Lee v. Burkhart

Decision Date19 April 1993
Docket NumberNo. 729,D,729
Citation991 F.2d 1004
Parties, 16 Employee Benefits Cas. 2198 Earl LEE and David Abramson, Plaintiffs-Appellants, v. Richard BURKHART and Patrick Sullivan, Defendants, Connecticut General Life Insurance Company, Defendant-Appellee. ocket 92-7944.
CourtU.S. Court of Appeals — Second Circuit

Gregg D. Adler, Hartford, CT (Angela Melina Rabb, Gould, Livingston, Adler & Pulda, Hartford, CT, of counsel), for plaintiffs-appellants.

Anne F. Bird, Hartford, CT (Henry J. Zaccardi, Pepe & Hazard, Hartford, CT, of counsel), for defendant-appellee.

Before: MESKILL, WINTER and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Two participants in a health insurance plan brought this action to obtain reimbursement for medical costs incurred by them and covered by the plan but unpaid by reason of the bankruptcy of the plan's self-insured sponsor. The participants disclaim knowledge that the plan was self-insured by their bankrupt former employer and seek payment from the insurance company that administered the claims. The United States District court for the District of Connecticut (Dorsey, J.) dismissed their complaint and denied leave to amend on the ground that the damages claimed are extracontractual by nature, that extracontractual damages are not recoverable by plan participants under the civil enforcement provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. (1988), and that amendment would therefore be futile. Finding no basis on which these participants can assert these claims against the claims administrator, we affirm.

BACKGROUND
A. Fact Allegations

For purposes of this appeal, the allegations in the amended and the proposed complaints are deemed to be true.

The Pratt & Whitney Company ("P & W") established a health insurance plan (the "Plan") for its employees and retirees, and contracted with Connecticut General Life Insurance Company ("Connecticut General") to perform various administrative responsibilities for P & W in connection with the Plan. The proposed complaint describes the contract obligations of Connecticut General as follows:

Under the terms of that contract, [Connecticut General] exercised discretionary authority regarding the processing of claims, determining the amounts owed, providing participants with notices regarding claim denial, admission certification and authorization, and disbursement of benefit checks from a bank account funded by direct payments from [P & W].

The Plan was thus self-funded, which means that P & W insured the participants, who received payment through Connecticut General from an account funded by P & W. The P & W health insurance Plan was an employee benefit plan within the meaning of ERISA, 29 U.S.C. § 1101(a) (1988).

Plaintiff Earl Lee was employed by P & W and its predecessor company since 1962. He suffered a heart attack in January 1989 and qualified for disability retirement later that year. Mr. Lee exercised his right under federal law to continue making premium payments for health insurance coverage under the Plan and he thereby continued his coverage. See Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161 et seq. (1988).

On March 17, 1991 Mr. Lee was admitted to the hospital suffering chest pain. Mr. Lee's wife obtained pre-admission certification and approval for the hospitalization from Connecticut General, which confirmed its certification by letter two days later. Mr. Lee's participation in the Plan was current: he had paid premium by check on March 6 and March 26, 1991.

On April 3, 1991, Connecticut General informed Mr. Lee that no health insurance benefits would be afforded under the Plan after February 28, 1991 by reason of P & W's bankruptcy under Chapter 7 of the Bankruptcy Act 1.

Mr. Lee, who had earlier been hospitalized in January 1991, has incurred altogether $12,600 in medical bills that we must assume are covered by the Plan. Connecticut General has refused to pay these bills on the ground that the self-insured sponsor is now bankrupt and has ceased funding the Plan.

Plaintiff David Abramson, an employee of P & W and its predecessor company for 26 years, is in similar circumstances. Mr. Abramson was diagnosed with a serious illness in December 1990, obtained pre-approval and authorization from Connecticut General for surgery that was performed in January 1991, and has thereby incurred $47,500 in related medical expenses that Connecticut General has refused to pay.

ERISA mandates that each participant in a plan be furnished with a summary plan description that includes a statement as to "the source of financing of the plan". 29 U.S.C. § 1022(b) (1988). To the best of their knowledge and belief, Mr. Lee and Mr. Abramson "were never provided with summary plan descriptions as required by ERISA, 29 U.S.C. § 1021(a) (1988), and were never informed that the Company's Plan was 'self-funded.' "

According to plaintiffs, they believed that Connecticut General was acting as an insurer and not solely as an Administrator of the Plan, and that their belief was reasonable (a) because Connecticut General had sent "all written information about coverage, claim forms, benefit statements and denials, and claim checks"; and (b) "because neither [P & W] nor Connecticut General ever clearly and explicitly explained to the plaintiffs that their health benefits were self-funded rather than insured by [Connecticut General]."

The single "Count" in the proposed complaint recites that plaintiffs relied to their "detriment" on the "representations" set forth above, as well as on the pre-approvals and authorizations issued by Connecticut General; and that Connecticut General breached the fiduciary duties prescribed in ERISA Section 404, 29 U.S.C. § 1104 (1988), ERISA Section 101, 29 U.S.C. § 1021 (1988), and ERISA Section 104, 29 U.S.C. § 1024 (1988) by failing to apprise plaintiffs that Connecticut General's only financial obligation was as a mere conduit and that the funding was contingent on P & W and had been later terminated. Plaintiffs predicate their standing to seek damages for the alleged ERISA violations upon ERISA Sections 502(a)(1)(B) and 502(a)(3), 29 U.S.C. §§ 1132(a)(1)(B) and (a)(3) (1988).

B. Procedural History

Plaintiffs filed their original complaint on July 31, 1991 seeking damages as well as equitable and other relief for alleged violations of ERISA; an amended complaint filed less than two weeks later, sought similar relief. The district court dismissed the first amended complaint on the ground that it failed to state a claim, but allowed plaintiffs fifteen days to seek leave to file a second amended complaint. Plaintiffs timely moved to amend the complaint and submitted a proposed amended complaint. 2 The district court concluded that the Proposed Complaint also failed to state a claim, and that leave to file would be futile. The district court ordered entry of a judgment dismissing the action. This appeal followed.

Plaintiffs' first amended complaint alleged that defendants breached fiduciary duties in violation of ERISA Section 404, 29 U.S.C. § 1104 (1988), which imposes the "prudent man" standard upon ERISA fiduciaries. The district court reasoned that (i) Section 404 does not itself create any liability; (ii) that fiduciaries are made liable for breach of their duties under ERISA under Section 409(a), 29 U.S.C. § 1109; (iii) that participants and beneficiaries are authorized by Section 502(a)(2), 29 U.S.C. § 1132(a)(2), to bring an action against a fiduciary who violates Section 409; (iv) but that under Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), an action under Section 502(a)(2) may be brought only on behalf of a plan itself rather than for the benefit of an individual participant; and (v) that in any event Section 502(a)(2) affords no private right of action for "extracontractual" damages. On that basis, the district court dismissed the amended complaint.

The district court rejected plaintiffs' argument that they were also seeking relief under Section 502(a)(3), 29 U.S.C. 1132(a)(3), because the complaint did not invoke that section. Plaintiffs then sought leave to file an amended complaint with factual allegations substantially identical to those in the first complaint, but invoking ERISA Sections 502(a)(1)(B) and 502(a)(3), 29 U.S.C. § 1132(a)(1)(B) and 29 U.S.C. 1132(a)(3).

The district court denied leave to file the Proposed Complaint on the ground that it too failed to state a claim. The district court again concluded that "a private right of action by a beneficiary or participant for extracontractual damages does not lie against a plan administrator" because the rationale of Russell, which arose under Section 502(a)(2), applies as well to Sections 502(a)(1)(B) and 502(a)(3). The district court's ruling was consistent with the majority of the circuits. See Harsch v. Eisenberg, 956 F.2d 651 (7th Cir.1992) (consequential damages resulting from delay in payment of benefits not actionable under Section 502(a)(1)(B)), cert. denied, --- U.S. ----, 113 S.Ct. 61, 121 L.Ed.2d 29 (1992); Reinking v. Philadelphia American Life Ins. Co., 910 F.2d 1210 (4th Cir.1991) (damages for emotional distress not recoverable under Section 502(a)(1)(B); McRae v. Seafarers' Welfare Plan, 920 F.2d 819 (11th Cir.1991); Pane v. RCA Corp., 868 F.2d 631 (3d Cir.1989); Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821 (1st Cir.1988) On appeal plaintiffs argue that insofar as they are seeking reimbursement of their health benefits they are not seeking "extracontractual damages." Plaintiffs also argue that extracontractual damages are available (or should be available) under Section 502(a)(1)(B) and Section 502(a)(3). Connecticut General counters that Russell 's extracontractual damages rationale applies to all rights of action conferred on plan participants by ...

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