Hancock v. Aetna Life Insurance Company, No. 2:2016cv01697 - Document 43 (W.D. Wash. 2017)

Court Description: ORDER denying Defendant Aetna Life Insurance Company, the Boeing Company Employee Health and Welfare Plan, and Employee Benefit Plans Committee's 26 Motion for Partial Summary Judgment. The court further ORDERS the parties to review the co urt's April 17, 2017, order (Dkt. # 42 ) regarding discovery disputes related to the breach of fiduciary duty claim and re-raise any live discovery disputes pursuant to the terms articulated in this order. Signed by Judge James L. Robart. (PM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JUDITH HANCOCK, CASE NO. C16-1697JLR ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, 11 v. 12 13 AETNA LIFE INSURANCE COMPANY, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is Defendants Aetna Life Insurance Company (“Aetna”), the 17 Boeing Company Employee Health and Welfare Plan (Plan 503) (“Plan 503”), and 18 Employee Benefit Plans Committee’s (“the Committee”) (collectively, “Defendants”) 19 motion for partial summary judgment. (Mot. (Dkt. # 26).) Ms. Hancock opposes 20 Defendants’ motion. (Resp. (Dkt. # 28).) The court has considered the motion, the 21 parties’ submissions in opposition to and support of the motion, the relevant portions of 22 ORDER - 1 1 the record, and the applicable law. Being fully advised,1 the court denies Defendants’ 2 motion for the reasons set forth below. 3 II. BACKGROUND This case arises from Aetna’s denial of long-term disability benefits (“LTD 4 5 benefits”) to Ms. Hancock. (See SAC (Dkt. # 24) ¶¶ 1.2, 4.40, 4.51.) Ms. Hancock 6 began working at the Boeing Company (“Boeing”) in 1989 and remained at Boeing until 7 October 2012, when she took leave for cancer treatment. (Hancock Decl. (Dkt. # 31) 8 ¶ 3.) Ms. Hancock worked as a Human Resources Generalist at the time she took leave. 9 (See Admin. Record (“AR”) (Dkt. # 27) at AET000272.)2 10 While at Boeing, Ms. Hancock participated in the Group Life and Accident and 11 Health Insurance Policy (“the Plan”). (See generally id. at AET000001-191.) Aetna 12 issued the Plan to Boeing (see id.), and Ms. Hancock alleges that Aetna is an 13 administrator and fiduciary of the Plan as those terms are defined under the Employee 14 Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. (SAC 15 ¶¶ 4.8-4.9). The Committee also administers the Plan. (Id. ¶ 4.3.) Plan 503 is an 16 “employee benefit plan” within the meaning of ERISA. (Id. ¶¶ 4.2.) 17 // 18 19 20 21 22 1 Ms. Hancock requests oral argument. (See Resp. at 1.) The court determines, however, that oral argument would not be helpful to its disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4); cf. Jasinski v. Showboat Operating Co., 644 F.2d 1277, 1278 (9th Cir. 1981) (holding that a court may not grant summary judgment without oral argument when the party opposing the motion for summary judgment timely requests oral argument). 2 The court cites the Bates-stamped page numbers of the administrative record. ORDER - 2 1 The Plan defines “disabled” for purposes of LTD benefits in pertinent part: 2 From the date that you first become disabled and until Monthly Benefits are payable for 24 months, you will be deemed to be disabled on any day if: • you are not able to perform the material duties of your own occupation solely because of: disease or injury; and • your work earnings are 80% or less of your adjusted predisability earnings. 3 4 5 6 7 After the first 24 months that any Monthly Benefit is payable during a period of disability, you will be deemed to be disabled on any day if you are not able to work at any reasonable occupation (this is any gainful activity for which you are, or may reasonably become fitted by education training or experience. It does not include work under an approved rehabilitation program) solely because of: disease; or injury. 8 (See id. at AET000058 (emphasis omitted); see also id. at AET000061; SAC ¶ 4.20.) 9 Ms. Hancock alleges that on October 3, 2012, she became “unable to perform the 10 material duties of her own occupation” when she underwent surgery and “extensive 11 chemotherapy” to treat malignant cancer. (Id. ¶ 4.22.) Ms. Hancock applied for 12 short-term disability benefits under the Plan, and Aetna agreed that Ms. Hancock was 13 disabled under the Plan and entitled to short-term disability benefits. (AR at 14 AET000530-31.) 15 Aetna later found Ms. Hancock disabled for purposes of receiving LTD benefits. 16 (Id. at AET001120-21, AET001265-66.) But on February 25, 2016, Aetna terminated 17 Ms. Hancock’s LTD benefits effective February 26, 2016. (Id. at AET000980-83.) Ms. 18 Hancock appealed the termination on August 15, 2016 (id. at AET001215-1589), and 19 Aetna received Ms. Hancock’s appeal on August 18, 2016 (id. at AET002173). In 20 support of her appeal, Ms. Hancock provided a declaration from her doctor, her own 21 declaration, medical records, and medical journal articles describing her condition. (See 22 ORDER - 3 1 id. at AET001215-1589) She contends that she is disabled by the following conditions: 2 “peripheral neuropathy and a type of cognitive impairment sometimes referred to as 3 ‘chemo brain’” (SAC ¶ 4.33; see also AR at AET001240); Sjogren’s syndrome (SAC 4 ¶ 4.34; AR at AET001240); a lack of feeling in her fingertips and feet, burning pain in 5 her fingertips, sharp pain in her hands, burning pain in her feet and lower legs, painful 6 cramping in her toes and calves, and swollen ankles and feet (SAC ¶ 4.35; AR at 7 AET001240-41). Ms. Hancock also takes a medication that causes fatigue, dizziness, 8 difficulty concentrating, confusion, and memory issues. (SAC ¶¶ 4.37-4.38; AR at 9 AET001241.) Because of these conditions, Ms. Hancock alleges that she is “unable to 10 11 work at any reasonable occupation.” (Id. ¶ 4.39.) The applicable ERISA regulations gave Aetna 45 days to decide Ms. Hancock’s 12 appeal unless special circumstances warranted an additional 45 days to consider the 13 appeal. See 29 C.F.R. § 2560.503-1(i)(1)(i); id. § 2560.503-1(i)(3)(i). On September 13, 14 2016, Aetna confirmed with Ms. Hancock and her counsel that Aetna had received all of 15 the records Ms. Hancock intended for Aetna to consider in her appeal. (AR at 16 AET000992, AET002173.) On the same day, Aetna also contacted an independent third 17 party to conduct a peer review of Ms. Hancock’s file. (Id. at AET002189-91.) Aetna 18 assigned the peer review on September 14, 2016. (Id. at AET002191.) On September 19 26, 2016, the fortieth day after Ms. Hancock appealed Aetna’s LTD benefits 20 determination, Aetna sent Ms. Hancock a notice that Aetna was invoking a 45-day 21 extension to decide her appeal. (Id. at AET000993.) The notice informed Ms. Hancock 22 that her appeal would be decided by November 10, 2016, and that the reason for the ORDER - 4 1 extension was to give the peer reviewer enough time to complete his review. (Id.) The 2 peer reviewer completed his review on September 28, 2016. (Id. at AET002192-93.) 3 Aetna informed Ms. Hancock on October 20, 2016, that Aetna was upholding its 4 decision to deny LTD benefits under the Plan.3 (Id. at AET000997-99.) “[B]ased on the 5 clinical review and vocational review,” Aetna concluded that Ms. Hancock was “no 6 longer considered disabled from any occupation.” (Id. at AET000982.) Aetna decided 7 Ms. Hancock’s appeal in 64 days. (See id. at AET000997-99.) 8 9 Ms. Hancock brings two claims under ERISA: (1) “to recover the long-term disability benefits due her under the Plan, to enforce her rights under the Plan[,] and to 10 clarify her rights to future benefits under the Plan” (SAC ¶ 5.4); see also 29 U.S.C. 11 § 1132(a)(1)(B); and (2) breach of fiduciary duty (SAC ¶¶ 5.6-5.18); see also 29 U.S.C. 12 § 1132(a)(3). Ms. Hancock asserts six theories of breach of fiduciary duty: (1) 13 unreasonably delaying and then denying Ms. Hancock’s appeal; (2) unreasonably failing 14 to investigate all of the bases on which to pay Ms. Hancock’s claims and refusing to give 15 her interests or the interests of the Plan at least as much consideration as Aetna gave its 16 own; (3) unreasonably failing to adopt and implement reasonable standards to promptly 17 and fairly investigate, process, and adjudicate Ms. Hancock’s appeal; (4) unreasonably 18 engaging in a selective review of the evidence to minimize the evidence supporting the 19 continuation of benefits while focusing exclusively on evidence supporting the 20 21 22 3 On October 6, 2016, Aetna sent Ms. Hancock a request to toll the appeal period to allow her doctor to comment on the peer review. (Id. at AET000996.) Ms. Hancock’s counsel objected to the tolling, and Aetna ultimately did not toll the appeal period. (Id. at AET001158.) ORDER - 5 1 termination of benefits; (5) unreasonably failing to establish administrative processes and 2 safeguards to ensure and verify appropriately consistent decisionmaking; and (6) 3 unreasonably failing to train and supervise employees to ensure they are aware of such 4 administrative processes and safeguards. (SAC ¶ 5.10.) 5 On March 15, 2017, Defendants filed a motion for partial summary judgment. 6 (Mot. at 1.) Defendants contend that Ms. Hancock’s breach of fiduciary duty claim under 7 29 U.S.C. § 1132(a)(3) should be dismissed as a matter of law because (1) Aetna did not 8 breach its fiduciary duty by seeking a 45-day extension to decide Ms. Hancock’s appeal 9 (id. at 9-10), (2) Aetna’s policies and procedures comply with applicable Department of 10 Labor (“DOL”) regulations regarding the time for deciding LTD benefits appeals (id. at 11 10-11), (3) Aetna properly applied its timing policies and procedures to the adjudication 12 of Ms. Hancock’s appeal (id. at 11-12), (4) any recovery under Section 1132(a)(3) is 13 barred as duplicative relief (id. at 13-14), and (5) public policy considerations militate 14 against finding a breach of fiduciary duty (id. at 14-15). Ms. Hancock opposes 15 Defendants’ motion and argues that her fiduciary duty claim is cognizable because she 16 seeks different relief under Section 1132(a)(3) than under Section 1132(a)(1)(B). (Resp. 17 at 20.) Ms. Hancock also asserts that Defendants’ motion for summary judgment fails to 18 address most of her theories of breach of fiduciary duty and that there are genuine factual 19 disputes regarding whether Defendants unreasonably delayed a decision on her appeal.4 20 (Id. at 22-24.) The court now addresses Defendants’ motion. 21 4 22 Ms. Hancock also raises discovery issues between the parties. (Resp. at 3-4.) However, Ms. Hancock does not seek a Federal Rule of Civil Procedure 56(d) continuance of Defendants’ ORDER - 6 1 2 3 III. A. ANALYSIS Legal Standard Summary judgment is appropriate if the evidence shows “that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. 6 Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the 7 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 8 factual dispute is “‘genuine’ only if there is sufficient evidence for a reasonable fact 9 finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 10 11 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49). The moving party bears the initial burden of showing there is no genuine issue of 12 material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. 13 at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 14 show the absence of a dispute of material fact in two ways: (1) by producing evidence 15 negating an essential element of the nonmoving party’s case, or (2) by showing that the 16 nonmoving party lacks evidence of an essential element of its claim or defense. Nissan 17 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving 18 party will bear the burden of persuasion at trial, it must establish a prima facie showing in 19 support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 20 21 22 motion to allow additional time to conduct discovery before the court rules on the motion. (See id.); Fed. R. Civ. P. 56(d). Moreover, the court preliminarily addressed the parties’ discovery disputes in a telephonic hearing. (See 4/17/17 Min. Entry (Dkt. # 42).) For these reasons, the court does not substantively address in this order the discovery issues that Ms. Hancock raises. ORDER - 7 1 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if 2 uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the moving 3 party meets its burden of production, the burden then shifts to the nonmoving party to 4 identify specific facts from which a fact finder could reasonably find in the nonmoving 5 party’s favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252. 6 The court is “required to view the facts and draw reasonable inferences in the light 7 most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). 8 The court may not weigh evidence or make credibility determinations in analyzing a 9 motion for summary judgment because these are “jury functions, not those of a judge.” 10 Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than 11 simply show that there is some metaphysical doubt as to the material facts . . . . Where 12 the record taken as a whole could not lead a rational trier of fact to find for the 13 nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal 14 quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 15 475 U.S. 574, 586-87 (1986)). 16 Furthermore, the court may consider only materials that are capable of being 17 presented in an admissible form. See Fed. R. Civ. P. 56(c)(2); Orr v. Bank of Am., NT & 18 SA, 285 F.3d 764, 773 (9th Cir. 2002). “Legal memoranda and oral argument are not 19 evidence and do not create issues of fact capable of defeating an otherwise valid 20 summary judgment.” Estrella v. Brandt, 682 F.2d 814, 819-20 (9th Cir. 1982); see also 21 Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory 22 allegations unsupported by factual data cannot defeat summary judgment.”). Nor can the ORDER - 8 1 plaintiff “defeat summary judgment with allegations in the complaint, or with 2 unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 3 343 F.3d 1107, 1112 (9th Cir. 2003). 4 B. 5 Defendants’ Motion Under 29 U.S.C. § 1132(a)(3), a plan participant may bring a civil action “(A) to 6 enjoin any act or practice which violates any provision of this title or the terms of the 7 plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) 8 to enforce any provisions of this title or the terms of the plan.”5 29 U.S.C. § 1132(a)(3). 9 Section 1132(a)(3) “authorizes lawsuits for individualized equitable relief.” McGlasson 10 v. Long Term Disability Coverage for All Active Full-Time & Part-Time Emps., 161 F. 11 Supp. 3d 836, 842 (D. Ariz. 2016) (citing Varity Corp. v. Howe, 516 U.S. 489 (1996)). A 12 plaintiff asserting a fiduciary misconduct claim under Section 1132(a)(3) must allege 13 “both (1) that there is a remediable wrong, i.e., that the plaintiff seeks relief to redress a 14 violation of ERISA or the terms of a plan, and (2) that the relief sought is appropriate 15 equitable relief.”6 Gabriel v. Alaska Elec. Pension Fund, 773 F.3d 945, 954 (9th Cir. 16 2014) (internal quotations and citations omitted); see also Mullin v. Scottsdale 17 18 19 20 5 No party has raised whether and to what extent Plan 503 and the Committee may be held liable for Aetna’s actions, which are at the heart of the motion for partial summary judgment. (See SAC ¶¶ 5.10, 5.16, 5.18 (alleging that Aetna violated its fiduciary duties, the Committee is aware of Aetna’s actions, and the Plan has failed to implement and maintain appropriate procedures).) Accordingly, the court does not address those issues at this time. Ms. Hancock’s response includes two arguments related to insurer mismanagement and misconduct. (See Resp. at 15-18.) For example, Ms. Hancock states that “ERISA’s lack of compensatory or punitive damages, and its preemption of state law, create incentives for insurer misconduct.” (Id. at 16.) Ms. Hancock also characterizes Section 1132(a)(3) as “a remedy for 6 21 22 ORDER - 9 1 Healthcare Corp. Long Term Disability Plan, No. CV-15-01547-PHX-DLR, 2016 WL 2 107838, at *2 (D. Ariz. Jan. 11, 2016). Equitable relief under Section 1132(a)(3) is 3 limited to “those categories of relief that were typically available in equity (such as 4 injunction, mandamus, and restitution, but not compensatory damages).” Mertens v. 5 Hewitt Assocs., 508 U.S. 248, 256 (1993). 6 1. Duplicative Relief 7 The parties dispute whether Ms. Hancock may simultaneously bring a claim under 8 Section 1132(a)(1)(B) for denial and clarification of her rights to benefits and Section 9 1132(a)(3) for equitable relief. (See Mot. at 13-14; Resp. at 19-20.) Defendants argue 10 that Section 1132(a)(1)(B) provides Ms. Hancock adequate relief and renders any relief 11 under Section 1132(a)(3) duplicative. (Mot. at 13-14 (arguing that Ms. Hancock’s breach 12 of fiduciary duty claim “simply attempts to ‘repackage’ the benefit denial claim as it is 13 based on the same injury—denial of LTD benefits—and this is fatal to the breach of 14 fiduciary duty claim”).) Ms. Hancock contends that her “two claims allege different 15 injuries and pursue different relief.” (Resp. at 20.) 16 Section 1132(a)(3) is a “catchall” or “safety net” designed to “offer[] appropriate 17 equitable relief for injuries caused by violations that [Section 1132] does not elsewhere 18 adequately remedy.” Varity, 516 U.S. at 512. A plaintiff “may not resort to this 19 equitable catchall provision to seek the same relief” that Section 1132(a)(1)(B) affords. 20 Wise v. Verizon Commc’ns, 600 F.3d 1180, 1190 (9th Cir. 2010); see also McGlasson, 21 22 insurer misconduct in the ERISA context.” (Id. at 17.) The court need not address these arguments in ruling on Defendants’ motion and accordingly expresses no opinion on their merits. ORDER - 10 1 161 F. Supp. 3d at 844 (stating that a plaintiff is “barred from obtaining a duplicative 2 remedy under ERISA”). But Section 1132(a)(3) “claims [are] cognizable in conjunction 3 with [Section 1132](a)(1)(B) claims ‘particularly where the relief sought in connection 4 with each claim is distinct.’” Englert v. Prudential Ins. Co. of Am., 186 F. Supp. 3d 5 1044, 1047 (N.D. Cal. 2016) (quoting Bush v. Liberty Life Assurance Co. of Bos., 77 6 F. Supp. 3d 900, 908 (N.D. Cal. 2015)). 7 The Ninth Circuit recently addressed simultaneous claims under Sections 8 1132(a)(3) and 1132(a)(1)(B) in Moyle v. Liberty Mutual Retirement Benefit Plan, 823 9 F.3d 948 (9th Cir. 2016). In deciding an appeal from a grant of summary judgment, the 10 court concluded that “plaintiffs [may] plead alternate theories of relief” under the two 11 statutory provisions “without obtaining double recoveries.” Id. at 961. The court stated 12 that although “[s]ome of our [earlier] cases held that litigants may not seek equitable 13 remedies under 1132(a)(3) if 1132(a)(1)(B) provides adequate relief,” subsequent 14 Supreme Court case law compelled the Ninth Circuit to overrule its earlier holdings to 15 that effect. Id. at 962. Because the plaintiff could simultaneously proceed on both 16 claims, the Ninth Circuit concluded that “the instant case turns on a factual determination 17 of whether Liberty Mutual breached its fiduciary duty” and concluded that factual issues 18 precluded summary judgment on that claim. Id. Thus, even at the summary judgment 19 stage, a plaintiff may proceed with simultaneous claims under Sections 1132(a)(1)(B) and 20 (a)(3). Id. at 961. The appropriate inquiry at this stage is not whether the Section 21 1132(a)(3) claim would ultimately afford duplicative relief if Ms. Hancock also prevails 22 on her Section 1132(a)(1)(B) claim, but whether there is a genuine dispute of material ORDER - 11 1 fact allowing the Section 1132(a)(3) claim to proceed.7 See id. at 962; see also Allbaugh 2 v. Cal. Field Ironworkers Pension Tr., No. 2:12-cv-00561-JAD-GWF, 2016 WL 3 6138244, at *11 (D. Nev. Oct. 19, 2016); Zisk v. Gannett Co. Income Prot. Plan, 73 F. 4 Supp. 3d 1115, 1118 (N.D. Cal. 2014) (“Courts of this district have found that (a)(3) 5 claims remain viable even when an (a)(1)(B) claim is asserted, particularly where the 6 relief sought in connection with each claim is distinct.”). 7 The court concludes that Ms. Hancock seeks different remedies under the 8 respective statutory provisions—compensatory relief for the alleged denial of benefits 9 and injunctive relief for the alleged breach of fiduciary duty. Specifically regarding the 10 Section 1132(a)(3) claim, Ms. Hancock seeks a two-part injunction requiring Aetna to (1) 11 establish administrative processes and safeguards to ensure and verify appropriately 12 consistent decision making, and (2) train and supervise its employees to ensure they are 13 aware of and follow administrative processes and procedures. (SAC ¶ 5.11; see also id. 14 ¶¶ 5.15-5.18.) This relief is not available to her under Section 1132(a)(1)(B). Compare 15 29 U.S.C. § 1132(a)(1)(B), with id. § 1132(a)(3). 16 17 Ms. Hancock may ultimately fail in her bid for injunctive relief because such relief could duplicate any recovery under Section 1132(a)(1)(B). As Ms. Hancock 18 19 20 21 22 Because of Moyle, Defendants’ reliance on Rochow v. Life Insurance Co. of North America, 780 F.3d 364, 372 (6th Cir. 2015), is misplaced. (See Mot. at 14.) The court in Rochow held that a claimant may simultaneously bring claims under both sections “only where the breach of fiduciary duty claim is based on an injury separate and distinct from the denial of benefits or where the remedy afforded by Congress under [Section 1132(a)(1)(B)] is otherwise shown to be inadequate.” 780 F.3d at 372. However, as Moyle makes clear, Ninth Circuit law does not prohibit both claims unless the claims result in a double recovery, and whether Section 1132(a)(1)(B) affords adequate relief is no longer an appropriate consideration. 823 F.3d at 962. 7 ORDER - 12 1 acknowledges, the effect of the injunction she seeks would be “that those activities and 2 practices do not again result in wrongful termination of her benefits and future delays 3 receiving those benefits.” (Resp. at 20; see also SAC ¶ 4.72.) The practical effect of the 4 injunction may therefore be “nothing more than a . . . . clarif[ication of Ms. Hancock’s] 5 rights to future benefits under the terms of the plan,’” and that relief is available under 6 Section 1132(a)(1)(B). Englert, 186 F. Supp. 3d at 1049; see also 29 U.S.C. 7 § 1132(a)(1)(B) (providing that a participant may bring a civil action “to clarify his rights 8 to future benefits under the terms of the plan”); (SAC ¶ 5.4.) However, the court cannot 9 conclude as a matter of law that Ms. Hancock would double recover because the viability 10 of Ms. Hancock’s Section 1132(a)(1)(B) claim is not currently before the court. See 11 Moyle, 823 F.3d at 961 (stating that, where a plaintiff has also pleaded a Section 12 1132(a)(1)(B) claim, the viability of a Section 1132(a)(3) claim at the summary judgment 13 stage turns on whether there is a factual dispute regarding a breach of fiduciary duty). 14 Because Ms. Hancock may not be entitled to relief under Section 1132(a)(1)(B), Ms. 15 Hancock would not necessarily recover twice if she were to prove that Aetna breached its 16 fiduciary duty and obtain an injunction appropriately tailored to remedy that breach. See 17 Mullin, 2016 WL 107838, at *2 (stating the elements of an ERISA breach of fiduciary 18 duty claim). 19 Defendants further argue that even if Ms. Hancock may seek injunctive relief, she 20 seeks plan-wide injunctive relief under the incorrect statutory provision. (Reply at 6; see 21 also id. at 7 (“Plaintiff asserts that she is seeking individual relief but the underlying 22 intent of her requested relief is to overhaul Aetna’s policies related to training, ORDER - 13 1 decision-making, and supervision of employees.”).) The court agrees that Ms. Hancock 2 cannot seek plan-wide injunctive relief under Section 1132(a)(3) because that statutory 3 provision only provides individualized equitable relief. (See Reply at 6-8); Varity, 516 4 U.S. at 509-10; cf. Mertens v. Black, 948 F.3d 1105, 1106 (9th Cir. 1991) (holding that 5 plaintiffs’ claims were individual where they did not purport to represent the plan or seek 6 a recovery for the plan); compare 29 U.S.C. § 1132(a)(3), with id. § 1132(a)(2). Ms. 7 Hancock must seek any plan-wide relief under Section 1132(a)(2). See McGlasson, 161 8 F. Supp. 3d at 840 (“Plaintiff’s request for an injunction . . . is necessarily limited to an 9 injunction for his sole benefit to bar certain conduct on the part of Defendants in the 10 event the parties have future interactions related to Plaintiff’s LTD benefits after the 11 lawsuit is resolved.”). However, Ms. Hancock does not assert a Section 1132(a)(2) claim 12 or appear to seek such relief. (See generally SAC; Resp.) The parties have not briefed— 13 and the court does not decide herein—the merits of any proposed injunction. (See 14 generally Mot.; Resp.; Reply.) Furthermore, although Ms. Hancock references Aetna’s 15 handling of several other Plan participants’ claims (see Resp. at 4-12), that discussion 16 does not transform Ms. Hancock’s claim for individualized relief into one for plan-wide 17 relief.8 Accordingly, the court confirms that Ms. Hancock may seek only individualized 18 19 20 21 22 8 Ms. Hancock addresses the claims-handling process for eight other Plan participants who her attorney represented in their cases alleging that Aetna improperly denied LTD benefits. (See Resp. at 4-12.) Ms. Hancock asserts that these eight cases demonstrate that Aetna engages in a pattern and practice of failing to abide by ERISA and the terms of the Plan. (See id. at 4.) Defendants argue that this evidence is inadmissible. (Reply at 8.) The court concludes that the evidence is irrelevant to its analysis and declines to determine whether the evidence is admissible. Defendants have not met their initial burden of demonstrating a lack of a genuine dispute as to Ms. Hancock’s breach of fiduciary duty claim, which means that the court need not ORDER - 14 1 equitable relief under Section 1132(a)(3), McGlasson, 161 F. Supp. 3d at 842, and the 2 court’s conclusions regarding Defendants’ motion are based on Ms. Hancock’s pursuit of 3 such individualized relief. 4 Because Ms. Hancock is not precluded from bringing a Section 1132(a)(3) claim 5 simply because she also brings a Section 1132(a)(1)(B) claim, the court turns to whether 6 Defendants have demonstrated the lack of a genuine dispute of material fact as Ms. 7 Hancock’s breach of fiduciary duty claim. 8 2. Theories of Breach of Fiduciary Duty 9 Defendants argue that Ms. Hancock’s breach of fiduciary duty claim fails on the 10 merits because “Aetna processed [Ms. Hancock’s] claim in a timely and efficient manner 11 in accordance with its own policies and procedures and the regulations set forth by the 12 DOL.” (Mot. at 2.) In response, Ms. Hancock argues that her claim does not fail because 13 she alleges six theories for breach of fiduciary duty, and Defendants address only one 14 theory—her contention that Aetna unreasonably delayed its decision on her appeal. 15 (Resp. at 2.) In reply, Defendants recast their initial argument, stating that the first, third, 16 fifth, and sixth theories “are clearly related to the timing of processing [Ms. Hancock’s] 17 benefit claims” (Reply at 6), which Defendants addressed in their motion. Defendants 18 argue that the rest of Ms. Hancock’s theories “are more properly considered in the 19 // 20 // 21 22 analyze this proffered evidence to determine whether it creates a genuine dispute of material fact. See infra § III.B.2.a; Nissan Fire & Marine, 210 F.3d at 1106; Celotex, 477 U.S. at 324. ORDER - 15 1 context of Plaintiff’s benefit claim under 1132(a)(1)(B)” and “should not be considered 2 as part of the breach of fiduciary duty claim.”9 (Id.) 3 The court finds that Defendants move for summary judgment on only one of Ms. 4 Hancock’s theories of breach—unreasonable delay. Aetna first extended its argument to 5 Ms. Hancock’s other theories of breach in its reply brief, which is improper. United 6 States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is 7 improper for a moving party to introduce new facts or different legal arguments in the 8 reply brief than those presented in the moving papers.”). Even if Defendants’ argument 9 were proper, however, only Ms. Hancock’s first theory—that Aetna unreasonably 10 delayed a decision on her appeal—is directly related to the timeliness of Aetna’s 11 decision. (See SAC ¶ 5.10 (stating six theories of breach).) The other theories are 12 distinct, even if they necessarily relate in some way to the timing of Aetna’s appeals 13 decision and Aetna’s decision to deny LTD benefits. Accordingly, the court analyzes 14 whether Defendants are entitled to summary judgment on Ms. Hancock’s theory that 15 Defendants unreasonably delayed the adjudication of her appeal. (See Mot. at 9-13.) 16 // 17 // 18 // 19 20 21 22 9 Defendants do not address whether the theory of breach of fiduciary duty on which they move for summary judgment—that Defendants unreasonably delayed a decision on her appeal— is cognizable. However, courts in the Ninth Circuit have allowed similar theories. See, e.g., Gurasich v. IBM Ret. Plan, No. C-14-02911 DMR, 2014 WL 5454525, at *4 (N.D. Cal. Oct. 27, 2014); see also 29 U.S.C. § 1132(a)(3) (allowing a breach of fiduciary duty claim to remedy violations of ERISA or the terms of the plan). ORDER - 16 1 a. Timeliness of Appeal Decision The DOL’s ERISA regulations require that a claimant’s LTD benefits appeal be 2 3 decided within 45 days of when the claimant filed the appeal. See 29 C.F.R. 4 § 2560.503-1(i)(1)(i); id. § 2560.503-1(i)(3)(i). The plan administrator may take an 5 additional 45 days to issue a decision if the administrator determines that “special 6 circumstances . . . require an extension of time for processing the claim.” Id. 7 § 2560.503-1(i)(1)(i). If the plan administrator concludes that special circumstances 8 necessitate an extension, the administrator must notify the claimant in writing of the 9 additional time and state why it is utilizing the additional time. Id. § 2560.503-1(i)(1)(i); 10 id. § 2560.503-1(i)(3)(i). The regulations state that “the need to hold a hearing, if the 11 plan’s procedures provide for a hearing,” might be a special circumstance. Id. 12 § 2560.503-1(i)(1)(i). Otherwise, the regulations do not define special circumstances. In addition, Aetna’s policies provide that a claimant “will ordinarily be notified of 13 14 the decision not later than 45 days after the appeal is received.” (AR at AET000079.) 15 The policy also states that “[i]f special circumstances require an extension of time up to 16 an additional 45 days, you will be notified of such extension during the 45 days following 17 receipt of your request” and “[t]he notice will indicate the special circumstances requiring 18 an extension and the date by which a decision is expected.” (Id.) Aetna’s procedures 19 define special circumstances as “reasons beyond the control of the plan,” such as a “lack 20 of sufficient clinical information or other external information needed to make a 21 determination.” (Id. at AET03737.) External information “can be [from] the claimant, 22 // ORDER - 17 1 employer, provider, [independent medical examination,] or peer physician reviews.” 2 (Id.) 3 There is little case law addressing what constitutes special circumstances or when 4 something is beyond the control of the plan, but one district court recently addressed the 5 issue. See Salisbury v. Prudential Ins. Co. of Am., --- F. Supp. 3d ---, 2017 WL 780817 6 (S.D.N.Y. Feb. 28, 2017). In determining what standard of review applied to the 7 plaintiff’s benefits denial claim, see id., at *2, the District Court for the Southern District 8 of New York held that an extension to review information in the plaintiff’s file that 9 remained under physician and vocational review could not constitute a valid special 10 circumstance, id., at *4. The court reached its conclusion after reviewing the DOL’s 11 preamble to the applicable regulations. Id., at *3. The preamble states that “‘the time 12 periods for decisionmaking are generally maximum periods, not automatic 13 entitlements.’” Id. at *4 (quoting ERISA Rules & Regulations for Admin. & 14 Enforcement; Claims Procedures (“Preamble”), 65 Fed. Reg. 70,246, 70,250 (Nov. 21, 15 2000)). The preamble also states that “‘it may be unreasonable’ to seek an extension if 16 the ‘claim presents no difficulty whatsoever’” and that “‘an extension may be imposed 17 only for reasons beyond the control of the plan.’” Id. (quoting Preamble); see also 18 Reeves v. Unum Life Ins. Co. of Am., 376 F. Supp. 2d 1285, 1293 (W.D. Okla. 2005) 19 (quoting 29 C.F.R. § 2560.503-1(i)(1)(i)) (“An example of a special circumstance 20 justifying an extension of the review time is ‘the need to hold a hearing.’”). Finally, the 21 court noted that the preamble “suggested that simply having too much work does not 22 constitute an acceptable justification” for an extension. Salisbury, 2017 WL 780817, at ORDER - 18 1 *4. Based on the preamble’s guidance, the court concluded that the plan administrator’s 2 proffered special circumstance—needing additional time to review “the information in 3 Ms. Salisbury’s file which remains under physician and vocational review”—was 4 insufficient. Id. The court reached this conclusion because “virtually every appeal of the 5 denial of a disability benefits claim will require ‘physician and vocational review,’” and 6 that review therefore cannot be considered “special.” Id. 7 As Salisbury demonstrates, the DOL’s preamble and regulations contemplate that 8 a situation beyond the control of the plan constitutes a special circumstance that 9 necessitates an extension. See Preamble, 65 Fed. Reg. at 70,250. As with special 10 circumstances, there is limited case law defining when a situation is beyond the control of 11 the plan. But in one example, the District Court for the Eastern District of Pennsylvania 12 concluded that the plaintiff’s failure to receive periodic statements under the plan was 13 beyond the control of the plan because the plaintiff had provided an incorrect mailing 14 address. Askew v. R.L. Reppert, Inc., No. 11-cv-04003, 2016 WL 447060, at *13 (E.D. 15 Pa. Feb. 5, 2016); see also Cross v. Fleet Reserve Ass’n Pension Plan, 16 No. WDQ-05-0001, 2006 WL 6461992, at *7 (D. Md. Sept. 28, 2006) (concluding that 17 there was no evidence that a situation was reasonably within the defendant’s control). 18 The court concludes on the record before it that Aetna has not met its initial 19 burden of demonstrating that there is no genuine dispute of material fact whether Aetna 20 unreasonably delayed Ms. Hancock’s appeal by invoking a 45-day extension. See 21 Anderson, 477 U.S. at 322. On September 26, 2016, Aetna notified Ms. Hancock’s 22 counsel that it was invoking the 45-day extension because Aetna “referred your client’s ORDER - 19 1 file for a medical review, which has not been completed yet.” (AET000993.) Aetna 2 characterizes this medical review as a “peer review,” which Aetna’s policies state 3 constitutes a special circumstance because the time by which the peer reviewer will 4 complete his review is beyond the control of the plan. (See Reply at 11 (citing AR at 5 AET03737).) 6 Aetna’s argument requires the court to disregard the 26 days during the appeals 7 process during which Aetna failed to contact a peer reviewer or assign Ms. Hancock’s 8 file to peer review until the twenty-eighth day. (See AR at AET002189-91.) Aetna fails 9 to address the events leading up to the peer review, and, accordingly, there is no evidence 10 or argument before the court regarding the reasonableness of Aetna’s decision to wait to 11 assign the peer review until the twenty-eighth day—nearly two-thirds of the way into the 12 initial 45-day period. As Defendants implicitly acknowledge, Aetna was in control of the 13 appeal before this date. (See Mot. at 4 (“As of September 26, 2016, the claims file was 14 outside the control of Aetna so there could be no further action or final determination on 15 whether [Ms. Hancock] was functionally impaired from returning to any occupation.”).) 16 In addition, Aetna points the court to no authority to suggest that simply because a plan 17 administrator states that an event is out of the Plan’s control at some point during the 45 18 days, an extension is necessarily warranted. (See generally id.; Reply.) 19 For these reasons, based on the facts before it and viewing the evidence in the light 20 most favorable to Ms. Hancock, the court cannot conclude as a matter of law that the 21 timing of Aetna’s appeal decision was reasonable. Aetna’s assignment of the peer review 22 on the twenty-eighth day of the 45-day appeal period raises a genuine dispute over ORDER - 20 1 whether any delay was beyond the control of the plan or due instead to the timing of 2 Aetna’s assignment. If the delay was within Aetna’s control, a reasonable factfinder 3 could conclude that Aetna unreasonably delayed a decision on Ms. Hancock’s appeal. 4 Accordingly, Defendants have not met their burden of demonstrating a lack of a genuine 5 dispute of material fact, and the court denies Defendants’ motion for summary judgment 6 on this theory of breach of fiduciary duty. 7 b. Public Policy Considerations 8 Finally, Defendants argue that public policy considerations should lead the court 9 to “conclude that as a matter of public policy Defendants did not breach their fiduciary 10 duty when evaluating [Ms. Hancock’s] claim.” (Mot. at 15.) Defendants contend that 11 allowing a breach of fiduciary duty claim to go forward on this theory puts plan 12 administrators in “a no-win situation” because they risk being “punished for seeking 13 extensions in order to fully consider the available medical records . . . or [they] rush 14 through the evaluation.” (Id.) Finally, Defendants state that “the regulations are more 15 flexible than [Ms. Hancock’s] strict 45-day requirement in nearly every circumstance.” 16 (Id.) 17 The court finds that the DOL regulations and the preamble to them appropriately 18 define the balance that plan administrators should strike in evaluating LTD benefits 19 appeals. Although the regulations permit a 45-day extension for special circumstances 20 beyond the control of the plan, see 29 C.F.R. § 2560.503-1(i)(1)(i); id. 21 § 2560.503-1(i)(3)(i), the preamble to the regulations makes clear that “‘the time periods 22 for decisionmaking are generally maximum periods, not automatic entitlements.’” ORDER - 21 1 Salisbury, 2017 WL780817, at *4 (quoting Preamble, 65 Fed. Reg. at 70,250). The 2 preamble provides some additional guidance by stating that “‘it may be unreasonable’ to 3 seek an extension if the ‘claim presents no difficulty whatsoever’” and that “‘an 4 extension may be imposed only for reasons beyond the control of the plan.’” Id. (quoting 5 Preamble, 65 Fed. Reg. at 70,250). Accordingly, plan administrators must demonstrate a 6 special circumstance justifying an extension of time to decide an appeal. The court has 7 applied that standard in considering Defendants’ motion for partial summary judgment, 8 and the court concludes that the public policy considerations Defendants raise do not 9 dictate a different outcome. 10 C. Discovery Issues The parties also raise several discovery disputes related to Ms. Hancock’s breach 11 12 of fiduciary duty claim. (See Resp. at 3-4; see also Pl. Statement (Dkt. # 34); Defs. 13 Statement (Dkt. # 36); Pl. Supp. Statement (Dkt. # 40); Defs. Supp. Statement (Dkt. 14 # 41).) On April 17, 2017, the court held a telephonic hearing on the discovery issues. 15 (See 4/17/17 Min. Entry.) At that time, the court suspended discovery related to the 16 breach of fiduciary duty claim while the motion for partial summary judgment was 17 pending. (Id.) Having ruled on that motion, the court orders the parties to meet and 18 confer regarding whether the discovery matters they raised prior to this ruling are still in 19 issue. (See id.) If so, the parties may file discovery motions related to the breach of 20 fiduciary duty claim within seven days of the entry of this order. (Id.) The parties may 21 file a response to any discovery motion no later than ten days after the filing of the 22 // ORDER - 22 1 motion. (Id.) At this time, the court does not authorize further briefing on any discovery 2 motion. (Id.) 3 4 IV. CONCLUSION For the foregoing reasons, the court DENIES Defendants’ motion for partial 5 summary judgment (Dkt. # 26). The court further ORDERS the parties to review the 6 court’s April 17, 2017, order (Dkt. # 42) regarding discovery disputes related to the 7 breach of fiduciary duty claim and re-raise any live discovery disputes pursuant to the 8 terms articulated in this order. 9 Dated this 3rd day of May, 2017. 10 11 A 12 JAMES L. ROBART United States District Judge 13 14 15 16 17 18 19 20 21 22 ORDER - 23

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