974 F.2d 540 (4th Cir. 1992), 91-2262, Glocker v. W.R. Grace & Co.

• Docket Nº: 91-2262.
• Citation: 974 F.2d 540
• Party Name: Elma A. GLOCKER, Personal Representative of Edwin L. Glocker, Plaintiff-Appellant, v. W.R. GRACE & COMPANY; Aetna Life Insurance Company, Defendants-Appellees.
• Case Date: September 04, 1992
• Court: United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 540

974 F.2d 540 (4th Cir. 1992)

Elma A. GLOCKER, Personal Representative of Edwin L.

Glocker, Plaintiff-Appellant,

v.

W.R. GRACE & COMPANY; Aetna Life Insurance Company,

Defendants-Appellees.

No. 91-2262.

United States Court of Appeals, Fourth Circuit

September 4, 1992

Argued March 2, 1992.

Page 541

Peter Baldwin Turney, Baltimore, Md., argued for plaintiff-appellant.

Jeffrey Peabody Ayres, Venable, Baetjer & Howard, Baltimore, Md., argued (Todd J. Horn, Venable, Baetjer & Howard, on the brief), for defendants-appellees.

Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and SIMONS, Senior United States District Judge for the District of South Carolina, sitting by designation.

BUTZNER, Senior Circuit Judge:

Elma A. Glocker, personal representative of her deceased husband (Mrs. Glocker), sued W.R. Grace & Co. and Aetna Life Insurance Company pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (ERISA). In count one, Mrs. Glocker seeks reimbursement under Grace's retiree's employee welfare benefit plan and medicare supplement benefits plan (collectively, Plan) for the cost of private duty nursing services provided to her husband, Edwin M. Glocker, a former employee of Grace. In a second count she seeks civil penalties against Grace for its alleged failure to provide her with certain documents.

The principal issue in this appeal is whether the district court should have reviewed Grace's denial of reimbursement for the cost of special duty nurses de novo, as Mrs. Glocker contends, or for abuse of discretion, as Grace contends. The district court applied the abuse of discretion standard

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and granted summary judgment in favor of Grace. Because the Plan does not grant the administrator discretion, we vacate the judgment and remand the case for reconsideration by the district court under the de novo standard. Because Mrs. Glocker needed material that Grace did not timely provide, the district court on remand should reconsider its denial of civil penalties.

I

When Mr. Glocker retired from Grace on May 1, 1973, Grace provided him with postretirement medical benefits under an retiree's employee welfare plan. Since Mr. Glocker was over 65, he received coverage under Grace's Medicare Supplement Benefits-I Plan. Both the general provisions of the welfare plan and the medicare supplement plan exclude expenses for custodial nursing care from coverage.

In 1985, a urologist discovered that Mr. Glocker had prostate cancer. Mr. Glocker was treated with radiation and chemotherapy for the next three years. In 1988 when he was hospitalized, he had private-duty nurses pursuant to his doctor's recommendation. His doctor recommended the nurses to ensure that Mr. Glocker did not choke on his own saliva or phlegm, that he did not remove some of the tubes attached to him, that he did not lie on his back and increase the risk of pneumonia, that any instance of apnea did not pass unnoticed, and that he received oxygen regularly. The doctor thought that the regular nursing staff could not adequately guard against these risks because of their workload. The hospital obtained some private-duty nurses and charged their services to Mr. Glocker's hospital bill. The hospital obtained other nurses who billed Mr. Glocker directly. After Mr. Glocker died, Mrs. Glocker filed a claim with AEtna seeking reimbursement for the expense of the nurses. AEtna and Grace employees reviewed the claim and concluded...