Harthun v. Johnson Controls, Inc.
Filing
28
MEMORANDUM OPINION AND ORDER granting Defendant JCI's 20 Motion for Summary Judgment; denying Plaintiff's 22 Motion for Summary Judgment Signed by Senior Judge Norman K. Moon on 3/31/2022. (hnw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
LUTHER A. HARTHUN,
CASE NO. 3:20-cv-00036
Plaintiff,
v.
MEMORANDUM OPINION
& ORDER
JOHNSON CONTROLS, INC.,
JUDGE NORMAN K. MOON
Defendant.
This case is about whether Johnson Controls, Inc. (“JCI”), ran afoul of the Employee
Retirement Income Security Act of 1974 (“ERISA”), when it modified its senior executive
benefits plan. Previously, JCI directly paid premiums for Medicare Part B and for a supplemental
Medicare plan for each of its eligible retirees (including Plaintiff Luther Harthun). In 2020, JCI
continued to pay premiums for Medicare Part B for its eligible retirees, but instead provided a
Healthcare Reimbursement Account by which they were reimbursed for premiums for the
supplemental coverage option they selected. The Court concludes that the Plan Document
afforded JCI discretion in administering the plan, and that this was a discretionary decision that
was not contrary to the Plan’s plain language nor an unreasonable interpretation of the Plan. The
Court will award summary judgment to JCI.
Background
Plaintiff Luther Harthun was a senior executive at Figgie International, Inc., until he
retired in 1996. Dkt. 1 ¶¶ 6, 8. He was a “Participant” within the meaning of Figgie’s Senior
Executive Benefits Program, effective on August 28, 1991 (the “Plan Document”). Id. ¶¶ 1, 7;
see also Dkt. 1-1 (the Plan Document). After a name change and two mergers, Figgie’s corporate
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successor-in-interest to the Plan Document is Johnson Controls International plc; its subsidiary
JCI became plan administrator. Id. ¶¶ 9–12.
Plaintiff alleged that during his time as a Plan Participant until December 31, 2019, “the
Plan has paid one hundred percent of Plaintiff’s health insurance premiums directly.” Id. ¶ 18.
“To the best of Plaintiff’s knowledge, he has never paid a health insurance premium under the
Plan and has always participated in a health insurance program offered to employees of the
Company.” Id.
In an August 2019 letter, JCI informed Plaintiff that his “current retiree health benefit(s)
program under Johnson Controls will end on December 31, 2019,” and the letter “provided [him]
with the details on the next steps for enrolling in a Mercer 365+ Retiree benefit plan(s).” Dkt. 1-2
at 2; see also Dkt. 1 ¶ 20. The letter described this as a “private health insurance solution that
offers eligible post-65 retirees and their eligible post-65 dependents a variety of health insurance
options from which to choose.” Dkt. 1-2 at 2. The letter further informed Plaintiff that enrollees
through the Mercer Marketplace 365+ Retiree “will pay your premiums directly to the insurance
company that you choose for your healthcare coverage.” Id. at 4 (emphasis added). In addition,
the letter explained that a healthcare reimbursement account or “HRA account, funded by
Johnson Controls will be established for you and your eligible dependent(s) to help you pay for
the monthly premiums.” Id.
In Plaintiff’s view, this change in terms conflicted with the Plan’s language and his
“entire history as a Participant in the Plan, in which Plaintiff did not pay any health insurance
premiums or bear any administrative burden with respect to such premiums.” Dkt. 1 ¶ 22.
Plaintiff complained to JCI about the change. On September 30, 2019, JCI responded in a letter
treating Plaintiff’s complaint as a claim under ERISA and denying that claim, holding that the
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change “to the manner of [JCI’s] providing your health care benefits … do[es] not violate the
terms of the Program.” Dkt. 1-3 (letter); Dkt. 1 ¶¶ 23–25. In the letter, JCI specifically noted that
in “Section 8.2 of the Program, while JCI must continue secondary medical coverage for you, the
amount of such secondary coverage need only be ‘equivalent to’ the coverage provided to active
company employees; the Program does not require that you be enrolled in an active employee
plan.” Dkt. 1-3 (emphasis in original). JCI further explained that it had “carefully considered and
determined that the coverage you will be able to obtain via Medicare Part B, and the secondary
coverage you will be able to purchase via the Mercer Marketplace 365+ Exchange … using the
monthly HRA contribution of $185, is at least equivalent to that of active employees.” Id. Thus,
JCI concluded that it had “complie[d] with the terms of the Program.” Id.
JCI advised of Plaintiff’s right to appeal the decision. Dkt. 1-3. Plaintiff, through counsel,
timely appealed the decision but did not receive any ruling or other communication from JCI in
the 90 days following Plaintiff’s submission of his appeal. Dkt. 1 ¶¶ 25–26; Dkt. 1-4 (appeal);
Dkt. 8 ¶ 26 (answer, admitting 90 days passed following submission of appeal without any ruling
or other communication from JCI to Plaintiff).
Plaintiff thereafter brought this ERISA action pursuant to 29 U.S.C. § 1132(a)(1)(B),
which permits “a participant or beneficiary” to bring a civil action “to enforce his rights under
the terms of the plan.” Dkt. 1 ¶ 32. In the complaint, Plaintiff argued that JCI’s change to the
Mercer Marketplace program violated Section 8.2 of the Plan Document, which provided that the
Company “pay all premiums required to maintain such coverage under the Group Medical Plan.”
Id. ¶ 30. In addition, Plaintiff contended that Section 8.2 of the Plan Document required JCI to
“continue the coverage of a Participant … under the company’s Group Medical Plan,” which is
defined as “any program, plan or insurance contract of the Company, to the extent, if any, that it
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provides hospitalization, dental, surgical, or major medical benefits for the employees of the
Corporate Staff of the Company.” Id. ¶ 28 (emphasis in original). In Plaintiff’s view, JCI’s
decision that “the Program does not require that you be enrolled in an active employee plan”
“directly contradicts the plain and unambiguous language” of Section 8.2. Id. Accordingly,
Plaintiff sued for a declaration that JCI’s letter decision of September 30, 2019, “is contrary to
the terms of the Plan Document and therefore void and of no effect.” Id. ¶ 33(a). In addition,
Plaintiff sought a declaration that “Plaintiff is entitled to participate in a Group Medical Plan for
employees of the Corporate Staff of the Company.” Id. ¶ 33(b). Plaintiff also sought attorney’s
fees and costs. Id. ¶¶ 33(c)–(d).
Before the Court are the parties’ cross motions for summary judgment and the parties’
responses thereto. Dkts. 20–23, 25–26. The Court heard argument on the motions, and the matter
is ripe for decision.
Standard of Review
At the outset, the parties’ submissions raise several disputes regarding the applicable
standard of review: first, whether an abuse of discretion or de novo standard of review applies;
and second, whether a “modified” abuse of discretion standard is appropriate on account of a
conflict of interest.
A court is required to “review de novo an ERISA benefits determination unless the plan
confers discretionary authority on its administrator.” Woods v. Prudential Ins. Co. of Am., 428
F.3d 320, 321 (4th Cir. 2008) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101
(1989)). An ERISA plan can confer discretion on its administrator expressly by language that
creates discretionary authority or implicitly by terms creating such discretion. Id. at 322 (internal
quotation marks omitted). Whether express or implicit, the plan must “manifest a clear intent to
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confer such discretion,” with ambiguities construed against the drafter. Id. However, if the plan
confers discretionary authority on the administrator, “the standard for review under ERISA of a
fiduciary’s discretionary decision is for abuse of discretion,” which the court “will not disturb …
if it is reasonable.” Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335,
342 (4th Cir. 2000).
On the first question, in their briefs, both sides acknowledged that an abuse of discretion
standard applied. See Dkt. 23 at 6–7 (Plaintiff’s brief, writing that “Under ERISA, a denial of
benefits is reviewed for abuse of discretion.”); Dkt. 21 at 8–9 (JCI’s brief, writing that “[a]n
abuse of discretion standard governs this case”); Dkt. 26 at 4 (Plaintiff’s opposition brief, writing
that he “does not quarrel with the presence of discretionary authority in the Plan Document”);
Dkt. 25 at 2. Plaintiff’s argument was that JCI’s interpretation of the plan was unreasonable and
thus an abuse of discretion under the Booth factors. Dkt. 23 at 7 (“These factors … demonstrate
that JCI abused its discretion here.”); Dkt. 26 at 2–4.
At oral argument, Plaintiff appeared to argue for the first time that a de novo standard
should instead apply, because one section of the Plan Document cited by JCI as a source of
discretionary authority (Section 13.3) only provided for the resolution of ambiguities in the
context of an appeal of a denial of benefits. However, as JCI’s counsel noted in their response,
another part of the plan explicitly provides comparable discretionary authority outside of the
context of appeals. Section 13.1 states, in relevant part: “[t]he Compensation Committee shall
have the following powers and duties,” including “[t]o interpret the Program, and to resolve
ambiguities, inconsistencies, and omissions, and to determine any question of fact, to determine
the right of benefits of, and the amount of benefits, if any, payable to, any person in accordance
with the provisions of the Program.” Dkt. 1-1 at 55 (emphasis added). Thus, the Court finds that
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explicit language sufficiently clear that the Plan Document conveyed discretionary authority on
JCI, warranting application of the abuse of discretion standard. See, e.g., Evans v. Eaton Corp.
Long Term Disability Plan, 514 F.3d 315, 321 (4th Cir. 2008) (holding that plan language
“giving Eaton ‘discretionary authority to determine eligibility for benefits’ and ‘the power and
discretion to determine all questions of fact … arising in connection with the administration,
interpretation and application of the Plan’ is unambiguous,” warranting application of the abuse
of discretion standard).
On the second question, Plaintiff argued in his opening brief that the abuse of discretion
standard “is modified where, as here, the plan administrator (JCI) has a conflict of interest due to
a financial interest in the outcome of the decision.” Dkt. 23 at 6 (quoting Ellis v. Metro. Life Ins.
Co., 126 F.3d 228, 233 (4th Cir. 1997)). Accordingly, the Plaintiff contended that “[t]he more
incentive for the administrator or fiduciary to benefit itself by a certain interpretation of benefit
eligibility or other plan terms, the more objectively reasonable the … decision must be and the
more substantial the evidence must be to support it.” Id. at 6–7 (quoting Ellis, 126 F.3d at 233)).
However, the Fourth Circuit has subsequently noted that its “prior modified abuse-of-discretion
standard [was] no longer applicable,” and that “instead, courts should view any such conflict of
interest as but one factor among the many identified in Booth for reviewing the reasonableness of
a plan administrator’s discretionary decision.” Williams v. Metro. Life Ins. Co., 609 F.3d 622,
631 (4th Cir. 2010). The Court will follow the recent articulation of the standard.
In the ERISA context, the abuse of discretion standard “equates to reasonableness,” such
that a court “will not disturb an ERISA administrator’s discretionary decision if it is reasonable,”
but it “will reverse or remand if it is not.” Evans, 514 F.3d at 322. An administrator’s decision is
reasonable “if it is the result of a deliberate, principled reasoning process and if it is supported by
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substantial evidence,” with “careful attention” being paid to the plan requirements and the rules
of ERISA itself. Id. (quotations and citations omitted). The following are a non-exhaustive list of
factors relevant to that inquiry: “the Plan’s language, the materials the administrator consulted in
reaching its decision, whether the Plan has been interpreted consistently, whether the decision
was consistent with the procedural and substantive requirements of ERSIA, the existence of any
external standard relevant to the exercise of discretion, and the fiduciary’s motives and any
conflict of interest it may have.” Wilson v. United Healthcare Ins. Co., 27 F.4th 228, 238 (4th
Cir. 2022) (citing Booth, 201 F.3d at 342–43) (cleaned up). In any event, faced with language
that, as here, confers discretion upon a plan administrator, the Fourth Circuit has also cautioned
that a court must follow “its duty of deference and its secondary rather than primary role in
determining a claimant’s right to benefits.” Id. at 323.
Analysis
Plaintiff argues that JCI violated the Plan by attempting to cancel Plaintiff’s former plan
in “favor of a new ‘marketplace’ program that would require substantial out of pocket expense
and administrative burden” for him. Dkt. 23 at 1. Plaintiff’s argument primarily focuses on the
terms of Section 8.2 of the Plan, especially its provision that “The Company shall continue the
coverage of a Participant, his Spouse and his dependents under the company’s Group Medical
Plan after the termination of the Participant’s employment.” Id. at 2–3; Dkt. 1-1 at 46. Plaintiff
also cites Section 8.2’s language that “The Company shall pay all premiums required to maintain
such coverage under the Group Medical Plan.” Dkt. 23 at 3; Dkt. 1-1 at 46. In Plaintiff’s view,
the Plan entitles him to “remain on the Group Medical Plan, i.e., the medical plan offered to
corporate staff of the Company, and to have JCI continue to pay all of [his] premiums as JCI and
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its predecessors have done for 30 years.” Dkt. 23 at 7; see also id. at 6–9. Plaintiff also argues
that the other Booth factors weigh in his favor. Id. at 9–14.
JCI disagrees. JCI emphasizes that the Plan “expressly confers discretionary authority
with regard to benefits decisions.” Dkt. 21 at 8. In JCI’s view, not only has Plaintiff failed to
show that JCI abused its discretion, but JCI demonstrated that it acted reasonably. Id. at 9–10.
JCI acknowledges that the Plan “contains ambiguous and inconsistent language,” but argues that
rather than reading sentences of the Plan “in isolation” to argue that Plaintiff is entitled to remain
on JCI’s active employee plan, construing the relevant provisions together supported JCI’s
position. Dkt. 25 at 4–5, 10–11. That is, that the Plan permitted JCI to make the modification so
long as JCI provided Plaintiff with medical coverage that was “equivalent to” that which was
provided to active employees. Id. at 10–11. JCI also argues that the other Booth factors either
weighed in its favor or did not warrant a contrary conclusion.
Turning first to the language of the Plan, the Court concludes that its terms support JCI’s
interpretation—that JCI was not required to keep Plaintiff on the same plan as active employees
of the company. Rather, the Plan required JCI to pay premiums to afford Plaintiff an equivalent
level of coverage to those on the active employees’ plan. See Lockhart v. United Mine Workers
of Am. 1974 Pension Tr., 5 F.3d 74, 78 (4th Cir. 1993) (“[t]he award of benefits under any
ERISA plan is governed in the first instance by the language of the plan itself”).
Section 8.2 does state that “[t]he Company shall continue the coverage of a Participant,
his Spouse and his dependents under the Company’s Group Medical Plan after the termination of
the Participant’s employment ….” Dkt. 1-1 at 46. (And to be sure, in Section 1.23 of the Plan,
“Group Medical Plan” is defined as “any program, plan or insurance contract of the Company to
the extent, if any, that it provides hospitalization, dental, surgical or major medical benefits for
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the employees of the Corporate Staff of the Company.” Id. at 15.) But Section 8.2 goes on to
state in the very next sentence that “[t]he amount of coverage to be continued pursuant to this
Section 8.2 shall be equivalent to the level of coverage in effect from time to time thereafter with
respect to Participants who are actively employed by the Company.” Id. at 46 (emphases added).
Were JCI required to keep Plaintiff (and all other Participants) on the same plan as those “who
are actively employed by the Company,” id., the earlier Plan language stating that the amount of
coverage “shall be equivalent to” that afforded active employees would be of no effect. “ERISA
plans, like contracts, are to be construed as a whole,” Johnson v. Am. United Ins. Co., 716 F.3d
813, 820 (4th Cir. 2013) (citations omitted), and thus courts must construe their terms “giv[ing]
meaning and effect to every part of the contract, rather than leav[ing] a portion of the contract
meaningless or reduced to mere surplusage,” Goodman v. Resol. Tr. Corp., 7 F.3d 1123, 1127
(4th Cir. 1993). The Court is loath to construe the Plan as Plaintiff would have the Court do,
which would render meaningless the portion of Section 8.2 stating that the amount of coverage
“shall be equivalent to” that afforded active employees.
Section 8.2 also provides that “The Company shall pay all premiums required to maintain
such coverage under the Group Medical Plan.” Dkt. 1-1 at 46 (emphasis added). But that does
not necessarily mean, as Plaintiff argues, that JCI was required to continue directly paying
premiums for Plaintiff to be enrolled in the active employees’ plan. The Plan says no such thing.
Rather, Section 8.2’s provision that JCI must pay premiums required to “maintain such
coverage,” refers back to the earlier line of Section 8.2 that provides that “[t]he amount of
coverage to be continued … shall be equivalent to the level of coverage in effect … with respect
to Participants who are actively employed by the Company.” Id. (emphases added). In other
words, a reasonable—and indeed, the most reasonable—construction of these provisions is that
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the Plan required JCI to “pay all premiums required to maintain” an “amount of coverage …
equivalent to the level of coverage in effect” for active employees—not that JCI was required to
keep those with continuing coverage on the plan for those “actively employed by the Company.”
Id. Moreover, the Court also finds significant that that is Section 8.2’s only reference to “active
employees” is in the “equivalent to” sentence. That also reasonably suggests, at least within
Section 8.2, that the Plan did not intend references to “Group Medical Plan” to be synonymous
with the plan currently in place for active employees.
Finally, an exchange at oral argument demonstrated the unreasonableness of Plaintiff’s
construction. Plaintiff’s position is that the Plan requires he be on the active-employees’ health
insurance, regardless whether he otherwise would have been entitled to any coverage from
Medicare. But it would make little sense for the Plan to ignore otherwise-available Medicare
coverage for its retirees. Nor did it. Rather, the Plan clarified that: “In addition, the Company
shall pay all premiums needed to provide coverage under Part B of Medicare until the later of”
the Participant’s death or that of his spouse. Dkt. 1-1 at 46.
To be sure, certain terms of the Plan are not a model of clarity, as JCI has acknowledged.
However, the Court concludes that the most reasonable interpretation of the relevant provisions
of the Plan are that it required JCI to pay premiums to afford Plaintiff an equivalent level of
coverage to those on the active employees’ plan, not that JCI was required to maintain Plaintiff
on the active-employees’ plan itself. Moreover, the Plan entrusted JCI to “interpret the Program,
and to resolve ambiguities, inconsistencies, and omissions.” Dkt. 1-1 at 55. The Court cannot
conclude that JCI’s construction of these provisions of the Plan was an unreasonable one or
constituted an abuse of discretion.
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The other Booth factors do not counsel in favor of a contrary conclusion. In this case, the
“purposes and goals of the plan” factor does little to move the needle. Booth, 201 F.3d at 342.
The Plan was enacted “to attract and hold highly competent senior management executives so
that [the Company] may compete effectively,” and one way it did so was by “provid[ing] certain
retirement, death, disability and medical benefits for its senior executives and their spouses and
dependents commensurate with those offered by other companies.” Dkt. 1-1 at 4. Those purposes
of the plan do not disappear when the company was renamed or merged with another company.
But, significantly, those purposes would not appear to be undermined (at least in any meaningful
way) by JCI’s interpretation of the Plan, so long as the premiums paid were sufficient to provide
an amount of coverage “equivalent to” active employees as the Plan requires. See id. at 46.
The Court turns next to the “adequacy of the materials considered to make the decision
and the degree to which they support it.” Booth, 201 F.3d at 342. There is no dispute that JCI
consulted various materials, including an “impact analysis” concerning the estimated cost of
premiums that retirees like Plaintiff might have to pay under coverage options. See Dkt. 21-2
¶¶ 9–12; Dkt. 21-1 at 91–97. Plaintiff calls the volume of materials “sparse.” Dkt. 23 at 10.
Perhaps there could have been more. But Plaintiff did not submit other materials for JCI’s
consideration that it failed to consider. And in any event, more significant is the substance of the
materials consulted than their volume. The analysis provided support for JCI’s conclusion,
namely that they thought $185 monthly would be sufficient to cover the average premium for
supplemental Medicare options for retirees like Plaintiff, which they calculated was between $35
and $140 per month. See Dkt. 21 at 6; Dkt. 21-1 at 91; Dkt. 21-2 ¶¶ 9–12. Plaintiff argues that
the relevant comparison of benefits was not between 2020 and 2019, but rather 2020 compared
with 1996 (when he retired) or 2001 (when he argues there was last a Significant Management
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Change under the Plan). See Dkt. 23 at 11. Even if a more fulsome analysis might have been
conducted, Plaintiff did not introduce any contrary evidence into the administrative record. Nor
has Plaintiff complained about any prior deterioration of benefits before the 2019-2020 change.
It was not unreasonable for JCI under these circumstances to consider these materials comparing
the cost of coverage between those specific years (2018-2019), rather than comparing benefits
back to 2001 or 1996. This factor does not show any unreasonableness.
The parties’ arguments about whether JCI’s interpretation was “consistent with the other
provisions in the plan and with earlier interpretations of the plan,” Booth, 201 F.3d at 342, track
their arguments on the first, considering the “language of the plan.” See, e.g., Dkt. 23 at 11–12;
Dkt. 25 at 10–11. This factor, like the first, weighs in JCI’s favor. Similarly, the parties’
arguments about whether JCI’s decision-making process was “reasoned and principled” simply
track earlier arguments made with respect to the interpretation of Plan terms, and whether JCI
was required to rely on any other materials in making its decision. See Booth, 201 F.3d at 342;
see also Dkt. 23 at 12; Dkt. 25 at 11.
There are two Booth factors that weigh in Plaintiff’s favor. The first is the failure of JCI
to timely respond to Plaintiff’s appeal. Booth provides that the Court should consider whether the
plan administrator’s decision “was consistent with the procedural and substantive requirements
of ERISA.” 201 F.3d at 342. ERISA regulations require plan administrators to “establish and
maintain a procedure by which a complaint will have a reasonable opportunity to appeal an
adverse benefit determination … and under which there will be a full and fair review of the claim
and adverse benefit determination.” 29 C.F.R. § 2560.503-1(h)(1). For reasons unknown to the
Court, JCI did not engage in or respond to Plaintiff’s appeal. JCI calls it a “procedural
irregularity,” Dkt. 25 at 11, but to call it that is to diminish the opportunity Plaintiff should have
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had to present his arguments to JCI and for JCI to consider and respond to them, in the first
instance. That said, this is but one of the factors the Court is to consider. In addition, the Court
notes that this case particularly depends upon the language of the relevant Plan documents rather
than, for example, underlying medical evidence. In that regard, any adverse consequences of
JCI’s failure to conduct the appeal are mitigated here, as Plaintiff and the Court are not without
material documents in the record.
Finally, the Court notes that this is a case in which JCI has a conflict in that it is both the
administrator and the payor of claims under the ERISA plan. See Dkt. 23 at 13; Dkt. 25 at 13.
Indeed, there is little dispute that such a conflict exists. See id. Rather, as JCI argues, this is but
one factor among the others identified in Booth for the Court to consider in reviewing whether
JCI’s discretionary decision was reasonable. See Williams, 609 F.3d at 631. JCI argues that the
financial conflict is greatly lessened under the circumstances of this case, because it “has
continued to pay [Plaintiff’s] premiums for Part B of Medicare,” and it “was willing to continue
to pay the premiums associated with [his] medical coverage,” but just “changed the manner and
method through which it would provide such coverage.” Dkt. 25 at 13. To be sure, any financial
conflict here is not presented in such stark terms as it would if a plan administrator is deciding
whether to approve (and pay for) or deny a plaintiff’s claim. And Defense counsel acknowledged
at oral argument (as they had to), that if retirees’ premiums increase over time, JCI would have
to “go back and recalculate” HRA reimbursements, because the Plan provides that qualifying
retired participants under the Plan are to receive an amount of coverage “equivalent to” that
afforded active company employees. On the other hand, the record does not establish that JCI is
expending greater sums than it had previously under the new “marketplace” program, and it
would not be unreasonable to think that JCI enacted a change with a motivation of achieving
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some savings at some point. Thus, while this factor does weigh somewhat in Plaintiff’s favor, it
does not to a great degree.
Conclusion
The Court therefore concludes, accounting for and weighing the applicable Booth factors
and the Plan language and record, that JCI did not act unreasonably in determining that the Plan
permitted JCI to pay for premiums for Participants like Plaintiff through an HRA model, so long
as the amount of those premiums corresponded to an “amount of coverage” that was “equivalent
to” that afforded active employees. The Plan Document afforded JCI discretion in administering
the plan, and that this was a discretionary decision not contrary to the Plan’s plain language nor
an unreasonable interpretation of the Plan. Moreover, weighing the applicable Booth factors, the
Court concludes that JCI did not act unreasonably. For these reasons, the Court will GRANT
Defendant JCI’s motion for summary judgment (Dkt. 20) and DENY the Plaintiff’s motion for
summary judgment (Dkt. 22).
It is so ORDERED.
The Clerk of Court is directed to send this Memorandum Opinion & Order to all counsel
of record.
Entered this 31st
day of March, 2022.
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