Gonzalez v. Auto Zone Inc et al
Filing
158
MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PETE GONZALES,
Plaintiff,
v.
AUTOZONERS, LLC, et al,
Defendants.
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CIVIL ACTION NO. 4:09-4054
MEMORANDUM AND ORDER
In this ERISA case, Defendants have filed a Motion for Summary Judgment
[Doc. # 136] (“Motion”), to which Plaintiff has responded in multiple filings.1
Defendants have filed a reply [Doc. # 150], which includes a motion to strike untimely
filed documents and reurges a running motion for sanctions against Plaintiff’s counsel.
In addition, Defendants have filed a Motion to Exclude Plaintiff’s Experts [Doc. #
139], and Plaintiff has responded [Doc. # 146]. Finally, Defendants have filed a
Motion to Dismiss Specific Defendants [Doc. # 140], to which Plaintiff has not
1
On February 6, 2012, which was the filing deadline set by the Court, see Order [Doc.
# 144], Plaintiff filed a Response in Opposition to Defendants’ Motion for Summary
Judgment [Doc. # 145] (“Response”) and a document entitled Plaintiff’s Objections
to Defendants’ Motion for Summary Judgment Evidence [Doc. # 147]. On February
7, 2012, at 12:26 a.m., Plaintiff filed a document entitled Plaintiff Pete Gonzales’s
Objections and Responses to Defendants’ Statement of Uncontroverted Facts [Doc.
# 148]. On February 8, 2012, Plaintiff filed a document entitled Supplemental
Declaration of David J. Van Susteren Attaching and Authenticating Certain
Documents Referenced by Plaintiff in the Objections to Summary Judgment Evidence
[Doc. # 149].
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responded. The motions are ripe for decision. Having considered the parties’ briefing,
the applicable legal authorities, and all matters of record, the Court concludes that
Defendants’ summary judgment motion should be granted.
I.
BACKGROUND
Plaintiff Pete Gonzales was employed by AutoZone as a Parts Service Manager
beginning in December 2005. He states that, while working at an AutoZone store in
Houston on December 17, 2007, he slipped on a puddle of oil but did not fall. He
claims that, as a result of the slip, he twisted his back and ankle and has incurred more
than $100,000 in medical bills. He further claims that he informed his employer of
the incident on December 17, 2007, both verbally and in writing.
As a Texas employee of AutoZone, Plaintiff was covered by the AZTEK
Advantage AutoZone Texas Occupational Injury Benefit Plan (“the Plan,”) which is
governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1001 et seq.
Plaintiff applied for benefits under the Plan. On January 28, 2008, Defendant
Sedgwick Claims Management Inc. (“Sedgwick”), the company that administered and
adjusted Plaintiff’s claim, sent Plaintiff a letter denying his claim on two grounds:
first, Plaintiff had not reported his injury within 24 hours as required by the Plan; and
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second, Plaintiff had not sought medical treatment with an approved provider under
the Plan.2
Plaintiff appealed the denial of benefits. On September 2, 2008, the Appeals
Committee for the Plan affirmed the denial on the ground that Plaintiff’s appeal had
not been timely filed.3
Plaintiff filed this suit on December 18, 2009, and has been ordered to replead
several times. His Fourth Amended Complaint [Doc. # 83-1], filed on March 14,
2011, is the live pleading. On June 16, 2011, the Court issued a Memorandum and
Order [Doc. # 114], dismissing Plaintiff’s claim for equitable relief under ERISA
(Count III of the Fourth Amended Complaint) by Plaintiff’s agreement. In the same
order, the Court granted Defendants’ motion to compel arbitration of Plaintiff’s claims
for non-subscriber liability and premises liability (Courts V and VI of the Fourth
Amended Complaint).
The claims currently pending before this Court are Plaintiff’s claims for
benefits under ERISA (Count I), declaratory judgment (Count II), and attorneys’ fees
(Count IV).
2
Letter from J. Emerson to P. Gonzales, dated Jan. 28, 2008 (Exhibit C to Motion)
(“Denial Letter”). The letter was authored by Claims Examiner Justin Emerson.
3
Letter from S. Buessink to P. Gonzales, dated Sept. 2, 2008 (Exhibit M to Motion);
Appeals Committee Meeting Minutes, dated Sept. 2, 2008 (Exhibit S to Reply).
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II.
PRELIMINARY MATTERS
The Court first addresses several non-dispositive motions filed by the parties.
A.
Motion to Dismiss Specific Defendants
Defendants have filed a Motion to Dismiss Specific Defendants [Doc. # 140]
urging that AZer Texas, LLC, and AutoZone Texas, LP, each should be dismissed.
Plaintiff has filed no opposition. In Plaintiff’s Fourth Amended Complaint, the only
claims brought against AZer Texas, LLC, and AutoZone Texas, LP, are Counts V
(non-subscriber liability) and VI (premises liability), both of which have been
compelled to arbitration by this Court.4 The motion therefore is meritorious and will
be granted. The remaining Defendants in this action are AutoZoners, LLC; the Plan;
and Sedgwick Claims Management Services, Inc.5
B.
Motion to Strike Untimely Filed Documents and to Sanction
Plaintiff’s Counsel
Defendants’ Reply contains a “Motion to Strike Untimely Filed Documents and
Sanction Plaintiff’s Counsel,” requesting that the Court strike as untimely filed two
4
Memorandum and Order, dated June 16, 2011 [Doc. # 114].
5
Although the Fourth Amended Complaint also alleges claims against AutoZone, Inc.,
the Court previously dismissed all claims against that Defendant. See Order, dated
April 29, 2011 [Doc. # 103].
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documents filed by Plaintiff in conjunction with his summary judgment response.6
Plaintiff has not responded.
On January 26, 2012, this Court granted Plaintiff’s counsel an extension of time
for summary judgment briefing.7 The Court permitted Plaintiff’s counsel an extension
until February 6, 2012, despite the fact that Plaintiff had provided scant information
justifying his request for an extension. The Court further warned that no further
extensions would be granted, and that Plaintiff’s filings must comply with Federal
Rule of Civil Procedure 11(b).8
On February 6, 2012, the deadline set by the Court, Plaintiff filed his Response
[Doc. # 145] and a document entitled “Objections to Motion For Summary Judgment
Evidence” [Doc. # 147].9 On February 7, 2012, at 12:26 a.m., Plaintiff filed
“Objections and Responses to Defendants’ Statement of Uncontroverted Facts” [Doc.
# 148]. On February 8, 2012, Plaintiff filed a “Supplemental Declaration of David J.
Van Susteren Attaching and Authenticating Certain Documents Referenced by
6
Reply [Doc. # 150], at 3-5 (moving Court to strike Documents No. 148 and 149).
7
Order [Doc. # 144].
8
Id. at 2-3.
9
Plaintiff also filed a response to Defendants’ Motion to Exclude Plaintiff’s Experts
[Doc. # 146] on February 6, 2012.
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Plaintiff” in the Objections to Defendants’ Summary Judgment Evidence [Doc. # 149].
The two documents Defendants move to strike were filed untimely and with no
request for the Court’s leave, despite the Court’s previous Order and Rule 11
warning.10 Defendants may file, on or before April 10, 2012, a memorandum in
support of their running motion to sanction Plaintiff’s counsel, and may address
counsel’s conduct in litigating the summary judgment motion as well as all other
relevant conduct during litigation of this case.
In an abundance of caution, and to ensure that Plaintiff is not unfairly
prejudiced by his counsel’s conduct, the Court declines to strike Documents No. 148
and 149 as untimely and has reviewed and considered both documents.
C.
Plaintiff’s Objections to Defendants’ Summary Judgment Filings
Plaintiff has raised multiple objections to Defendants’ summary judgment
evidence and to statements made in Defendants’ briefing.11
10
Despite this Court’s Order of January 26, Plaintiff’s counsel stated that he was
“unaware of any federal or local rule by which objections (or referenced documents
or exhibits therein) to a movant’s summary judgment evidence are obligated to be
filed on or before the summary judgment response due date.” Doc. # 149, at 1.
11
See Plaintiff’s Objections to Defendants’ Summary Judgment Evidence [Doc. # 147];
Objections and Responses to Defendants’ Statement of Uncontroverted Facts [Doc.
# 148]; Supplemental Declaration of David J. Van Susteren Attaching and
Authenticating Certain Documents Referenced by Plaintiff in the Objections to
Defendants’ Summary Judgment Evidence [Doc. # 149].
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Many objections raised by Plaintiff’s counsel are immaterial because they
pertain to statements or evidence upon which the Court does not rely for any rulings.12
For the documents upon which the Court does rely, Plaintiff’s objections will be
discussed and ruled upon in the course of the Court’s analysis herein. Those
objections not specifically addressed by the Court are overruled or moot.
III.
MOTION FOR SUMMARY JUDGMENT
Defendants seek summary judgment on all three of Plaintiff’s remaining claims:
a claim for benefits under ERISA § 502(a)(1), 29 U.S.C. § 1132(a)(1); a claim for
declaratory judgment; and a claim for attorneys’ fees under 29 U.S.C. § 1132(g).
A.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial.13 “The court shall
12
In addition, many of Plaintiff’s objections in Document # 148 are simply objections
to Defendants’ characterization of certain facts as “undisputed.” The Court has not
accepted Defendants’ representation of which facts are disputed, but rather has
considered all evidence presented by both sides when determining whether or not a
genuine issue of material fact exists on each issue before the Court.
13
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers
Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).
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grant summary judgment 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.”14
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.”15 The moving party, however, need not negate the elements of the
non-movant’s case.16 The moving party may meet its burden by pointing out “the
absence of evidence supporting the nonmoving party’s case.”17
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial.18 “An issue is material if its resolution could affect the outcome of the
action. A dispute as to a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”19
14
FED. R. CIV. P. 56(a); Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA Indus., Inc.,
529 F.3d 335, 339 (5th Cir. 2008).
15
Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
16
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005).
17
Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) (internal
citations and quotations omitted).
18
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted).
19
DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and
quotation marks omitted).
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In deciding whether a genuine and material fact issue has been created, the facts
and inferences to be drawn from them must be reviewed in the light most favorable
to the nonmoving party.20 However, factual controversies are resolved in favor of the
non-movant “only ‘when both parties have submitted evidence of contradictory
facts.’”21 The non-movant’s burden is not met by mere reliance on the allegations or
denials in the non-movant’s pleadings.22 Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the non-movant’s burden.23 Instead, the
nonmoving party must present specific facts which show “the existence of a genuine
issue concerning every essential component of its case.”24 In the absence of any proof,
20
Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.
2003).
21
Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting Olabisiomotosho v.
City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)).
22
See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002), overruled on other grounds, Grand Isle Shipyards, Inc., v. Seacor Marine,
LLC, 589 F.3d 778 (5th Cir.2009).
23
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008).
24
Am. Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir.
2003) (citation and internal quotation marks omitted).
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the court will not assume that the non-movant could or would prove the necessary
facts.25
Affidavits cannot preclude summary judgment unless they contain competent
and otherwise admissible evidence.26
A party’s self-serving and unsupported
statement in an affidavit will not defeat summary judgment where the evidence in the
record is to the contrary.27
Finally, “[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court. Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence
to support a party’s opposition to summary judgment.”28
25
Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1990)).
26
See FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated”); Love v. Nat’l Medical Enters., 230 F.3d 765, 776 (5th Cir. 2000);
Hunter-Reed v. City of Houston, 244 F. Supp. 2d 733, 745 (S.D. Tex. 2003).
27
See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000).
28
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal citations and
quotations omitted).
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B.
Claim under ERISA Section 502(a)(1)
Plaintiff alleges in his Fourth Amended Complaint that Defendants violated
ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), when they denied his claim for
benefits because the denial was arbitrary and capricious. He seeks to recover benefits
under the terms of the Plan and to enforce his rights under the Plan.29
1.
Review under Arbitrary and Capricious Standard
Courts apply an abuse of discretion standard of review when, as in this case, the
insurance plan gives the insurer discretion to determine eligibility for benefits and
construe plan terms.30 Under the abuse of discretion standard, “when ‘the plan
fiduciary’s decision is supported by substantial evidence and is not arbitrary and
capricious, it must prevail.’”31 “‘Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
29
Fourth Amended Complaint [Doc. # 83-1], at 9-11.
30
Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 925 (5th Cir. 2008) (citing
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
31
Id. (quoting Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 397 (5th
Cir. 2007)).
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as adequate to support a conclusion.’”32 The court is not free to substitute its own
judgment in place of the judgment of the plan administrator.33
Defendants’ denial of Plaintiff’s benefits rested on two independent grounds:
the “approved medical provider rule” and the “24 hour rule.” The Denial Letter
stated:
After reviewing your benefits claim, we have determined that this claim
was not reported within 24 hours and must be denied in full.
According to the recorded statement given on January 18, 2008 your
injury occurred on December 17, 2007 but that you did not report the
injury until December 19, 2008 [sic]. The Plan states that all injuries
must be reported within 24 hours from the date in [sic] which it occurred.
Furthermore, you stated to have sought medical treatment with Dr. LugoFaria who is not considered an Approved Provider. The Plan does not
cover medical treatment sought outside the network nor does it cover any
lost time incurred due to the treatment plan of the Unapproved
Provider.34
32
Burtch v. Hartford Life and Accident Ins. Co., 314 F. App’x 750, 754 (5th Cir. 2009)
(quoting Corry, 499 F.3d at 398)).
33
Williams v. Metropolitan Life Ins. Co., 609 F.3d 622, 630 (4th Cir. 2010); Chapman
v. Prudential Life Ins. Co. of Am., 267 F. Supp. 2d 569, 577 (E.D. La. 2003).
34
Letter from J. Emerson to P. Gonzales, dated Jan. 28, 2008 (Exhibit C to Motion)
(“Denial Letter”). Plaintiff asserts that the Denial Letter is insufficient because the
administrator “failed to offer any explanation of its reasoning,” as required by 29
U.S.C. § 1133. Response, at 7-8 (citing Leake v. KrogerTexas, L.P., 2006 WL
2842024, *6 (N.D. Tex. 2006)). Plaintiff’s argument is meritless. The case cited by
Plaintiff holds as follows:
A court will excuse a failure to comply with the technical requirements
(continued...)
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Defendants argue that substantial evidence supports both grounds for the denial.35 As
explained below, the Court agrees.
a.
34
Approved Medical Provider Rule
(...continued)
of § 1133(1) and related regulations if the purposes of § 1133(1) are
fulfilled. The purposes of the § 1133 notice provision are to ensure that
a claimant understands the reasons her claim was denied and
comprehends her right to review of the decision. To ensure that the
claimant understands the reasons for the claim decision, a plan
administrator must articulate the specific reasons for denying the claim,
but it need not explain to the claimant the reasoning behind the reasons.
Leake, 2006 WL 2842024, at *6 (internal quotation marks and citations omitted). In
the case at bar, the Denial Letter was perfectly clear. It stated that Plaintiff’s claim
was being denied because the injury was not reported within 24 hours and because he
sought medical treatment from a non-approved provider. Denial Letter, at 1.
In addition, Plaintiff objects to the Denial Letter as evidence because Defendants
failed to provide a return receipt showing the date when plaintiff received a copy of
the adverse benefits determination. Plaintiff’s Objections to Defendants’ Motion for
Summary Judgment Evidence [Doc. # 147], at 4-5. Because this Court does not rely
on the date of Plaintiff’s receipt of the Denial Letter for any of its rulings, this
objection is denied as moot.
Plaintiff further objects to the Denial Letter, and to all exhibits authenticated by
affidavits from Justin Emerson, contending the authenticating affidavit is
“incomprehensible” and does not individually address each document submitted.
Doc. # 147, at 3. Defendants’ system for authentication (see Reply, at 6) is imprecise
but comprehensible. Plaintiff’s objections are overruled. Plaintiff does not dispute
that the records are of Defendants’ regularly conducted activity, that the documents
are authentic, or that the documents were produced to Plaintiff in discovery.
Plaintiff’s objections to Emerson’s authentication affidavits are overruled.
35
Plaintiff states, “Defendants have never controverted the facts that plaintiff was
injured on the job, that the procedures performed as a result were medically necessary,
or that the costs of those procedures were reasonable.” Response, at 2. None of these
facts are material to the summary judgment issues before the Court.
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Defendants’ denial of benefits rested in part on Plaintiff’s failure to seek
medical care from an approved provider under the Plan. The Denial Letter cited to an
interview of Plaintiff by Justin Emerson, claims examiner for Sedgwick, in which
Plaintiff stated that he had received treatment from Dr. Lugo-Faria, a physician with
an office “across the street” from the AutoZone store where Plaintiff worked.36 Dr.
Lugo-Faria is not an approved provider under the Plan.
Plaintiff has not submitted any evidence that he received treatment from an
approved provider, nor that he sought such treatment but could not obtain it.37 His
summary judgment briefing fails to dispute Defendants’ evidence on this point.
Indeed, Plaintiff’s briefing wholly fails to address the approved provider issue in the
context of his Section 502(a)(1) claim, and his Fourth Amended Complaint does not
include a Section 502(a)(1) claim complaining about denial of benefits on the basis
of the approved provider rule.38
36
Recorded Statement of Pete Gonzales (Exhibit Q to Motion) (“Gonzales Recorded
Statement”), at AZ 10, 14; Denial Letter.
37
Plaintiff submitted to Defendants an “off work” slip from Casa de Amigos Health
Center, which stated that he was treated at the clinic on December 17, 2007. Exhibit
G to Motion. However, Casa de Amigos also is not an approved medical provider
under the Plan.
38
Fourth Amended Complaint, at 9-11.
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Because Defendants have presented substantial evidence supporting their
decision to deny benefits to Plaintiff based on non-compliance with the approved
provider rule, and because Plaintiff has failed to present any evidence demonstrating
a genuine question of material fact on this issue, summary judgment is granted for
Defendants.
b.
24 Hour Rule
As an additional ground, and because the parties have fully briefed the issue,
the Court addresses Plaintiff’s claim that Defendants’ denial based on the 24 hour rule
was not supported by substantial evidence.
Plaintiff argues that he complied with the notice requirement, informing his
employer of his injury within 24 hours. Plaintiff points to a handwritten note he
wrote, dated December 17, 2007, the day of the incident, which he marked “10:00
a.m.” The note states that he slipped and sprained his ankle and lower back, and that
he informed his supervisor, Stacey Battle, of the spilled oil.39 Plaintiff avers in an
39
Plaintiff’s Handwritten Note, dated Dec. 17, 2007 (Exhibit F to Motion) (“I slipped
on some oil today and sprained my ankle and the lower part of my back. I put oil dry
on it and advised my manager Stacey Battle of the problem.”). The note is not
addressed to anyone but, at the bottom, states “C.C. File,” “C.C. Autozone Corp
Office,” and “C.C. Dr. if needed.” Elsewhere in the record, however, Gonzales
stated that the accident happened later than 10:00 a.m., the time given on the note.
See Gonzales Recorded Statement (Exhibit Q to Motion), at AZ-7 (when asked what
time the incident occurred, Gonzales stated “Oh, I am going to say about 10:30 . . .
11:00 in the morning.”).
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affidavit that he reported the incident to Battle on December 17, and that he told her
he was injured as a result of the incident.40 His affidavit further states that he “left []
with Stacey Battle” his handwritten description of the incident dated December 17.41
Plaintiff also refers to his own recorded statement to Emerson on January 18, 2008 in
which he stated that, right after he slipped, he orally notified Battle that “there is some
oil back there” and that he had slipped and hurt himself.42
Defendants argue that substantial evidence in the record supports the
administrative decision that Plaintiff did not comply with the 24 hour rule. The issue
here is not whether there is a genuine fact dispute about Plaintiff’s reporting the
incident within 24 hours, but rather whether there is a genuine fact issue that
40
Affidavit of Pete Gonzales, dated Feb. 6, 2012 (Exhibit B to Response), at 1, ¶ 3.
41
Id. at 2, ¶ 4. Plaintiff also stated, in an account that differs from his affidavit, that he
merely placed his handwritten incident report in a file cabinet and mentioned it to a
coworker, Jose Hernandez. See id. at AZ-20 (“Monday [December 17, 2007] I made
out the . . . written statement of what happened. . . . Like an incident report I made it
out . . . put it in the file cabinet and I told Jose [Hernandez] if anybody needs it there
is it man you know what happened.”).
42
Gonzales Recorded Statement, at AZ-9. Plaintiff’s briefing also cites to allegations
in his Complaint, which alleges that he notified his supervisor “[w]ithin minutes” of
the incident, both verbally and in writing. Fourth Amended Complaint [Doc. # 83-1],
at 5. Allegations in a complaint are not summary judgment evidence that can prevent
summary judgment against the Plaintiff. See Diamond Offshore, 302 F.3d at 545
n.13.
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Defendants have presented “substantial evidence” supporting the administrative
decision.43
The record contains evidence that Battle reported on January 3 that she was not
notified of Gonzales’ injury until January 2, 2008.44 On January 18, 1008, she spoke
with Emerson regarding the incident and reported that “there was an oil spill that
[Gonzales] cleaned up” on a date she could not recall; she “firmly” stated to Emerson
that Gonzales “did not mention any injury or that he slipped and fell at any time.”45
On January 24, 2008, Emerson spoke to Gonzales’ coworker, Jose Hernandez, who
43
See Sanders, 553 F.3d at 925; Burtch, 314 F. App’x at 754.
44
Written Statement of Stacey Battle, dated Jan. 3, 2008 (Exhibit D to Motion) (“I,
Stacey Battle[,] was never notified by Pete Gonzales that he had slipped on some oil
and that he sprained his ankle and the lower part of his back. I received a note on
Wednesday the 2nd of January 2008 indicating that Pete had a work related injury.
I researched and discovered that Pete did not report the injury to Sedgwick Claims.
I am filling out an AutoZoners Incident Report and reporting the injury to Sedgwick.
Pete did not seek medical treatment from our designated medical provider. I have
repeatedly [tried] to contact Pete to no avail.”).
On January 7, Battle reported to Emerson that Gonzales had been scheduled for
vacation the week beginning December 28, 2007, and that he did not speak with
anyone regarding the incident or injury. She states that Gonzales, on January 2, 2008,
left a note “on the counter” stating that he could not work until January 15. Sedgwick
Claims File (Exhibit E to Motion), at AZ 453. Plaintiff apparently did not return to
work at the store on January 15, id. at AZ 450, or any time thereafter. See Doc. # 148,
at 8 (Plaintiff admits that he did not return to work after January 15).
45
Sedgwick Claim Notes (Exhibit E to Motion), at AZ 447. Plaintiff objects to Battle’s
purported statement as hearsay. See Doc. # 148, at 3. However, the Court does not
rely on Battle’s statement for the truth of the matter she asserts, but rather considers
the Claim Notes file as evidence of what Emerson and Defendants relied upon when
deciding on Plaintiff’s application for benefits. Plaintiff’s objection is overruled.
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reported that Gonzales had told him “he slipped and fell but was ok,” and that
Hernandez did not recall Gonzales saying that he was going to seek medical
treatment.46
Plaintiff argues that Defendants’ evidence regarding when Plaintiff actually
reported the accident is internally inconsistent, and thus cannot suffice as substantial
evidence, especially when contradicted by Plaintiff’s evidence. However, as noted,
the question before this Court is not the typical summary judgment inquiry into
whether Plaintiff has demonstrated a genuine issue of material fact whether he actually
reported his injury within 24 hours. Rather, in this ERISA context, the question is
whether there is a genuine issue of fact that “substantial evidence” supports the
administrator’s decision that Plaintiff did not comply with the rule.47
46
Sedgwick Claim Notes (Exhibit E to Motion), at AZ 445. Again, Plaintiff objects on
hearsay grounds to Hernandez’s purported statement, see Doc. # 148, at 7, but the
Court does not rely on Hernandez’s statement for the truth of the matter asserted.
Hernandez reported to Emerson that he could not recall precisely when Gonzales had
told him about the incident, but that it was days or weeks after the fact. Sedgwick
Claim Notes, at AZ 445. This conflicts with Gonzales’ interview with Emerson, in
which Gonzales stated that he had told Hernandez on December 19 that he had hurt
his back and was going to see a doctor. Gonzales Recorded Statement, at AZ 16. At
another point in his interview, Gonzales stated that he told Hernandez about the
incident on December 17, when he put his handwritten note in the file cabinet. See
id. at AZ 20.
47
See Sanders, 553 F.3d at 925; Burtch, 314 F. App’x at 754. “Substantial evidence”
is “more than a scintilla” and “less than a preponderance.” Burtch, 314 F. App’x at
754.
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18
Based on all the evidence of record, the Court concludes that Plaintiff has not
demonstrated a genuine issue of material fact that there is an absence of substantial
evidence supporting Defendants’ administrative decision to deny Plaintiff benefits
because he failed to report the injury within 24 hours. Summary judgment for
Defendants therefore is warranted on this ground.48
2.
Enforceability of Plan Terms
Plaintiff additionally argues, in his briefing addressing his Section 502(a)(1)
claim, that the Plan terms are not enforceable against him because he did not receive
a copy of the Summary Plan Description (“SPD”), and thus the Plan terms were not
disclosed to him, until after he filed this lawsuit. He concedes that the SPD contains
the relevant requirements regarding the 24 hour rule and the approved medical
provider rule, but argues that Defendants did not comply with statutory requirements
for timely provision of the SPD to Plan beneficiaries. He seeks equitable remedies of
reformation and estoppel, arguing that “this Court is empowered to estop, excise, or
48
Defendants additionally argue that summary judgment is warranted on Plaintiff’s
claim under Section 502(a)(1) because Plaintiff failed to timely appeal the denial of
benefits. Motion, at 9-11. Given the holdings above granting summary judgment on
separate grounds, the Court need not address Defendants’ additional argument.
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relax the 24-hour reporting and approved medical provider provisions that defendants
claim justify denial of plaintiff’s claim for medical benefits under ERISA.”49
Plaintiff’s claim for equitable relief fails. To the extent he now seeks to assert
an equitable relief claim under Section 502(a)(3), he is barred because he agreed to
dismiss that claim on June 16, 2011.50 Plaintiff’s agreement was after the Supreme
Court decided CIGNA Corp. v. Amara,51 a case upon which he now relies. In any
event, the equitable relief discussed in Amara was a remedy for false or misleading
information provided by a plan administrator, and thus was based on facts materially
different from those alleged by Plaintiff in this case, i.e., the Plan’s alleged failure to
provide him a copy of an SPD.52
49
Response, at 5-6 (citing CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011)). Plaintiff
further alleges in his Response, at 5, that Defendants’ alleged violations of ERISA’s
disclosure requirements entitle him to seek civil penalties under Section 502(c), 29
U.S.C. § 1132(c). This contention is rejected. Plaintiff has not pleaded a claim under
Section 502(c). See Fourth Amended Complaint [Doc. # 83-1].
50
See Doc. # 112. See Memorandum and Order, dated June 16, 2011 [Doc. # 114], at
4 (“Count III seeks injunctive relief under ERISA, 29 U.S.C. § 1132(a)(3)(A).
Plaintiff’s response unequivocally states that he does not oppose dismissal of Count
III, and he thus abandons this claim. Count III therefore will be dismissed by
agreement.”).
51
131 S. Ct. 1866 (2011). The Supreme Court issued the Amara decision May 16,
2011.
52
See Amara, 131 S. Ct. at 1879-80 (discussing reformation and estoppel).
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Alternatively, to the extent that Plaintiff seeks equitable relief under Section
502(a)(1)(B), which authorizes an action to enforce the terms of the Plan as written,53
his claim also fails. The Supreme Court in Amara recently reiterated the scope of that
provision:
Where does § 502(a)(1)(B) grant a court the power to change the terms
of the plan as they previously existed? The statutory language [in
§ 502(a)(1)(B)] speaks of enforcing the terms of the plan, not of
changing them. The provision allows a court to look outside the plan’s
written language in deciding what those terms are, i.e., what the language
means. But we have found nothing suggesting that the provision
authorizes a court to alter those terms, at least not in present
circumstances, where that change, akin to the reform of a contract, seems
less like the simple enforcement of a contract as written and more like an
equitable remedy.54
Plaintiff’s challenge to the enforceability of the Plan’s terms is unavailing, and
Defendants are entitled to summary judgment.
3.
Conflict of Interest
53
Under Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), a civil action may be brought
by a participant or beneficiary “to recover benefits due to him under the terms 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.”
54
Amara, 131 S.Ct. at 1876-77 (internal citations, quotation marks, and alterations
omitted).
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Plaintiff argues that summary judgment should be denied on his claim under
Section 502(a)(1) because Defendants both administered and funded the Plan,
resulting in a conflict of interest.55
In Metropolitan Life Insurance Company v. Glenn,56 the Supreme Court held
that, for ERISA purposes, a conflict of interest exists when the defendant both
evaluates the claim (as administrator of the plan) and pays valid claims (as insurer).57
The Court in Glenn further held that, on judicial review, the conflict of interest
“should be weighed as a factor in determining whether there is an abuse of
discretion.”58 A conflict of interest “should prove more important (perhaps of great
importance) where circumstances suggest a higher likelihood that it affected the
benefits decision, including, but not limited to, cases where an insurance company
administrator has a history of biased claims administration.”59
When the
circumstances suggest “procedural unreasonableness,” they justify giving more weight
55
Response, at 8.
56
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).
57
Glenn, 554 U.S. at 114.
58
Id. at 115 (internal quotation marks and citations omitted). See Crowell v. CIGNA
Group Ins., 410 F. App’x 788, 793 (5th Cir. 2011).
59
Id. at 117.
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to the conflict.60
However, when the conflict is minimal, such as when an
administrator has taken steps to reduce potential bias, it is not an important factor in
the Court’s analysis.61
Plaintiff has not advanced any persuasive argument that the structural conflict
in this case warrants a denial of summary judgment.62 Plaintiff has failed to present
evidence that Defendants’ structural conflict actually affected its decision to deny
benefits in this case.63 In the absence of any such evidence, the Court holds that the
60
Id. at 118. See Schexnayder v. Hartford Life and Accident Ins. Co., 600 F.3d 465,
470-71 (5th Cir. 2010) (“In this case, because the circumstances suggest procedural
unreasonableness, we believe that Hartford’s financial bias may have played a part
in its decision, and therefore the conflict is a more significant factor.”).
61
Glenn, 554 U.S. at 117 (stating that a conflict of interest “should prove less important
(perhaps to the vanishing point) where the administrator has taken active steps to
reduce potential bias and to promote accuracy, for example, by walling off claims
administrators from those interested in firm finances”).
62
Response, at 8 (citing only to Fourth Amended Complaint, at 16-17). A nonmovant’s
summary judgment burden cannot be met by mere reliance on his pleadings.
Diamond Offshore, 302 F.3d at 545 n. 13.
63
See Holland v. International Paper Co., 576 F.3d 240, 249 (5th Cir. 2009) (conflict
of interest was minimal, partly because the defendant had established a trust to pay
benefits and made irrevocable contributions to the trust; furthermore, there was no
evidence that the defendant’s conflict had actually affected its benefits decision);
Robinson v. Hartford Life and Acc. Ins. Co., 2010 WL 3023371, *5 (W.D. La. 2010)
(Stagg, J.) (“Robinson has not pointed to any specific evidence of a history of abuses
of discretion or of how [the defendant’s] structural conflict of interest may have
affected its benefits decision in this particular case. Therefore, to the extent that [the
defendant’s] dual role as both insurer and plan administrator may create a conflict,
that conflict is not a significant factor that would justify a change in the standard of
review.”).
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structural conflict was a not a significant factor in the administrative denial of
Plaintiff’s claim.
4.
Regulatory Requirement for Administrative Review
Plaintiff argues that summary judgment is inappropriate because Defendants
violated federal regulations requiring that an administrative appeal be “conducted by
an appropriate named fiduciary of the plan who is neither the individual who made the
adverse benefit determination that is the subject of the appeal, nor the subordinate of
such individual.”64 Plaintiff conclusorily asserts that he was “denied meaningful
review,”65 but offers no explanation of the assertion’s relevance to a claim under
Section 502(a)(1), which entitles a participant to enforce his rights under the terms of
an ERISA plan. Plaintiff also does not establish what remedy would be available to
him if he proved that the regulation was violated.
In any event, Plaintiff has not presented competent summary judgment evidence
that the regulation actually was violated. Plaintiff claims that Carmen Haskell,
AutoZone’s Risk Manager and ERISA Plan Claims Administrator, made the initial
adverse benefit determination in his case, and that she then was “[p]resent at and
64
Response, at 8-9. Plaintiff cites to 29 C.F.R. § 2520.104b-2 as the regulation
supporting his argument; however, this regulation does not contain the language he
quotes. Plaintiff apparently meant to cite to 29 C.F.R. § 2560.503-1(h)(3)(ii), which
contains the quoted language.
65
Response, at 9.
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participating in the appeals committee hearing” and was “the person presenting the
claim at the appeals committee hearing.”66 Contrary to Plaintiff’s position, the record
clearly reveals that the initial adverse determination was made by Justin Emerson, not
by Haskell.67 Further, Plaintiff has presented no evidence that Haskell “conducted”
the appeal of Plaintiff’s claim. Rather, Haskell was present at the appeals meeting as
the Claims Administrator.68 She accordingly presented the claim and the relevant
documents to the Appeals Committee.69 As Plaintiff acknowledges in his briefing,
committee members Steve Beussink and Nancy Stephens were the only persons who
voted on the outcome of Plaintiff’s appeal. Haskell testified at deposition, without
contradiction, that when she presented Plaintiff’s claim to the appeals committee, she
66
Id.
67
Denial Letter (Exhibit C to Motion) (signed by Emerson). In support of his assertion
that Haskell made the initial adverse determination, Plaintiff cites only to an entry in
Sedgwick’s claim file notes. In that entry, dated January 23, 2008—five days before
Defendants denied Plaintiff’s claim—Haskell stated, “I agree” in an email sent to
Emerson and others. Sedgwick Claim Notes (Exhibit E to Response), at AZ 445. The
message contains no other text. It does not make clear the statement or position with
which Haskell is agreeing. To the extent Plaintiff is asserting that this cryptic
message demonstrates that Haskell, rather than Emerson, was the person making the
initial determination, Plaintiff’s argument lacks merit. A reference to an ambiguous
hearsay statement showing that Haskell participated in a written exchange regarding
Plaintiff’s claim days before the decision apparently was made does not demonstrate
that she personally made the determination.
68
Appeals Committee Meeting Minutes, Sept. 2, 2008 (Exhibit C to Response).
69
Id.
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did not recommend what the committee should do.70 Plaintiff has not demonstrated
a genuine question of material fact that Haskell was the decisionmaker on Plaintiff’s
claim either at the initial determination or at the appellate level. His argument that
Defendants violated federal regulations regarding a claimant’s appeal of an adverse
ruling is rejected.
For all of the foregoing reasons, summary judgment is granted for Defendants
on Plaintiff’s claim under Section 502(a)(1) of ERISA.
C.
Declaratory Judgment
Plaintiff seeks a judgment under 28 U.S.C. §§ 2201, 2202, declaring that certain
provisions in the Plan are unreasonable and unenforceable. He relies on a general
regulatory requirement that ERISA group benefit plans be administered in a
reasonable manner.71
Plaintiff’s Fourth Amended Complaint alleges that six aspects of the Plan are
unreasonable. Defendants’ Motion addresses all of Plaintiff’s allegations. However,
Plaintiff’s Response states that only two aspects of the Plan are now at issue: (1)
Article 4.1 regarding 24 hour notice of injury, and (2) Articles 1.1 and 4.2 regarding
70
Deposition of Carmen Haskell (Exhibit T to Reply), at 54.
71
Fourth Amended Complaint [Doc. # 83-1], at 12-15. See 29 C.F.R. § 2560.503-1(b)
(“Every employee benefit plan shall establish and maintain reasonable procedures
governing the filing of benefit claims, notification of benefit determinations, and
appeal of adverse benefit determinations . . . .”).
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approved medical providers.72 The Court deems the remaining alleged bases for
Plaintiff’s declaratory judgment claim abandoned, and addresses the two provisions
at issue.
1.
24 Hour Rule (Plan Article 4.1)
Plaintiff argues that Article 4.1 of the Plan is unreasonable. Article 4.1 requires
a Plan participant to report every incident or fact that results, or might reasonably be
expected to result, in an injury. Specifically, the Plan provides:
The Participant . . . must provide verbal notice immediately after being
injured at work to his or her Manager On Duty, no matter how minor the
injury appears to be. For injury due to an Accident, or for a known
exposure to an Occupational Disease, verbal notice must be provided
within 24 hours of the time of the injury. For an actual injury due to
Occupational Disease or Cumulative Trauma, verbal notice must be
provided within 24 hours after being medically diagnosed or within 30
days after the Participant should have known of the injury, whichever is
earlier.73
Article 4.1 further provides that “[n]o benefits will be payable under the Plan if notice
is not provided as required above,” but includes an exception if “the Claims
72
Plaintiff’s Response, at 12 (“In Count II of his Complaint, plaintiff seeks to have
various terms of his ERISA plan declared unreasonable. At this stage in the litigation,
there are two provisions of plaintiff’s ERISA Plan that he seeks declared unreasonable
. . . (citing Fourth Amended Complaint, at 12-15)).
73
Official Plan Document (Exhibit B to Motion), at AZ 244 (Article 4.1(a)). Plaintiff
objects to Defendants’ reliance on the Plan document on the ground that Defendants
have not offered proof that Plaintiff ever received a copy of the Plan before litigation
began. Doc. # 147, at 3-4, ¶ 7. Plaintiff fails to explain how he could pursue benefits
under the Plan, as he does in this lawsuit, without the Plan being considered as
evidence. Plaintiff’s evidentiary objection to the Plan is overruled.
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Administrator determines that good cause exists for failure to give notice in a timely
manner.”74 Plaintiff claims that the 24 hour notice rule is unreasonable “as it is simply
too short of a time period to allow for reporting of an injury,” is susceptible to “gross
unfairness,” has been used to deny valid claims, and allows arbitrary and capricious
denial of plan benefits.75 These arguments are unavailing.
First, Plaintiff asserts elsewhere that he did report his injury within 24 hours,
by allegedly informing Battle verbally and by handwritten note which he claims to
have “left with” her.76
To the extent Plaintiff actually reported the injury as he
claims, he would have satisfied the Plan’s 24 hour notice requirement. By his own
admission, therefore, the shortness of the time period is not unreasonable.
Second, Defendants have presented evidence of Article 4.1’s reasonableness.77
As stated above, Article 4.1(a)(2) provides a “good cause” exception to the 24 hour
74
Id. at AZ 445 (Article 4.1(a)(2)).
75
Fourth Amended Complaint [Doc. # 83-1], at 13. Plaintiff further alleges that the
provision is unreasonable because some injuries may not be apparent for over 24
hours and thus cannot be timely reported. However, this criticism is unfounded
because the plain language of the Plan, quoted above, addresses these situations by
providing that such an injury be reported within 24 hours of diagnosis or 30 days after
the participant should have known of the injury, whichever is sooner. Plaintiff has not
argued that this clause of Article 4.1(a) is properly applied to him.
76
Plaintiff’s Handwritten Note, dated Dec. 17, 2007 (Exhibit F to Motion); Gonzales
Affidavit, at 1-2, ¶¶ 3-4; Gonzales Recorded Statement, at AZ-9.
77
29 C.F.R. § 2560.503-1(b)(3) states that claim procedures are “reasonable” if, among
other things they “do not contain any provision, and are not administered in a way,
that unduly inhibits or hampers the initiation or processing of claims for benefits.”
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notice requirement. Article 4.1(a) contains a provision for injuries that cannot be
immediately known, requiring that they be reported within 24 hours of medical
diagnosis or within 30 days after the participant should have known of the injury,
whichever is earlier.78 In addition, Defendants have presented the affidavit of Julie
Lambeth, Senior Vice President of PartnerSource, the company that authored the Plan
for AutoZone.79 Lambeth cites multiple legitimate purposes for the 24 hour notice
rule, including prompt payment of wage replacement benefits where needed,
facilitation of immediate investigation of the workplace, the opportunity to determine
promptly whether an unsafe condition exists, and minimization of the possibility that
78
Article 4.1(a). See Garcia v. Best Buy, 2009 WL 2982788, *8 (S.D. Tex. 2009)
(Harmon, J.) (holding that nearly identical 24 hour notice requirement in an ERISA
plan did not violate federal regulations proscribing requirements that “inhibit or
hamper” claims for benefits).
79
Affidavit of Julie Lambeth (Exhibit J to Motion). Plaintiff objects generally to the
Lambeth Affidavit, without objecting to any specific statement contained in it. See
Plaintiff’s Objections to Defendants’ Motion for Summary Judgment Evidence [Doc.
# 147], at 6, ¶ 17. Plaintiff argues that the Lambeth Affidavit contains the same
information as was provided in her report, which Defendants produced after Plaintiff
had deposed Lambeth and which Plaintiff contends was information about which
Lambeth denied knowledge in her deposition. The Court already considered
Plaintiff’s objections to Lambeth’s report, ruling that she may testify regarding the
information in that report. See Hearing Minutes and Order, dated Nov. 30, 2011
[Doc. # 135] (denying Plaintiff’s Opposed Motion to Strike Julie Lambeth’s Report
[Doc. # 130]). Moreover, the excerpts of Lambeth’s deposition provided by Plaintiff,
see Exhibit 2 to Document # 149, do not support his contention that Lambeth in
deposition denied knowledge of the matters she later addressed. See also infra n.86.
Plaintiff acknowledges that the information in the affidavit is the same information
as in the report. Plaintiff’s objections to the Lambeth Affidavit are overruled.
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a non-work-related intervening event would exacerbate an injury.80 Lambeth also
states that the reporting requirement has not been used to deny a substantial number
of claims: 2,415 claims have been filed since inception of the Plan and 3.4%, or 83
claims, have been denied for late reporting.81
Plaintiff asserts that a genuine question of material fact exists on the issue of
the reasonableness of the 24 hour provision, but cites no summary judgment evidence
in support of his assertion.82 He responds to Defendants’ argument regarding the 3.4%
denial rate by speculating, without citation to the record or any evidence, that “the
value of these denied claims may constitute a substantial amount of the total dollar
value requested under the plan.”83 This response is conclusory and does not raise a
genuine material fact issue to defeat summary judgment.
Plaintiff also asserts that Defendants’ other arguments regarding the purposes
of the 24 hour rule are “so general that they cannot possibly justify defendants’ total
forfeiture rule without giving plaintiff the opportunity to cross-examine witnesses and
80
Id. at 2, ¶ 6.
81
Id. at 2, ¶ 6(j).
82
Response, at 12-14.
83
Id. at 13 (emphasis added).
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look at the data on which the defendants’ conclusions are based.”84 This contention
is unfounded. First, as discussed above, the Plan does not have a “total forfeiture”
rule, but rather one that allows for good cause exceptions to the requirement of timely
notice.85 Second, Plaintiff previously had the opportunity to question Lambeth at
deposition but elected not to delve into this topic despite listing the 24 hour rule
prominently in his subpoena notice.86 Plaintiff’s bare assertion, after discovery has
closed, that he “do[es] not have enough information to evaluate the quality of
defendants’ explanations,”87 is insufficient to defeat summary judgment.
2.
Approved Medical Provider Rule, Articles 1.1 and 4.2
The Plan provides that medical treatment is covered by the Plan only if it is
furnished by or under the direction of an “Approved Physician” or “Approved
Facility.”88 An “Approved Physician” is a duly licensed physician “expressly
approved by the Claims Administrator, included on an approved list of physicians
84
Id.
85
Official Plan Document (Exhibit B to Motion), at AZ 245 (Article 4.1(a)(2)).
86
Plaintiff’s Fourth Amended Notice of Oral/Video Deposition and Subpoena Duces
Tecum of the Designated Representative(s) of PartnerSource, Inc. (Exhibit D to Doc.
# 134), at 5.
87
Response, at 13.
88
Official Plan Document (Exhibit B to Motion), at AZ 219 (Article 1.11(b)). See also
id. at AZ 245-46 (Article 4.2).
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adopted by the Claims Administrator, or otherwise approved in writing by the Claims
Administrator upon the request of a Participant.”89 Plaintiff claims that the provision
requiring beneficiaries to use only approved medical providers, allegedly upon penalty
of forfeiture of all Plan benefits, is unreasonable. He further alleges that the provision
is used to arbitrarily and capriciously deny claims for benefits, is susceptible to gross
unfairness, and has been used to deny valid claims.90
Defendants argue that there is no support for Plaintiff’s allegations and no
evidence that the approved provider rule is used to deny benefits in an arbitrary and
capricious manner, nor that it otherwise inhibits or hampers the initiation or
processing of claims, in violation of federal regulations. In support of the provision’s
reasonableness, Defendants again rely on Lambeth, who states in her affidavit that
AutoZone selects qualified, quality physicians; that physicians are regularly
credentialed to ensure that all licenses are in good standing and no board orders or
suspensions exist; that protocols are developed and agreed to by physicians to ensure
that employees receive proper treatment and are never billed for services rendered;
that physicians are prohibited from referring out diagnostic testing and physical
therapy to eliminate any potential conflicts of interest; and that AutoZone retains a
89
Id. at AZ 216 (Article 1.5).
90
Fourth Amended Complaint, at 13-14.
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Medical Director for the Plan to monitor approved physicians and to prevent claims
from being lost in the system.91
In his briefing opposing summary judgment, Plaintiff cites to no summary
judgment evidence. Instead, Plaintiff asserts that summary judgment is inappropriate
because Defendants have introduced “no competent evidence” to establish that the
administration of the plan is not unreasonable.92 Given Defendants’ evidence, recited
above, this argument lacks merit.
Summary judgment is granted for Defendants on Plaintiff’s declaratory
judgment claim.
D.
Attorneys’ Fees
Plaintiff’s Fourth Amended Complaint seeks attorneys’ fees under 29 U.S.C.
§ 1132(g), which provides that, in an action by a participant, beneficiary, or fiduciary,
“the court in its discretion may allow a reasonable attorney’s fee and costs of action
91
Lambeth Affidavit, at 3-4, ¶ 7. Defendants also cite to the deposition testimony of
Steve Beussink, Assistant Treasurer of AutoZone. Buessink testified that AutoZone
designed a medical network with doctors who are well qualified to treat occupational
disease and injury, that the network has very little professional turnover, and that
wage replacement benefits are immediately available “from day one” with no waiting
period. Deposition of Steve Beussink (Exhibit P to Motion), at 129-30.
92
Response, at 14.
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to either party.”93 A fees claimant must show “some degree of success on the merits”
before a Court may award fees under Section 1132(g).94
Because Plaintiff’s claims for relief all have been dismissed and Plaintiff has
failed to show “some degree of success” on the merits of his claims, summary
judgment is granted in Defendants’ favor on the issue of Plaintiff’s attorneys’ fees.
IV.
CONCLUSION
For all of the foregoing reasons, it is hereby
ORDERED that Defendants’ Motion to Dismiss Specific Defendants [Doc.
# 140] is GRANTED. It is further
ORDERED that Defendants’ motion to strike Documents No. 148 and 149
[Doc. # 150] as untimely is DENIED. It is further
ORDERED that Defendants may file a memorandum in support of their
running motion for sanctions on or before April 10, 2012. It is further
ORDERED that Defendants’ Motion for Summary Judgment [Doc. # 136] is
GRANTED. All of Plaintiff’s claims are DISMISSED with prejudice. It is further
ORDERED that Plaintiff’s objections in Documents # 147, # 148, and # 149
are OVERRULED in part as stated herein and otherwise are MOOT. It is further
93
29 U.S.C. § 1132(g)(1).
94
Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149, 2158 (2010).
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ORDERED that Defendants’ Motion to Exclude Plaintiff’s Experts [Doc.
# 139] is DENIED as moot.
A separate final judgment will issue.
SIGNED at Houston, Texas this 16th day of March, 2012.
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