Yvonne Moran v. Aetna Life Insurance Company

872 F.2d 296, 10 Employee Benefits Cas. (BNA) 2329, 1989 U.S. App. LEXIS 4387, 1989 WL 30138

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 1989
• Docket: 87-6733
• Status: Published

Opinions

ALARCON, Circuit Judge:

The Plaintiff/Appellant Yvonne Moran, (Moran) appeals from the district court’s grant of summary judgment in favor of Defendant/Appellee Aetna Life Insurance Company (Aetna) and the denial of Moran’s motion for summary judgment. Moran sued Aetna as a “Plan Administrator” under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (1982 & Supp. IV 1986) for failure to provide Plan Documents at Moran’s request. The district court concluded that since Aetna was not the plan administrator as defined by 29 U.S.C. § 1002(16)(A) (1982), it is not liable for damages under 29 U.S.C. § 1132(c) (Supp. IV 1986).

Moran contends that Aetna is liable under section 1132(c) because its claims supervisor advised her attorney that Aetna was the plan administrator. Because Aet-na was not the plan administrator under the applicable statutory language, we disagree and affirm.

I

Moran was an employee of the law firm of Meserve, Mumper & Hughes (employer) and was insured under an Aetna policy. Aetna provided the employer with a booklet describing the plan for distribution to the employees. The booklet does not identify a plan administrator. Aetna also provided Moran with a health insurance identification card which states that “[t]his group Health Benefits Program is administered by Aetna Life Insurance Company.”

Moran received chiropractic treatments from Dr. Jim Takeda in July 1986. Dr. Takeda submitted a claim for his services to Aetna in the amount of $364.00. On September 16,1986, Aetna sent a check for $104.00 in payment of the claim. Aetna also informed Dr. Takeda and Moran of the benefits provided under the plan and denied a portion of the claim.

Moran’s attorney, Richard MacNaugh-ton, wrote to Aetna on September 29,1987, requesting a copy of the Plan Documents and the insurance policy. Mr. MacNaugh-ton also inquired whether Aetna was the “Plan Administrator” of the plan.

Ruthie McNatt, Aetna’s claims supervisor, replied to MacNaughton’s letter on November 10, 1986. She explained why Aetna denied a portion of the claim. McNatt also stated that “[y]our [plaintiff’s counsel’s] assumption that Aetna is the plan administrator is correct.”

MacNaughton claims to have sent letters to Aetna on December 5, 1986, January 10, 1987, February 12, 1987, and March 6, 1987, reiterating the request for Plan Documents and stating that he relied on McNatt’s statement in the November 10, 1986, letter that Aetna was the plan administrator. MacNaughton obtained proof of service by mail for the March 6,1987 letter. Aetna denies receiving these letters. Aet-na’s employees allege that they never read any of these letters, and that they are not in the relevant files.

On April 3, 1987, Moran filed this action in the district court against Aetna under 29 U.S.C. § 1132(c) to obtain copies of ERISA Plan Documents. On April 29, 1987, subsequent to the filing of this lawsuit, a senior attorney with Aetna, Linda Newton, wrote MacNaughton to deny that Aetna was the “Plan Administrator” under ERISA. Newton also provided MacNaughton with a copy of the group policy and the certificate/booklet prepared for Meserve, Mum-per & Hughes to distribute to its employees participating in the plan.

The district court entered summary judgment in Aetna’s favor on November 30, 1987. Moran has filed a timely appeal from that order. She also seeks review of the September 14, 1987 order denying her motion for summary judgment.

II

The district court had jurisdiction over this matter pursuant to ERISA, Section 502(e)(1), 29 U.S.C. § 1132(e)(1) (1982). The district court’s order of November 30,1987, granting summary judgment in favor of Aetna constitutes a final order, reviewable by this court under 28 U.S.C. § 1291 (1982).

We review a grant of summary judgment independently and without deference to the district court’s conclusion “and will affirm if the pleadings and supporting materials show the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Medallion Television Enterprises, Inc. v. SelecTV of Calif., Inc., 833 F.2d 1360, 1362 (9th Cir.1987) (Citation omitted).

Aetna argued in support of its motion for summary judgment that it cannot be sued under section 1132(c) because it is not the plan administrator under section 1002(16)(A). Moran responded that Aetna should be estopped from denying that it is the plan administrator because of the representation of its claims supervisor.

Section 1132(c) provides:

Any administrator ... (2) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.

“In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g) (1982).

An administrator has a duty of disclosure and reporting:

The administrator of each employee benefit plan shall cause to be furnished in accordance with Section 1024(b) of this title to each participant covered under the plan and to each beneficiary who is receiving benefits under the plan—

(1) a summary plan description described in Section 1022(a)(1) of this title: and

(2) the information described in Section 1024(b)(3) and 1025(a) and (c) of this title.

29 U.S.C. § 1021(a) (1982).

ERISA further requires that “[t]he administrator shall, upon written request of any participant or beneficiary, furnish a copy of ... instruments under which the plan is established or operated.” 29 U.S.C. § 1024(b)(4) (1982).

An administrator of an ERISA plan has a duty to provide a plan summary and other documents to each participant upon request under sections 1021(a) and 1024(b)(4). Failure or refusal to provide such documents may result in fines of up to $100 a day, costs and attorney’s fees under sections 1132(c) and (g).

Section 1002(16)(A) defines a plan “administrator” as follows:

The term “administrator” means—

(i) the person specifically so designated by the terms of the instrument under which the plan is operated;

(ii) if an administrator is not so designated, the plan sponsor; or

(iii) in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified, such other person as the Secretary may by regulation prescribe.

The group policy in the instant matter does not designate an administrator under section 1002(16)(A)(i). Therefore, the “plan sponsor” is the administrator under section 1002(16)(A)(ii). The term “plan sponsor” refers to “the employer in the case of an employee benefit plan established or maintained by a single employer.” 29 U.S.C. § 1002(16)(B)(i) (1982). Under these facts, Moran’s employer, Meserve, Mumper & Hughes, is the plan administrator under section 1132(c).

Ill

The United States Supreme Court has stated: “We are reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA.” Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). The Supreme Court further stated that when “a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Id. (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979)).¹ The precise question presented in Russell concerned the types of remedies available under ERISA. The Supreme Court held that ERISA does not provide a cause of action for extracontractual damages to a beneficiary caused by improper processing of benefit claims. Id. Section 409(a) could not extend relief because other sections of ERISA benefit individuals. Id. at 142-43, 105 S.Ct. at 3090-91.²

We believe that the rationale and policies articulated by the court in Russell require us to limit liability under 1132(c) to the targets expressly identified by Congress in section 1002(16). Congress has provided for three classes of persons who may be sued as the plan administrator under section 1132(c). Because Aetna was not designated as plan administrator in the policy and is not the plan sponsor, it is not liable under the statute.³

Both parties agree that Aetna is not the plan administrator as defined by section 1002(16). Moran states in Plaintiffs Reply Memorandum in Support of her Motion for Partial Summary Judgment that “[defendant contends that it is not the Plan Administrator. Plaintiff obviously agrees. That is the very reason that plaintiff has brought this motion on the Estoppel Theory.” We have recently refused to apply estoppel to a claim governed by ERISA. In Davidian v. S. Cal. Meat Cutters Union, 859 F.2d 134, 136-37 (9th Cir.1988), we held that ERISA forbids recovery against a benefit fund based upon estoppel. Davidi-an sought recovery of benefits from a benefit fund based on estoppel, claiming a fund employee misled him as to the limitations of a health insurance plan. We rejected Davidian’s estoppel theory based in part on our earlier decision in Thurber v. W. Conf. of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir.1976) (per curiam) that “a benefit plan could not be equitably es-topped from denying benefits if payment would be inconsistent with the written plan.” Davidian, at 135.⁴

Similarly, we cannot equitably estop Aet-na from denying it is the plan administrator if permitting recovery in this action would be inconsistent with the express language of section 1002(16)(A). It should be noted that Moran has not sought to recover against Aetna for breach of fiduciary duty under sections 1132(a)(2) and 1109(a). Instead, Moran has elected to bring an action against Aetna solely under section 1132(c), which provides a remedy against persons designated by Congress as plan administrators.⁵

We believe that the Supreme Court’s refusal to expand the remedies available under ERISA in Russell precludes us from extending liability under section 1132(c) to other persons not named by Congress. The statute expressly identifies in section 1002(16) the persons or entities that may be sued under section 1132(e). We do not have the power to rewrite the statute to extend liability to a business entity that has mistakenly identified itself as the plan administrator by its agent. The district court did not err in granting Aetna’s motion for a summary judgment.

IV

Moran did not allege a separate cause of action for breach of a fiduciary duty. Moran now asserts for the first time on appeal that Aetna breached a fiduciary duty owed to Moran by not providing accurate information concerning the plan administrator. Because Moran did not present this theory of recovery to the district court, we decline to address it in this appeal. See United States v. Immordino, 534 F.2d 1378, 1381 (10th Cir.1976) (contention not presented to trial court for consideration will not be considered by court on appeal).

V

In Moran’s notice of appeal Moran also seeks review of the denial of her summary judgment motion on June 22, 1987. Aetna argues that we have no jurisdiction to review the denial of a summary judgment because it is an unappealable interlocutory order.

The denial of a summary judgment motion is appealable after the entry of a final judgment. 10 C. Wright, A. Miller, and M. Kane, Federal Practice & Procedure, § 2715, at 636 (2d ed. 1983) “At that time, the party who unsuccessfully sought summary judgment may argue that the trial court’s denial of the Rule 56 motion was erroneous.” Id. at 638-39. We have jurisdiction to review the denial of Moran’s motion for summary judgment since the district court entered a final judgment on November 30, 1987.

In her motion for summary judgment, Moran argued that Aetna was es-topped from asserting that it was not the plan administrator for Moran’s ERISA health plan because of the false representation of its claims supervisor. As discussed above, Congress has expressly limited the persons who may be sued under section 1132(c). We cannot make an end run around the statute by creating an additional class of persons liable as plan administrators under an estoppel theory.

The summary judgment entered in this action on November 30, 1987, and the denial of Moran’s summary judgment on September 14, 1987, are AFFIRMED.

1 . The dissent is correct that Congress has empowered federal courts to develop federal common law with respect to ERISA. However, Congress surely did not intend that courts would develop a federal common law which abrogates the explicit provisions of ERISA. "It is clear, then, that ERISA represents a congressional (footnote continued) mandate for the creation and enforcement of a comprehensive and nationally uniform regulatory scheme." Menhorn v. Firestone Tire and Rubber Co., 738 F.2d 1496, 1500 (9th Cir.1984) (emphasis added). To allow a fiduciary to be sued as a plan administrator under ERISA based on an estoppel theory would nullify the express provisions of ERISA contravening Congress’ intent to create a uniform regulatory scheme.

The dissent asserts that invocation of estoppel in this case does no violence to the language of the statute, but merely precludes Aetna from denying that it is the plan administrator. Dissent at 3400-01 n. 2. On the contrary, invocation of estoppel in this case would do violence to the statute by subjecting a fiduciary to sane-tions applicable to a plan administrator for not performing certain functions, i.e. failure to provide plan documents upon request. “Procedural requirements established by Congress for gaining access to federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.... [S]trict adherence to the procedural requirements specified by the legislature is the best guarantee of even handed administration of the law.” Baldwin Co. Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) (per curiam) (Federal Rules language not subject to equitable tolling).

2 . Contrary to the view in the dissent, we believe that Russell is dispositive of the issue presented here. Moran seeks to obtain relief from Aetna, a fiduciary, based on an ERISA statute which provides Moran remedies against a plan administrator. Since ERISA provides Moran with proper remedies against Aetna, under sections 1132(a)(2) and 1109(a), we decline to extend application of section 1132(c) to recover excessive relief against a fiduciary.

3 . The dissent’s reliance on Misic v. Bldg. Serv. Employees, 789 F.2d 1374 (9th Cir.1986) is misplaced. Misic is irrelevant to our discussion of the claims in this case and does not involve estoppel. Misic merely holds that where a plan participant assigns a right of reimbursement to a physician, the physician may bring a claim for benefits. Id. at 1379.

4 . Davidian, incorrectly cites dictum contained in footnotes in Thurber for the proposition that “Thurber also recognized the possibility of individual estoppel recovery against the administrator and other trustees, though not against the fund." Davidian, at 136 (citing Thurber, 542 F.2d at 1109 nn. 4 & 5). Thurber makes no mention of estoppel, trustees or administrators. In Thurber we simply observed that the “holding would not preclude Thurber from pursuing any other remedy which might be available to him.” Thurber, 542 F.2d at 1109 n. 5. We did not, however, purport to suggest the nature of such other remedies. In the present case, the remedies available to Moran are expressly set forth in ERISA.

5 . We understand the dissent's concern that the plaintiff have a remedy under the law, however, that does not excuse Moran's attorney for his failure to consult the express provisions of ERISA to determine the identity of the plan administrator. Instead, he chose to rely on the erroneous conclusion of law of a claims supervisor. If Moran’s attorney had consulted sections 1132(c) and 1002(16), he would have discovered that Aetna was not the plan administrator.