Eisenach v. Life Insurance Company of North America et al

Filing 40

OPINION AND ORDER by Judge John E Dowdell regarding supplemental briefs as to exhaustion issue (Docs. 37 and 38). Defendants' Motion to Strike Plaintiff's Motion for Partial Summary Judgment Determining Standard of Review or in the A lternative to Hold Plaintiff's Motion in Abeyance (Doc. 20) is granted in part. The Court's decision regarding arguments raised in Plaintiff's Motion for Partial Summary Judgment (Doc. 17) will be held in abeyance until the Court' ;s final decision on the merits in this case. ; granting in part 20 Motion to Strike Document(s); granting in part 20 Motion for Miscellaneous Relief; finding as moot 22 Motion for Hearing (Re: 38 BRIEF, 37 Brief ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GRETCHEN EISENACH,
Plaintiff,
v.
LIFE INSURANCE COMPANY OF
NORTH AMERICA, et al.,

Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 13-CV-82-JED-PJC

OPINION AND ORDER
This matter comes before the Court as a result of a dispute between the parties as to
whether plaintiff, Gretchen Eisenach, has exhausted her administrative remedies as required in
cases governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 2202 et
seq. (“ERISA”). A telephonic hearing was held on June 17, 2013, where the Court directed the
parties to file briefs regarding exhaustion. Supplemental briefs were submitted by the defendants
jointly (Doc. 37) and by the plaintiff (Doc. 38). The defendants also agreed during the June 17
hearing that the time for plaintiff’s filing of an administrative appeal, if necessary, would be
tolled pending the Court’s ruling as to exhaustion.
In addition, plaintiff has filed a Motion for Partial Summary Judgment Determining
Standard of Review (Doc. 17). In response, the defendants jointly filed a Motion to Strike
Plaintiff’s Motion for Partial Summary Judgment Determining Standard of Review or in the
Alternative to Hold Plaintiff’s Motion in Abeyance (Doc. 20). The defendants request that the
Court strike plaintiff’s partial summary judgment motion as procedurally improper or, in the
alternative, defer its decision regarding the standard of review until its final decision on the
merits.

Factual Background
Plaintiff is a participant in the defendant Fox Long Term Disability Plan (the “Plan”).
(Doc. 37-1, at 888). Defendant Fox Entertainment Group, Inc. (“Fox”) is the Plan Sponsor and
Plan Administrator.

(Doc. 37-2).

Defendant Life Insurance Company of North America

(“LINA”) issued a group insurance policy (the “Policy”) to insure benefits under the Plan. As
the underwriter for the Policy, LINA is likewise responsible for interpreting the Policy’s
provisions, determining claims and appeals, and paying benefits. (Id.).
On November 4, 2008, Eisenach was severely injured as a result of being struck by a
vehicle while walking in a crosswalk. She suffered profound physical and mental impairment as
a result of the accident and made a claim through her conservator1 for long-term disability
benefits under the Plan in early 2009. LINA approved her claim and in May of 2009, Eisenach
began receiving monthly benefit checks of approximately $5,555. In May of 2011, LINA
became aware that Eisenach had entered into a settlement agreement with the driver of the
vehicle that caused her injuries for the limits of his liability policy, $250,000. After fees and
costs, plaintiff’s net tort recovery amounted to $142,035.49 – a drop in the bucket as compared
to her actual damages according to plaintiff, which she estimates to be well into the seven figure
range.
Of critical importance to the instant litigation is the fact that the Policy contains an offset
provision entitled “Other Income Benefits.” Under that provision, LINA is entitled to reduce
long-term disability benefits in the event of the insured’s receipt of “any amounts paid because
of loss of earnings or earning capacity through settlement …where a third-party may be liable. . .
.” (Doc. 37-2, at 12). The Policy also provides that, “[i]f no specific allocation of a lump sum is
1

Plaintiff’s mother, Valerie Eisenach, is plaintiff’s conservator pursuant to a February 17, 2009
court order.
2

made, then the total payment will be an Other Income Benefit.” (Id., at 13). Accordingly,
LINA’s Disability Claim Manager, Leon Farmer, requested information relating to the settlement
to determine whether the agreement allocated any part of the settlement to specific items or
losses. In August of 2011, LINA was advised that Plaintiff’s net settlement amount totaled
$142,035.49. LINA also learned that none of this amount was explicitly allocated to any specific
item or loss in the settlement agreement. On September 23, 2011, a LINA recovery specialist,
Jennifer Korpics, advised Eisenach via letter that Eisenach had allegedly been overpaid in the
sum of $56,520.62 and demanded reimbursement to LINA for the overpayments. In addition,
the September 23 letter provided a computation of the claimed overpayment and informed
Eisenach that her benefits would be reduced by $2,367.26 per month through February 23, 2014.
This letter made no mention of an appeal. In an October 19, 2011 letter, Eisenach, through her
counsel, objected to LINA’s intent to reduce benefit payments and advised LINA that she did not
intend to reimburse LINA for the overpayment. The October 19, 2011 letter further stated:
Our client disputes the Plan’s reimbursement/subrogation claims with respect to
the tort recovery referenced in your letter of September 23rd. Hence, she
respectfully declines to send the “check or money order” requested. Further, she
disputes the Plan’s decision to reduce her monthly disability payments on account
of that recovery and demands that they be reinstated to their full amount, save and
except for lawful reductions related to her SS benefits.
So that we may perfect an appropriate administrative appeal of your decision, we
ask that you promptly send to this office the complete administrative record upon
which it is based. To facilitate references thereto in our future discussion(s),
please Bates-stamp it.
Pending our receipt of the record and perfection of our administrative appeal, we
remain receptive to reasonable offers in compromise.
(Doc. 37-1, at 382, italics added).

LINA did not respond with any statement that an

administrative appeal would be premature or otherwise inappropriate, and instead provided
documents responsive to plaintiff’s counsel’s request and stated that LINA would “be glad to
3

review any information you submit in support of your position.” (Doc. 37-1, at 357 and 368).
On February 24, Ms. Korpics sent a letter to plaintiff stating that, because the $56,520.62 had not
be repaid, LINA intended to withhold the remainder of the monthly disability benefits Eisenach
was receiving – $3,187.74 – until the full amount had been repaid.
On March 5, 2012, without having yet seen the February 24 letter from Ms. Korpics2,
plaintiff’s counsel sent a letter to Ms. Kropics and Mr. Farmer, which plaintiff contends was her
substantive appeal of an adverse benefit determination. Plaintiff’s counsel’s March 5 letter spans
four pages and details Eisenach’s position as to why her benefit reduction was improper. The
letter states that it is written in response to LINA’s September 23, 2011 letter (which initially
reduced Eisenach’s benefits), and further states:
As a preliminary matter, though [LINA]’s aforesaid letter is not a claim denial per
se, we have nonetheless endeavored to respond to it within the 180 day time
normally afforded plan participants in appealing administrative claim denials.
(Doc. 37-1, at 352-55).

Plaintiff disagreed with the notion that LINA was entitled to

reimbursement or to recover any overpayment and further demanded that her benefits be restored
and that she be reimbursed for amounts previously withheld. Plaintiff’s counsel further asserted
that the summary plan description (“SPD”) she received in connection with the Plan was
deficient because it did not list third-party settlements related to lost earnings as “Other Income
Benefits” that would be offset against long-term disability benefits and because it failed to
inform Eisenach that she had the right to allocate the lump sum settlement benefits to something
other than lost earnings, which LINA presumed them to be under the Policy. (See id.).
On March 7, 2012, plaintiff’s counsel sent a letter to Ms. Korpics regarding her February
24, 2012 letter, beseeching LINA not to follow through with its plan to reduce plaintiff’s benefit
2

Plaintiff’s counsel’s letter of March 7, 2012 states that the postal employee delivered the
February 24 letter as he was picking up the outgoing March 5 letter. (Doc. 37-1, at 350).
4

payments to zero in order to satisfy the alleged $56,520.62 overpayment. Additionally, the letter
stated:
My question is this: where does [LINA] perceive us to be regarding the
mandatory administrative review process – assuming there is one that applies to
this situation? The LTD SPD describes the normal claim/denial/appeal process
starting at page 13, but that language refers to a detailed “written notice of denial”
that our client has never received – presumably because, as stated, this is not a
claim denial as such. ERISA requires that [LINA] inform [plaintiff] of those steps
necessary to exhaust her administrative remedies, so I am asking whether [LINA]
contends there are additional steps to take at this level. If so, what are they? If not,
and if [LINA] will not otherwise reconsider it’s [sic] decision, then the time for
judicial review is upon us.
(Doc. 37-1, at 350). LINA never responded with a statement as to what it perceived to be the
status of Eisenach’s claim, that is, whether she was in the process of an appeal or some other
unspecified type of review. Instead, on March 14, 2012, Mr. Farmer sent plaintiff’s counsel a
letter notifying Eisenach that LINA would not be withholding benefits to recoup the
overpayment, but that the existing offset would remain in place. Additionally, Mr. Farmer
requested that Plaintiff’s counsel provide him with the SPD referenced in his March 5, 2012
letter so that LINA could fully address the issues raised by Plaintiff. Thereafter, having received
the SPD as requested, Mr. Farmer informed Eisenach on April 6, 2012 that “[a] review has
started regarding the offset for Ms. Eisenach’s auto settlement” and further stated that “I
anticipate a decision can be reached in 60 days and will advise you of the decision when
reached.” (Doc. 37-1, at 315).
Within that timeframe, a significant amount of additional correspondence was exchanged
between LINA and Eisenach.

Mr. Farmer continued to keep plaintiff’s counsel informed

regarding the status of the matter and his difficulty in obtaining information from Liberty Mutual
regarding the auto settlement. On August 16, 2012, Mr. Farmer sent a letter stating that he had
received the information from Liberty Mutual and that “[w]e are not able to start our review
5

process regarding the long term disability offset. I anticipate having our decision rendered
within 60 days of this letter.” (Doc. 37-1, at 293). In addition, in a November 29, 2012 letter,
plaintiff’s counsel submitted to LINA supplemental information regarding, among other things,
Eisenach’s monthly medical expenses. In that letter, plaintiff’s counsel made clear that he
perceived the provided information to be “[s]upplementing Ms. Eisenach’s appeal of [LINA]’s
adverse benefit determination.” (Doc. 37-1, at 255). LINA’s next contact with plaintiff’s
counsel – a December 21, 2012 letter noting that “review of the offset dispute” had been
completed – expressed no objection to the November 29, 2012 letter’s characterization of the
ongoing process as an appeal. (See Doc. 37-1, at 254).
On January 4, 2013, some nine months after the initial benefit reduction, Mr. Farmer
notified plaintiff’s counsel by letter that LINA was sticking with its initial decision that the
settlement would be considered “Other Income Benefits” under the Policy and therefore subject
to offset. (Doc. 37-1, at 250-52). The January 4 letter also stated that Eisenach would be
required to administratively appeal the decision under ERISA prior to the filing of any legal
action. Apparently disagreeing that such an appeal had not already been perfected, Eisenach
filed this litigation on January 7, 2013 in Tulsa County District Court. On February 11, 2013,
the case was removed to this Court.
Analysis
Although ERISA does not contain any express provisions requiring exhaustion of
administrative remedies, the Tenth Circuit has held that “exhaustion of administrative remedies
(i.e. company- or plan-provided) is an implicit prerequisite to seeking judicial relief.” Held v.
Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th Cir. 1990). This doctrine
prevents “premature judicial interference with the interpretation of a plan [that] would impede

6

those internal processes which result in a completed record of decision making for a court to
review.” Whitehead v. Oklahoma Gas & Electric Co., 187 F.3d 1184, 1190 (10th Cir. 1999).
A would-be plan beneficiary’s time to appeal is generally triggered by an “adverse
benefit determination.”

See Sawyer v. USAA Ins. Co., 912 F. Supp. 2d 1118, 1152 (D.N.M.

2012); 29 C.F.R. § 2560.503-1(h) (governing “[a]ppeal of adverse benefit determinations”). The
definition of an “adverse benefit determination” is significantly broader than a complete denial
of benefits. Under ERISA’s regulatory framework, an “‘adverse benefit determination’ means
any of the following: a denial, reduction, or termination of, or a failure to provide or make
payment (in whole or in part) for, a benefit, including any such denial, reduction, termination, or
failure to provide or make payment that is based on a determination of a participant's or
beneficiary's eligibility to participate in a plan….”

29 C.F.R. § 2560.503–1(m)(4) (italics

added); see also Cherene v. First Am. Fin. Corp. Long-Term Disability Plan, 303 F. Supp. 2d
1030, 1036 (N.D. Cal. 2004) (“A withholding of a benefit – even if done to compensate for a
claimed reimbursement – is either a ‘reduction’ or ‘failure to provide or make payment (in whole
or in part) for, a benefit’.”) (quoting 29 C.F.R. § 2560.503–1(m)(4)); Fletcher v. Comast
Comprehensive Health & Welfare Plan, 2011 WL 743459 (W.D. Pa. Feb. 24, 2011) (noting that
an underpayment of benefits is “just like a denial” because it “is adverse to the beneficiary and
therefore repudiates his rights under a plan”) (quoting Miller v. Fortis Benefits Ins. Co., 475 F.3d
516, 521 (3d Cir. 2007)).
I.

LINA’s Adverse Benefit Determination

The defendants make no attempt to directly characterize LINA’s September 23, 2011
decision to reduce Eisenach’s long-term disability benefit payment and request for
reimbursement. Instead, LINA implies that it was not an adverse benefit determination by

7

pointing out that the January 4, 2013 letter contained all of the content required for a “written
notice of denial” under the Policy and SPD. (See Doc. 3, at 13-14 and 18). While it is true that
the January 4 letter did contain the information designated for initial claim decisions, it does not
necessarily follow that LINA’s initial reduction of Eisenach’s benefits was not an adverse benefit
determination.
This case does not present the typical example of an outright denial of benefits. Based
upon LINA’s determination that Eisenach’s personal injury settlement constituted “Other Income
Benefits,” LINA reduced Eisenach’s monthly payment by $2,367.26 per month. This action
constitutes a reduction or failure to make a payment, at least in part, under 29 C.F.R. §
2560.503–1(m)(4) and the authorities construing it, which the Court finds persuasive on this
issue. As an adverse benefit determination, LINA’s reduction of Eisenach’s benefits triggered
her right to an appeal.3 However, it remains to be determined whether Eisenach’s counsel’s
correspondence with LINA amounted to an appeal under the Policy and relevant law.
II.

Eisenach’s “Appeal”

The Policy under which Eisenach’s long-term disability benefits were paid states the
following with respect to the “Appeal Procedure for Denied Claims”:
Whenever a claim is denied, you have the right to appeal the decision. You (or
your duly authorized representative) must make a written request for appeal to the
Insurance Company within 60 days (180 days in the case of any claim for
disability benefits) from the date you receive the denial. If you do not make this
request within that time, you will have waived your right to appeal.
Once your request has been received by the Insurance Company, a prompt and
complete review of your claim must take place. This review will give no
deference to the original claim decision, and will not be made by the person who
made the initial claim decision. During the review, you (or your duly authorized
representative) have the right to review any documents that have a bearing on the
3

The Court makes no finding with respect to whether LINA’s September 23, 2011 letter
constitutes written notice which complies with the terms of the Policy.
8

claim, including the documents which establish and control the Plan. Any
medical or vocational experts consulted by the Insurance Company will be
identified. You may also submit issues and comments that you feel might affect
the outcome of the review.
The Insurance Company has 60 days from the date it receives your request to
review your claim and notify you of its decision (45 days, in the case of any claim
for disability benefits). Under special circumstances, the Insurance Company
may require more time to review your claim. If this should happen, the Insurance
Company may require more time to review your claim. If this should happen, the
Insurance Company must notify you, in writing, that its review period has been
extended for an additional 60 days (45 days in the case of any claim for disability
benefits). Once its review is complete, the Insurance Company must notify you,
in writing, of the results of the review and indicate the Plan provisions upon
which it based its decision.
(Doc. 37-2, at 33). The Policy contains no further statements regarding what the content of the
“written request for appeal” should be.

In addition, no statute or federal regulation has

delineated what the form or content of an appeal of an adverse benefit determination must be.
However, the Tenth Circuit and other courts have provided guidance with respect to what form
such an appeal should (and shouldn’t) take.

For example, in Swanson v. Hearst Corp. Long

Term Disability Plan, 586 F.3d 1016, 1019 (5th Cir. 2009), the court held that a letter merely
stating that the plaintiff had an intention of appealing the plan administrator’s decision, but
which included “no factual or substantive arguments, and no evidence,” did not constitute an
appeal because there was nothing for the plan administrator to consider on appeal. See also
Holmes v. Proctor & Gamble Disability Benefit Plan, 228 F. App’x 377, 379 (5th Cir. 2007)
(unpublished) (holding that the plaintiff “did not substantially comply with the Plan's appeal
procedures [because he] stated only his intent to appeal the Plan's decision at some time in the
future”).
Kellogg v. Metropolitan Life Ins. Co., 549 F.3d 818 (10th Cir. 2008) is particularly
instructive regarding whether Eisenach’s counsel’s actions perfected an appeal in this case. In

9

Kellogg, defendant Metlife argued that Kellogg had not perfected an appeal within the time
allotted under her policy. Id. at 826. In support of its contention, Metlife pointed out that
Kellogg’s counsel had sent a letter stating that they would “submit Kellogg’s appeal 60 days
after they received the requested claim file documents,” but no additional letter was ever
received from Kellogg or her counsel. Id. The Tenth Circuit rejected Metlife’s argument, noting
that the letter Metlife received – even though it noted an appeal would be forthcoming once
documents were received by Kellogg – did state that Kellogg was “appealing the decision to
deny payment of benefits” and outlined the “general basis for Kellogg’s appeal.” Id.

In

addition, the court stated the following:
Considered as a whole, there can be no doubt that the January 17, 2006 letter
provided MetLife with notice that Kellogg disagreed with and was appealing
MetLife's decision to deny her AD & D benefits, and was also requesting from
MetLife relevant documentation, including the SPD, Certificate of Insurance, and
relevant medical and non-medical reports, in order to support her appeal. Thus,
MetLife clearly had a responsibility under ERISA to provide Kellogg's counsel
with a copy of the latest SPD and plan documentation, see 29 U.S.C. §
1024(b)(4), and, ultimately, to issue a decision on Kellogg's appeal….
Id. at 827 (italics added). Thus, if the party’s actions, when considered as a whole, manifest an
intent to appeal and provide the substance of the party’s position as to why the adverse benefit
determination should be reviewed, the party can be said to have appealed. See id.
When Eisenach’s counsel’s October 19, 2011 and March 5, 2012 letters are viewed
together, it is evident that the March 5 letter constituted an appeal in line with Kellogg’s
reasoning. As noted, in his October 19 letter, Eisenach’s counsel expressed no objection to
LINA’s decision and requested a complete copy of the administrative record from Ms. Korpics
“[s]o that we may perfect an appropriate administrative appeal of [LINA’s] decision.” (Doc. 371, at 382). LINA complied and submitted documentation to Eisenach without indicating that an
appeal would be inappropriate. In the March 5 letter, Eisenach’s counsel stated that, although
10

there had not been a claim denial in the ordinary sense, they had endeavored to appeal within the
180 day limit for such appeals – as was forecasted in the October 19 letter. In addition, this letter
provided LINA with Eisenach’s substantive arguments as to why she believed LINA’s benefit
offset decision was incorrect.4 At no time, other than its final January 4, 2013 letter, did LINA
ever attempt to inform Eisenach that it believed the process in which she was participating was
not appeal.5
LINA apparently agreed with the Court’s conclusion at one time. As Eisenach points out,
LINA – the defendant with whom Eisenach dealt directly regarding the benefit offset – stated in
its answer to Eisenach’s petition that it “admits that Plaintiff appealed LINA’s decision.” (Doc.
11, at ¶ 18, italics added).6 In addition, LINA pled no affirmative defenses related to an alleged
failure to exhaust administrative remedies or satisfaction of any condition precedent. LINA has

4

In addition, Eisenach’s counsel’s November 29, 2012 letter noted that it was supplementing
her “appeal.” (Doc. 37-1, at 255). Again, no objection was made by LINA with respect to this
characterization.
5

LINA argues that Eisenach’s efforts were not an appeal because, if it had been, it would have
been handled by a separate and independent reviewer. (See Doc. 37, at 17). This argument is
unpersuasive for two reasons. First, plaintiff could have easily assumed that LINA was failing to
follow its own guidelines, which would not result in her actions being characterized as
something other than an appeal. Second, LINA’s actions could have been perceived as following
its guidelines for separate and independent review. It was Ms. Korpics who notified Eisenach
via letter that an offset would be occurring and what LINA’s calculations were with respect to
that offset. (Doc. 37-1, at 311). Thereafter, it could have appeared to Eisenach that Mr. Farmer
was tasked with reviewing Ms. Korpic’s decision, as he became more involved once Eisenach’s
counsel expressed an intent to appeal the decision in his October 19 letter. (See, e.g., Doc. 37-1,
at 342, 357, 359, 361, and 368). In any event, as noted above, if LINA failed to follow the
Policy, it would not reduce Eisenach’s efforts to something less than an appeal. See Kellogg,
supra.

6

The two Fox defendants stated that they lacked sufficient knowledge as to whether plaintiff
had submitted an administrative appeal and therefore denied that allegation in plaintiff’s petition
“upon information and belief.” (Doc. 14, at ¶ 18). They also pled the following defense: “To the
extent Plaintiff failed to satisfy all of the conditions precedent to filing suit, her claims are
barred.” (Id., at p. 7).
11

not sought to amend its answer to assert such defenses or otherwise deny that Eisenach appealed
its adverse benefit determination. Instead, LINA decided that Eisenach had not submitted an
administrative appeal once Eisenach filed her motion for partial summary judgment (Doc. 17)
which seeks a de novo review of LINA’s benefit determination on the basis that her appeal took
approximately nine months instead of the 90-day maximum to which she was entitled under the
Policy. (See id.). In a footnote in its motion to strike the motion for partial summary judgment,
LINA indicated for the first time in this case that it believed Eisenach has not submitted an
appeal. This change of course has resulted in a significant expenditure of time and effort by the
parties and the Court, and could have easily been avoided had LINA been clear about its position
throughout the course of its dealings with Eisenach and her counsel.
As a final issue, the defendants suggest in a footnote on the last page of their brief that,
even if the Court finds plaintiff submitted an administrative appeal, she has still not exhausted
her administrative remedies because she was told in the January 4, 2013 letter that she could
appeal the decision, but did not do so. Arguments such as this, raised solely in a footnote, are
generally waived. Hill v. Kemp, 478 F.3d 1236, 1255 n.21 (10th Cir. 2007) (“We will not
consider an argument raised in such a perfunctory manner.”); Hardeman v. City of Albuquerque,
377 F.3d 1106, 1122 (10th Cir. 2004) (issue raised only in footnote before trial court deemed
waived); see also Echols v. Astrue, 2009 WL 1606497 (W.D. Okla. June 8, 2009) (declining to
consider argument raised solely in a footnote). Even assuming the argument had been properly
raised, it would be unavailing. There is no controlling authority, nor statute or regulation, which
imposes a requirement upon Eisenach that multiple appeals be pursued for her administrative
remedies to be exhausted.

The cases cited by the defendants, Getting v. Fortis Benefits

Insurance Co., Inc., 108 F.Supp.2d 1200, 1202-1203 (D. Kan. 2000) and Wilczynski v. Kemper

12

National Insurance Co., 998 F.Supp. 931, 944-945 (N.D. Ill. 1998), are distinguishable from this
case.

In both of those cases, the policy goals of ERISA would have been furthered by an

additional appeal through further development of the administrative record and the parties’
respective positions. See Getting, 108 F. Supp. 2d 1203-04 (“Although the court declines to hold
that a request for reconsideration is always necessary in ERISA cases, requiring plaintiff to do so
here would serve the purposes underlying the exhaustion requirement.”); Wilczynski, 998 F.
Supp. at 945 (noting that plaintiff’s counsel had refused to review the pertinent documents on
which the claim denial was based, despite numerous opportunities to do so). Here, the goals of
exhaustion would not be served by a secondary appeal in this case, as it does not appear that
further meaningful development of the administrative record would have resulted from a second
appeal. In addition, the Policy speaks in terms of a singular appeal and makes no representations
regarding a second appeal. Moreover, LINA has not represented that it is the company’s practice
to require more than one appeal of an adverse benefit determination.
Based upon the foregoing, it is the finding of the Court that Eisenach timely submitted an
administrative appeal of LINA’s adverse benefit determination and that no further administrative
appeal is necessary.
Defendants’ Motion to Strike
Plaintiff’s Motion for Partial Summary Judgment Determining Standard of Review (Doc.
17) seeks a preliminary determination regarding the standard of review so that the parties’
opening briefs can be tailored to whichever standard the Court determines to be applicable. In
response, the defendants filed their Motion to Strike Plaintiff’s Motion for Partial Summary
Judgment Determining Standard of Review or in the Alternative to Hold Plaintiff’s Motion in
Abeyance (Doc. 20). The defendants argue that the plaintiff’s motion is procedurally defective,

13

as summary judgment process is generally not used in ERISA litigation. In the alternative, the
defendants request that the Court defer its decision regarding the proper standard of review until
its final decision on the merits.
While it is true that Rule 56, which governs summary judgment, is facially inapplicable
to ERISA proceedings, the Court declines to strike plaintiff’s motion for summary judgment as it
was not filed in derogation of the Federal Rules of Civil Procedure and is not scandalous,
impertinent, harassing, or otherwise worthy of being stricken. However, the Court finds that its
decision regarding the proper standard of review should be deferred until its final decision on the
merits. Parties routinely argue the appropriate standard of review in opening briefs in ERISA
litigation. This provides the Court the benefit of having a complete administrative record before
it prior to deciding the issue. In addition, it is not especially burdensome for the parties to make
alternative arguments depending on which standard of review it anticipates may be applied.
IT IS THEREFORE ORDERED that defendants’ Motion to Strike Plaintiff’s Motion
for Partial Summary Judgment Determining Standard of Review or in the Alternative to Hold
Plaintiff’s Motion in Abeyance (Doc. 20) is granted in part. The Court’s decision regarding
arguments raised in plaintiff’s motion for partial summary judgment (Doc. 17) will be held in
abeyance until the Court’s final decision on the merits in this case. The defendants are directed
to respond to the substance of plaintiff’s standard of review arguments in their opening briefing.
IT IS FURTHER ORDERED that it is this Court’s determination that plaintiff has
perfected a timely administrative appeal of the defendant’s adverse benefit determination and
that no further administrative appeal by plaintiff is necessary.
SO ORDERED this 19th day of August, 2013.

14