Keith v. Metropolitan Life Insurance Co et al

Filing 75

MEMORANDUM OPINION AND ORDER (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LINDA KEITH, § Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, CENTRAL BANK, and CENTRAL BANK WELFARE BENEFIT PLAN, Defendants. § § § § § § § § § § § CIVIL ACTION NO. H-15-1030 MEMORANDUM OPINION AND ORDER Plaintiff, Linda Keith, brought this action against defendants, Metropolitan Life Insurance Company ("MetLife"), Central Bank, and Central Bank Welfare Benefit Plan, for breach of fiduciary duty under the Employment Retirement Income Security Act u.s.c. §§ 1001, et seg. and May 16, 2017. ("ERISA"), 29 The case was tried to the court on May 15 After carefully considering the evidence and the parties' arguments, the court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52 (a) (1). I. Factual Backqround 1 Linda Keith met John P. White in 1995. at a White was a customer restaurant Keith then owned and operated. 1 The two became Unless otherwise indicated, these facts are taken from the Admissions of Fact section of the Joint Pretrial Order, Docket Entry No. 53, pp. 11-15, or from trial testimony. close friends and remained so until White's death in 2013. White was a regular at Keith's restaurant and sought Keith's occasional assistance in an unsuccessful business venture. After White closed his business he was hired by Advantage Business White Capital served Advantage ("Advantage") , as from Vice 2008 a President until 2013. subsidiary of of Business Central Development for fewer than 20 employees, and Central Bank had fewer than 100 employees. White's responsibilities included factoring services. Advantage had Bank. soliciting customers for Advantage's As part of his job White was required to pre- qualify customers, which involved reading and understanding complex financial documents. Central Bank was Plan Administrator of the Central Bank Welfare Plan, which provided Central Bank employees with a number of benefits -- including health insurance, supplemental insurance, an employer-matched § 401(k) plan, and life insurance. Descriptions of these benefits were made available to employees A life insurance online and at annual open enrollment meetings. policy covering up to two times the employee's salary was provided at Central Bank's approximately expense. 2 $51,500, giving White' s him ending annual $103,000 of life salary was insurance coverage. From 2008 to 2013 White designated Keith as the beneficiary of his life insurance policy several times. 2 In 2012 White did not Certificate of Insurance, Plaintiff's Ex. 4, p. 19. -2- designate a beneficiary. 3 Unbeknownst to Keith, White designated his checking account payable on death to her. also During his employment with Central Bank White never purchased supplemental insurance, participated in the employer-matched§ 401(k) plan, or elected to increase his life insurance coverage at his own expense. In 2010 White began to complain of difficulties using his left hand. White was eventually diagnosed as suffering from monoplegia and amyotrophic lateral sclerosis Gehrig's disease. (ALS), commonly known as Lou As White's physical condition deteriorated, he could no longer perform his job duties at the bank, and a mutual decision was made for White to take a leave of absence. White's last workday at the bank was March 7, 2013, after which he began a leave of absence under the Family Medical Leave Act (FMLA) . Central Bank continued to make premium payments for White's group insurance coverages, including his life insurance, while White was on leave. Central Bank's long-term disability (LTD) and claims administrator was MetLife. benefits provider On March 17, applied for LTD benefits under MetLife's policy. 2013, MetLife acknowledged receipt of 2013, White On March 18, White's disability application, requested additional information needed to perfect the claim, and advised White that he needed to apply for Social Security disability (SSD) benefits. 3 Guardian Insurance Application, Central Bank's Ex. 5, p. 2. -3- On March 19, 2013, White met with Central Bank's Vice President and Human Resources Manager, Judy Rogers, to discuss his benefits. his Rogers confirmed that White wanted to make no changes to benefits. White reaffirmed his designation beneficiary of his life insurance policy. of Keith as Rogers discussed with White the option of maintaining his life insurance policy after termination at his own expense. Rogers told White that Central Bank would make premium payments on the policy through June 1, 2013, after which White would need to make the payments. 4 White said that he was not interested in maintaining his life insurance policy after his termination, and Rogers therefore did not provide him with the paperwork necessary to do so. 5 Central Bank did not then or at any later time provide White with individual written notice of his right to maintain his life insurance policy. March 21, 2013, email, In a Rogers advised White that after June 30, 2013, he would be responsible for his own health insurance but made no further mention of life insurance. 6 After White ceased working Rogers continued to assist him with claims for LTD benefits and SSD benefits. On March 20, 2013, White 4 Documents and testimony establish to the court's satisfaction that White's monthly cost to convert the Policy to an individual policy was $448.93. 5 The court finds credible Rogers' account of the March 19, 2013, meeting with White and her stated basis for not providing White with the paperwork for porting or converting his policy. 6 Plaintiff's Ex. 47. -4- was interviewed by a MetLife Claim Specialist. 7 White complained about the MetLife representative to Rogers, who then complained to MetLife and subsequently offered to act as a liaison between MetLife and White, instructing MetLife to communicate through her to avoid burdening White. 8 White was in frequent contact with both Rogers and MetLife in the months before his death. Specialist spoke with White. 9 day. 10 On March 22, 2013, a MetLife Claim Rogers emailed White later that White emailed Rogers on March 25, 2013, to notify her that he would be "visiting with Social Security" that week and that he had received the paperwork from MetLife. 11 On March 26, 2013, MetLife approved White's application for LTD benefits and advised White that his LTD benefits would begin on June 6, 2013, after a three-month elimination period. 12 working, 2013. White, although not actively was to remain employed by Central Bank through June 5, During this time he used the remainder of his vacation and leave time. 7 MetLife Claim Activity Record, Plaintiff's Ex. 34, pp. 7-14. 8 Id. at 14-15. 9 Id. at 32-33. 1 °Central Bank's Ex. 17 -A. 11 Central Bank's Ex. 19. 12 MetLife Claim Activity Record, Plaintiff's Ex. 34, p. 33. -5- On April 9, 2013, MetLife internally generated a claim for continuation of group life insurance for White. 13 On May 9, 2013, MetLife sent a letter (uthe May 9th letter") to White acknowledging ureceipt" of the April 9, 2013, claim. 14 MetLife' s May 9th letter stated that White's group life insurance plan included ua provision that continues your coverage while you are not actively at work," advised White that a representative umay be in contact" and that u [n] o action" was required from White at the time. 15 MetLife did not send the May 9th letter to Central Bank. On May 21, 2013, MetLife again wrote to White (uthe May 21st letter"), this time copying Rogers, stating that his insurance plan required him to be totally disabled continuously for nine consecutive months before he would be eligible for continuation of 13 Plaintiff's Ex. 26, p. 1. 14 Id. Despite admitting in its earlier briefing, and in the Admissions of Fact section of the Joint Pretrial Order (Docket Entry No. 53, p. 14), that MetLife usent" letters to White, MetLife now contends that Keith failed to prove the letters were actually mailed to White. The Fifth Circuit uha [s] recognized that ' [p] lacing letters in the mail may be proved by circumstantial evidence, including customary mailing practices used in the sender's business.'" Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (citing Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983)). The court finds the circumstantial evidence in this case, including MetLife's system notes (Plaintiff's Ex. 33) and Rogers' receipt of a copy of the May 21st letter, sufficient to prove that both letters were sent and therefore, presumptively, received by White. See United States v. Ekong, 518 F.3d 285, 287 (5th Cir. 2007) (citing Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989)). lsid. -6- group life insurance coverage during his absence from work. 16 The May 21st letter also stated that MetLife would defer making a decision on White's claim for continuation of group life insurance until December expired. 17 9, when 2013, the nine-month waiting period Neither the May 9th nor the May 21st letter mentioned the need to convert White's life insurance policy or that White could not qualify for continuation of life insurance coverage because he had not become totally disabled before reaching the age of 60. 18 On May 28, insurance. 19 2013, The MetLife contacted White regarding his LTD same day Rogers 20 called MetLife to "get an understanding of the meaning" of the May 21st letter and was told that White would need to convert his life insurance to an individual policy in order to maintain coverage during the waiting period. 21 Rogers did not provide this information to White, and there is no evidence that White inquired about either the May 9th 16 Plaintiff' s Ex. 26, p. 2. 17Id. 18 See Certificate of Insurance, Plaintiff's Ex. ("Total disability must start before You attain age 60 19 4, p. 37 .") MetLife Claim Activity Record, Plaintiff's Ex. 34, p. 42. 20 The court's earlier Memorandum Opinion and Order (Docket Entry No. 48) at page 14 mistakenly stated that "White" contacted MetLife on May 28. 21 MetLife Claims Comment List, Plaintiff's Ex. 33, p. 5. -7- or the May 21st MetLife letter or about any options pertaining to his life insurance policy. 22 White was formally terminated from his position with Central Bank at the end of his FMLA leave on June 5, 2013. Central Bank made its final payment on White's life insurance policy on June 1, 2013. White's life insurance coverage ended on June 30, MetLife' s first LTD payment to White was made by check in the latter part of June 2013. Rogers, 2013. and MetLife Throughout the month of June, White, communicated to set up direct deposit of White's LTD payments. White continued to participate in the benefits process. July 24, Rogers. 2013, On White drove to the bank to drop off papers for White emailed Rogers the following day to say that he had forgotten to give her documents. 23 some MetLife's communication with White was on September 5, 2013, final regarding a reduction of his SSD insurance payment. 24 White thereafter, was found dead on September 14, 2013. Shortly Keith notified MetLife of White's death and MetLife On November 25, 2013, MetLife denied Keith's claim for life insurance benefits. 25 Keith instructed her to submit a death claim. 22 The court finds credible Rogers' testimony that she continued to operate under the belief that White was not interested in paying for life insurance benefits. 23 Plaintiff' s Ex. 50. 24 MetLife Claim Activity Record, Plaintiff's Ex. 34, p. 59. 25 MetLife denial letter to Linda Keith, Plaintiff's Ex. 27. -8- appealed the denial of her claim. On May 1, 2014, MetLife denied Keith's appeal because White's coverage ended on June 30, following the last premium payment on June 1, 2013, 2013, and because White was not eligible for continuation of his insurance since he was 60 years old when he became disabled. 26 Keith filed her Original Complaint against defendants on April 21, 2015. 27 II. Applicable Law An individual plan beneficiary may bring suit for equitable relief for breach of a fiduciary duty under ERISA' s so-called "catch-all" provision, which provides: A civil action may be brought . . . (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan[.] 29 U.S.C. a § plaintiff fiduciary, 1132 (a) (3). To recover "appropriate equitable relief," "must establish that (b) has breached its the defendant is fiduciary duties (a) a plan under ERISA, (c) that such a breach caused the plaintiff's injury, and (d) that the equitable relief sought is indeed appropriate." Shonowo v. Transocean Offshore Deepwater. Inc., Civil Action No. 4:10-cv-1500, 2011 WL 3418405, at *5 (S.D. Tex. Aug. 3, 2011) 26 (citing Brosted v. MetLife denial-of-appeal letter to Linda Keith, Plaintiff's Ex. 36. 27 Docket Entry No. 1. -9- Unum Life Insurance Company of America, 421 F.3d 459, 465 (7th Cir. 2005) A. (other citations omitted). Fiduciary Status 28 The threshold question in an ERISA claim for breach of fiduciary duty "is not whether the actions of some person employed to provide services under beneficiary's interest, fiduciary (that is, a plan adversely was performing a 120 S. Ct. 2143, 2152-53 (2000). fiduciary 1034, 1044 plan (5th Cir. function) Pegram v. when Herdrich, "[T]he issue of ERISA fiduciary status is a mixed question of fact and law." F.3d a but whether that person was acting as a taking the action subject to complaint." 55 affected 1995). Reich v. Lancaster, Under ERISA, one is a fiduciary to the extent that: (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002 (21) (A) In short, "[a] fiduciary within the meaning of ERISA must be someone acting in the capacity of manager 28 The court is aware that fiduciaries under the Plan owe a duty to both participants and non-participant beneficiaries. Because the alleged harm is the loss of benefits under a life insurance policy issued to White for the benefit of Keith, their benefits were aligned, and no further distinction need be made between acting for White's benefit or for Keith's. -10- [or] administrator." Pegram, 120 S. Ct. at 2151. Merely performing administrative duties as required by the plan is not a fiduciary function. Express Corp., See 29 C.F.R. 492 F. App'x 559, § 2509.75-8; Walker v. Federal 565 (6th Cir. 2012); Barrs v. Lockheed Martin Corp., 287 F.3d 202, 207 (1st Cir. 2002); Plumb v. Fluid Pump Service, Inc., 124 F.3d 849, 854-55 (7th Cir. 1997). B. Breach of Fiduciary Duties ERISA Section 404(a) specifies that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and exclusive purpose of: their beneficiaries," and "for (i) providing benefits to participants; and (ii) defraying reasonable expenses of administering the plan." U.S.C. § the 1104 (a) (1) (A). 29 Such duties shall be discharged "with the care, skill, prudence, and diligence under the circumstances then prevailing familiar with enterprise § that of a such a 1104 (a) (1) (B) . ERISA does prudent man matters like acting would character in use and a in with like the capacity and conduct like aims." of an Id. "Other than including these general dictates, not expressly enumerate the particular duties of a fiduciary, but rather relies on the common law of trusts to define the general scope of a fiduciary's responsibilities." Schlumberger, Ltd., 338 F.3d 407, quotation marks omitted) . 412 (5th Cir. Martinez v. 2003) (internal "A trustee has a duty in dealing with a beneficiary to deal fairly and to communicate to the beneficiary -11- all material facts the trustee knows or should know in connection With the rna t ter. Fiduciaries 11 RESTATEMENT (THIRD) who TRUSTS OF gratuitously § 7 8 ( 2 0 0 7) . communicate with plan participants may owe a duty to "do so in a manner calculated to avoid confusion commission." and misunderstanding, whether by omission or See Switzer v. Wal-Mart Stores, Inc., 52 F.3d 1294, 1298-1299 (5th Cir. 1995) (holding that the Fifth Circuit "d[id] not necessarily disagree" with the district court's implication). Other circuits have held that performance of [its] duties, a "fiduciary may not, in the 'materially mislead those to whom the duties of loyalty and prudence are owed.'" Corp. 204 F.3d 475, 492 (3d Cir. 2000). Adams v. Freedom Forge Fiduciaries have "not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful." Unisys Corp. Retiree Medical Benefits Erisa Litigation v. Unisys Corp., 579 F.3d 220, 227 (3d Cir. 2009) (quoting Bixler v. Central Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3dCir. 1993)). C. Harm/Detrimental Reliance If a fiduciary breaches a fiduciary duty, the plaintiff must prove that the breach caused the plaintiff's injury in order to be entitled to equitable relief. "The Fifth Circuit has not Shonowo, squarely 2011 WL 3418405 at *5. addressed what an ERISA beneficiary must establish to recover for misrepresentations by a -12- fiduciary, but . . . to recover under an equitable estoppel theory, an ERISA beneficiary 'must establish a material misrepresentation, reasonable and detrimental reliance upon the representation, and extraordinary Dawson, March No. 3:13-cv-04150-M, 31, 2017) Association, case circumstances.'" (citing 123 F. 3d 281, law consistently and Continental Insurance 2017 WL 1196857, Weir 290 v. Federal (5th Cir. at *6 Asset 1997)). "strongly suggest [s] Co. (N.D. v. Tex. Disposition Fifth Circuit materiality and detrimental reliance are required in the Fifth Circuit for an ERISA beneficiary to recover for a breach of fiduciary duty." Id. The Seventh Circuit has held that "a plaintiff must demonstrate that: (1) the defendant was defendant made 'acting in a fiduciary capacity;' 'affirmative misrepresentations or failed adequately inform plan participants and beneficiaries;' misrepresentation or inadequate disclosure was (2) the to ( 3) the material; and (4) the plaintiff detrimentally relied on the misrepresentation or inadequate disclosure." Unisys, 579 F.3d at 228. III. A. Analysis MetLife 1. Fiduciary Status Keith generated argues a claim that MetLife on White's acted behalf as and communication with him regarding that claim. a fiduciary when it initiated gratuitous MetLife argues that it was acting merely as claims administrator for the Central Bank -13- Plan and not as a fiduciary. Ordinarily, " [a] third-party administrator who merely performs ministerial duties or processes claims is not a fiduciary." Reich, 55 F.3d at 1047. who performs purely ministerial functions such as claims] for an employee benefit plan within "[A] person [processing of a framework of policies, interpretations, rules, practices and procedures made by other persons is not a fiduciary." "because such person does 29 C.F.R. § 2509.75-8. This is not have discretionary authority or discretionary control respecting management of the plan, does not exercise any authority or control respecting disposition of the assets of the plan." Id. management or MetLife argues that the April 9, 2013, internal claim was generated automatically on White's behalf as a result of the determination of White's LTD claim. MetLife's representative testified that its policy is to generate such MetLife' s claims actions in all such exceeded the cases. scope of Keith its argues that administrative or ministerial role. The court finds that MetLife acted as a fiduciary by generating the internal claim for continuation of White's life benefits. In doing so MetLife acted in its discretion on behalf of a plan participant. MetLife presented no evidence that the plan documents required it to generate a claim on White's behalf or that it was otherwise interpretations, operating rules, within a framework of policies, practices and procedures made by other -14- persons. policy to The evidence indicates that it was MetLife's own internal generate continuation of determination of an LTD claim. voluntary, discretionary participant. obtaining a life insurance claims upon MetLife appears to have taken a action for the benefit of a Plan By exercising its discretion to assist White potential benefit, MetLife acted as a in fiduciary. MetLife therefore owed White a fiduciary duty to act in his best interest and to avoid misinforming him. 29 2. Breach of Fiduciary Duties MetLife owed White a statutory duty under ERISA to perform its duties with respect to a plan solely in White's interest and to do so with the care, skill, prudence, and diligence called for by the circumstances. It also owed White a duty to communicate with him in a manner calculated to avoid confusion and misunderstanding, and not to materially mislead him. The court finds that MetLife did not breach these fiduciary duties. The evidence establishes that MetLife was acting solely in White's interest by generating the claim for continuation of coverage. MetLife initiated the claims process on White's behalf to make a potential benefit available to him, notwithstanding that White was ultimately ineligible for the benefit described in MetLife's letters. 29 The court has previously held that MetLife did not act as a fiduciary in other respects. Memorandum Opinion and Order, Docket Entry No. 48, pp. 10-11. -15- Although MetLife's actions could potentially have confused or misled White, sending the May 9th and May 21st letters did not constitute a breach of fiduciary duty because they contained no misinformation. MetLife' s When read in conjunction with the Plan documents, letters did not misstate the circumstances regarding White's coverage or the status of the claim. When the letters were sent, White was still employed and his premiums were still being paid by Central Bank. no action was coverage. The letters therefore accurately stated that then required by White in order to maintain his And because MetLife was not the Plan Administrator, it owed no duty to provide White with notice of his options maintaining coverage upon termination. for The court therefore finds that MetLife did not breach any fiduciary duty to White. 3. Harm/Detrimental Reliance Even if MetLife had breached a fiduciary duty, the court finds that Keith has not proven that MetLife's actions were the cause of her alleged harm (i.e., the loss of benefits under White's life Keith must insurance policy) . prove that, but for MetLife' s actions, White would have maintained his life insurance policy. In effect, on Keith must prove that White detrimentally relied MetLife's letters in failing to take action to maintain his life insurance policy. the Because premium payments were required during 9-month waiting period before any determination of waiver eligibility would be made, Keith must prove that White would have made the payments had he known that he needed to do so. -16- The court finds credible Rogers' testimony that White told her he had no interest in maintaining the life insurance policy at his own expense. Rogers testified that she discussed White's option to maintain his life insurance policy after his termination with him during the exit interview on March 19, 2013. White replied that he had no interest in doing so, and Rogers therefore did not provide him with any further information or with the accompanying paperwork. In addition to Rogers' testimony, circumstantial evidence supports a finding that White would not have maintained the policy at his own expense. White declined to participate in a number of employer-subsidized benefits, including a matching § 401(k) plan and supplemental insurance. White often failed to attend annual meetings were at which benefits paperwork months later. discussed and often completed Moreover, although White designated Keith as the beneficiary of his life insurance policy for several years, in 2012 he neglected to designate any beneficiary for the subsidized life insurance. Although White was fond of Keith and wanted her to receive the benefit.of his life insurance policy in the event of his death, the court finds insurance that White premiums while would not on a have paid substantial fixed disability income life without knowing how long he might need to do so. 3 ° Furthermore, Keith stood 30 Evidence offered at trial shows that White's expected Social Security income was $1,797.10 for September of 2013 and $1,902.00 thereafter (Central Bank's Ex. 21). Evidence also showed that (continued ... ) -17- to receive the balance of White's checking account upon his death, then valued at over $74,000. testimony, self-sufficient. And Keith was, according to her The court concludes that White would not have elected to deplete his limited resources indefinitely in exchange for a benefit that Keith did not need. Even assuming that White did want insurance policy at his own expense, to maintain the life Keith has not proven by a preponderance of the evidence that he would have done so but for MetLife's letters. The evidence of White's ongoing interactions with Central Bank, MetLife, and other benefit providers shows that he was both willing and able to act to secure his desired benefits, as he did with his SSD and LTD benefits. White's duties at the bank involved interpreting complex financial documents, and there is no evidence of mental impairment at the time the letters were sent. White had been confused by MetLife's letters, he contacted either Rogers or MetLife for clarification. could If have The court finds that White did not detrimentally rely on the MetLife letters. B. Central Bank 1. Fiduciary Status An employer, such as Central Bank, acts as an ERISA fiduciary to the extent that it acts in its capacity as plan administrator. 30 ( • • • continued) White's premium payment would have been $448.93 per month, or over 20% of White's income. The only other asset identified that White could have used to pay the premiums was the checking account that he had designated payable on death to Keith. -18- 2. Breach of Fiduciary Duties Keith argues that (1) Central Bank did not fulfill its obligation to pay "up to 9 months" of premium payments after White began his required (3) leave, (2) information Rogers Rogers about failed his to provide White with the options upon termination, failed to communicate to White the and information she obtained in her May 28th phone call with MetLife. Keith first argues that because White left work due to his illness, Central Bank was obligated under the terms of White's life insurance policy to pay his life insurance premiums for up to nine months after he provisions, ceased working. courts are to give "When construing ERISA plan the language of an insurance contract its ordinary and generally accepted meaning if such a meaning exists." Provident Life & Accident Sharpless, 364 F.3d 634, 641 (5th Cir. 2004) Insurance Co. v. (citations omitted). The provision in the policy on which Keith relies states in part: The Employer has elected to continue insurance by paying premiums for employees who cease Active Work in an eligible class for any of the reasons specified below. You will be notified by the Employer how much You will be required to contribute. Insurance will continue for the following periods: 1. for the period You cease Active Work in an eligible class due to injury or Sickness, up to 9 months; At the end of any of the continuation periods listed above, Your insurance will be affected as follows: -20- • if You resume Active Work in an eligible class at this time, You will continue to be insured under the Group Policy; • if You do not resume Active Work in an eligible class at this time, Your employment will be considered to end and Your insurance will end in accordance with the DATE YOUR INSURANCE ENDS subsection of the section entitled ELIGIBILITY PROVISIONS: INSURANCE FOR YOU. 31 Although the court agrees that White qualified for up to nine months of employer-paid premiums while on leave, 32 this provision no longer applied after White was terminated. The clearly deals with temporary absences from work. ceasing "Active Work." provision It refers to "Active Work" is defined in the policy as "performing all of the usual and customary duties of Your job on a Full-Time basis. " 33 The policy further ceasing Active Work and ending employment. distinguishes between Moreover, the eligible categories of "continuation periods" involve temporary conditions including injury or sickness, layoffs, and leaves of absence. These "continuation periods" may end with either a return to Active Work or the end of employment. White was initially entitled to a continuation period of up to nine months of employer-paid premiums because he ceased Active Work 31 Certificate of Insurance, Plaintiff's Ex. 4, p. 30. 32 The court finds that White left work due "Sickness" is a defined term including "illness." White's ALS clearly qualifies, and because he ceased ALS-related symptoms, White ceased work "due to . 33 Id. at 23. -21- to illness. Id. at 23. work due to Sickness." due to sickness on March 7, 2013. But White's continuation period ended because of his termination on June 5, 2 013. The policy states: DATE YOUR INSURANCE ENDS Your insurance will end on the earliest of: 3. the end of the period for which the last premium has been paid for You; or 4. for Basic Life Insurance, the last day of the calendar month in which Your employment ends; Your employment will end if You cease to be Actively at Work in any eligible class, except as stated in the section entitled CONTINUATION OF INSURANCE WITH 34 PREMIUM PAYMENT . The policy states that insurance will end on the earliest of the dates listed. White was terminated on June 5, 2013. White's life insurance therefore ended no later than June 30, 2013, the last day of the calendar month in which his employment ended. After his employment ended White was no longer eligible for insurance under Central Bank's group life insurance policy. 35 as a matter of law, The court concludes, that Central Bank was not required under the terms of the policy to pay White's life insurance premium after he was terminated. The court also finds that Central Bank met its fiduciary duty to inform White of his options upon termination. The court finds 34 Certificate of Insurance, Plaintiff's Ex. 4, p. 27. 35 White would have Under the terms of the policy, maintain coverage at his own expense. -22- had to credible Rogers' testimony that she explained White's options to him in the March 19, 2013, exit interview. Rogers owed no duty to provide White with written notice of his life insurance options after he expressed benefits. As one no interest court in maintaining noted, in contrast life to insurance the statutory requirement that employers provide written notice to employees of their COBRA right to continue health coverage, no such statutory requirement applies to life insurance. Accident Insurance Co., 997 F. Supp. Prouty v. Hartford Life and 2d 85, 90 (D. Mass. 2014). Nor did Rogers breach a fiduciary duty under the terms of the Plan. Although Plan documents indicate that the Plan Administrator should provide participants with a Notice of Right to Convert, Rogers was not obligated to do so in light of White's statement that he was not interested employment was in continuing terminated his and life because insurance White's after options his were explained in the Plan documents made available to all employees. In support of Keith's arguments that Central Bank breached a fiduciary duty by failing to provide White with material information regarding his benefits, Keith relies on a decision from the Western District of Pennsylvania: Company of North America, Civil Erwood v. Action WL 1383922, at *1 (W.D. Pa. April 13, 2017). as here, employee's an employer failed right to convert No. Life Insurance 14-1284, 2017 In the Erwood case, to provide written notice of his -23- life insurance policy to the an individual policy or with the conversion forms with which to do so. At a meeting with the director of human resources and a benefits representative for life insurance and long-term disability, employee showed signs of mental impairment, the repeating the same question several times, and his wife was distraught. Id. at *3. The employee's wife repeatedly asked if their benefits and coverage would remain the same and received assurances from the director. Id. at *2-3. The employer provided the employee with an FMLA leave packet that did not include the information necessary to allow him to convert or continue coverage after the FMLA period. Id. at *3. While on leave, the employee's life insurance policy lapsed without his knowledge. Id. at *11. After the employee died, his wife's claim for death benefits under the policy was denied. Id. at *5. The 29 § court concluded 1132(a) (3) by that failing the to employer provide violated the employee U.S.C. with the information necessary to maintain his life insurance benefit and that the employee and his wife relied to their detriment on the employer's inadequate disclosures. Erwood, while distinguishable. In both Erwood Id. at *12-13. well-written the employer and persuasive, failed to make is the employee or his wife aware of their options either orally or in writing. Here Rogers explained White's options to him in the exit interview and did not provide him with written notice based on his response. In Erwood the employee and his wife clearly expressed a -24- desire to have their insurance benefits remain in effect. White expressed no interest in doing so when given the option by Rogers at his exit interview. 36 The court in Erwood concluded that the inaction that led to the lapse of coverage could only be explained by a detrimental reliance on the employer's assurances. court has previously explained, there are other, explanations for White's inaction. As this more plausible Moreover, as the employer in Erwood was aware, the employee was mentally impaired and his wife was distraught. By all accounts White's cognitive faculties were unaffected by his illness, and he was actively involved in securing his disability and health benefits up until the time of his death. The court's holding in Erwood therefore does not support a finding that Rogers breached any fiduciary duty to White. Rogers did not breach a fiduciary duty to White by failing to report to him the information she learned from MetLife regarding his eligibility to convert his policy. Rogers' communications with MetLife did not yield any new, material information. When Rogers contacted MetLife to gain a clearer understanding of the May 21st letter, she learned that White would need to convert his policy and pay premiums in order to be eligible for a waiver. 36 Since White had Keith argues that White's decision to continue with the same designated beneficiary is evidence of White's intent to maintain coverage. But maintaining Keith as beneficiary is only evidence that White intended to maintain the status quo, with Central Bank paying his premiums. White's election is not evidence that he would have maintained the policy at his own expense, and the court has found otherwise. -25- already informed Rogers that he had no interest in paying to maintain the life insurance policy, Rogers had no duty to advise him that his options were unchanged since his exit interview. 3. Harm/Detrimental Reliance There are two potential causes of harm based on the alleged breaches by Central Bank. If Central Bank owed a duty to continue making payments on White's policy for nine months after he ceased Active Work, the bank's failure to do so was unquestionably harmful to Keith. The court has explained why it concludes that Central Bank owed no such duty. The alleged miscommunication material letters. facts or harm as of Central is analogous result a Bank's to the of failure issues Central to Bank's communicate raised by MetLife' s Even if Central Bank's actions had constituted a breach of fiduciary duty, the court finds that Keith has not proven that those actions were the cause of her alleged harm (i.e., the loss of benefits under White's life insurance policy). Keith must prove that but for Central Bank's actions White would have maintained his policy. Keith has failed to prove that Central Bank's actions caused her alleged harm for substantially the stated in Section III.A.3. above. same reasons as Based on Rogers' testimony and the evidence of White's previous benefits elections, finds the court that White knew he would have to pay for life insurance benefits after June of 2013 and that he chose not to do so. -26- IV. Attorneys' Fees and Costs Defendants seek an award of costs, and Central Bank also seeks attorneys' fees. A. 37 Keith objects to an award of attorneys' fees. 38 Applicable Law The Federal Rules of Civil Procedure state that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other than prevailing party." attorney's fees--should Fed. R. Civ. P. 54(d) (1). be allowed to the ERISA provides that "the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 u.s.c. § 1132 (g) (1). "The Fifth Circuit has held that an award of costs in an ERISA case is limited to those listed in 28 U.S.C. § 1920." Humphrey v. United Way of Texas Gulf Coast, 802 F. Supp. 2d 847, 868 (S.D. Tex. 2011) (citing Cook Children's Medical Center v. New England PPO Plan of General Consolidated Management, Inc., 491 F.3d 266, 275-76 (5th Cir. 2007), cert. denied, 552 U.S. 1180, 128 S. Ct. 1223, 170 L. Ed. 2d 6 0 ( 2 0 0 8) ) . The United States Supreme Court has held that "a court 'in its discretion' may award fees and costs 'to either party,' as long as 37 Defendant Metropolitan Life Insurance Company's Motion for Costs and Brief in Support, Docket Entry No. 71; Defendants Central Bank and Central Bank Welfare Benefit Plan's Motion for Recovery of Attorneys' Fees and Costs and Brief in Support, Docket Entry No. 72; Defendant Metropolitan Life Insurance Company's Supplement to Its Motion for Costs, Docket Entry No. 74. 38 Plaintiff's Response to Defendant Central Bank and Central Bank Welfare Benefit Plan's Motion for Recovery of Attorney's Fees and Costs and Brief in Support, Docket Entry No. 73. -27- the fee claimant has merits.'" S. Ct. Hardt v. 2149, established 2152 a achieved 'some degree Reliance Standard Life (2010) (citation omitted). five-factor test for deciding of success on the Insurance Co. , 13 0 The Fifth Circuit whether to award attorneys' fees under§ 1132(g) (1) in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 Court's decision in Hardt, (5th Cir. 1980). Since the Supreme the Fifth Circuit has held that the Bowen test is no longer mandatory. See, e.g., LifeCare Management Services LLC v. Insurance Management Administrators Inc., 703 F.3d 835, 846-47 (5th Cir. 2013); 1 Lincoln Financial Metropolitan Life Insurance Co., 428 F. App'x 394, 396 2011) (per curiam) (unpublished) . Co. v. (5th Cir. The court nevertheless finds those factors helpful: In deciding whether to award attorneys' fees to a party under section 502(g), therefore, a court should consider such factors as the following: ( 1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing parties would deter other persons acting under similar circumstances; ( 4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and ( 5) the relative merits of the parties' positions. Bowen, 624 F.2d at 1266 (5th Cir. 1980) B. (citations omitted). Analysis 1. Costs The court finds that neither defendant breached a fiduciary duty to Keith and that neither defendant's actions caused Keith's -28- alleged harm. Each of the defendants degree of success on the merits. therefore achieved some The court therefore concludes that an award of defendants' costs is appropriate. 39 2. Attorneys' Fees At the conclusion of trial the court expressed its tentative position that no attorneys' fees would be awarded in this case. Nothing has since persuaded the court to change its view. This dispute involved close questions that were well-suited to a trial on the merits. The result reached by the court was not a foregone conclusion. Under the conclusion. Bowen factors, the court would reach the same There is no culpability or bad faith on the part of Keith in bringing this action. Had the court not concluded at the summary judgment stage that a reasonable factfinder could find in favor of Keith, there would have been no trial. Although the court has no specific evidence as to whether Keith is able to satisfy an award, even Central Bank's reduced fee request of $34,164.86 would represent a substantial although awarding fees sum might to many well retirees. deter would-be Keith's position, no such deterrence is warranted. bring a meri tless action. Turning to 39 the fourth Furthermore, litigants in Keith did not factor, the Each of the defendants has submitted a Bill of Costs and MetLife has submitted further documentation in support of the costs sought. These submissions are premature. Local Rule 54.2 states, in part: "An application for costs shall be made by filing a bill of costs within 14 days of the entry of a final judgment." -29- resolution of this case did not bring a substantial benefit to all plan participants or resolve a significant question regarding ERISA itself. Finally, regarding the relative merits of the parties' positions, the court notes that it took a trial during which the court repeatedly questioned all parties, and the court's ultimate resolution of disputed facts and murky law, to bring this matter to its conclusion. The court concludes that no award of attorneys' fees is warranted in this case. V. Conclusion40 If any finding of fact should more properly be characterized as a conclusion of law, law. it is hereby adopted as a conclusion of If any conclusion of law should more properly be charac- terized as a finding of fact, it is hereby adopted as a finding of fact. Based on the evidence, the court's credibility determinations, and the court's analysis, the court entitled to relief under 29 U.S.C. § holds that 1132(a) (3) Keith is not The court finds that defendants did not breach any fiduciary duty to White or Keith. Furthermore, if either defendant breached a fiduciary duty to White or Keith, the court finds that Keith provided no evidence 40 The fact that the court has not expressly addressed in this Memorandum Opinion and Order any other arguments the parties may have made reflects the court's conclusion that they lacked merit and/or that the party asserting the argument failed to prove it at trial. -30- that the alleged harm -- the loss of benefits -- was the result of MetLife's action or Central Bank's inaction. Consistent with the court's holding and findings, the court will enter a final judgment that Keith take nothing from either defendant. No attorneys' fees will be awarded. Costs will be taxed against Keith. SIGNED at Houston, Texas, on this the 9th day of June, 2017. SIM LAKE UNITED STATES DISTRICT JUDGE -31-

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