Mogel v. Unum Life Ins. Co. of America

• Decision Date: 06 November 2008
• Docket Number: No. 08-1334.,08-1334.
• Citation: 547 F.3d 23
• Parties: Roy MOGEL, et al., Plaintiffs, Appellants, v. UNUM LIFE INSURANCE CO. OF AMERICA, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

547 F.3d 23

Roy MOGEL, et al., Plaintiffs, Appellants, v. UNUM LIFE INSURANCE CO. OF AMERICA, Defendant, Appellee.

No. 08-1334.

United States Court of Appeals, First Circuit.

Heard September 5, 2008.

Decided November 6, 2008.

Stuart T. Rossman with whom Charles M. Delbaum and National Consumer Law Center, M. Scott Barrett, Barrett & Associates, John C. Bell and Leroy W. Brigham, Bell & Brigham, Jeffrey G. Casurella, Law Offices of Jeffrey G. Casurella, were on brief for appellants.

Byrne J. Decker with whom William J. Kayatta, Jr., Gavin G. McCarthy, and Pierce Atwood LLP were on brief for appellee.

Before TORRUELLA and BOUDIN, Circuit Judges, and SCHWARZER,^* District Judge.

SCHWARZER, District Judge.

This is an appeal from a judgment of the district court granting a motion to dismiss plaintiffs' action against UNUM Life Insurance Company of America ("UNUM"). Plaintiffs Roy Mogel, Todd D. Lindsay and Joseph R. Thorley, who are beneficiaries under employee welfare benefit plans, brought this action on behalf of themselves and a class of beneficiaries. They allege breaches of fiduciary duties under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1104(a)(4) and 1106(b). Because we conclude that plaintiffs have stated a valid claim under ERISA, we vacate the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The district court dismissed the complaint for failure to state a claim. Our review is therefore de novo. Centro Medico del Turabo v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir.2005). We assume the truth of all well pleaded facts. Id.

The complaint alleges that plaintiffs were beneficiaries¹ of group life insurance policies issued by UNUM.² These policies are "employee welfare benefit plans" within the meaning of 29 U.S.C. § 1002(1) and (3). Under 29 U.S.C. § 1002(21)(A), UNUM is a fiduciary with respect to the policies. The policies provide that "all benefits payable ... will be paid as soon as the Insurance Company receives proof of claim acceptable to it" and "[u]nless otherwise elected, payment for loss of life will be made in one lump sum." Plaintiffs submitted valid claims for death benefits to UNUM in accordance with the terms of the policies. In response, UNUM approved the claims and mailed each plaintiff a checkbook and a letter. The letter advised that (1) plaintiffs' death benefits plus applicable interest had been deposited in a UNUM Security Account, (2) plaintiffs could write checks from $250 up to the balance in the account, and (3) interest would be paid on the accounts at a variable rate.

In this action plaintiffs charge that UNUM breached its fiduciary duties in two respects: by failing to tender a full lump sum payment for the amount of the claim in violation of 29 U.S.C. § 1104(a)(1) which requires that "a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries," and by wrongfully converting to its own use and benefit the claim amounts owed to plaintiffs in violation of 29 U.S.C. § 1106(b)(1) which prohibits a fiduciary with respect to a plan to "deal with the assets of the plan in his own interest."

The district court granted UNUM's motion to dismiss the action. It held that either UNUM's Security Accounts were "separate accounts" as defined in 29 U.S.C. § 1002(17)³ in which case "they were, by definition, credited with all gains and losses from the assets in those Accounts and the Plaintiffs cannot allege a breach of fiduciary duty."⁴ 540 F.Supp.2d 258, 265 (D.Mass.2008). Alternatively, if the Security Accounts were not "separate accounts," they fell within the guaranteed benefit exemption under 29 U.S.C. § 1101(b)(2)(B).⁵ Id. This timely appeal followed. We have subject matter jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e), and appellate jurisdiction under 28 U.S.C. § 1291.

ANALYSIS

The question we must decide is whether UNUM acted as an ERISA fiduciary when, by establishing the Security Accounts, it retained and invested death benefits presently due beneficiaries under UNUM's ERISA plan and not paid until drawn down as beneficiaries wrote checks on their Security Accounts.

UNUM contends first that the conduct that is the subject of this appeal had nothing to do with UNUM's fiduciary function and could not have occurred until after that function had been performed. It argues that it acted as a fiduciary under UNUM's benefit plan when it determined that plaintiffs were entitled to benefits. But it then performed the non-discretionary ministerial task of "paying the benefits," giving plaintiffs full power to use the funds as they saw fit.

UNUM's contention rests on quicksand. The district court found, and we agree, that delivery of the checkbook did not constitute a "lump sum payment" called for by the policies. As the district court put it, "[t]he difference between delivery of a check and a checkbook ... is the difference between UNUM retaining or UNUM divesting possession of Plaintiffs' funds." 540 F.Supp.2d at 262. Thus UNUM cannot be said to have completed its fiduciary functions under the plan when it set up the Security Accounts and mailed the checkbooks, retaining for its use the funds due until they were withdrawn. UNUM's theory that its mailing of the checkbooks to the beneficiaries and their acceptance formed a unilateral contract is unpersuasive, for until the beneficiaries received the lump sum payments to which they were entitled, UNUM remained obligated to carry out its fiduciary duty under the plan.

More importantly, when UNUM says that plaintiffs had been paid, referring to "the sums already deemed to belong to Plaintiffs," it obscures reality. Until a beneficiary draws a check on the Security Account, the funds represented by that check are retained by UNUM and UNUM had the use of the funds for its own benefit.⁶ To say that the funds are "deemed to belong" to the beneficiaries obscures the reality that UNUM had possession of them and enjoyed their use. Commonwealth Edison Co. v. Vega, 174 F.3d 870, 872-73 (7th Cir.1999), is squarely on point. In that case, Illinois sought to apply its Uniform Disposition of Unclaimed Property Act to funds payable under Com Ed's pension plan but not yet claimed by a plan beneficiary. The plan issued checks to beneficiaries which frequently were not cashed or deposited. The Seventh Circuit held that ERISA preempted the Act, reasoning that "until the check to the beneficiary is actually presented to the plan for payment through the banking system, and paid, the money due to the beneficiary is an asset of the plan." Id. at 873. So here the sums due plaintiffs remain plan assets subject to UNUM's fiduciary obligations until actual payment.

As a second string to its bow, UNUM advances the argument that even if its use of the beneficiaries' funds were subject to ERISA's fiduciary duties, "Congress," it says, "chose to exempt insurers from fiduciary duties in their handling of funds used to pay guaranteed ERISA benefits." Again, UNUM paints with too broad a brush.

The guaranteed benefit policy exemption by its terms does not exempt insurers from fiduciary duties. What it does is to exclude an insurance policy from plan assets "to the extent that such policy ... provides for benefits the amount of which is guaranteed by the insurer." 29 U.S.C. § 1101(b)(2)(B). Speaking of this provision, the Supreme Court has observed:

[E]ven were we not inclined, generally, to tight reading of exemptions from comprehensive schemes of this kind, ... Congress has specifically instructed, by the words...