Killian v. Concert Health Plan

742 F.3d 651, 2013 WL 5942703

Opinions

RIPPLE, Circuit Judge.

In February 2006, Susan Killian learned that she had lung cancer, which had spread to her brain. After physicians at Delnor Community Hospital determined that they could not operate, she sought a second opinion from a physician at Rush University Medical Center (“Rush”) and soon afterward was admitted for emergency brain surgery. Although the surgery successfully removed the most serious tumor, her cancer treatment was ultimately unsuccessful, and she died a few months later.

At the time of her diagnosis, Mrs. Killi-an was an employee of Royal Management Corporation (“Royal Management”) and participated in its group health insurance, which was provided by Concert Health Plan Insurance Company (“Concert”). Concert paid for part of Mrs. Killian’s cancer treatment, but denied coverage, or paid only a small percentage, of services received at Rush. Mr. Killian, the administrator of her estate, brought this action against Concert, Concert Health Plan,¹ Royal Management and Royal Management Corporation Health Insurance Plan (the “Royal Plan”) seeking payment of benefits against the Royal Plan and Concert, relief for breach of fiduciary duty against Royal Management and Concert, and statutory penalties against Royal Management.²

The district court granted summary judgment for the defendants on the denial of benefits and breach of fiduciary duty claims and awarded statutory penalties against Royal Management. A panel of this court affirmed the decision of the district court on the first two claims,³ but remanded for the district court to correct the calculation of statutory penalties. Kil-lian v. Concert Health Plan (Killian I), 680 F.3d 749, 764-65 (7th Cir.2012).⁴ After rehearing by the en banc court, we adopt the panel’s reasoning and conclusion related to the denial of benefits and statutory penalties issues. On the breach of fiduciary duty claim, however, we reverse the judgment of the district court and remand for further proceedings.

l‘

BACKGROUND

Concert began providing insurance to Royal Management’s employees in July 2005. The agreement between Royal Management and Concert provided that Royal Management would be the plan administrator and that Concert would be the “administrator for claims determinations” and the “ERISA [Employee Retirement Income Security Act] claims review fiduciary” with “full and exclusive discretionary authority to: 1) interpret Policy or Group Plan provisions; 2) make decisions regarding eligibility for coverage and benefits; and 3) resolve factual questions re lating to coverage and benefits.”⁵

While employed with Royal Management, Mrs. Killian enrolled in the Royal Plan and selected coverage under the “S035 Open Access” option. The Master Group Policy and accompanying Certificate of Insurance applicable to her S035 plan described the terms, exclusions, conditions and benefits available under the Royal Plan. Participants were cautioned to seek services from network providers whenever possible and told that “[t]o confirm that Your ... provider is a CURRENT participant ... You must call the number listed on the back of Your medical identification card.”⁶ The Master Group Policy did not specify which of several numbers on the back of the card should be called, and a few pages later it instructed participants to obtain provider participation information by calling an unspecified “toll free telephone number on your identification card.”⁷ Participants also were directed to “call the number” on their identification cards to verify infertility benefits, or appeal a decision denying benefits ⁸ They were instructed to follow the procedures described in the “Utilization Management section” when receiving emergency care.⁹

The front of Mrs. Killian’s insurance card listed toll-free numbers under four different headings. The second and most prominently listed number was for “Customer Service,” which was the same toll-free number for “Utilization review.” The back of her card listed toll-free numbers under three different headings, but used the same toll-free number for “UTILIZATION REVIEW” and medical claims.¹⁰ Both sides of this card are appended to this opinion.

In late February 2006, Mrs. Killian sought treatment from her primary care physician, Dr. Bradshaw, for a severe cold and persistent headaches. A CT scan revealed the presence of three brain tumors, and she was diagnosed with lung cancer, which had metastasized to her brain. Mrs. Killian then went to Delnor Community Hospital; she stayed for five days, but her physicians concluded that they could not operate on the tumors. Seeking a second opinion, the Killians scheduled an appointment with Dr. Philip Bonomi, a physician at Rush who had treated Mrs. Killian’s daughter before she died of cancer in 2001. The Killians met with Dr. Bonomi and Dr. Louis Barnes, a neurosurgeon, on April 7, 2006. Dr. Barnes reviewed Mrs. Killian’s medical records, including the CT scan, and determined that Mrs. Killian would be dead in five days unless the largest tumor was removed immediately.

The Killians did not contact Concert before meeting with Dr. Bonomi because their plan to see Dr. Bonomi for a second opinion did not depend on whether he was in Mrs. Killian’s network. However, when they learned that Mrs. Killian had only a few days to live unless the largest tumor was removed and that physicians at Rush could perform the necessary surgery, Mr. Killian called Concert about the developing situation. He first called the “provider participation” number listed on the front of Mrs. Killian’s insurance card. Mr. Killian informed the Concert representative that he and Mrs. Killian were at St. Luke’s Hospital¹¹ for a second opinion, that the physicians had determined that the tumor had to be removed and that the physicians wanted Mrs. Killian to be admitted for brain surgery. The representative searched her database and could not find any information on “St. Luke’s,” but told Mr. Killian to “go ahead with whatever had to be done.”¹² She also told him to call back later.¹³

Mr. Killian called back later the same day, April 7, but this time he called the number listed under the prominent “Customer Service” heading on the front of Mrs. Killian’s insurance card, which is the same number under the heading “Utilization review” on the front and back of the card and is also listed as the number for medical claims. The representative who took the second call seemed to be aware of Mr. Killian’s earlier call and confusion about the name of the hospital because when he mentioned Rush she said, perhaps in jest, “Oh, you mean St. Luke’s.”¹⁴ He could hear her laugh and tell a colleague, “It’s the guy from St. Luke’s.”¹⁵ When Mr. Killian told the representative, “I’m trying to get confirmation that we are going to be — my wife is going to be admitted to Rush,” the representative said, “Okay.”¹⁶ She did not tell Mr. Killian whether services at Rush were in or out of network or whether there would be any limits to coverage.¹⁷

Mrs. Killian underwent surgery at Rush two days later, April 9, and was released on April 12, 2006. The record is silent as to whether the Killians would have gone to a different hospital or sought emergency admission at Rush¹⁸ had Concert representatives told Mr. Killian that Rush was not in Mrs. Killian’s network. After the surgery, she received some outpatient services from Dr. Bonomi, and, in June 2006, she was admitted to Rush on an emergency basis for nine days to be treated for pneumonia. Mrs. Killian attempted chemotherapy but could not tolerate it, and she died in August 2006.

During the months between Mrs. Killi-an’s surgery and death, Mr. Killian received notices from Concert stating that Concert would not cover services at Rush because the hospital was not in Mrs. Killi-an’s network. In response to a letter from Mr. Killian disputing the denial and requesting immediate review, Concert reiterated that the claims were out of network and that the Killians were responsible for the maximum allowable fee. When Mr. Killian appealed, Concert agreed to consider Mrs. Killian’s treatment for pneumonia as an emergency and to process the claim for that treatment at the in-network level. The remaining claims total approximately $80,000.

Mr. Killian filed this action in his capacity as administrator of Mrs. Killian’s estate, and discovery ensued. The proceedings before the district court included multiple motions to dismiss and for summary judgment, and Mr. Killian amended his complaint twice. Finally, the district court granted summary judgment in favor of the defendants on the denial of benefits and breach of fiduciary duty claims and granted statutory penalties against Royal Management for failure to provide Mrs. Killian with a summary plan description.

On the denial of benefits claim, Mr. Kil-lian argued that Concert’s decision to deny benefits should not be sustained because Concert did not comply with ERISA’s notification requirements and because there was no evidence supporting Concert’s determination that Rush and Dr. Bonomi were not in Mrs. Killian’s network. Section 1133(1) of Title 29 requires that when a benefits claim is denied, the plan must give notice to the beneficiary by “setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant.” Failure to comply substantially with § 1133 may be grounds for reversing an administrator’s decision. See Love v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 396 (7th Cir.2009). The district court determined that the notifications sent by Concert did not comply with all of the technical requirements set forth in 29 C.F.R. § 2560.503-l(j).¹⁹ However, the court held that, because Concert’s letters substantially complied with ERISA’s notification requirements, the deficiencies did not warrant a finding that Concert’s decision was arbitrary and capricious. In addition, it held that there was no need to remand to Concert because Mr. Killian did not allege that the providers in question were within Mrs. Killian’s network.²⁰

On the breach of fiduciary duty claim, Mr. Killian argued that Concert and Royal Management failed to provide Mrs. Killian with an adequate summary plan description. The district court granted summary judgment for the defendants because Mr. Killian had failed to show bad faith, purposeful concealment or detrimental reliance.²¹ Mr. Killian moved for reconsideration arguing that the district court had overlooked our decision in Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th Cir.2010), and had failed to address the two telephone calls that he made to Concert on the day of the appointment with Dr. Bono-mi. Mr. Killian argued that Concert breached its fiduciary duty by failing to inform him that Rush was out of network and that coverage of any services received at Rush would be limited. The district court dismissed this argument on the grounds that Concert did not give Mr. Killian any information about whether Rush was in network and because the Kil-lians had not relied on any statements made by Concert or Royal Management; it additionally noted that Mr. Killian should have raised this argument in his opposition to summary judgment.²²

A new district judge took over the case after summary judgment on the denial of benefits and breach of fiduciary duty claims. That judge addressed the separate claim for statutory penalties for failure to provide plan documents and ordered Royal Management to pay Mr. Killian $5,880.²³

After a final judgment was entered in the district court, Mr. Killian timely appealed. A panel of this court affirmed summary judgement for the Royal Plan and Concert on the denial of benefits claim, but required the parties to submit a stipulation as to whether Rush, Dr. Bono-mi and Dr. Barnes were in Mrs. Killian’s network. The panel also affirmed summary judgment for Royal Management and Concert on the fiduciary duty claim. On the statutory damages claim, the panel reversed and remanded because the district court used the wrong dates in calculating the penalty and failed to address one of Mr. Killian’s arguments.

II

DISCUSSION

As noted earlier, we affirm the panel’s decision on the denial of benefits and statutory penalties claims; we therefore limit our discussion here to the one claim upon which we chart a course different from that set out in the panel opinion: the breach of fiduciary duties. Mr. Killian submits that Royal Management and Concert breached their fiduciary duties in two ways: first, by failing to provide Mrs. Kil-lian with a summary plan description and, second, by failing to inform him that Mrs. Killian’s providers were out of network during telephone conversations on April 7, 2006.

A beneficiary is entitled to relief for a breach of fiduciary duty if he proves “(1) that the defendant is a plan fiduciary; (2) that the defendant breached its fiduciary duty; and (3) that the breach resulted in harm to the plaintiff.” Kenseth, 610 F.3d at 464. It is not disputed here that Royal Management and Concert are both fiduciaries under ERISA. Accordingly, with respect to each of Mr. Killian’s theo ries on this claim, the issues before us are only those of breach and harm.

On the first theory, related to the failure to provide a summary plan description, the panel determined that Royal Management and Concert breached their fiduciary duty. It nevertheless affirmed summary judgment in favor of the defendants because Mr. Killian could not show that the lack of a summary plan description caused his harm. We agree with this result because Mr. Killian knew that he could determine a provider’s network status by calling a number on Mrs. Killian’s insurance card, and we adopt the panel’s decision on this matter.

A review of Mr. Killian’s second theory of breach of fiduciary duty is more difficult to resolve, and it is with respect to this specific theory that we depart from the conclusions of the panel decision.

We pause at this point to set forth, for the convenience of the reader, the path of our discussion. First, we examine whether there is sufficient evidence of a controversy between the parties to exercise jurisdiction over this claim. We conclude that, although the full nature and extent of the harm is a merits question, it is clear that, as this case comes to us today, there is a live dispute between the parties about the merits of the claim that justifies the exercise of our jurisdiction.²⁴

Having resolved this threshold issue, we shall then turn to the merits. On this point, we agree with Mr. Killian that, because the plan documents provided to Mrs. Killian were incomplete in themselves, we must evaluate in some depth whether that deficiency was cured in the telephone calls Mr. Killian made to Concert on April 7, 2006. For the reasons set forth in more detail below, we conclude that the summary judgment record does not permit us to resolve this issue of breach in favor of the defendants. Assuming that the question of breach is resolved in favor of Mr. Killian the summary judgment record similarly raises a genuine issue of triable fact on the question of harm.

We now turn to a plenary discussion of the issues we have just outlined.

A.

In September 2012, following the panel decision in this case, Mr. Killian notified the court that Mrs. Killian’s estate had been closed in August 2011. At the time, the only asset held by the estate was its claim against the defendants, which was distributed to Mr. Killian. Mr. Killian moved to substitute himself as plaintiff in his individual capacity, rather than as administrator of Mrs. Killian’s estate. We granted his motion. We were concerned, however, about whether this change affected our jurisdiction under the case or controversy requirement of Article III of the Constitution of the United States. This concern obligated us to consider the matter further. See North Carolina v. Rice, 404 U.S. 244, 245-46, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). Accordingly, following reargument en banc, we ordered additional briefing to assist us in determining whether, in light of the closing of the estate, “Mr. Killian retains any interest in obtaining relief and whether the relief sought by Mr. Killian will make a difference to his legal interests.” The parties responded. In his submission, Mr. Killian notified the court that he had reopened Mrs. Killian’s estate and again sought to pursue the claim on behalf of the estate. Having reviewed the submissions, we now conclude that there is a live con troversy between the parties such that our jurisdiction over the matter is not in question.

Under Article III, the federal courts “may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). When a case becomes moot, this constitutional requirement is lacking. United States v. Segal, 432 F.3d 767, 773 (7th Cir.2005) (noting that a case is moot if the controversy between the parties has been resolved). The Supreme Court recently has reiterated, simply and directly, the governing principle in any mootness inquiry:

There is thus no case or controversy, and a suit becomes moot, when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. But a case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.

Chafin v. Chafin, — U.S. -, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (emphasis added) (citations omitted) (internal quotation marks omitted). That is, although “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them,” Rice, 404 U.S. at 246, 92 S.Ct. 402, “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot,” Knox v. Serv. Emps. Int’l Union, Local 1000, — U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (internal quotation marks omitted). Consequently, “[t]he burden of demonstrating mootness is a heavy one,” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation marks omitted), borne by the party seeking to have the ease declared moot, see, e.g., Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-70, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).

Notably, the Court also has counseled that we must be careful not to “ ‘confuse[] mootness with whether [the plaintiff] has established a right to recover ..., a question which it is inappropriate to treat at this stage of the litigation.’ ” Chafin, 133 S.Ct. at 1024 (second and third alterations in original) (quoting Powell v. McCormack, 395 U.S. 486, 500, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). In the present case, to succeed on the merits of the fiduciary duty claim (the claim that was in the possession of Mrs. Killian’s estate before it was closed), Mr. Killian must present evidence from which a factfinder can conclude that the estate suffered a harm from a breach on the part of the defendants. But that is a burden that he must carry on the merits. At this stage, by contrast, as we consider our basic subject matter jurisdiction, Mr. Killian must assert such a cognizable injury and demonstrate that it is possible for the court, were it to agree with Mr. Killian’s arguments on liability, “to ‘fashion some form of meaningful relief,’” Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir.1995) (emphasis in original) (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). As we noted in Dixon v. ATI Ladish LLC, 667 F.3d 891, 894 (7th Cir.2012), “a good defense to liability is a reason why defendants prevail on the merits rather than a reason why the litigation should be dismissed without prejudice — which is the consequence of mootness.” See also Chafin, 133 S.Ct. at 1025 (noting that uncertainty as to whether an order will be followed or enforced does not render a case moot); Segal, 432 F.3d at 773 (noting that the advisability of a particular remedy “is not relevant to the mootness inquiry”); cf. Harzewski v. Guidant Corp., 489 F.3d 799, 804 (7th Cir.2007) (reversing a district court’s dismissal for lack of standing because “the question whether an ERISA plaintiff is a ‘participant’ entitled to recover benefits under the Act should be treated as a question of statutory interpretation fundamental to the merits of the suit rather than as a question of the plaintiffs right to bring the suit”). In short, the mootness inquiry turns on “whether the relief sought would, if granted, make a difference to the legal interests of the parties (as distinct from their psyches, which might remain deeply engaged with the merits of the litigation).” Air Line Pilots Ass’n, Int’l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.1990) (emphasis added).

The closing and reopening of the estate is an odd circumstance, but one that unnecessarily, in our view, complicates the jurisdictional inquiry. Regardless of whether the estate is opened or closed, there is no question that the parties have a current, live dispute with both immediate and potential future consequences. Mrs. Killian incurred significant medical bills preceding her death. See generally R.77-4, 77-5 (medical bills and explanations of benefits). The record reflects that she (or Mr. Killian after her death) paid several of those bills. See, e.g., R.77-5 at 18 ($65.77 paid to “Rush University Medical Center” for services dated 04/08/2006); id. at 19 ($11.87 paid to “Rush University Medical Center” for services dated 04/07/2006); id. at 40 ($10 paid to “Rush University Medical Center” for services dated 04/07/2006). Those debts incurred — and bills actually paid — would not necessarily have been the same had the defendants covered her care to the extent required had the providers been in-network. Indeed, the record suggests that co-pay, coinsurance, and annual deductible amounts differ depending on whether a service is obtained from an in-network or out-of-network provider. See R.77-3 at 65-69 (setting forth the applicable costs under the S035 Open Access plan, the plan in which Mrs. Killian was enrolled). The estate, therefore, already has suffered this concrete and redressable injury, and this fact alone is sufficient to secure our jurisdiction.

Although these amounts in themselves are sufficient to prevent us from declaring the case moot, it would be wrong to suggest that the only consequence of resolving this dispute would be to settle debts on these amounts already paid. Since Mrs. Killian’s death, the dispute in this case always has been one between Mr. Killian and the defendants over his wife’s coverage and their family’s resulting liability on third-party medical debts. Initially, he pursued this dispute through the vehicle of a probate estate, with the entire corpus of the estate being the claims against the defendants. Tied up in the same dispute, however, are the debts that Mrs. Killian died owing, which we understand could have been collected by her medical creditors either through claims against her estate or directly against Mr. Killian under the Illinois Family Expense Act, 750 ILCS 65/15. For practical purposes, as far as Mr. Killian was concerned, the vehicle the creditors pursued was of little consequence. In the end, the responsibility for payment rested with him, either as administrator of the estate or because of his direct and personal liability. Unsurprisingly, the creditors appear to have pursued the path of least resistance and billed Mr. Killian directly.²⁵ Also unsurprisingly, the record does not reflect that any of the medical providers have ever instituted judicial proceedings to collect on the debts as opposed to working with Mr. Killian toward payment, perhaps at the conclusion of this litigation. Given these circumstances, Mr. Killian’s initial decision to close the estate is understandable. It was Mrs. Killian’s claim, but he inherited it, and, in any event, the consequence of the resolution of the dispute, whatever it may be, falls to him alone. The estate is and has always been a construct to resolve this dispute. We find it equally understandable that, once it appeared from the court’s own request for supplemental filings that the closing of the estate might matter for our purposes, Mr. Killian accommodated that possibility by reopening the estate. Whether, as a matter of state law, that vehicle is a viable or preferable way of proceeding is of secondary importance to our present inquiry. By no account is the present dispute resolved, and by no account has there been any fundamental shift in the relationship of the parties to the dispute.²⁶

The foregoing discussion reveals the direct financial interests at stake in the amounts already paid, and the sufficiently real possibility that the additional debts may come Mr. Killian’s way. In light of the reopening of the estate, the contention in Judge Manion’s dissent (hereinafter dissent) that there is no possibility of recovery of the medical bills from the estate, and therefore no apparent harm to the estate, is not demonstrably correct. Whether that contention was correct while the estate was closed is a somewhat complicated question. In Illinois, the fact that an estate is closed may, but does not necessarily, preclude creditors from bringing claims against it. In Schloegl v. Nardi (In re Estate of Perrine), 92 Ill.App.2d 302, 234 N.E.2d 558, 561 (1968), the Illinois Court of Appeals held that an estate that had been duly administered and closed could be reopened when a plaintiff brought a personal injury claim against the decedent. Subsequent cases have distinguished Schloegl, but have not rejected its conclusion that a claim may be brought against an estate if the time for bringing such claims has not expired. See McCue v. Colantoni, 80 Ill.App.3d 731, 36 Ill.Dec. 263, 400 N.E.2d 683, 687 (1980) (rejecting a personal injury claim against an estate because, unlike the claim in Schloegl, the claim was brought after the limitations period for personal injury claims had expired); Dichtl v. Foster McGaw Hosp. (In re Estate of Garawany), 80 Ill.App.3d 401, 35 Ill.Dec. 735, 399 N.E.2d 1024, 1026-27 (1980) (rejecting a late claim brought by-medical providers because, unlike in Schloegl, the insurance policy already had been paid to the estate); see also Rivera v. Taylor, 61 Ill.2d 406, 336 N.E.2d 481, 485 (1975) (noting that the statute governing the period for bringing claims against an administrator would not bar a personal injury claim before the end of the limitations period for that claim).

Any claim against Mr. Killian or Mrs. Killian’s estate would likely be brought to enforce the agreement between Mrs. Killian and the Rush providers or against Mr. Killian for payment under the Illinois Family Expense Act, 750 ILCS 65/15. The limitations period for actions on written contracts or written evidence of indebtedness is ten years. 735 ILCS 5/13-206. A five-year limitations period applies to “actions on unwritten contracts, expressed or implied,” 735 ILCS 5/13-205, and claims for family expenses under the Family Expense Act, id.; Juechter v. Grace, 55 Ill.App.3d 606, 13 Ill.Dec. 484, 371 N.E.2d 179, 181 (1977). These limitations periods may be tolled if the party to be charged makes a partial payment, St. Francis Med. Ctr. v. Vernon, 217 Ill.App.3d 287, 160 IlL.Dec. 276, 576 N.E.2d 1230, 1231 (1991), or new written promise to pay, Chase v. Bramhall, 343 Ill.App. 171, 98 N.E.2d 529, 531 (1951). The record suggests that Mrs. Killian agreed to be responsible for the charges, see, e.g., R.77-5 at 36 (bill from Rush listing Mrs. Killian as “Guarantor”), and makes clear that at least some payments were made. There is no evidence as to whether the Killians, or Mr. Killian on behalf of the estate, also agreed in writing to pay all or portions of the remaining bills as counsel informs us he has done verbally throughout the course of these proceedings.

In any event, as we have noted, the estate has been reopened and, in light of the proceedings in this case, claims for payment that were being sent to Mr. Kil-lian might be pursued now against the estate. This reality is also certainly sufficient to support our exercise of jurisdiction.

The dissent makes much of its assessment that, as against the estate or Mr. Killian personally, all relevant limitations periods have run, and therefore Mr. Killian has no reasonably foreseeable injury on the horizon. It ignores, however, that the debt to the providers already incurred is not contested in this action and persists as a matter of state law regardless of the running of any limitations period. La Pine Scientific Co. v. Lenchos, 95 Ill.App.3d 955, 51 Ill.Dec. 241, 420 N.E.2d 655, 658 (1981) (noting that statutes of limitation “bar the right to sue for recovery but do not extinguish the debt which remains as before”); Cook v. Britt, 8 Ill.App.3d 674, 290 N.E.2d 908, 909 (1972) (“[A] statute of limitations is an act limiting the time within which legal action shall be brought and affects the remedy only and not a substantive right.”). In any event, we simply do not know the scope of Mr. Killian’s legal liability on that debt, nor do we know the extent of his exposure to the detrimental consequences of having significant unpaid bills. In short, whether Mr. Killian or the estate would have valid legal defenses, including applicable statutes of limitation, to any separate legal action to enforce the debt is simply not a dispositive inquiry for present purposes.

One more point bears noting. The parties seem to have focused their jurisdictional arguments on whether there is a stated right to damages, and the above discussion therefore concentrates on that approach. However, Mr. Killian’s prayer for relief in the operative complaint and, indeed, the words of the statute, do not restrict the relief available in this case to monetary relief. Particularly relevant to the present case, the possibility of meaningful declaratory relief supports an exercise of jurisdiction.²⁷

On the issue of mootness, “[t]he question is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (internal quotation marks omitted). The record before us makes clear that this jurisdictional threshold is satisfied. Mr. Killian’s financial affairs are burdened with real uncertainty as a result of his wife’s last illness, and a district court could award declaratory relief that would alter significantly that burden.²⁸ When the possibility of declaratory relief is considered together with past and potential future pecuniary losses to the estate that might justify monetary relief, there is no question that the case before us is a live one and one in which the court, by granting a form of the requested relief, can alter substantially the relationship of the parties.

On remand, the district court must deal with the questions of liability and, if it reaches the question, remedy. This latter issue will require the district court to resolve many factual and legal matters on which the present record now permits only speculation. For the present moment, it is sufficient to say that the record fails to establish definitively that the Killians incurred no harm as a result of the alleged breach. Nor is it clear that declaratory relief would be unavailable to Mr. Killian.

In light of the fact of losses already supported by the record and persisting uncertainties concerning the future liability of the estate and its beneficiary, we cannot say that “there is nothing for us to remedy, even if we were disposed to do so.” Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The case is not moot, and we must proceed to the merits.

B.

In determining whether a fiduciary duty has been breached, our inquiry is guided by the plain wording of the statute and by established case law. As fiduciaries, Royal Management and Concert, in fulfilling their duties to Mrs. Killian and other plan participants, must

discharge [their] duties ... solely in the interest of the participants and beneficiaries and ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.

29 U.S.C. § 1104(a)(1)(B). These duties are analogous to those of loyalty and care that are imposed upon a trustee under the common law. See Kenseth, 610 F.3d at 465-66.

Our decision in Kenseth sets forth, with great precision, how the command of the statute ought to be applied in a situation such as the one before us. There, we recognized that

“once an ERISA beneficiary has requested information from an ERISA fiduciary who is aware of the beneficiary’s status and situation, the fiduciary has an obligation to convey complete and accurate information material to the beneficiary’s circumstance, even if that requires conveying information about which the beneficiary did not specifically inquire.”

Id. at 466 (emphasis in original) (alteration omitted) (quoting Gregg v. Transp. Workers of America Int'l, 343 F.3d 833, 845-46 (6th Cir.2003)). “Regardless of the precision of his questions, once a beneficiary makes known his predicament, the fiduciary ‘is under a duty to communicate ... all material facts in connection with the transaction which the trustee knows or should know.’” Id. at 467 (alteration in original) (quoting Restatement (Second) of Trusts § 173, cmt.d (1959)).

If “the plan documents are clear and the fiduciary has exercised appropriate oversight over what its agents advise plan participants and beneficiaries as to their rights under those documents, the fiduciary will not be held liable simply because a ministerial, non-fiduciary agent has given incomplete or mistaken advice to an insured.” Id. at 472. Nevertheless, if a fiduciary “supplies] participants and beneficiaries with plan documents that are silent or ambiguous on a recurring topic, the fiduciary exposes itself to liability for the mistakes that plan representatives might make in answering questions on that subject.” Id.

In the present case, we cannot say that the pertinent plan documents were clear and complete as to which service providers were in Mrs. Killian’s network. The Killians never have received a summary plan description, which must contain “the composition of the provider network,” 29 C.F.R. § 2520.102-3(j)(3),²⁹ and the Master Group Policy does not identify which providers are in network. Instead, beneficiaries are instructed to either “call the number listed on the back of [their] medical identification card[s]” or “call[] the toll free telephone number on [their] identification card[s]” to determine whether a provider is in network³⁰ The situation before us is therefore much like the one that we confronted in Kenseth, where the policy documents’ only advice for determining “whether a particular course of treatment was covered by the ... plan was to call [the fidueiary]’s customer service line.” 610 F.3d at 477. Here, the Master Group Policy simply instructed participants to contact Concert before undergoing treatment to determine whether the providers would be in network. They were given no more direction. Concert asserts that directing beneficiaries to call is the best way to confirm network provider information because its list of net work providers frequently changes. We do not necessarily disagree with Concert’s conclusion; we merely point out that this approach made the plan documents incomplete. Consequently, Concert “expose[d] itself to liability for the mistakes that [its] representatives might make in answering [Mr. Killian’s] questions on that subject.” Id. at 472.

C.

Because the instructions given in the provided plan documents were deficient, we must examine the substance of the telephone calls between Mr. Killian and Concert. In our view, a reasonable trier of fact certainly could conclude that Concert was aware (or, at the very least, that it should have been aware) that Mr. Killian was attempting to determine whether Rush and the physicians who were about to perform surgery on Mrs. Killian were within Mrs. Killian’s network.

1. The First Telephone Call

The front of Mrs. Killian’s insurance card provides telephone numbers under four different headings. The first number is for “determin[ing] Provider participation.” ³¹ This was a “dedicated line” for providing “[t]he most accurate, up to date information” regarding provider participation.³² Because this line was dedicated to informing beneficiaries whether providers were in network, Concert knew (or, at the very least, should have known) that beneficiaries would call this line to determine a provider’s network status. As such, when a beneficiary calls this number, Concert “ ‘has an obligation to convey complete and accurate information material to [provider participation status], even if that requires conveying information about which the beneficiary did not specifically inquire,’ ” Kenseth, 610 F.3d at 466 (emphasis in original) (quoting Gregg, 343 F.3d at 845-46), “[r]egardless of the precision of his questions,” id. at 467.

Mr. Killian called this number on April 7, 2006. After providing Mrs. Killian’s name and card number, he said, “we are here for a second opinion and she is going — they want to admit her because we already determined the tumor has to come off.” R.253 at 72; see also id. at 125 (“I said she was being admitted to the hospital and they were going to do the surgery.”). Mr. Killian referred to Rush as “St. Luke’s,” the name that he always had used for this hospital. The Concert representative said that she was unable to find a listing under that name and instructed Mr. Killian to “[g]ive [her] a call back.”³³ She also said that Mrs. Killian should “go ahead with whatever had to be done.”³⁴ Although the representative did not state directly that Rush was in Mrs. Killian’s network, a reasonable trier of fact could conclude that this representative failed “to convey complete and accurate information material to [Mrs. Killian]’s circumstance.” Kenseth, 610 F.3d at 466 (internal quotation marks omitted). Mr. Killian at one point testified that he and the representative “never determined anything,” during this telephone call.³⁵ However, he also testified that, at the end of the two calls, he believed that Mrs. Killian’s surgery would be covered “[b]ecause nobody ever said these [providers] are out-of-network.” ³⁶

Taking these facts in the light most favorable to Mr. Killian for purposes of summary judgment, a reasonable trier of fact could conclude: (1) that Mr. Killian was concerned about whether the providers were in network; (2) that Mr. Killian called the number that Mrs. Killian’s insurance card said should be used to determine provider participation to resolve this question; (3) that the representative knew that Mr. Killian was seeking this information; (4) that the representative told Mr. Killian to “go ahead with whatever had to be done,” even though she knew that she had not been able to establish the provider’s network status; and (5) that Mr. Killi-an left that telephone call believing that Mrs. Killian could “go ahead with whatever had to be done” because he had followed the instructions on Mrs. Killian’s insurance card, was told to do so and received no warning that the “go ahead” was not to be understood as an authorization. Mr. Killian’s testimony is susceptible to the interpretation that, during the stress of the moment, he believed that he could rely on the representative’s instruction to “go ahead.” Mr. Killian “should not be penalized because he failed to comprehend the technical difference between ‘[go ahead]’ and ‘[the provider is in network].’ The same ignorance that precipitates the need for answers often limits the ability to ask precisely the right questions.” Kenseth, 610 F.3d at 467. A finder of fact would be entitled to conclude that, at the very least, the representative should have instructed Mr. Killian that she was unable to locate an entry in her system for “St. Luke’s” and that she could make no representations at that time as to whether the provider was in network.

The fact that Mr. Killian made a second call does not necessarily negate his claim of reliance on the instruction to “go ahead.” Mr. Killian testified that, in making the second telephone call, he was calling “for preadmission,” as he was instructed to do by Mrs. Killian’s insurance card.³⁷ The card said that “[e]mergency admissions must be certified within 48 hours” and that this second number should be used to obtain the necessary “UTILIZATION REVIEW.”³⁸ Taking these facts in the light most favorable to Mr. Killian, a reasonable trier of fact could conclude that Mr. Killian made the second call to obtain the required “certification,” or “UTILIZATION REVIEW,” for his wife’s surgery. Having just learned that the surgical procedure was necessary for his wife to live longer than a few days,³⁹ a reasonable trier of fact could conclude that Mr. Killian believed this was an emergency procedure for which he was not required to obtain precertification seven days in advance.

2. The Second Telephone Call

When Mr. Killian made the second telephone call, he dialed the second, and most prominent, number on the front of Mrs. Killian’s insurance card, which was for customer service, as well as for utilization review. As noted earlier, this was the same number listed on the back of the card for utilization review and medical claims. There is evidence that Concert had encouraged beneficiaries to use this number for determining provider participation as well. Specifically, in the Master Group Policy, Concert instructed beneficiaries that they “must call the number listed on the back of [their] medical identification card” in order “[t]o confirm that ... [a] provider is a CURRENT participant in [the beneficiary’s] provider Network.”⁴⁰ The back of Mrs. Killian’s insurance card provides two different telephone numbers under three separate headings: the customer service number from the front of the card is provided twice; a vision benefits number is provided once⁴¹A beneficiary who seeks to confirm that a hospital is in network by “calling the number listed on the back” of his insurance card must call either the number Mr. Killian called or the number for the “Vision Service Plan,” which clearly was inapplicable to the Killi-ans’ situation. Therefore, Concert arguably should have known that beneficiaries such as Mr. Killian would be calling this line to determine whether certain providers were in their network.

Moreover, the second number that Mr. Killian called was the correct, and apparently the only, number that he could call to obtain the required certification review with respect to the particular surgical procedure that his wife was about to undergo. Given his earlier telephone conversation, a reasonable trier of fact certainly could conclude that any further information as to whether the providers were in Mrs. Killi-an’s network would have been provided in the course of this conversation regarding the authorization of the particular procedure.

Indeed, under these circumstances, Concert had an affirmative obligation to inform Mr. Killian that the providers Mrs. Killian was about to see were out of network. See Kenseth, 610 F.3d at 466 (“[T]he trustee is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection in dealing with a third person.” (internal quotation marks omitted)). On this record, a rational trier of fact could conclude that this second representative was aware that Mr. Killi-an’s telephone calls were an effort to confirm two points: (1) that the health care providers treating his wife were within the Plan’s network; and (2) that the particular procedures contemplated for her care were authorized by the Plan. In this second call, Mr. Killian stated: “I’m trying to get confirmation that we are going to be — my wife is going to be admitted to Rush.”⁴² The representative laughed, said, “Oh, you mean St. Luke’s,” and seemed to speak to a person sitting next to her. The second representative then informed Mr. Killian that the hospital is known as “Rush Presbyterian.”⁴³ At some point, Mr. Killian said, “Susan is going to be admitted,” and the representative said “[o]kay.”⁴⁴ From her laughter and attempt at humor, a reasonable finder of fact well might conclude that this second representative knew something about Mr. Killian’s prior call. It would be reasonable to infer that this representative knew that Mr. Killian had attempted to determine whether “St. Luke’s” was in Mrs. Killian’s network during Mr. Killian’s prior call to the number for determining provider participation.

It is true that when Mr. Killian called Concert, provided Mrs. Killian’s policy number, told Concert where they were and said that Mrs. Killian needed immediate brain surgery, he did not also ask the specific question, “Is Rush an in-network provider?” However, neither the Master Group Policy nor our holding in Kenseth requires beneficiaries to ask such a specific question. The Master Group Policy simply told Mr. Killian to call a number on the insurance card, which he did twice. Under Kenseth, the fiduciary’s duty to provide complete and accurate information, even if the beneficiary does not specifically inquire, is triggered when the beneficiary makes the ERISA fiduciary “aware of the beneficiary’s status and situation.” 610 F.3d at 466 (internal quotation marks omitted). A rational factfinder could conclude that Mr. Killian put Concert on notice of his status and situation. The first Concert representative’s attempt to locate “St. Luke’s” suggests that she was aware of his need to determine Rush’s network status, and the second representative’s comments suggest that she was aware of the earlier call to the network provider number.⁴⁵

Nor does the summary judgment record establish that the Killians suffered no harm. It is undisputed that the Killians would have made an appointment with Dr. Bonomi for a second opinion regardless of his network participation status, but two days elapsed between the telephone calls and the actual surgery. A rational finder of fact could conclude that the Killians would have found another hospital or sought emergency admission at Rush had Concert informed them that Rush was out of network. Concert fails to point to any evidence in support of its assertion that the decision to obtain a second opinion regardless of network status necessarily implies that the Killians would have stayed and had the surgery performed at Rush even if Concert told them that Rush was out of network.⁴⁶

ERISA does not require a fiduciary to set out on a quest to uncover some kind of harm that might befall a beneficiary. But this case requires no such expedition. It simply requires an application of the rule, articulated in Kenseth, that an insurance company cannot defeat a breach of fiduciary duty claim by asserting that it was unaware that an insured was seeking certain material plan information when the insured called two different numbers that the insurance company itself established to provide the sort of information in‘question. This is particularly true when the representatives tell an insured to “go ahead with whatever ha[s] to be done”⁴⁷ while knowing (or at least having reason to know) that the insured is confused about this aspect of his plan and is about to undergo a costly procedure that will not be fully covered. We already have held that summary judgment is inappropriate where the “plan documents ... failed to explain adequately” a particular provision and the lack of clarity “was then exacerbated by [the fiduciary’s agents] when [the beneficiary] inquired about her coverage.” Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591 (7th Cir.2000). In Kenseth, we read Bowerman to establish that “by supplying participants and beneficiaries with plan documents that are silent or ambiguous on a recurring topic, the fiduciary exposes itself to liability for the mistakes that plan representatives might make in answering questions on that subject.” 610 F.3d at 472 (citing Bowerman, 226 F.3d at 591). Kenseth further indicated that the principle emerging from Bowerman is “especially true when the fiduciary has not taken appropriate steps to make sure that ministerial employees will provide an insured with the complete and accurate information that is missing from the plan documents themselves.” Id. at 472 (emphasis added).⁴⁸

Conclusion

On the denial of benefits claim, we affirm the district court’s grant of summary judgment, but remand with directions for counsel for both sides to submit a joint stipulation concerning whether Rush University Hospital, Dr. Barnes and Dr. Bono-mi were within Mrs. Killian’s provider network. If counsel are not able to agree on a conclusive stipulation, the district court should resolve this issue on remand.⁴⁹

On the breach of fiduciary duty claim, we affirm in part and reverse in part the judgment of the district court. We affirm, the district court’s grant of summary judgment in favor of Royal Management and Concert with respect to their failure to provide Mrs. Killian with a summary plan description. Consonant with this opinion, we reverse the grant of summary judgment on the breach of fiduciary duty claim with respect to Mr. Killian’s telephone call inquiries and remand to permit the trier of fact to determine: (1) whether the telephone calls put Concert on adequate notice, thus giving rise to a duty to disclose material information related to the Killi-ans’ situation, (2) whether Concert breached this duty and (3) whether the breach harmed Mr. Killian.⁵⁰

On the statutory damages issue, we remand the matter to the district court to permit a recalculation of the award as outlined in the panel’s opinion.

We grant Mr. Killian’s motion to proceed as administrator of his wife’s estate as well as in his individual capacity.

IT IS SO ORDERED.

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Footnotes

1

. Concert Health Plan was dismissed as a party in earlier proceedings. See R.232. Mr. Killian does not appeal that decision.

2

. The district court's jurisdiction was predicated on 29 U.S.C. § 1132(e).

In September 2012, Mr. Killian moved to substitute himself, in his individual capacity, as plaintiff, and we granted his motion. App. R.48. He subsequently has requested substitution again, this time to return himself as administrator of Mrs. Killian's estate. We address this request infra.

3

. On the denial of benefits claim, the panel directed the parties to submit a stipulation as to whether the providers at Rush were within Mrs. Killian’s network. Killian v. Concert Health Plan (Killian I), 680 F.3d 749, 764 (7th Cir.2012).

4

. Our jurisdiction is predicated on 28 U.S.C. § 1291.

5

.R.259-3 at 77.

6

. Id. at 15 (emphasis added).

7

. Id. at 19 (emphasis added).

8

. Id. at 42. 49. 50.

9

. Id. at 21.

10

. R.82-7 at 2-3.

11

. Rush University Medical Center adopted its current name in 2003. See History, Rush University Medical Center Careers, http:// www.jobsatrush.com/history.htm (last visited Mar. 18, 2013). Before that, Rush’s name incorporated the name of a predecessor entity, St. Luke’s. Id.

12

. R.87 at 2.

13

. R.253 at 72.

14

.Id. at 73.

15

. R.87 at 2.

16

. R.253 at 73.

17

. The record does not contain call logs or other objective proof of which numbers Mr. Killian called; however, Concert never has disputed these facts.

18

. Services received on an emergency basis are processed at the in-network level. See R.251 at 91.

19

.In particular, the district court determined that Concert’s notification letters

failed to identify, by name, any "specific rule, guideline, protocol, or other similar criterion” used in reaching the decision. 29 C.F.R. § 2560.503 — 1 Q)(5). The letters neglect to inform Killian that a copy of any relevant document, rule or other information will be provided to him at no cost, upon request. Id. The letters also say nothing about [Concert's] internal appeals procedures, available dispute resolution options, or Killian’s right to sue under 29 U.S.C. § 1132(a). (Id.) Indeed, as Killian has emphasized throughout these proceedings, these notifications letters are quite sloppy. For example, they refer to Susan’s network as the PHCS (Open Access) Network, even though that is not the network mentioned in the COL

Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 2681107, at *8 (N.D.Ill. July 6, 2010).

20

. Id. at *9-10. The district court did not interpret Mr. Killian’s briefs as arguing that Concert erred in determining that Rush and Dr. Bonomi were out of network. Mr. Killian did make this argument. See R.86 at 12; R.263 at 8-9; R.290 at 8-9. The panel resolved this potential problem by requiring the parties to submit a stipulation as to whether Rush, Dr. Bonomi and Dr. Barnes were out of network, Killian I, 680 F.3d at 764, and we agree with that disposition, see infra p. 665.

21

. Killian, 2010 WL 2681107, at *11.

22

. Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 3000205, at *2 (N.D.Ill. July 28, 2010). On appeal, Royal Management and Concert did not argue that Mr. Killian waived this argument, thus waiving any waiver. Killian I, 680 F.3d at 757; Westefer v. Snyder, 422 F.3d 570, 584 n. 20 (7th Cir.2005). Some of our dissenting colleagues, in contradistinction to their position in the panel opinion, Killian I, 680 F.3d at 757, now maintain that Mr. Killian waived his fiduciary duty argument by not raising it before the district court. As the panel noted, "Concert did not argue that James had waived the argument.” Id. Accordingly, any waiver was in turn waived by the defendants. Westefer, 422 F.3d at 584 n. 20. Nor can we accept the proposition that Mr. Killian’s brief in this court was so abbreviated on the subject as to have failed to alert them to this contention.

23

. Killian v. Concert Health. Plan, No. 07-cv-04755, 2010 WL 5316041, at *2-3 (N.D.Ill. Dec. 17, 2010). Section 1024(b)(4) of Title 29 requires an administrator, upon written request, to furnish a beneficiary with certain plan documents. A beneficiary may seek statutory penalties against an administrator who fails to provide the requested documents within thirty days. 29 U.S.C. § 1132(c)(1).

24

. Our reasoning with respect to the justicia-bility of the disputed claim applies as well to the other claims decided by the panel that are not controverted in this en banc proceeding.

25

. Judge Manion’s dissent (hereinafter dissent) contends that this statement is unsupported by the record, which includes copies of bills submitted to Mrs. Killian. However, Mr. Killian stated in his affidavit that the providers "continue to bill me,” R.87 at 2, and counsel informed us both at oral argument and in response to our request for supplemental filings that Rush providers have continued to be in contact with Mr. Killian through his attorneys regarding the amounts still owed for Mrs. Killian's care. Regardless of the name atop the bills received, it is apparent that the providers have sought reimbursement from the Killians directly.

26

. The dissent asserts that any harm that has been suffered or might be suffered by Mr. Killian from an unfavorable resolution of this dispute arises not from his status relative to the estate, but by operation of Illinois law, given his marriage to Mrs. Killian at the time she incurred medical bills. It attempts to illustrate the point by imagining that the Killi-ans had divorced following the medical care in question, such that Mr. Killian might continue to be liable (and continue to benefit from a favorable resolution of the present dispute) despite not being the beneficiary of her estate. But the premise of the dissent's exercise underscores the central issue. The Killians did not divorce, and Mr. Killian stands before the court in his proper person, both husband and administrator/beneficiary, asking the court to resolve the same issue he has always asked it to resolve, and for the same reason: He has faced and continues to face uncertain liabilities relating to Mrs. Killi-an's care at Rush.

Accordingly, we deem Mr. Killian’s most recent motion to substitute to be instead a motion to add himself in his capacity as administrator of the estate as a plaintiff to this action, and we grant the motion.

27

. Mr. Killian’s requested relief is broad enough to encompass a declaratory judgment. See R.134 at 12-13 (requesting relief in the form of payment of medical bills, attorney’s costs and fees and "such other legal or equitable relief as the court deems appropriate”).

28

. The harm necessary to succeed with the claim, as we have noted, belongs to the estate. In light of the particular factual circumstances of the case, however, Mr. Killian’s personal liabilities on Mrs. Killian's debts would not be irrelevant to a court fashioning appropriate declaratory relief in its discretion. In short, there is more at stake here than Mr. Killian's "wish that the Rush doctors receive additional compensation for their services and ... desire [for] vindication for the wrong he perceives.” Dissent at 688.

29

. The summary plan description for employee health plans must include, inter alia,

provisions governing the use of network providers, [and] the composition of the provider network,.... In the case of plans with provider networks, the listing of providers may be furnished as a separate document that accompanies the plan’s SPD, provided that the summary plan description contains a general description of the provider network and provided further that the SPD contains a statement that provider lists are furnished automatically, without charge, as a separate document.

29 C.F.R. § 2520.102-30(3).

30

. R.259-3 at 15, 19.

31

. R.82-7 at 2.

32

. R.259-5 at 10 (emphasis in original).

33

. R.253 at 72.

34

.Id. at 124-25.

35

. Id. at 72.

36

. Id. at 136.

37

. Id. at 73-74.

38

. R.82-7 at 3.

39

. R.253 at 127-28.

40

. R.259-3 at 15 (emphasis added).

41

. R.82-7 at 3.

42

.R.253 at 73.

43

. Id.

44

. Id.

45

. The dissent argues that it is impossible for Mr. Killian to ever have called the provider participation line because, it asserts, the only way for the second representative to have had knowledge of Mr. Killian's prior call is if Mr. Killian called the customer service number both times. There are a few problems with this theory.

First, this assumption, while plausible, is not a fact that we can assume in Concert’s favor at summary judgment. Concert’s vice president of operations testified that "the network” operates the 800 number for determining provider participation, R. 115-3 at 200, but he did not testify as to whether Concert and "the network” share facilities or employees and any presumptions must be made in Mr. Killian's favor. Representations made by counsel at oral argument that Concert and PHCS do not share employees and that telephone calls to each line are directed to separate facilities may be true, but on summary judgment counsel’s factual assertions at oral argument do not substitute for record evidence.

Second, if we could assume that Mr. Killian is mistaken about which numbers he called and that he did call the same number twice, whether both telephone calls were made to the customer service line or the provider participation line is a fact that must be construed in the light most favorable to Mr. Killian.

Finally, even if we could assume that Mr. Killian called the customer service line both times, a factfinder still could conclude that Concert was on notice of his need for provider network information because, as noted above, the Master Group Policy instructed beneficiaries “[t]o confirm that Your ... provider is a CURRENT participant ... You must call the number listed on the back of Your medical identification card.” R.259-3 at 15 (emphasis added). The customer service/utilization review number was the only potentially applicable number on the back of Mrs. Killian’s card. After directing beneficiaries seeking provider information to call "the” number on the back of the card, Concert cannot avoid its fiduciary duties by suggesting that Mr. Killian should have called a number on the front of the card.

The dissent also argues that Mr. Killian never called to determine provider network status and points to Mr. Killian's deposition where he testified that he told the representative that his wife was being admitted and that he called because he was supposed to call for preadmission. Dissent at 665-67. The dissent argues that because, in his deposition, Mr. Killian said "preadmission” rather than "provider network information,” he could not have placed the fiduciary on notice of his need for provider network information.

This view suggests that, contrary to our holding in Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th Cir.2010), the beneficiary must use the exact terms as defined by the fiduciary before the fiduciary is required to provide information, but the issue is whether Mr. Killian’s interaction with the representatives was sufficient to put them on notice of his need for provider network information. Although Mr. Killian used the word “pread-mission” in his deposition when telling the attorneys the purpose of his call, he did not testify that he told the representatives that he was calling for preadmission. His interaction with the representatives included calling the designated number, informing the representative of his location and telling the representative of the needed surgery.

46

. Although Mr. Killian bears the ultimate burden at trial, "[a] party seeking summary judgment bears an initial burden of proving there is 'no material question of fact with respect to an essential element of the non-moving party’s case.' ” MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d 651, 657 (7th Cir.2011) (quoting Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir.2009)).

Concert deposed Mr. Killian, but never asked whether Mrs. Killian was well enough to travel to a different hospital.

47

. R.253 at 125.

48

. The dissent points to Kenseth for the proposition that "Concert cannot be liable for a breach of fiduciary duty based on the actions of a non-fiduciary like PHCS,” Dissent at 693 n. 16, but the Kenseth passage quoted is noting that a fiduciary "cannot be held liable on the basis of respondeat superior.” Kenseth, 610 F.3d at 465 (emphasis added). In fact, we have held that a fiduciary can be liable for inaccurate or misleading information provided by a nonfiduciary. See id. at 469 (holding that a fiduciary could breach its duly by inviting inquiries and not warning beneficiaries that they could not rely on the advice given by customer service representatives); Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591 (7th Cir.2000) (holding a fiduciary liable when inadequacies in the plan documents were exacerbated by incorrect and misleading information from its agents).

49

. This is the result reached by the panel. Killian I, 680 F.3d at 764.

50

. On remand, the district court also must address the type of remedy available under ERISA. ERISA provides for equitable relief for breach of fiduciary duty claims, see 29 U.S.C. § 1132(a)(3); the Supreme Court recently has suggested that equitable relief can include monetary payments through estoppel and “surcharges,” see CIGNA Corp. v. Amara, - U.S. -, 131 S.Ct. 1866, 1880, 179 L.Ed.2d 843 (2011).