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Slayhi v. High-Tech Institute, Inc.: US District Court :ERISA - 1132(a)(1)(B) v. (a)(3); legal v. equitable claims; congruent liability, relief

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MARIAM K. SLAYHI,
Plaintiff,
v.
HIGH-TECH INSTITUTE, INC., an Arizona
corporation,
Defendant.
Case No. 06-CV-2210 (PJS/JJG)
ORDER
Daniel B. Johnson, DANIEL B. JOHNSON & ASSOCIATES, PA, for plaintiff.
Bryan N. Smith and Andrew J. Voss, LITTLER MENDELSON, P.C., for defendant.
In this suit under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.
ch. 18, plaintiff Mariam Slayhi seeks to recover from her former employer, defendant High-Tech
Institute, Inc. (High-Tech), for health-care costs that she incurred in connection with the birth
of her daughter. Slayhi alleges that those health-care costs should have been covered under a
health-insurance plan sponsored by High-Tech. High-Tech disagrees and now moves for
summary judgment. For the reasons that follow, the Court grants in part and denies in part High-
Techs motion.
I. BACKGROUND
A. The Underlying Events
The relevant facts are undisputed. Slayhi was employed full-time as a massage-therapy
instructor by High-Tech, a vocational and technical school. High-Tech offers its full-time
employees health-insurance coverage through Aetna Life Insurance Company (Aetna). Under
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the terms of the High-Tech employee manual, the cost of the health insurance is borne in part by
High-Tech and in part by each covered employee. Slayhi elected individual coverage in January
2002, shortly after she became eligible.
In late July 2003, Slayhi asked High-Tech for three months of maternity leave, from
August through October 2003. Slayhi was eligible for such leave under High-Techs Family and
Medical Leave Act (FMLA) policy. High-Tech granted Slayhi the leave she requested.
During the year and a half before Slayhi went on leave, High-Tech routinely and
automatically deducted Slayhis share of her health-insurance premiums from her paychecks.
After her leave began in early August 2003, Slayhi received another two paychecks that month,
and High-Tech deducted her share of the August health-insurance premium from those
paychecks. Slayhi received no paychecks in September or October, because by then her leave
was unpaid. Consequently, High-Tech could not deduct her share of those months premiums
from her (nonexistent) paychecks. Nor did Slayhi pay her share of the September and October
premiums out of her own pocket.
Slayhi gave birth in September 2003. When she was admitted to the hospital before
giving birth, Slayhi called Aetna to secure approval of the admission. Smith Decl. Ex. A (Slayhi
Dep.) at 17 [Docket No. 8]. Soon after the birth, Slayhi contacted Aetna to add her newborn
daughter as a dependent on her health-insurance plan. Slayhi Dep. at 28. Slayhi also asked
Aetna to preapprove a postnatal home visit, which Aetna did on September 22. The approval
notice from Aetna to Slayhi said:
We have received your request for coverage verification and
authorization for . . . [one home visit between 9/22/2003 and
11/22/2003]. This service has been approved. . . . All three
components of Aetnas authorization process have been satisfied:
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Aetna has verified the members eligibility; and
Aetna has verified that the plan provides coverage for the type of selected
procedures or services; and
Aetna has verified the medical necessity of selected procedures or services
specifically described in this letter.
Slayhi Aff. Ex. F [Docket No. 14] (emphasis added).
In October, Slayhi realized that she would not be able to return to work in November as
she originally planned. She went to High-Techs offices in early October to discuss with her
supervisor the possibility of taking additional leave and then working part time after she returned
from that additional leave. Slayhi Dep. at 24-25. During this same visit to High-Tech, Slayhi
also asked High-Techs office manager whether her health-insurance paperwork was in order.
Id. at 25-26. The office manager said that it appeared to be and that High-Tech would contact
Slayhi by mail if High-Tech needed any other paperwork from her. Id. at 26, 36-37.
Slayhis supervisor never directly told Slayhi whether High-Tech would grant or deny
her request for extended leave followed by part-time status. Instead, the supervisor promised
twice first in early October in person, and then in mid-October by phone to look into the
matter and get back to Slayhi. Id. at 25, 29. Slayhi did not hear from her supervisor or anyone
else at High-Tech until she received a formal notice dated November 17, 2003, which advised
Slayhi that her health insurance had been retroactively terminated as of September 1 and
informed her that she could continue her health-insurance coverage at her own expense under
COBRA (the federal Consolidated Omnibus Reconciliation Act of 1986). Slayhi Aff. Ex. G;
Slayhi Dep. at 29-31.
The COBRA notice reflected, albeit indirectly, that High-Tech had decided to terminate
Slayhis employment as of November 1, 2003, because her approved leave had run out and she
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had not returned to work. See Gilmore Aff. 4 [Docket No. 9]. In other words, High-Tech
essentially used a COBRA notice to tell Slayhi that she had been fired. After deciding to
terminate Slayhis employment, High-Tech told Aetna of the termination and informed Aetna
that Slayhi had not paid her share of her health-insurance premiums for either September or
October 2003. Id. 5.
High-Techs employee manual, which Slayhi agrees she received, provides that
employees on FMLA leave are required to make their portion of the monthly premium
payments on the 1st of each month. Slayhi Dep. Ex. 7 at HTI/Slayhi000249; Slayhi Dep. at 13-
15. A similar message is repeated on the form that Slayhi submitted to request FMLA leave,
which informed Slayhi that [d]uring this leave you must make your share of the premiums
when due. Slayhi Aff. Ex. D. But on High-Techs leave-approval form, High-Tech told Slayhi
the following:
If you normally pay a portion of the premiums for you[r] health
insurance, you must continue to make your portion of the premium
payments while on leave. . . . When all vacation and/or sick leave
has been used and you are not receiving any other form of
compensation for hours worked you are required to make your
portion of the monthly premium payment on the 1st of every
month. You have a minimum 30-day grace period in which to
make payment. If payment is more than 30 days late, your group
health insurance will be canceled, provided we notify you in
writing at least 15 days before the date your health coverage will
lapse.
Slayhi Aff. Ex. E. (emphasis added).
High-Tech never dunned Slayhi for her share of her health-insurance premiums. Slayhi
Dep. at 27-28, 37. Nor did High-Tech give Slayhi any advance notice that her health-insurance
coverage was about to be terminated. Instead, High-Tech simply represented to Aetna that
Slayhi had failed to pay the required premiums as of September 1. Aetna terminated Slayhis
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coverage based on High-Techs representation, and refused to process Slayhis claims for the
roughly ,000 in pregnancy- and birth-related medical costs that she incurred in September
and October 2003. On November 21, 2003, Aetna sent Slayhi a Certification of Prior Group
Health Plan Coverage reflecting that her coverage with Aetna had been terminated as of
September 1, 2003. Slayhi Dep. Ex. 16.
As noted above, High-Tech sent Slayhi a notice dated November 17 advising her of her
rights under COBRA. Slayhi did not elect continuation coverage under COBRA. Instead, she
enrolled in her husbands health-care plan effective some time after November 17, 2003. This
left Slayhi with a gap in coverage for September and October 2003, leaving her personally liable
for the roughly ,000 in medical costs that Aetna did not cover.
In May 2006, Slayhi sued High-Tech in state court, bringing a claim under ERISA for
reimbursement of her uncovered health-care expenses from September and October 2003. High-
Tech removed the case to this Court.
B. The Health-Insurance Policy
As described, High-Tech offers its full-time employees health-insurance coverage
through Aetna. Specifically, High-Tech and Aetna have a contract a health-insurance policy
under which Aetna agrees to insure eligible High-Tech employees in return for premium
payments from High-Tech.
The health-insurance policy specifies how much High-Tech must pay Aetna as a monthly
premium for coverage of each High-Tech employee (about 5 for individual coverage, and
about 4 for family coverage). Slayhi Dep. Ex. 10 at HTI/Slayhi000017. The policy further
provides that High-Techs premium payments are due in advance, on the first of each month.
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The policy gives High-Tech [a] grace period of 31 days after the due date . . . for the payment
of each premium. Id. at HTI/Slayhi000019.
The policy is silent about how High-Tech and its employees will divide the cost of
health-insurance premiums among themselves. That is left entirely to High-Tech. High-Tech
could require its employees to pay none of the premium, some of the premium, or all of the
premium. As it happens, in its employee manual, High-Tech generally agrees to bear seventyfive
percent of the premium cost, while employees must bear the remaining twenty-five percent.
Slayhi Dep. Ex. 7 at HTI/Slayhi000250. But this is a contractual and accounting matter between
High-Tech and its employees, not between Aetna and High-Tech (or between Aetna and High-
Techs employees).
The policys silence about the share of premiums to be paid by employees is one
particular instance of the more general division of responsibility between High-Tech and Aetna
that is reflected throughout the policy. Roughly speaking, Aetna is responsible for claim-level
decisions about paying benefits (e.g., to what extent employee xs visit to doctor y on date z is
covered), while High-Tech is responsible for plan-level decisions about covering employees
(e.g, whether employee x will be covered at all for anything under the Aetna policy).
Aetnas claims-level responsibility is spelled out in the policy section entitled ERISA
claim fiduciary, which provides:
Aetna is a fiduciary with complete authority to review all denied
claims for benefits under this policy. This includes, but is not
limited to, the denial of certification of the medical necessity of
hospital or medical treatment. In exercising such fiduciary
responsibility, Aetna shall have discretionary authority to:
determine whether and to what extent employees are entitled to
benefits; and
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construe any disputed or doubtful terms of this policy.
Aetna shall be deemed to have properly exercised such authority
unless Aetna abuses its discretion by acting arbitrarily and
capriciously.
Slayhi Dep. Ex. 10 at HTI/Slayhi000021 (emphasis added).
High-Techs plan-level responsibility is reflected not only in the provisions governing
premium payments (described above), but also in the provisions governing coverage termination
and nondiscrimination. As for nondiscrimination, the plan provides:
In the management of this policy, [High-Tech] will act so as not to
discriminate unfairly between persons in like situations at the time
of the action. Aetna can rely on such action. It will not have to
probe into the details.
Id. at HTI/Slayhi000015.
Just as Aetna relies entirely on High-Tech to not discriminate unfairly among its
employees in managing the policy, so too does Aetna rely entirely on High-Tech to tell Aetna
when a terminated employees coverage should cease. The policy provides that an employees
coverage ends when, among other things, employment ceases. Id. at HTI/Slayhi000052.
High-Tech, not Aetna, determines when employment ceases:
[High-Tech] will notify Aetna of the date your employment ceases
for the purposes of termination of coverage under this Plan. . . . In
figuring when employment will stop for the purposes of
termination of any coverage, Aetna will rely upon [High-Tech] to
notify Aetna. This can be done by telling Aetna or by stopping
premium payments.
Id. (emphasis added).
1The Court quotes the version of Rule 56 that became effective December 1, 2007. The
restyled rule is substantively the same as the earlier version of the rule. See Fed. R. Civ. P. 56
advisory committees note on 2007 amendments.
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II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).1 A
dispute over a fact is material only if its resolution might affect the outcome of the suit under
the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a fact is genuine only if the evidence is such that a reasonable jury could return a
verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir.
2006). In considering a motion for summary judgment, a court must assume that the nonmoving
partys evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003).
B. Identifying Slayhis Claims
Under ERISA, plan participants such as Slayhi can generally bring two different types of
claims for individual relief:
First, 1132(a)(1)(B) allows participants to challenge, both retrospectively and
prospectively, a denial of benefits. Specifically, 1132(a)(1)(B) authorizes suits by a participant
or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights
under the terms of the plan, or to clarify his rights to future benefits under the terms of the
plan[.] 29 U.S.C. 1132(a)(1)(B). Claims under this section can be termed benefits claims.
2A Serbonian bog is a mess from which there is no way of extricating oneself.
DiFelice, 346 F.3d at 454 n.1 (Becker, J., concurring).
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Second, participants can also sue under 1132(a)(3) to obtain other appropriate
equitable relief . . . to enforce any provisions of this title or the terms of the plan[.] 29 U.S.C.
1132(a)(3). Although this catchall provision is broadly worded, the Supreme Court has placed
significant limits on the other appropriate equitable relief that is available under 1132(a)(3).
The precise scope of those limits is still uncertain, but roughly speaking, the Court has relegated
claims for payment for withheld benefits to 1132(a)(1)(B), while claims brought under
1132(a)(3) may seek only non-monetary relief. See Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 221 (2002) (Because petitioners are seeking legal relief the
imposition of personal liability on respondents for a contractual obligation to pay money
[1132(a)(3)] does not authorize this action.); Mertens v. Hewitt Assocs., 508 U.S. 248, 255-63
(1993) (finding that [m]oney damages are, of course, the classic form of legal relief and
therefore are not appropriate equitable relief under 1132(a)(3)).
In this case, Slayhi purports to bring a claim for breach of fiduciary duty arising under
[ERISA], 29 U.S.C. 1132(a)(1)(B). Complaint 3. As High-Tech points out, this phrasing
mixes up two distinct types of claims: a claim for benefits under 1132(a)(1)(B), on the one
hand, and a claim for breach of fiduciary duty under 1132(a)(3), on the other.
The court can scarcely blame Slayhi for her apparent confusion about what type of
ERISA claim she should bring. The ERISA enforcement scheme, as interpreted by the courts, is
bewilderingly complex. Judge Edward Becker described the ERISA regime as unjust and
increasingly tangled and a Serbonian bog. DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442,
453-54 (3d Cir. 2003) (Becker, J., concurring);2 see also Aetna Health, Inc. v. Davila, 542 U.S.
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200, 222 (2004) (Ginsburg, J., concurring) (quoting Judge Beckers concurrence in DiFelice ).
And the Eighth Circuit, acknowledging the complexity of ERISAs enforcement scheme, has
advised that:
In order to obtain complete relief, a successful plaintiff may need
to assert claims against both a plan and its sponsor and/or
administrator and/or issuer of an insurance policy that provides
benefits under the plan, asserting claims under 1132(a)(1)(B)
and(a)(3).
Ross v. Rail Car Am. Group Disability Income Plan, 285 F.3d 735, 741 n.7 (8th Cir. 2002).
High-Tech has construed Slayhis complaint as raising claims under both 1132(a)(1)(B)
and 1132(a)(3) and has addressed both types of claims in its summary-judgment brief. In
response, Slayhi continues to frame her arguments in terms of both sections of the statute. Pl.
Mem. Opp. Def. Mot. S.J. (Pl. SJ Opp.) at 10 (Defendant is a proper party under either 29
U.S.C. 1132(a)(3) or 29 U.S.C. 1132(a)(1)(B).) [Docket No. 13]. Accordingly, the Court will
analyze both types of claims.
C. The Benefits Claim
High-Tech moves for summary judgment on Slayhis 1132(a)(1)(B) claim for benefits,
arguing that High-Tech is not a proper defendant with respect to such a claim. Whether High-
Tech is a proper defendant under 1132(a)(1)(B) is a surprisingly complex question.
Ultimately, however, the court agrees with High-Tech that in this case, the proper defendant
under 1132(a)(1)(B) is High-Techs insurer, Aetna, and not High-Tech itself.
1. The Plan as Defendant
ERISA itself does not identify the proper defendant in suits for benefits. Section 1132(d)
touches on the subject, providing as follows:
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(1) An employee benefit plan may sue or be sued under this title as
an entity. . . .
(2) Any money judgment under this title against an employee
benefit plan shall be enforceable only against the plan as an entity
and it shall not be enforceable against any other person unless
liability against such person is established in his individual
capacity under this title.
29 U.S.C. 1132(d). In an often-cited opinion, the Ninth Circuit observed, with no
accompanying analysis, that this section means that ERISA permits suits to recover benefits
only against the Plan as an entity . . . . Gelardi v. Pertec Computer Corp., 761 F.2d 1323, 1324
(9th Cir. 1985); see also Ross v. Rail Car Am. Group Disability Income Plan, 285 F.3d 735, 740-
41 (8th Cir. 2002) (citing Gelardi).
High-Tech relies on Gelardi and Ross to argue, in its opening brief, that because High-
Tech is not the plan, it is not a proper defendant under 1132(a)(1)(B). Def. Mem. Supp.
Mot. S.J. (Def. SJ Mem.) at 19 [Docket No. 11]. To its credit, High-Tech changes its position
in its reply brief and concedes that plan administrators can also be sued under 1132(a)(1)(B).
Def. Reply Mem. at 4 n.1 [Docket No. 17]. It is worth explaining, though, why Gelardi was
simply incorrect in suggesting that a suit for benefits can be brought only against the Plan as an
entity.
First, the text of 1132(d) does not compel the conclusion that ERISA plans, as entities,
are the only possible defendants in suits for benefits. Rather, subsection (1) of 1132(d)
establishes that ERISA plans are among the possible defendants in suits for benefits. And
subsection (2) of 1132(d) establishes that, once a money judgment has been rendered against
an ERISA plan as an entity, that judgment is enforceable only against the plan itself, unless some
other party has also been found liable in his individual capacity under ERISA. By its terms,
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then, subsection (2) speaks only to the enforceability of a money judgment that has been
rendered against a plan; it does not foreclose the possibility that a money judgment might be
rendered against someone other than a plan. See Everhart v. Allmerica Fin. Life Ins. Co., 275
F.3d 751, 757 (9th Cir. 2001) (Reinhardt, J., dissenting) (stating that 1132(d) clearly applies
only to suits against ERISA plans, and not to suits that may be brought against other parties
under ERISA). Indeed, at least one court of appeals has gone so far as to hold that 1132(d) is
entirely irrelevant to suits for benefits under 1132(a)(1)(B). See Hunt v. Hawthorne Assocs.,
Inc., 119 F.3d 888, 908 n.54 (11th Cir. 1997) (observing that 1132(d) contemplates legal
relief and does not apply to an action to recover benefits under section [1132(a)(1)(B)].). But
see Hall v. LHACO, Inc., 140 F.3d 1190, 1196 (8th Cir. 1998) (citing 1132(d) for the
proposition that benefits due under 1132(a)(1)(B) can only be obtained against the Plan
itself).
Second, in some cases such as this one the plan simply does not exist as an
entity. See, e.g., Hunt, 119 F.3d at 907 (observing, in a suit for retirement benefits, [n]or can
the Plan as an entity provide any relief; the Plan alone is simply a written instrument executed by
[the employer] and [the union].). The notion of a plan as a freestanding entity fits well with
pension plans, which were Congresss primary focus in drafting ERISA. See generally DiFelice,
346 F.3d at 454-55 (Becker, J., concurring) (discussing history and purposes of ERISA).
Pension plans often do have an independent existence (in the form of trusts, for instance). And
some self-funded health-insurance plans may also exist as trusts or other freestanding entities.
More commonly, however (particularly where small employers are involved), a health-insurance
plan is simply a contract between an employer and an insurer. Needless to say, a contract
cannot be haled into court.
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Third, and most important from a practical standpoint, the Eighth Circuit has rejected the
notion that only a plan can be sued under 1132(a)(1)(B). In Layes v. Mead Corp., the court
held that a claim for disability benefits could not be brought against the plaintiffs employer, but
could be brought against the insurance company that administered the employers disabilitybenefit
plan. 132 F.3d 1246, 1249-50 (8th Cir. 1998) (CNA [the insurer] was at all relevant
times the sole administrator of the long-term disability plan offered by Mead [the employer].
Thus, Mead was not a proper party defendant. . . . We turn, then, to Layes action against CNA
for long-term disability benefits.). At the very least, then, in this circuit, certain plan
administrators, as well as plans themselves, can be sued under 1132(a)(1)(B).
2. Plan Administrators As Defendants
Under ERISA, the term administrator has a particular meaning. Section 1002(16)(A)
defines an administrator as:
(i) the person specifically so designated by the terms of the
instrument under which the plan is operated;
(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.
29 U.S.C. 1002(16)(A). This definition is exhaustive; for every ERISA plan, there is
necessarily an administrator under the statute.
In this case, the instrument under which the plan is operated does not specifically so
designate[] an administrator. Instead, the plan document identifies Aetna as the ERISA claim
fiduciary, Smith Aff. Ex. B at HTI/Slayhi000021, not as the plan administrator. Accordingly,
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because High-Tech is the plan sponsor, see 1002(16)(B), it is, by operation of law, the
administrator.
This raises two questions: First, does the fact that High-Tech is defined as the
administrator of the plan under 1002(16)(A) by itself make High-Tech a proper
defendant under 1132(a)(1)(B)? Second, if the answer to the first question is no, then does
the fact that High-Tech exercises plan-level administrative responsibility make it a proper
defendant under 1132(a)(1)(B)? (Recall that, although Aetna is entirely responsible under the
plan for claim-level decisions about benefits, High-Tech is responsible for plan-level decisions
about premium collection and employee enrollment.)
Neither of these questions is answered directly by Eighth Circuit case law. In particular,
the Eighth Circuit has not addressed the relationship between the definition of administrator in
1002(16)(A) and benefits claims brought under 1132(a)(1)(B). In Layes, the insurance
company being sued for benefits was both a de facto plan administrator (i.e., the company in fact
administered the plan) and a de jure administrator (i.e., the company was defined as the
administrator by 1002(16)(A)). 132 F.3d at 1249. Layes therefore left open the question
whether and to what extent a party that is defined as the plan administrator by statute, but that
does not in fact do any administering of the plan (or administers only some aspects of a plan),
can be sued under 1132(a)(1)(B). Likewise, Layes left open the complementary question
whether and to what extent a party that in fact administers a plan, but that is not identified by the
statute as a plan administrator, can be sued under 1132(a)(1)(B).
With respect to the second question whether a de facto but non-statutory administrator
can be sued under 1132(a)(1)(B) the Eighth Circuit has sent mixed signals within the same
opinion. In Hall v. LHACO, Inc., decided shortly after Layes, the court said that it would
3Indeed, the language quoted in Hall and characterized as Layess holding about suing
the party that controls administration of the plan was not even part of Layess main text, let
alone Layess holding this language comes from the Eleventh Circuits decision in Garren v.
John Hancock Mutual Life Insurance Co., 114 F.3d 186, 187 (11th Cir. 1997), and is found in a
parenthetical remark in Layes that follows a see citation to Garren. Layes, 132 F.3d at 1249.
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reserve for another time the question of whether a party other than the one designated in ERISA
plan documents can be sued under [1132(a)(1)(B)] as a de facto plan administrator. 140
F.3d 1190, 1195 (8th Cir. 1998). This seems to leave open the question whether a de facto but
non-statutory plan administrator such as Aetna in this case is a proper defendant in a
benefits action. But Hall also characterized Layes as having held that the proper party against
whom a claim for ERISA benefits may be brought is the party that controls administration of
the plan, not the plan participants employer. 40 F.3d at 1194 (purportedly quoting Layes).
If Layes in fact held that the party that controls administration of the plan is the proper
defendant in an ERISA benefits action, this would seem to establish that a de facto plan
administrator by definition, the party that in fact controls administration of the plan
could be sued under 1132(a)(1)(B). But, as noted above, Layes did not so hold; rather, Layes
held that (1) an employer that does not control plan administration (and is not a statutory
administrator under 1002(16)(A)) is not a proper defendant, and (2) a statutory plan
administrator that does control plan administration is a proper defendant.3 Layes implied nothing
one way or another about whether a de facto but non-statutory administrator could be sued
under 1132(a)(1)(B).
Eighth Circuit case law does not, therefore, establish what parties, other than a statutory
plan administrator that also administers a plan by making claim-level decisions about benefits,
are subject to suits for benefits under 1132(a)(1)(B). And while Layes forecloses benefits
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actions against employers where a unitary de facto/statutory plan administrator other than the
employer exists, Layes does not foreclose such an action against an employer that is also a
statutory administrator (as High-Tech is in this case).
3. Defendants and Relief Must Be Congruent
Although nothing in the reasoning of either Layes or Hall suggests whether an action
against statutory, but not actual, plan administrators is permissible under ERISA, one could
justify allowing such suits by way of a syllogism: If case law permits benefits suits against plan
administrators, and if ERISA defines some employers as plan administrators as a matter of
law regardless of whether they do any actual administering, then such employers should be
subject to suits for benefits.
This syllogism is unsatisfactory, though, because no substantive rationale underpins it,
and because it does not follow ineluctably from the statutory language of ERISA. The most
extended discussion of the rationale for permitting suits under 1132(a)(1)(B) against de facto
plan administrators (such as Aetna in this case) appears in the Eleventh Circuits decision in
Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888 (11th Cir. 1997). That same rationale, a key
aspect of which has been adopted by the Eighth Circuit in In re Vorpahl, 695 F.2d 318 (8th Cir.
1982), does not support allowing suits for benefits under 1132(a)(1)(B) against statutory
administrators that do not control claim-specific decisions about benefits (such as High-Tech in
this case).
Hunt was a suit for benefits brought by a retired airline pilot. The retirement plan at
issue was structured so that the airline itself the then-bankrupt Eastern Airlines had the
ultimate authority to award or deny benefits, while an administrative committee was responsible
for managing plan assets and for overseeing plan operations (apart from awarding benefits). 119
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F.3d at 893. The pilot, Hunt, had dismissed Eastern Airlines from the suit and sought to enforce
his claim for benefits against the administrative committee alone. Id. at 902-03. The Eleventh
Circuit held that he could not do so. Id. at 908-09.
To reach this conclusion, Hunt examined the nature of the remedy provided under
1132(a)(1)(B). The court determined that while an award of benefits under this section results
in monetary relief, such an award is equitable, and not legal, in nature. That is, an award of
benefits under 1132(a)(1)(B) is in the nature of an in personam order enjoining the payment
of benefits and, accordingly, must issue against a party capable of providing the relief
requested. Id. at 908. Under the terms of the plan at issue in Hunt, Eastern Airlines had final
authority to decide whether to award benefits on a particular claim. Id. at 909. Accordingly,
Eastern Airlines was the only proper defendant under 1132(a)(1)(B) and, because Eastern
Airlines had been dismissed from the suit, Hunts benefits claim failed as a matter of law. Id. at
911 (It is clear that Eastern, not [the committee], bears ultimate responsibility for the denial of
Hunts lump-sum benefit. . . . We therefore reject the district courts sub silentio revision of the
Plan which enabled the court to direct [the committee] to pay Hunt his lump-sum benefit.).
Although the Eighth Circuit has not expressly adopted the analysis in Hunt, it has
endorsed the key premise underlying Hunts analysis. In In re Vorpahl, the Eighth Circuit held
that suits under 1132(a)(1)(B) are equitable in nature and therefore need not be tried to a jury.
695 F.2d at 321. The Court therefore finds that the Eighth Circuit would likely follow the
approach outlined in Hunt.
Accordingly, the proper defendant under 1132(a)(1)(B) is the party with authority,
under the relevant plan documents, to pay benefit claims from plan assets. In this case, that is
Aetna, not High-Tech. As described above, the High-Tech plan is funded through an insurance
-18-
policy issued by Aetna, and, under the terms of that policy, Aetna has the final authority to
decide individual claims for benefits. Put another way, if the court ordered Aetna to pay benefits
in this case, such a payment would come from the insurance plan, since Aetna is the insurer. But
if the court ordered High-Tech to pay benefits in this case, such a payment would not come from
the insurance plan; it would instead come from High-Techs assets. Payment from High-Techs
assets is not the payment of plan benefits, but the payment of damages. Such payment could
satisfy only a legal judgment, not an equitable judgment.
To be clear: The Court has concluded only that High-Tech is not liable under one
particular section of ERISA: 1132(a)(1)(B). The Court has not concluded that High-Tech is
immune from any liability under ERISA. To the contrary, as discussed below, the Court
believes that High-Tech is a proper defendant under 1132(a)(3). But High-Techs liability, if
any, must be congruent with its authority under the plan. To the extent that High-Tech has
administrative responsibilities under the plan, those responsibilities relate solely to the collection
of employee premiums and to enrolling and disenrolling employees at the plan level. High-Tech
has no responsibility for paying benefits at the claim-specific level. Therefore an order directing
the payment of benefits under 1132(a)(1)(B) would not be congruent with High-Techs
authority.
Because High-Tech is not a proper defendant under 1132(a)(1)(B), the Court grants
High-Techs summary-judgment motion with respect to this claim. The Court will, however,
grant Slayhi leave to amend her complaint to name Aetna as a defendant if she can do so
consistently with Rule 11 of the Federal Rules of Civil Procedure. That is a big if. Slayhi will
have to determine, among other things, whether her claim against Aetna is now barred by the
-19-
statute of limitations and, if so, whether that claim might nevertheless be saved by the relationback
provisions of Rule 15(c). The Court expresses no opinion on these issues.
D. The Breach-of-Fiduciary-Duty Claim
The Court construes Slayhis complaint as does High-Tech to raise a claim for
breach of fiduciary duty under 1132(a)(3). The Court agrees with High-Tech that Slayhi
cannot recover a monetary judgment under this section of ERISA. See Great-West, 534 U.S.
at 221. The Court finds, however, that other appropriate equitable relief is available to Slayhi
under 1132(a)(3). Specifically, the Court finds that it can order High-Tech (1) to accept
premium payments from Slayhi for September and October 2003, (2) to inform Aetna that High-
Tech was mistaken when it told Aetna that Slayhi had not made required premium payments for
September and October 2003, and (3) to instruct Aetna that it must reinstate Slayhi under the
plan, treat her as having been a covered employee from September 1, 2003 through her
termination date of November 1, 2003, and process her claims from that period in accordance
with the terms of the plan.
1. Liability under 1132(a)(3)
The Court finds, contrary to High-Techs contention, that the undisputed facts establish
that High-Tech is a fiduciary under ERISA. High-Tech is therefore a proper defendant under
1132(a)(3).
As relevant to this case, a person is a fiduciary with respect to a plan to the extent . . . he
has any discretionary authority or discretionary responsibility in the administration of such
plan. 29 U.S.C. 1002(21)(A). This definition is deliberately broad and envisions that plans
may have multiple fiduciaries, each of which is a fiduciary only with respect to some particular
-20-
aspect of the plan (hence the statutes limiting language describing a person as a fiduciary only
to the extent that the person meets specified statutory conditions).
The plan language in this case, which defines Aetna as a fiduciary with complete
authority to review all denied the claims for benefits under this policy, does not strip High-Tech
of fiduciary status. Slayhi Dep. Ex. 10 at HTI/Slayhi000021. First, the plan language itself does
not purport to do so; it defines Aetna as a fiduciary, not the fiduciary. Second, plan
language cannot supersede the statutory definition of a fiduciary. In this case, the undisputed
facts demonstrate that High-Tech exercised discretionary authority or discretionary
responsibility with respect to collecting the employees share of her health-insurance premium.
29 U.S.C. 1002(21)(A).
The plan itself that is, the contract between Aetna and High-Tech is silent with
respect to the employees share of health-insurance premiums. Instead, the plan provides only
that [t]he Policyholder [i.e., High-Tech] will pay premiums in advance, and allows a grace
period of 31 days after the due date . . . for the payment of each premium. Slayhi Dep. Ex. 10
at HTI/Slayihi000019. The plan also establishes the total amount of the premium per employee
for individual and family coverage. Id. at HTI/Slayhi000017. But Aetna is utterly indifferent to
what share (if any) of this premium is paid to High-Tech by the employee; Aetnas only interest
is in receiving the premium payment due from High-Tech.
High-Techs discretionary authority with respect to collecting employee premiums is
further reflected in the plan provisions governing insurance during FMLA leave. The plan
requires an employee on FMLA leave to agree to make any contributions required by your
Employer [i.e., High-Tech] to continue coverage. Id. at HTI/Slayhi000074 (emphasis added).
The plan further provides that coverage will not be continued beyond. . . [t]he date you are
4High-Tech may also be a fiduciary under 1002(21) by virtue of its status as the
statutory plan administrator. As discussed above, because the plan does not specifically
designate an administrator, High-Tech the plan sponsor is defined as the administrator
by 1002(16)(A). Interpretive regulations from the Department of Labor state that a plan
administrator or a trustee of a plan must, by the very nature of his position, have discretionary
authority or discretionary responsibility in the administration of the plan within the meaning of
-21-
required to make any contribution and you fail to do so. Id. (emphasis added). The
contributions required of an employee such as Slayhi under this section are only those
contributions that High-Tech chooses to require; High-Tech could, consistently with this
provision, require no contribution from employees during FMLA leave, or require contributions
only under certain circumstances or in a particular manner.
By means of its form authorizing Slayhis FMLA leave, High-Tech committed to
exercise its discretion in collecting health-insurance premiums from Slayhi during her leave in a
particular way. The request form executed by Slayhi states that during FMLA leave, she must
make [her] share of the premiums when due. Slayhi Aff. Ex. D. But this form does not say
when those premiums are due. That information is found in High-Techs response form
authorizing Slayhis FMLA leave:
If you normally pay a portion of the premiums for your health
insurance, you must continue to make your portion of the premium
payments while on leave . . . . You have a minimum 30-day grace
period in which to make payment. If payment is more than 30
days late, your group health insurance will be canceled, provided
we notify you in writing at least 15 days before the date your
health coverage will lapse.
Slayhi Aff. Ex. E. As this language reflects, High-Tech has discretion to decide not only
whether an employee such as Slayhi must pay a share of her health-insurance premium, but also
when and how. Accordingly, High-Tech is an ERISA fiduciary with respect to that aspect of
plan administration.4
[ 1002(21)(A)(iii) of ERISA]. Persons who hold such positions will therefore be fiduciaries.
29 C.F.R. 2509.75-8.
-22-
As an ERISA fiduciary, High-Tech made a commitment to Slayhi to do two things:
(1) to provide her a thirty-day grace period for each premium payment, and (2) to refrain from
instructing Aetna to cancel her coverage until High-Tech provided Slayhi fifteen days advance
written notice of coverage termination. High-Tech betrayed its commitments. Slayhis FMLA
leave began on September 1, 2003, and her premium payment for that month was due on that
day, but should not have been considered late before September 30. On October 1, when High-
Tech determined that Slayhi had not paid her premium for September, it could have sent Slayhi a
written notice informing her that her coverage would be terminated in fifteen days. High-Tech
did not do so. Instead, without ever having sent Slayhi the advance written notice of termination
that High-Tech promised her, High-Tech terminated her employment as of November 1 and
instructed Aetna that Slayhi had failed to make required premium payments since September 1.
Obviously, High-Tech treated Slayhi terribly, causing her to become liable for about
,000 in health-care costs that she would not have been liable for if High-Tech had merely
lived up to its word. But rather than taking responsibility for its actions, High-Tech seeks to
avoid any consequences for its failure to honor its commitments by arguing not only that it is not
an ERISA fiduciary an argument that, as described above, is plainly meritless but also that
the promises it made to Slayhi in the leave-authorization form are unenforceable under ERISA.
The Court disagrees.
ERISA requires that covered employee-benefit plans be in writing. 29 U.S.C.
1102(a)(1) (Every employee benefit plan shall be established and maintained pursuant to a
written instrument.). Further, ERISA requires that plans provide a formal procedure for their
-23-
amendment. 29 U.S.C. 1102(b)(3). In light of these provisions, numerous courts have held
that ERISA precludes oral or informal plan amendments to a plan, whether by estoppel or
otherwise. Jensen v. Sipco, Inc., 38 F.3d 945, 953 (8th Cir. 1994). As a result, employees
seeking to recover under ERISA on the basis of an employers extra-plan promises are often out
of luck.
This does not mean, however, that employers are entirely free to lie about their ERISA
plans without fear of liability. For although an ERISA plan cannot be informally amended,
ambiguities in an ERISA plan can be informally interpreted (at least in the Eighth Circuit). See
Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 492 (8th Cir. 1996) (Courts may apply the
doctrine of estoppel in ERISA cases only to interpret ambiguous plan terms. . . .); Slice v. Sons
of Norway, 34 F.3d 630, 634-35 (8th Cir. 1994). Thus, if an employee seeks to recover under
ERISA on the basis of an employers extra-plan promise, the employee must first demonstrate
that the promise was not a modification of an ERISA plan, but rather a plausible interpretation of
an ambiguity in an ERISA plan. See Slice, 34 F.3d at 635. The Court finds that High-Techs
promise of a grace period and a pre-termination warning notice in its FMLA-authorization form
is just such an enforceable interpretation of an ambiguous plan provision.
As noted above, the plan itself says that employees on FMLA leave must agree to make
any contributions required by High-Tech, and that coverage under the plan will terminate as of
the date an employee is required to make any contribution but fails to do so. Slayhi Dep. Ex.
10 at HTI/Slayhi 00074 (emphasis added). But what is a required contribution? The plan does
not say. Nor does the Employee Benefits Summary that High-Tech provided to Slayhi. That
document, which presumably qualifies as a Summary Plan Description under ERISA, 29
U.S.C. 1022, and is therefore part of High-Techs ERISA plan, specifies the dollar amount of
-24-
the employee share of the premium but is silent as to how that share will be collected. Slayhi
Dep. Ex. 9 at SlayhiPL000007-10.
Outside of the ERISA plan and the benefits summary, High-Tech discusses in two
documents the contributions that employees must make toward their health-insurance coverage.
These two documents give meaning to the word required as used in the plan. First, in its
employee manual, High-Tech told Slayhi that she was required to make [her] portion of the
monthly premium payments on the 1st of every month. Slayhi Dep. Ex. 7 at HTI/Slayhi00249.
Second, in the leave-authorization form, High-Tech promised Slayhi that if she failed to make
the required payment on the first of the month, High-Tech would give her thirty days to
remedy that failure before High-Tech would act to terminate her health coverage. Slayhi Aff.
Ex. E. The authorization form then went further and promised Slayi that, even if she did not
remedy her failure to pay a premium on the first day of a month, High-Tech would not act to
terminate her medical insurance without first giving her notice. Id. The promises in the leaveauthorization
form, together with the employee manual, establish what High-Tech required of
Slayhi with respect to her share of her health-insurance premiums.
In sum, the Court concludes that, in seeking to make High-Tech live up to its promises,
Slayhi is not seeking to enforce an informal amendment to an ERISA plan, but instead seeking to
enforce an informal interpretation of an ambiguity in an ERISA plan. This the Eighth Circuit
permits her to do.
High-Tech makes two additional arguments to avoid liability that must be addressed.
First, High-Tech suggests that a provision of the insurance plan entitled misstatements
justified Aetnas termination of Slayhis health insurance based on High Techs report of
-25-
Slayhis failure to pay her premiums for September and October 2003. The insurance plan
provides:
Misstatements[.] If any fact as to a person to whom the insurance
relates is found to have been misstated, a fair change in premiums
will be made. If the misstatement affects the existence or amount
of insurance, the true facts will be used to decide if insurance is in
force and its amount.
Slayhi Dep. Ex. 10 at HTI/Slayhi000014. According to High-Tech, the true fact is that Slayhi
did not pay her premium on time, and based on that true fact, she was not entitled to coverage as
of September 1, 2003. Def. S.J. Mem. at 20 (High-Tech committed no abuse of discretion in its
decision to report to Aetna the true fact of Slayhis failure to pay premiums. . . . [A]
straightforward reading of the Plans plain language renders her uncovered by the Plan as of
September 1, 2003.).
The Court doubts whether this misstatements provision was intended to apply at all in
a situation like this one, involving premium payments. Even if it did, however, it would not
relieve High-Tech of liability. It is, of course, true (and undisputed) that Slayhi did not pay her
premium on September 1 or October 1. But this fact alone does not mean that she was not
entitled to coverage. As discussed above, her coverage would terminate only if she failed to
make a premium payment as required. Although it is a true fact that Slayhi failed to make a
payment, it is not a true fact that she failed to make a payment as required, given High-Techs
promises in its FMLA-authorization form.
Second, and finally, High-Tech argues that Slayhis suit fails because she did not exhaust
administrative remedies in appealing Aetnas denial of her benefit claims. The Court disagrees.
Under the circumstances of this case, Slayhi was excused from following the plans appeal
-26-
processes both because doing so would have been futile, and because Aetna never provided
Slayhi the required notice of denial of the claims at issue in this suit.
The plan in this case sets forth, in a provision titled Appeals Procedure, a detailed
procedure for appealing benefit denials. Slayhi Dep. Ex. 10 at HTI/Slayhi000086. That
provision says in part:
An Appeal is defined as a written request for review of a decision
that has denied in whole or in part, after consideration of any
relevant information, a request for: claim payment, certification,
eligibility, referral, et cetera.
An Appeal must be submitted to Aetna within 60 days of the date
Aetna provides notice of denial. . . .
Id. As a general rule, employees who seek benefits must first exhaust internal review procedures
such as those set forth in the plan in this case before suing under ERISA. See Kinkead v. Sw.
Bell Corp. Sickness & Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir. 1997).
This general rule gives way, however, when exhaustion would be futile. See generally 2
Ronald J. Cooke, ERISA Practice & Procedure 8:19 at 8-181 (2d ed. 2007) (collecting cases).
In this case, exhaustion would have been futile because Aetnas decision not to process Slayhis
claims for services was based entirely on High-Techs representation that Slayhi had not paid the
required premium. Aetna did nothing wrong in relying on that representation; rather, the error
was High-Techs in reporting Slayhis failure to pay her premiums despite High-Techs promise,
in the FMLA-authorization form, that it would provide her both a grace period for payment and
advance notice before terminating her coverage. Indeed, when Slayhi called Aetna after she
learned that her health insurance had been terminated as of September 1, Aetna quite naturally
told Slayhi to contact High-Tech. Slayhi Dep. at 33.
-27-
Moreover, Aetna failed to provide Slayhi the notice of denial of benefits required under
ERISA. Under 1133, employee-benefit plans must:
(1) provide adequate notice in writing to any participant or
beneficiary whose claim for benefits under the plan has been
denied, setting forth the specific reasons for such denial, written in
a manner calculated to be understood by the participant, and
(2) afford a reasonable opportunity to any participant whose claim
for benefits has been denied for a full and fair review by the
appropriate named fiduciary of the decision denying the claim.
29 U.S.C. 1133. Federal regulations further specify the required timing and content of notices
of denial. See 29 C.F.R. 2560.503-1(f).
Aetna never provided Slayhi with notices of denial with respect to her claims for benefits
for the services she received in September and October 2003. High-Tech asks the Court to
overlook this fact, arguing that Slayhi was sufficiently informed that her claims were denied by
way of a Certification of Prior Group Health Plan Coverage provided to Slayhi by Aetna that
indicated that her coverage with Aetna terminated on September 1, 2003. Def. Reply Mem. at 6-
7; Slayhi Dep. Ex. 16 (Certification of Prior Group Health Plan Coverage). Far from
undermining Slayhis argument that exhaustion would have been futile, however, this document
supports her argument. In particular, Aetnas provision of this document, and Aetnas failure to
provide claim-specific notices of denial, indicates that the decision to cut off Slayhis coverage
resulted from a plan-level decision about eligibility. That plan-level decision was made by
High-Tech, not Aetna, when High-Tech chose to inform Aetna (incorrectly) that Slayhi had
failed to make her required premium payments for September and October 2003. Accordingly,
Slayhis suit is not barred by her failure to exhaust Aetnas internal appeal procedures.
5It is arguable, as Justice Ginsburg noted in her concurrence in Aetna Health, Inc. v.
Davila, that even under Great-West and Mertens, monetary relief under 1132(a)(3) could be
available against fiduciaries, though not against non-fiduciaries. 542 U.S. 200, 223-24 (2004)
(Ginsburg, J., concurring). Most courts of appeals, however, have rejected this argument, and
the Court believes that the Eighth Circuit would as well. See, e.g., Pereira v. Farace, 413 F.3d
330, 341 (2d Cir. 2005); Callery v. U.S. Life Ins. Co., 392 F.3d 401, 408-09 (10th Cir. 2004).
-28-
2. The Appropriate Remedy
Having rejected High-Techs defenses to liability under 1132(a)(3), the Court turns to
the question of the appropriate remedy. High-Tech argues that because Slayhi seeks monetary
relief in the form of reimbursement for health-care expenses, her claim under 1132(a)(3) fails
because monetary relief is not other appropriate equitable relief under the statute. The Court
agrees that monetary relief is not available under 1132(a)(3). See Great-West, 534 U.S. at 221;
Mertens, 508 U.S. at 255; Delcastillo v. Odyssey Res. Mgmt., Inc., 431 F.3d 1124, 1131 (8th Cir.
2005) ([O]nly equitable relief, not money damages, may be awarded under 1132(a)(3).).5
Accordingly, High-Tech is entitled to summary judgment that Slayhi is not entitled to a money
judgment against it on her 1132(a)(3) claim.
This is not to say, however, that Slayhi has no right to relief against High-Tech under
1132(a)(3). Specifically, other appropriate equitable relief in this case could include an
order directing High-Tech (1) to accept premium payments from Slayhi for September and
October 2003, (2) to inform Aetna that High-Tech was mistaken when it told Aetna that Slayhi
had not made required premium payments for September and October 2003, and (3) to instruct
Aetna that it must reinstate Slayhi under the plan, treat her as having been a covered employee
from September 1, 2003 through her termination date of November 1, 2003, and process her
claims from that period in accordance with the terms of the plan. Similar relief has been
awarded by district courts and upheld by courts of appeals in several cases, including by the
6See also Mathews v. Chevron Corp., 362 F.3d 1172, 1185-86 (9th Cir. 2004) (upholding
order under 1132(a)(3) that directed a retirement plan to modify its records to reflect that the
plaintiffs were covered under the plan and to treat them as participants in the plan); Bowerman v.
Wal-Mart Stores, Inc., 226 F.3d 574, 592-93 (7th Cir. 2000) (holding that, as a remedy for
breach of fiduciary duty under 1132(a)(3), the plaintiff should be given the chance to make a
premium payment for past coverage and, thereafter, the insurance plan would have to process the
plaintiffs claims for the period to which the premium payment related); Atwood v. Swire Coca-
Cola, USA, 482 F. Supp. 2d 1305, 1316-17 (D. Utah 2007) (holding that ordering an employer to
direct its insurer to retroactively instate an employee in an insurance plan is appropriate relief
under 1132(a)(3)). But see Alexander v. Bosch Auto. Sys., Inc., 232 Fed. Appx. 491, 496-99
(6th Cir. 2007) (holding that an order of retroactive instatement in an employee-benefit plan is
not appropriate relief under 1132(a)(3) because the remedy is more like contractual
reformation than reinstatement); Regents of Univ. Mich. v. Otis Spunkmeyer, Inc., No. 03-72985,
2006 WL 542979, 2006 U.S. Dist. LEXIS 8476, at *14-15 (E.D. Mich. Mar. 6, 2006)
(distinguishing Mathews and refusing to order reinstatement in a health-insurance plan as relief
under 1132(a)(3)).
-29-
Eighth Circuit in Howe v. Varity Corp., 36 F.3d 746, 756 (8th Cir. 1994) (holding that plaintiffs
were entitled under 1132(a)(3) an injunction reinstating them as members of the M-F Welfare
Benefits Plan under the terms of that plan as it existed at the time of retirement), affd, 516 U.S.
489 (1996).6 Further, if Aetna is added as a party to this case, the Court could, of course,
directly order Aetna to reinstate Slayhis coverage for September and October 2003.
Needless to say, the Court will not enter an order against High-Tech or Aetna (or both)
reinstatings Slayhis coverage until Slayhi first establishes that High-Tech or Aetna (or both)
are liable to her. Further, such a reinstatement order would be conditional on Slayhis paying to
High-Tech her share of her health-insurance premium for that period, and High-Tech would be
required to pay to Aetna (if it has not already done so) Slayhis entire premium for that period.
ORDER
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
-30-
1. Defendants motion for summary judgment [Docket No. 6] is GRANTED IN
PART and DENIED IN PART as follows:
a. Plaintiffs claim for benefits under 29 U.S.C. 1132(a)(1)(B) against
defendant High-Tech Institute, Inc. is DISMISSED WITH PREJUDICE
AND ON THE MERITS.
b. Plaintiffs claim for relief under 29 U.S.C. 1132(a)(3) is DISMISSED to
the extent that plaintiff seeks monetary relief from defendant High-Tech
Institute, Inc., but not to the extent that she seeks other appropriate
equitable relief.
c. Defendants motion is DENIED in all other respects.
2. Plaintiff is GRANTED LEAVE to file an amended complaint that:
a. Brings a separate, clearly identifiable claim for other appropriate
equitable relief under 29 U.S.C. 1132(a)(3).
b. Specifies the relief sought by plaintiff under 29 U.S.C. 1132(a)(3). And
c. Names Aetna Life Insurance Company as a defendant with respect to
plaintiffs claims under both 1132(a)(1)(B) and 1132(a)(3) of U.S.C.
Title 29 if such claims can still be made against Aetna consistently with
Rule 11 of the Federal Rules of Civil Procedure.
Dated: December 3, 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

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