10 F.3d 784 (11th Cir. 1994), 92-2490, Kirwan v. Marriott Corp.

Docket Nº:92-2490.
Citation:10 F.3d 784
Party Name:Gary KIRWAN, Plaintiff-Appellant, v. MARRIOTT CORPORATION, a Delaware Corporation, Defendant-Appellee.
Case Date:January 04, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 784

10 F.3d 784 (11th Cir. 1994)

Gary KIRWAN, Plaintiff-Appellant,


MARRIOTT CORPORATION, a Delaware Corporation, Defendant-Appellee.

No. 92-2490.

United States Court of Appeals, Eleventh Circuit

January 4, 1994

Page 785

Edward R. Gay, Orlando, FL, for plaintiff-appellant.

Mary Applegate Lau, Lau, Lane, Pieper & Asti, Tampa, FL, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and CLARK, Senior Circuit Judge.

CLARK, Senior Circuit Judge:

Appellant Gary Kirwan brought this action against appellee Marriott Corporation ("Marriott"), his former employer, to recover long-term disability benefits under a disability plan governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. Secs. 1001-1381. The district court granted summary judgment in favor of Marriott, holding that the plan administrator's denial of benefits was not arbitrary and capricious. We conclude that the district court erred in applying an arbitrary and capricious, rather than a de novo, standard of review to the administrator's determination of benefits. Under a de novo review, there are genuine issues of material fact that preclude summary judgment. Accordingly, we reverse.


Marriott hired Kirwan in November of 1980. Kirwan worked in various capacities for Marriott's Family Restaurants Division from 1980 to 1989 and was eventually promoted to district manager. According to Kirwan's supervisor, Kirwan had an excellent employment record and was "clearly a capable and dedicated manager"; however, beginning in mid-1988, Kirwan "repeatedly violated company policies, made error in judgment and generally failed to perform his responsibilities as a District Manager." 1 In February 1989, Kirwan accepted a transfer and demotion to a restaurant general manager position. Several months later, on June 23, 1989, Marriott terminated Kirwan, citing as reasons Kirwan's failure to work scheduled days and violation of management policy.

The parties have stipulated that, since 1982, Kirwan has suffered from a condition known as Huntington's chorea. This condition causes abnormal and involuntary limb movements, often referred to as "choreiform movements." Kirwan's medical records indicate that, as earlier as 1983, he began taking a drug known as Hadol to control his movement disorder. In 1988, Kirwan consulted Dr. Hugh R. Howell, a neurologist, about the condition. Dr. Howell's records indicate that the Hadol was making Kirwan drowsy and was no longer adequately controlling the movement disorder. Specifically, the records state:

At the present time, we will give him a trial with Reserpine to take daily to see if this would eliminate the movements. He has been on Hadol which seemed to help. For some reason, he felt that this continued to make him more drowsy and he was having to increase the dosage to control his symptoms.

He was seen four weeks later and was tolerating the Reserpine quite well. There had been no change in the choreiform movements.... The Reserpine was increased for the next ten days and then to be increased to three tablets twice a day and he was to be seen again in six weeks.

He was seen on 7-1-88 at which time there was no change in his Reserpine. He had increased the dosage up to four a day which tended to make him drowsy and he dropped back on the medication to two tablets a day. Despite increase in the

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dosage, there had been no change in the movement disorder.

. . . . .

The Reserpine was discontinued and he was given a trial with Valium 2 mg. at bedtime and to start with Elavil 10 Mg. at bedtime. He was to let me know by telephone within 5 or 6 days as to how this was being tolerated and to see if this would begin to control his choreiform movements....

The patient did not return for follow up and did not call. His medication ran out in August 1988 and he called for a refill. He was given a few and scheduled for an appointment, however, he did not keep the appointment and has not been seen since 7-1-88.

.. His diagnosis remains the same: Chronic choreiform type movement disorder, etiology undetermined. 2

As explained above, Kirwan was transferred in February of 1989.

The next entry in Kirwan's medical records is dated February 8, 1990, when he consulted Dr. Katherine Bencze. Dr. Bencze's records state:

Initially [Kirwan] was put on Hadol 1 mg QID but it affected his intellect and patient stopped taking it. He lost his Job last July due to his movement disorder.

. . . . .

I have recommended to take Baclofen 5 mg at bedtime and increase it gradually to TID as tolerated since it has been shown that Baclofen slows down the progression of this condition. Patient will return to see me in about 1 month. 3

Dr. Bencze's records dated March 9, 1990, provide:

Patient returns for a brief [follow-up] visit today. He took Baclofen 2.5 mg b.i.d. and it seems to help him. He feels much better and he has gained some weight. He is applying for total disability and social security. 4

While employed with Marriott, Kirwan was covered by Marriott's Long Term Disability and Salary Continuation Plan. The Plan provides for the payment of benefits in the event "a Participating Employee becomes subject to a Total Disability." 5 The Plan defines Disability as "a condition of continuous disability by bodily injury or disease for which the Participating Employee is under the regular care of a Physician." 6 Total Disability is defined as "a Disability the result of which is that a Participating Employee is unable to perform any job for wage or profit for which the Participating Employee is or may become qualified by training, education or experience." 7 Participation in the Plan automatically terminates on "the date of termination of the Participating Employee's employment" with Marriott. 8

On February 17, 1990, after having consulted with Dr. Bencze, Kirwan submitted a claim for long-term disability benefits to the Plan's Administrator. A portion of the claim form was completed by Dr. Bencze, who attested that Kirwan was "continuously and totally unable to work from 2/8/90 to present." 9 After gathering and reviewing Kirwan's medical records, the Administrator denied Kirwan's claim for benefits, citing the following reasons:

We have no documented evidence of total disability on or before your termination date of June 23, 1989. Medical records from Dr. Howell indicate that you were last seen by him on July 1, 1988.

There is no documentation of treatment from that point until Dr. Bencze saw you in February of 1990.

Participation in the Long Term Disability Plan ceased on June 23, 1989. Dr. Bencze indicated on your claim form that you were totally disabled beginning February 8,

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1990, at which time you were no longer a Plan participant and...

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