Date: 10-06-2014

Case Style: Michele C. Tetreault v. Reliance Standard Life Insurance Company

Case Number: 13-2353

Judge: Barron

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Jonathan M. Feigenbaum, for appellant.

Defendant's Attorney: Joshua Bachrach, with whom Wilson, Elser, Moskowitz,
Edelman & Dicker LLP was on brief, for appellees.

Description: The Employee Retirement Income
Security Act of 1974 (ERISA) governs employee benefit plans. 29
U.S.C. § 1001 et seq. Among other things, the statute permits
beneficiaries to go to court to challenge their plan's decision to
deny or cut off their benefits. Id. § 1132(a)(1)(B). Before
filing suit, however, beneficiaries must first use -- or, as it is
often put, "exhaust" -- their plan's procedures for making claims.
Madera v. Marsh USA, Inc., 426 F.3d 56, 61 (1st Cir. 2005). The
main question for us concerns which document a benefit plan must
use to set forth those procedures.
The beneficiary who brings this appeal, Michele
Tetreault, argues that ERISA requires a benefit plan to use one
particular type of document, which the statute calls the "written
instrument." 29 U.S.C. § 1102(a)(1). And she further argues that
we should excuse her failure to comply with what her benefit plan
contends was one of its claims procedures -- a 180-day deadline for
filing an internal appeal of an adverse benefits decision --
because the benefit plan's written instrument did not mention it.
But Tetreault is mistaken on that point. That is because the
written instrument in this case expressly incorporated a document
that clearly sets forth the appeals deadline. For that reason, we
affirm the District Court's decision to dismiss Tetreault's
benefits challenge. We also affirm the District Court's dismissal
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of Tetreault's two other ERISA claims, which, respectively, are for
statutory penalties and for breach of fiduciary duty.
I.
Michele Tetreault injured her back in 2000 while working
as a store manager at The Limited, a nationwide clothing retailer.
She then filed a claim under The Limited's long-term disability
benefit plan, which is called The Limited Long Term Disability
Program. The benefit plan initially denied Tetreault's claim but
then, in 2004, reversed course after Tetreault successfully
challenged the denial in court.
The situation changed yet again in 2008. By then,
Reliance Standard Life Insurance Company had started administering
claims for The Limited Long Term Disability Program. In that role,
Reliance Standard informed Tetreault on December 18 that, after
reviewing her medical records, it had determined she could perform
"sedentary" work and thus was no longer eligible for the benefits
she had been receiving. Reliance Standard also informed Tetreault
at that time that she could appeal the decision in writing to
Reliance Standard, but that she would have to do so "within 180
days of your receipt of this letter or the last date to which we
have paid, whichever is later."
On January 14, 2009, Tetreault's counsel wrote to
Reliance Standard and requested "[t]he Summary Plan Description and
the Plan documents for the LTD plan." Tetreault's counsel also
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requested that Reliance Standard provide "[a] complete copy of Ms.
Tetreault's file in Reliance's possession."
Nine days later, Reliance Standard responded. It sent
Tetreault's counsel the requested file, which contained certain of
her medical records as well as other documents that related to her
claim for benefits. Reliance Standard also sent the document that
established the 1998 version of the benefit plan. That document
made no reference to an appeals deadline.
Reliance Standard did not at that time send the "Summary
Plan Description" Tetreault's counsel had requested. Reliance
Standard also did not send some other documents that, though not
then in its possession, are relevant to the merits of Tetreault's
arguments to this Court. These documents concerned a 2005 version
of The Limited Long Term Disability Program. They included both
the document that established that version of the benefit plan and
another document that described its terms. This last document,
which identified itself as the "summary plan description," set
forth the 180-day deadline for making an internal appeal of an
adverse benefit decision.
On June 15, 2009 -- four days before the 180-day period
was set to run out -- Tetreault's counsel sent a letter to Reliance
Standard stating that Tetreault "w[ould] be appealing" the
termination decision to Reliance Standard and that she expected to
complete that appeal within 30 days. Reliance Standard responded
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by letter faxed to Tetreault's counsel on June 17. The letter
reminded Tetreault's counsel that the 180-day period was about to
expire. The letter also stated that Reliance Standard would not
accept an appeal filed after that period. Finally, the letter
warned Tetreault's counsel that if he filed Tetreault's appeal
late, the "'failure to exhaust' defense" would bar her from
challenging the decision to terminate her benefits.
The appeals deadline expired on June 19, 2009. Tetreault
did not file an appeal with Reliance Standard until nearly a year
later, on May 27, 2010. Reliance Standard then denied the appeal
as untimely, at which point Tetreault filed suit.
The District Court declined to excuse Tetreault's failure
to appeal to Reliance Standard within the 180-day period. In doing
so, the District Court first rejected Tetreault's argument that
ERISA required the benefit plan to include the deadline in the
"written plan instrument." The District Court then held in the
alternative that Tetreault's suit could not proceed because the
"written plan instrument" in this case actually did include the
deadline through its express incorporation of the "summary plan
description." The District Court also rejected additional ERISA
claims Tetreault pressed that stemmed from Reliance Standard not
having produced the documents that established and summarized the
2005 version of the benefit plan.
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II.
We begin with Tetreault's argument that we should excuse
her failure to file her appeal with Reliance Standard within the
180-day period. Tetreault reads ERISA to say that only the "plan
instrument" -- to use her words -- can impose a claims procedure
that a claimant must exhaust before going to court. From that
premise, Tetreault argues that her suit may proceed -- despite her
failure to exhaust -- because the relevant "plan instrument" never
set forth the 180-day appeals deadline.
Other courts (including the District Court in this case)
have considered whether ERISA imposes the requirement Tetreault
describes. See, e.g., Kaufmann v. Prudential Ins. Co. of Am., 840
F. Supp. 2d 495 (D.N.H. 2012); Merigan v. Liberty Life Assurance
Co. of Bos., 826 F. Supp. 2d 388 (D. Mass. 2011). But we need not
join in that inquiry. That is because Tetreault is wrong to
contend that in this case the "plan instrument" omitted the 180-day
deadline.
To explain why we reach this conclusion, we first need to
say a bit more about that last quoted phrase -- "plan instrument."
Those words do not actually appear in ERISA. But a provision in
ERISA does require a benefit plan to be "established and maintained
pursuant to a written instrument." 29 U.S.C. § 1102(a)(1). We
thus understand Tetreault to argue that the benefit plan document
known under ERISA as the "written instrument" must set forth a
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claims procedure. And so, we start by looking to see if the
written instrument in this case contains the appeals deadline
Tetreault says was missing.1
The Limited Long Term Disability Program and Reliance
Standard both say the written instrument does contain the deadline.
For support, they point to the documents that concern the 2005
version of the benefit plan. The first of these documents refers
to itself as "the formal plan document." Among other things, it
specifies the procedures for funding, amending, and administering
the benefit plan, just as ERISA requires of a "written instrument."
29 U.S.C. § 1102(b)(1)-(3). There is thus no question this
document is the written instrument for the 2005 version of the
benefit plan, and the parties do not contend otherwise.
This document does not, however, set forth the appeals
deadline. Instead, it "incorporates by reference . . . the terms
1 Section 1102(b) of ERISA specifies what must be included in
the written instrument. Among other things, that provision of
ERISA requires the instrument to "specify the basis on which
payments are made to and from the plan." 29 U.S.C. § 1102(b)(4).
But Tetreault does not rely on this provision for her argument that
ERISA requires claims procedures to be set forth in the written
instrument. She instead appears to argue that the requirement
stems from section 1133, which requires "every employee benefit
plan" to provide claims procedures. Id. § 1133. It is not at all
clear that the text of this provision is best read to mandate a
benefit plan to set forth its claims procedures in the written
instrument. But that is of no moment here. Because we conclude
that the written instrument in this case includes the relevant
procedure, we do not need to decide whether ERISA required that it
do so, let alone which provision of ERISA, singly or in
combination, might support such an argument.
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of the [Limited Long Term Disability] Program as set forth in"
another document. This other document is the summary plan
description for the 2005 version of the benefit plan, and it is
this document that expressly sets forth the benefit plan's claims
procedures, including the 180-day appeals deadline.2
Against this background, the question we must decide is
a straightforward one of law that we review de novo, Orndorf v.
Paul Revere Life Ins. Co., 404 F.3d 510, 516-17 (1st Cir. 2005):
does ERISA permit the benefit plan to incorporate the appeals
deadline into the written instrument through the 2005 summary plan
description? If so, then the written instrument contains the very
term Tetreault says it omits.
Background legal principles strongly suggest that such
express incorporation is permitted. The Supreme Court in Firestone
Tire & Rubber Co. v. Bruch held that "established principles of
trust law" are relevant in construing ERISA documents. 489 U.S.
101, 115 (1989). The written instrument for The Limited Long Term
2 This document specifies that claims must be sent to
"MetLife," even though Reliance Standard by 2009 had assumed the
role of administering claims for the benefit plan. But while
Tetreault tries to attach significance to this reference to
MetLife, Tetreault's counsel corresponded directly with Reliance
Standard, negating any suggestion that Tetreault was misled as to
who the benefit plan's claims administrator was. Nor did Tetreault
attempt to file an appeal with MetLife. And Tetreault does not
develop in her brief, and thus has waived, any argument that this
reference to MetLife rendered the appeals deadline unenforceable.
See Harron v. Town of Franklin, 660 F.3d 531, 535 n.2 (1st Cir.
2011) (declining to consider "perfunctory arguments" made without
citations or facts).
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Disability Program identifies Ohio law as the relevant state law
for construing it, and we thus look to that state's trust law for
guidance on this issue. In Ohio, "[i]nterpreting a trust is akin
to interpreting a contract," Arnott v. Arnott, 972 N.E.2d 586, 590
(Ohio 2012), so we treat Ohio's contract-law rules as instructive
here. And what we find is, not surprisingly, that, "[i]n Ohio,
under general principles of contract law, separate agreements may
be incorporated by reference into a signed contract." KeyBank
Nat'l Ass'n v. Sw. Greens of Ohio, LLC, 988 N.E.2d 32, 39 (Ohio Ct.
App. 2013); cf. Nash v. Trs. of Bos. Univ., 946 F.2d 960, 967 (1st
Cir. 1991) (following "Massachusetts contract principles governing
fraud in the inducement [as] an appropriate model from which to
fashion federal common law principles" applicable under ERISA).
As a general matter, ERISA does nothing to disturb these
background legal rules permitting incorporation by reference.
ERISA certainly permits more than one document to make up a benefit
plan's required written instrument. See Wilson v. Moog Auto., Inc.
Pension Plan, 193 F.3d 1004, 1008-09 (8th Cir. 1999) (where the
"Pension Plan explicitly refers to, and attempts to incorporate" a
separate document, that document "is a plan document" that "cannot
be ignored" and "it is not true . . . that the written instrument
ERISA requires is the Pension Plan alone"); Horn v. Berdon, Inc.
Defined Benefit Pension Plan, 938 F.2d 125, 127 (9th Cir. 1991)
(accepting "documents claimed to collectively form the employee
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benefit plan" even if not formally labeled as a "written
instrument"); cf. Fenton v. John Hancock Mut. Life Ins. Co., 400
F.3d 83, 88-89 (1st Cir. 2005) (discussing the need to identify
which "documents and instruments" set forth the terms of the plan,
although concluding on the facts that only one document did). And,
at least prior to the Supreme Court's decision in CIGNA Corp. v.
Amara, 131 S. Ct. 1866 (2011), courts regularly concluded that
ERISA also counted summary plan descriptions as being among the
documents that could make up a benefit plan's written instrument.
See Pettaway v. Teachers Ins. & Annuity Ass'n of Am., 644 F.3d 427,
434 (D.C. Cir. 2011) (citing cases).
The only possible concern with the written instrument's
express incorporation of the summary plan description in this case,
then, arises from some language in the Supreme Court's decision in
Amara that drew distinctions between summary plan descriptions and
written instruments. 131 S. Ct. at 1877-78. Amara explained that
a summary plan description is, like a plan's written instrument, a
creature of ERISA. Id. (citing 29 U.S.C. § 1022). And Amara
emphasized that ERISA distinguishes between these two types of
documents as to both their origins and their functions.
As to the two types of documents' origins, Amara said the
distinction arises because, under ERISA, the benefit plan's sponsor
creates the written instrument that establishes the benefit plan
and sets forth its terms, while a different entity, the benefit
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plan's administrator, typically writes the summary plan
description. Id. Amara observed that, in consequence, making the
summary plan description automatically binding would "mix [those]
responsibilities by giving the administrator the power to set plan
terms indirectly by including them in the summary plan
description." Id. at 1877. Giving the administrator such power,
Amara said, might allow the plan administrator to circumvent the
written instrument's required "'procedure' for making amendments."
Id.
As to the two types of documents' functions, Amara
explained that the summary plan description is intended to give
beneficiaries a reader-friendly account of the terms that the
written instrument establishes. Id. at 1877-78. Thus, Amara
stated, summary plan descriptions "do not themselves constitute the
terms of the plan." Id. at 1878. Amara further explained that the
"syntax" of the statutory provision that requires summary plan
descriptions to describe rights "'under the plan[]' suggests that
the information about the plan provided by those disclosures is not
itself part of the plan." Id. at 1877 (citing 29 U.S.C.
§ 1022(a)).
Tetreault seizes on Amara's description of these
distinctions to argue that The Limited Long Term Disability
Program's attempt to incorporate the summary plan description into
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the written instrument was impermissible. But Amara does not
support Tetreault's contention.
The problem for Tetreault is that Amara did not concern
a case of express incorporation at all. Instead, it concerned a
case in which the written instrument for the benefit plan at issue
was silent as to the significance of the language set forth in the
benefit plan's summary plan description. Amara thus held only that
terms from summary plan descriptions should not "necessarily . . .
be enforced" as terms of the benefit plan, and the Court set forth
the distinctions it identified between written instruments and
summary plan descriptions solely in support of that conclusion.
Id. (emphasis added). Amara, in other words, simply did not
address whether summary plan description terms could be enforced
when the written instrument expressly indicated that they should
be.
Amara's silence on that point is what matters for our
purposes. For while it is true that, standing alone, a document
that merely advises participants and beneficiaries of "their rights
and obligations 'under the plan'" does not itself create rights and
duties, id., that may change when the document that unquestionably
does create such rights and duties -- namely, the document that
ERISA calls the "written instrument" -- expressly states that the
language in the advisory document does too. It is not surprising,
therefore, that every court that has considered the issue has held
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that Amara poses no automatic bar to a written instrument's express
incorporation of terms contained in a summary plan description.
See, e.g., Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663
F.3d 1124, 1131 (10th Cir. 2011); Langlois v. Metro. Life Ins. Co.,
833 F. Supp. 2d 1182, 1185-86 (N.D. Cal. 2011); Henderson v.
Hartford Life & Accident Ins. Co., No. 2:11CV187, 2012 WL 2419961,
at *5 (D. Utah June 26, 2012).3
Of course, it is possible that, even though generally
permissible, the written instrument's express incorporation of the
terms of a summary plan description could in certain applications
raise concerns under ERISA. For example, such express
incorporation might in some cases raise concerns that a "plan's
administrator" -- rather than a "plan's sponsor" -- had changed the
terms of the written instrument through its revision of the
expressly incorporated summary plan description after the time at
which the summary had been first incorporated. Amara, 131 S. Ct.
at 1877. But that possibility does not provide a reason to
prohibit express incorporation of the summary plan description in
all cases, as the express incorporation involved in this case
demonstrates. The written instrument in this case incorporated the
terms set forth in the 2005 summary plan description, and the
summary plan description term at issue here -- the deadline -- was
3 In Pettaway, issued only two months after Amara, the D.C.
Circuit reached the same holding without addressing Amara at all.
644 F.3d 427.
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not subsequently revised. Thus, there is no concern -- nor any
contention by Tetreault -- that the incorporation in this case
resulted in the revision of the relevant parts of the written
instrument through some means that ERISA might prohibit.
Similarly, this case shows there is no reason to worry
that, in consequence of express incorporation, the summary plan
description will necessarily fail to "describe plan terms" in the
"clear, simple communication" that ERISA intends for such summary
documents. Id. at 1877-78. That is because the incorporation in
this case concerns a particular type of term -- a deadline for
making an internal appeal -- which by regulation the summary plan
description must not merely summarize, but instead must set forth
in full. 29 C.F.R. § 2520.102-3(s) (requiring that "the procedures
governing claims for benefits," including "applicable time limits,"
be included in the summary plan description). And the summary plan
description at issue here did exactly that in setting forth the
180-day deadline.
Our holding is a narrow one. We do not decide that
claims procedures must be included in a benefit plan's written
instrument. Nor do we address issues not presented in this case
but that, in theory, might arise from the express incorporation of
a summary plan description. We decide only that a benefit plan may
expressly incorporate its internal appeals deadline into the
written instrument through a summary plan description and that,
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when a benefit plan does so, a beneficiary's failure to meet that
deadline may bar her attempt to challenge an adverse benefit
decision in court. Having decided that much, though, we have
necessarily decided an important issue in this appeal: Tetreault's
primary argument for excusing her failure to comply with the
internal appeals deadline must fail.4
III.
In an attempt to overcome this obstacle, Tetreault argues
in the alternative that she did not have to follow the claims
procedures set forth in the 2005 version of the benefit plan at
all. She argues she needed to follow only the procedures set forth
in the 1998 version. And because, as all parties agree, the
written instrument for the 1998 version neither contained nor
incorporated the internal appeals deadline, Tetreault contends we
4 Tetreault argues half-heartedly that she actually did comply
with the deadline because her counsel's June 15th letter stating
that she "w[ould] be appealing" "arguably" was sufficient to bring
her into compliance with the requirement that she "notify the
claims administrator in writing within 180 days of receiving the
determination." The claims procedures further require, however,
that the written notice specify "[t]he reason you believe the claim
should be paid" and provide "[d]ocuments, records or other
information to support your appeal." The letter from Tetreault's
counsel provided no such information, and Tetreault does not
address its absence in her brief, nor does she elaborate on her
"argu[ment]" in this regard beyond simply stating it. We thus deem
her argument that she in fact met the 180-day deadline waived. See
Harron, 660 F.3d at 535 n.2. In addition, because we conclude that
The Limited Long Term Disability Program incorporated the claims
procedures into its written instrument, we need not consider
whether Tetreault would have to show that she was prejudiced by the
deadline's omission in order to be excused for failing to have
appealed within the 180-day period.
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must for that reason excuse her failure to file her appeal within
the 180-day period.5
Tetreault bases this argument on her contention that The
Limited Long Term Disability Program should be estopped from
enforcing the appeals deadline. She rests her estoppel claim on
the fact that Reliance Standard did produce the written instrument
for the 1998 version of the benefit plan but failed to produce the
documents concerning the 2005 version of the benefit plan --
including the corresponding summary plan description -- when her
counsel sent the January 2009 letter requesting "the Summary Plan
Description and the Plan documents for the LTD plan."
But even if such an argument for estoppel were cognizable
under ERISA, an issue we have previously declined to reach, see
City of Hope Nat'l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223, 230
n.9 (1st Cir. 1998), estoppel would not free Tetreault from having
to satisfy the 180-day appeals deadline. We have previously
5 At oral argument, Tetreault for the first time offered an
additional argument as to why the 1998 version of the benefit plan
should control. She contended that because her benefits "vested"
under that earlier version of the benefit plan, she was bound only
by the procedures contained in the written instrument for that
version. There is no Circuit precedent directly on point, though
the Third Circuit has explained in a different context that with
respect to "[p]rocedural provisions" of ERISA plans, courts "look
to the plan in effect at the time benefits were denied." Smathers
v. Multi-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 196-97 (3d Cir. 2002). In any event, Tetreault
did not raise the argument below, or in her brief to this court,
and we thus consider it waived. United States v. Richardson, 225
F.3d 46, 52 n.2 (1st Cir. 2000) (holding that arguments presented
for the first time at oral argument are waived).
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explained that, if an estoppel claim could be raised under ERISA,
it would require a showing of both a "definite misrepresentation of
fact" and reasonable reliance on that misrepresentation. See Law
v. Ernst & Young, 956 F.2d 364, 368 (1st Cir. 1992). Here,
however, any reliance by Tetreault on the written instrument for
the 1998 version of the benefit plan was unreasonable.
Reliance Standard warned Tetreault's counsel, twice, that
a 180-day internal appeals deadline applied to her case.
Tetreault's counsel apparently believed that this statement
contradicted the benefit plan's written instrument, yet he never
asked Reliance Standard about the inconsistency. In considering
estoppel in another context, we have explained that "[t]he law does
not . . . countenance reliance on one of a pair of contradictories
simply because it facilitates the achievement of one's goal."
Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 34 (1st Cir. 1988).
Instead, when "[c]onfronted by such conflict[,] a reasonable person
investigates matters further." Id. at 33. Tetreault offers no
reason why this principle should not apply equally in this case,
particularly where she had legal counsel, and discerning none
ourselves, we must reject Tetreault's estoppel argument.
IV.
Tetreault presses two other claims. She first seeks
statutory penalties of one hundred and ten dollars per day under 29
U.S.C. § 1132(c)(1)(B). She claims she is owed those penalties
-17-
because of Reliance Standard's failure to provide complete and
current copies of the "Plan documents" in response to her January
14, 2009 request. She also seeks to hold Reliance Standard liable
for breach of fiduciary duty for not producing the documents
concerning the 2005 version of the benefit plan in response to that
request. Like the District Court, we hold that Tetreault's first
claim lacks merit and that her second claim has been waived.
A.
Tetreault bases her claim for statutory penalties against
Reliance Standard on two provisions of ERISA: 29 U.S.C. §§ 1021(a)
and 1132(c)(1)(B). They require the benefit plan's "administrator"
to produce certain documents within thirty days of a written
request from a beneficiary. See id. § 1132(c)(1)(B). They also
impose penalties of up to one hundred and ten dollars per day for
the "administrator['s]" failure to do so. Id. § 1132.6
Tetreault argues that Reliance Standard counts as the
"administrator" within the meaning of the ERISA penalties
provisions because Reliance Standard is The Limited Long Term
Disability Program's "claims administrator." And she argues that
Reliance Standard, as the "administrator," should pay such ERISA
6 The statute itself provides for penalties of up to one
hundred dollars per day, but the Department of Labor has raised it
to up to one hundred and ten dollars pursuant to the Debt
Collection Improvement Act of 1996. See Final Rule Relating to
Adjustment of Civil Monetary Penalties, 62 Fed. Reg. 40,696 (July
29, 1997).
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penalties because it did not send her both the written instrument
establishing the 2005 version of the benefit plan and the
corresponding summary plan description.
But Tetreault is wrong to characterize Reliance Standard
as the "administrator" to which the statute refers.
"Administrator" is a defined term under ERISA. The
"administrator," the statute tells us, is "(i) the person
specifically so designated by the terms of the instrument under
which the plan is operated; or (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." Id. § 1002(16)(A). When the written instrument does
designate an "administrator," courts often refer to it as the "plan
administrator." See, e.g., Law, 956 F.2d at 372. That entity is
a "trustee-like fiduciary" responsible for "manag[ing] the plan."
Amara, 131 S. Ct. at 1877. And, consistent with Amara's
description of that statutory role, see id., the 2005 written
instrument for this benefit plan designates a "Plan Administrator"
and grants it "[t]he authority to control and manage the operation
and administration of the [Long Term Disability] Program." The
record does not conclusively establish who that "Plan
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Administrator" is, but the parties agree that the written
instrument does not designate Reliance Standard as such.7
The 2005 written instrument does refer to a "Claims
Administrator," and that is the role Reliance Standard filled. But
the "Claims Administrator" is not tasked in the written instrument
with "manag[ing]" the Program as a whole. Id. Instead, the
written instrument provides that the "Claims Administrator," who is
selected by the "Plan Administrator," is authorized only to
"receive, review and process claims for Program benefits." For
this reason, the written instrument does not designate Reliance
Standard to be the "administrator" to which the penalties
provisions in ERISA refer, and Reliance Standard is thus not
subject to statutory penalties under 29 U.S.C. § 1132(c)(1)(B).
To avoid this result, Tetreault argues that Reliance
Standard should be treated as the "administrator" despite the
written instrument's contrary designation. And she bases that
argument on her contention that Reliance Standard acted as the de
facto "administrator" when it responded to the request for benefit
plan documents Tetreault's counsel sent in January of 2009.
7 The 2005 written instrument provides that the "Plan
Administrator" "means the Plan Administrator under the Health
Benefits Plan," and the "Health Benefits Plan" document is not in
the record. The 2005 summary plan description, however, lists
"Limited Brands, Inc. Welfare Benefits Plan Assoc. Benefits
Committee" as the "Plan Administrator," and Tetreault does not
contest the accuracy of that identification.
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To make this argument, Tetreault relies on this Circuit's
decision in Law. But Law does not help Tetreault. In Law, the
claimant asked for benefit plan documents from his former employer
rather than from his former employer's retirement committee.
Contending the former employer did not make an adequate response,
the claimant then sought statutory penalties against the former
employer, even though the written instrument for the benefit plan
designated the retirement committee as the "administrator." Law,
956 F.2d at 372. The Court held that the employer (rather than the
retirement committee) was the de facto "administrator" under ERISA
not only because the employer responded to the claimant's request,
but also because there was other evidence that the employer in fact
controlled the retirement committee. Id. at 373. And, on that
basis, the Court held the employer was subject to penalties even
though the written instrument did not designate it as the
"administrator." Id.
In so holding, however, Law was careful to distinguish
the case before it, which involved an employer with "little, if
any, separate identity" from the internal retirement committee that
had been designated as the "plan administrator," from cases
involving "attempts to recover against entities which were clearly
distinct from the plan administrator." Id. at 374. And this same
distinction takes care of Tetreault's argument here. Tetreault
seeks penalties from an entity -- Reliance Standard -- that is
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entirely separate from the expressly designated "administrator."
For that reason, the mere fact that Reliance Standard responded to
a letter seeking documents relevant to the benefit plan does not
make Reliance Standard the de facto "administrator." We thus
affirm the District Court in dismissing Tetreault's statutory
penalties claim.
B.
Finally, Tetreault contends Reliance Standard breached
its fiduciary duty to her when it produced only the written
instrument for the 1998 version of the benefit plan in response to
her 2009 request for the "Plan documents." In support of this
argument, Tetreault argues that ERISA fiduciaries have a duty to
"speak the truth" to plan beneficiaries, see Varity Corp. v. Howe,
516 U.S. 489, 506 (1996), and that Reliance Standard breached that
duty by sending only the document that established the 1998 verison
of the benefit plan and not the documents that concerned the 2005
version. But this claim is not properly before us.
The District Court found that Tetreault failed to include
this claim in her second amended complaint, and then denied
Tetreault's motion to amend her complaint a third time to add it.
Because Tetreault advances no argument for rejecting the District
Court's determination of waiver, nor any reason for concluding the
District Court abused its discretion in declining to permit her to
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amend her complaint, we affirm the dismissal of any separate
fiduciary duty claim Tetreault advances.

Outcome: We conclude that Tetreault failed to meet a deadline for
appealing internally the decision to cut off her long-term
disability benefits. We further conclude that her benefit plan had
expressly incorporated that deadline into the benefit plan's
written instrument. On that basis, we affirm the District Court's
dismissal of her benefits challenge. We also conclude the District
Court did not err in ruling that Tetreault could not recover
statutory penalties against Reliance Standard or that she had
waived her claim for breach of fiduciary duty. Accordingly, we
affirm the District Court's dismissal of those claims as well.

Plaintiff's Experts:

Defendant's Experts:

Comments: