraft” unless the aircraft is owned by Battelle and
the insured is a certified pilot.

This exclusion indicates that

the policy was not designed to provide flight insurance for
employees piloting their own planes.
Plaintiffs argue that the phrase “while acting or training as
a pilot or crew member” applies only to the immediately preceding
phrase in the series, “exiting any aircraft.”

Plaintiffs rely on

the last antecedent rule, “a principle of contract interpretation
which provides that ‘a limiting clause or phrase ... should
ordinarily be read as modifying only the noun or phrase that it
immediately follows.’”

Tate v. General Motors LLC, 538 F. App’x

599, 602 (6th Cir. 2013)(quoting Cracker Barrel Old Country Store,
Inc. v. Cincinnati Ins. Co., 499 F. App’x 559, 564 (6th Cir.
2012)(citations omitted)).

However, the court in Tate noted that

“‘[l]ike all canons of interpretation, the rule of the last
antecedent can be overcome by textual indication of contrary
meaning.’”

Id. (quoting Decker v. Northwest Environmental Defense

9

Center,

U.S.

, 133 S.Ct. 1326, 1343-44 (2013)).

The Sixth

Circuit has also noted that an interpretation which gives a
reasonable, lawful, and effective meaning to all of a plan’s terms
is preferred to an interpretation which leaves a part unreasonable,
unlawful, or superfluous.

Rodriguez v. Tennessee Laborers Health

& Welfare Fund, 89 F. App’x 949, 954 (6th cir. 2004)(citing
Restatement (Second) of Contracts §203(a)(1981)).
The title of the exclusion is “Aircraft Pilot or Crew.” It is
reasonable to construe the entire provision as one applying only to
insureds who are acting or training as pilots or crew members.

As

the Review Committee noted, if the phrase “exiting any aircraft
while acting or training as a pilot or crew member” is severed from
the rest of the language of the exclusion, then the words “riding
as

a

passenger

in”

and

“entering”

are

left

hanging

with

no

explanation as to what the passenger is riding in or entering.

In

addition, if the exclusion is limited to pilots or crew members
while they are exiting the aircraft, there would be no need for the
exception to the exclusion for “a Primary Insured Person riding as
a passenger in [or] entering ... the Policyholder’s Owned Aircraft,
Leased Aircraft or Operated Aircraft while such Primary Insured
Person is acting or training as a pilot or crew member by or on
behalf of the Policyholder[.]”

AR 27.

The phrase “acting or

training as a pilot or crew member” is reasonably read as applying
to insureds who are either “riding as a passenger in,” “entering,”
or

“exiting”

any

aircraft

not

owned,

leased

or

operated

by

Battelle.
Plaintiffs also argue that the word “passenger” does not
include “pilots” or “crew members.”

10

In some cases, insurance

policies specifically exclude pilots and crew members from the
definition of “passenger.”

See Jordan v. National Acc. Ins.

Underwriters Inc., 922 F.2d 732, 733 (11th Cir. 1991); Ideal Mut.
Ins. Co. v. Myers, 789 F.2d 1196, 1197 n. 3 (5th Cir. 1986).
However, the Policy in this case does not define “passenger,” nor
does it contain any language suggesting that a pilot or crew member
could not be a “passenger.” Similarly, the Policy’s definition for
“private Passenger Automobile” is “a four wheeled motor vehicle
with a maximum capacity of nine (9) people,” not “eight people plus
a driver.”

See AR 41.

There is no language in the Policy which

would preclude broadly interpreting the word “passenger” as meaning
any person, including a person acting as a pilot or crew member,
who is traveling in, or, as the Policy states, “riding ... in” the
aircraft.
This

interpretation

is

further

supported

by

the

second

exception to the “Aircraft Pilot or Crew” exclusion, “passengers
who

temporarily

perform

threatening emergency.”

pilot

or

crew

functions

in

a

life

This exception indicates that the phrase

“while acting or training as a pilot or crew member” is the key
focus of and qualifier in the exclusion.

The second exception

indicates that persons who began the flight solely as passengers in
an aircraft are not excluded from coverage even though they are
pressed during the flight into “acting or training as a pilot or
crew

member”

due

to

an

emergency

incapacitation of the pilot.

situation,

such

as

the

If, as plaintiffs argue, the word

“passenger” should be interpreted as one who is never “acting or
training as a pilot or crew member,” this exception would not be
necessary.

11

The court concludes that there is a reasonable explanation for
the administrator’s decision denying benefits in light of the
Policy’s provisions.

The decision was rational, and was neither

arbitrary nor capricious.

Even if the de novo standard of review

applies

the

in

this

case,

court

agrees

with

defendants’

interpretation of the Policy and concludes that their decision to
deny benefits was correct.

Defendants are entitled to judgment on

the administrative record on this claim.
IV. Breach of Fiduciary Duty Claim
A. Defendants’ Motion to Dismiss
Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to
dismiss Claim Two, the breach of fiduciary duty claim, for failure
to state a claim for relief.

In ruling on a motion to dismiss

under Rule 12(b)(6), the court must construe the complaint in a
light most favorable to the plaintiffs, accept all well-pleaded
allegations

in

the

complaint

as

true,

and

determine

whether

plaintiffs undoubtedly can prove no set of facts in support of
those allegations that would entitle them to relief.

Erickson v.

Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent Technologies,
Inc., 520 F.3d 516, 519 (6th Cir. 2008); Harbin-Bey v. Rutter, 420
F.3d 571, 575 (6th Cir. 2005).

To survive a motion to dismiss, the

“complaint must contain either direct or inferential allegations
with respect to all material elements necessary to sustain a
recovery under some viable legal theory.”
F.3d 712, 716 (6th Cir. 2005).

Mezibov v. Allen, 411

Conclusory allegations or legal

conclusions masquerading as factual allegations will not suffice.
Id.

A complaint must contain facts sufficient to “state a claim

to relief that is plausible on its face.”

12

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).
Plaintiffs allege in Claim Two that the defendants breached
their fiduciary duties by denying plaintiffs’ claim for benefits
based on an incorrect interpretation of an exclusion in the Policy.
Complaint, ¶32.
unjustly

Plaintiffs further argue that defendants were

enriched

by

improperly

withholding

accidental

death

benefits which were then available for use by defendants for
investment, generating unfair profits for Federal.
35.

Complaint, ¶

Plaintiffs claim that they are entitled to an accounting of

defendants’

investment,

financial

and

profit

statements.

Defendants argue that plaintiffs’ breach of fiduciary duty claim is
nothing

more

than

a

restatement

of

the

§1132(a)(1)(B)

claim

asserted in Count One, and therefore, relief is not available under
§1132(a)(3).
In Varity Corp. v. Howe, 516 U.S. 489, 512 (1996), the Supreme
Court noted that “ERISA specifically provides a remedy for breaches
of fiduciary duty with respect to interpretation of plan documents
and

the

payment

§1132(a)(1)(B).

of

claims”

through

a

cause

of

action

under

The remedy for “other breaches of other sorts of

fiduciary obligation” may be sought under the “catchall” provision
in §1132(a)(3).

Id.

The Supreme Court concluded that “where

Congress elsewhere provided adequate relief for a beneficiary’s
injury, there will likely be no need for further equitable relief,
in which case such relief would normally not be appropriate.”

Id.

at 515.
The Sixth Circuit in Wilkins v. Baptist Healthcare Sys. Inc.,
150 F.3d 609, 615 (6th Cir. 1998), interpreted Varity Corp. as
limiting “the applicability of §1132(a)(3) to beneficiaries who may

13

not avail themselves of §1132's other remedies.”
v.

M

&

G

Polymers,

USA,

LLC,

561

F.3d

478,

See also Tackett
491

(6th

Cir.

2009)(relief under §1132(a)(3) not appropriate where plaintiff
merely “repackages” a §1132(a)(1)(B) benefits claim). Irrespective
of the degree of success obtained on a claim for recovery of
benefits, a claimant can pursue a breach of fiduciary duty claim
only where that claim is based on an injury separate and distinct
from the denial of benefits, or where the remedy afforded by
Congress under §1132(a)(1)(B) is otherwise shown to be inadequate.
Rochow v. Life Ins. Co. of North America, 780 F.3d 364, 372 (6th
Cir. 2015).

“Impermissible repackaging is implicated whenever, in

addition to the particular adequate remedy provided by Congress, a
duplicative or redundant remedy is pursued to redress the same
injury.”
plan

Id. at 373 (because claimant had an adequate remedy for

administrator’s

wrongful

denial

of

benefits

under

§1132(a)(1)(B), he could not obtain additional relief for that same
injury under §1132(a)(3)).
In Rochow, the Sixth Circuit rejected the plaintiff’s argument
that a claim for a disgorgement award or equitable accounting
stated a claim for a separate injury. The court concluded that the
administrator’s withholding of profits obtained through the use of
benefit funds which allegedly should have been paid to plaintiff
was ancillary to and a continuing effect of the same denial of
benefits, constituting a single injury.

Id. at 374 (noting that

plaintiff’s loss was the same irrespective of the use of the
withheld benefits made by the administrator).

The court also

concluded that plaintiff’s claim for disgorgement of profits was
“nothing but a repackaged claim for benefits wrongfully denied[.]”

14

Id. at 375.
Under circumstances not found in the present case, the Sixth
Circuit has held that an action under §1132(a)(3) is available. In
Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 718 (6th
Cir. 2005), the Sixth Circuit recognized that there are some
circumstances under which an ERISA plaintiff may simultaneously
bring claims under both §1132(a)(1)(B) and §1132(a)(3).

The court

held that where an award of individual benefits pursuant to
§1132(a)(1)(B) could not provide an adequate remedy for the alleged
injury to the plaintiffs caused by the plan’s alleged improper
methodology for handling all emergency-medical-treatment claims for
which plaintiffs sought injunctive relief, outright dismissal of
the plaintiffs’ §1132(a)(3) claims was in error.

Id.

In Gore v.

El Paso Energy Corp. Long Term Disability Plan, 477 F.3d 833, 840842 (6th Cir. 2007), the Sixth Circuit concluded that plaintiff had
alleged

two

separate

interpretation

of

plan

and

distinct

language

by

injuries:
the

claims

an

erroneous

administrator,

resulting in a wrongful denial of long-term disability benefits
subject to redress under §1132(a)(1)(b); and a breach of fiduciary
duty

by

the

employer,

which

had

no

involvement

in

claims

administration, based on the employer’s alleged misrepresentation
concerning the duration of benefits, a claim that could only be
addressed under §1132(a)(3). See also Stiso v. International Steel
Group, 604 F. App’x 494, 498-501 (6th Cir. 2016)(recognizing a
claim

under

§1132(a)(3)

against

employer

for

misleading

plan

summary).
The allegations in plaintiffs’ complaint do no more than
express disagreement with Federal’s interpretation of the pilot’s

15

exclusion provision. As in Rochow, plaintiffs’ claim for breach of
fiduciary duty stemming from the denial of benefits, including
plaintiffs’

withholding

of

profits

and

unjust

enrichment

allegations, does not plead a claim for any injury separate and
distinct from the denial of benefits.

Plaintiffs’ complaint

contains no allegations of a plan-wide policy or practice of
violating ERISA which could be rectified only by injunctive relief,
as in Hill, or of an employer’s misrepresentations which could only
be redressed through a

§1132(a)(3) claim, as in Gore and Stiso.

The court concludes that plaintiffs’ breach of fiduciary duty claim
is a claim for which relief may be sought as part of Claim One’s
request for benefits under §1132(a)(1)(B), and that defendants’
motion to dismiss is well taken.
B. Plaintiffs’ Motion for Summary Judgment
In their motion for judgment on the administrative record,
plaintiffs have also moved for summary judgment on Claim Two.
Plaintiffs

contend

for

the

first

time

in

their

motion

that

defendants breached a fiduciary duty by making allegedly ambiguous
statements in the 2008 Summary Plan Description.

Specifically,

plaintiffs note the following language:
The Plan does not cover any loss, fatal or non-fatal,
caused by or resulting from:
* * *
(4)

AR 340.

war or any act of war, whether declared or
undeclared, occurring within the United States,
Canada, your country of permanent domicile,
Afghanistan, Iraq, Saudi Arabia, and Indonesia,
injuries sustained on a non-covered aircraft.
Plaintiffs argue that this language is misleading because

it suggests that injuries in non-covered aircraft are excluded only
16

if they occur during a war or as the result of an act of war.

The

administrative record contains no evidence that Donny Asher relied
on the Summary Plan Description to his detriment in making any
decisions concerning his participation in the Plan.

Asher’s

beneficiary designation of February 28, 2007, indicates that he
became a Plan participant prior to the release of the 2008 Summary
Plan Description.

See AR 171.

As noted above, plaintiffs’ complaint contains no allegations
of

misrepresentations

by

defendants,

either

specifically in the Summary Plan Description.

in

general

or

A party may not

“expand its claims to assert new theories” in response to a motion
for summary judgment.

Bridgeport Music, Inc. v. WM Music Corp.,

508 F.3d 394, 400 (6th Cir. 2007).

Likewise, a party may not

assert new legal theories for the first time in a summary judgment
motion.

Prunty v. Wilson, 19 F.3d 1434 (Table), 1994 WL 91844 at

*1 (6th Cir. March 21, 1994)(new claims asserted by plaintiff for
the first time in his motion for summary judgment were not properly
presented before the district court).

Defendants’ motion to

dismiss Claim Two was filed on April 2, 2015, alerting plaintiffs
to the deficiencies in this claim.

According to the magistrate

judge’s preliminary pretrial order (Doc. 13), a motion for leave to
amend the complaint was due by May 5, 2015, yet no such motion was
filed.

Plaintiffs may not convert their breach of fiduciary duty

claim into a misrepresentation claim by asserting it for the first
time in a motion for summary judgment.

Plaintiffs’ motion for

summary judgment on Claim Two is denied, and defendants’ motion to
dismiss that claim is granted.

17

V. Conclusion
In

accordance

with

the

foregoing,

defendants’

dismiss Claim Two (Doc. 7) is granted.

motion

to

The Asher plaintiffs’

motion for judgment on the administrative record and for summary
judgment (Doc. 16) is denied.
the

administrative

record

Defendants’ motion for judgment on
(Doc.

17)

is

granted.

Judreta

Beardsley’s motions for judgment on the administrative record and
for summary judgment (Docs. 23 and 26) are denied. The clerk shall
enter judgment in favor of the defendants.

Date: September 30, 2016

s/James L. Graham
James L. Graham
United States District Judge

18