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Rasmussen v. Andersen Corp.: US District Court : ERISA - knowledge of what one has isn't knowledge of what is needed; equitable tolling question regarding defective notice

1 In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).
Scott Rasmussen,
Civ. No. 07-4093 ADM/JSM
Andersen Corporation,
Howard L. Bolter, Esq., Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., Minneapolis, MN,
argued on behalf of Plaintiff.
David M. Wilk, Esq., Larson King, LLP, St. Paul, MN, argued on behalf of Defendant.
On January 11, 2008, the undersigned United States District Judge heard oral argument
on Defendant Andersen Corporation’s (“Andersen”) Motion to Dismiss [Docket No. 3]. In his
Amended Complaint [Docket No. 19], Plaintiff Scott Rasmussen (“Rasmussen”) asserts claims
under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-
1461. For the reasons set forth below, Andersen’s Motion to Dismiss is denied.
Andersen employed Rasmussen from April 12, 1999, through February 16, 2006. Am.
Compl. ¶ 4. Andersen is the plan administrator of the Andersen Corporation Long Term
2 The Court may consider documents that are central to the Amended Complaint without
converting Andersen’s Motion to Dismiss into a motion for summary judgment. See Stahl v.
Dep’t of Agric., 327 F.3d 697, 700-01 (8th Cir. 2003).
Disability Plan (the “LTD plan”). Wilk Aff. [Docket No. 7] Ex. 1.2 The LTD plan provides
benefits to Andersen employees who become disabled. Id. at 10. An Andersen employee must
submit proof of loss and must be disabled for a qualifying period of 180 days before LTD
benefits are payable. Id. at 5, 18. If an employee submits proof of loss more than 180 days after
the end of the qualifying period, the employee’s LTD benefits are reduced by thirty percent. Id.
at 18.
On March 20, 2003, Rasmussen was injured at work. Am. Compl. ¶ 6. On April 1, 2003,
Rasmussen requested that Mike Gallowitz (“Gallowitz”), an Andersen benefits case worker,
send him all necessary workers’ compensation short term disability (“STD”) and LTD forms. Id.
¶ 7. Within a week, Rasmussen received STD forms. Id. ¶ 8. On April 8, Rasmussen left a
voice mail asking Gallowitz to verify that Rasmussen needed to complete only STD forms at that
time. Id. When Gallowitz failed to respond, Rasmussen concluded that the STD forms were the
only forms he was required to submit. Id.
On November 18, 2004, Andersen sent LTD forms to Rasmussen. Id. ¶ 10; Bolter Aff.
[Docket No. 16] Ex. 1. By December 8, 2004, Rasmussen submitted his claim for LTD benefits
to the insurance carrier for the LTD plan. Am. Compl. ¶ 12. In a March 7, 2005, letter, the
insurance carrier notified Rasmussen that his claim for LTD benefits was approved for ,515
per month. Id. ¶ 13; Bolter Aff. Ex. 4. However, the letter stated that Rasmussen’s LTD
benefits would be reduced by thirty percent because Rasmussen submitted his proof of loss more
than 180 days after the end of his qualifying period. Am. Compl. ¶ 13; Bolter Aff. Ex. 4.
3 The Amended Complaint does not specify whether Rasmussen worked between March
20, 2003, and September 17, 2003.
According to the letter, Rasmussen’s qualifying period began on September 17, 2003.3 Am.
Compl. ¶ 13; Bolter Aff. Ex. 4. The insurance carrier’s March 7, 2005, letter did not provide a
description of the LTD plan’s procedures for review of an adverse benefit determination, nor did
the letter notify Rasmussen of his right to bring a civil action under ERISA following an adverse
benefit determination on review. Bolter Aff. Ex. 4.
On October 18, 2005, Rasmussen faxed a letter to the insurance carrier appealing the
thirty-percent reduction on the grounds that he did not receive the LTD forms from Andersen
until November 2004. Am. Compl. ¶ 14; Bolter Aff. Ex. 2. In a November 9, 2005, letter, the
insurance carrier upheld the thirty-percent reduction. Am. Compl. ¶ 15; Bolter Aff. Ex. 6. The
insurance carrier cited a policy provision stating that Andersen was not the insurance carrier’s
agent, and that the insurance carrier was not liable for Andersen’s acts or omissions. Bolter Aff.
Ex. 6. The November 9, 2005, letter provided notice of the LTD plan’s review procedures and
of Rasmussen’s right to bring a civil action following an adverse benefit determination on
review. Id.
On April 23, 2007, Rasmussen notified Andersen of his contention that Andersen was
responsible for the thirty-percent benefit reduction. Am. Compl. ¶ 16. In a May 31, 2007, letter,
Andersen denied responsibility for the thirty-percent reduction. Id. ¶ 17; Bolter Aff. Ex. 5. On
September 26, 2007, Rasmussen filed the instant lawsuit. Compl. [Docket No. 1].
A. Standard of Review
In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm, 15 F.3d at 112; Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Any
ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving
party. Ossman, 825 F. Supp. at 880. “A motion to dismiss should be granted as a practical
matter . . . only in the unusual case in which the plaintiff includes allegations that show on the
face of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum,
44 F.3d 667, 671 (8th Cir. 1995).
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “must contain . . . a
short and plain statement of the claim showing that the pleader is entitled to relief.” A pleading
must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 127 S. Ct. 1955, 1974 (2007).
B. Whether Rasmussen’s ERISA Breach-of-Fiduciary-Duty Claim is Timely
Count One of the Amended Complaint asserts that Andersen breached its fiduciary duties
under ERISA § 404, 29 U.S.C. § 1104, by failing to timely provide LTD forms to Rasmussen.
Am. Compl. ¶ 20. Andersen argues that Count One is untimely under ERISA § 413, 29 U.S.C.
§ 1113. The parties agree that the relevant limitations period under ERISA § 413(2) is “three
years after the earliest date on which the plaintiff had actual knowledge of the breach of
violation.” “Because [ERISA § 413] requires ‘actual knowledge of the breach or violation,’ a
plaintiff must have ‘actual knowledge of all material facts necessary to understand that some
4 ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), permits a plan participant to bring a
civil action “to recover benefits due to him under the terms of his plan.”
claim exists.’” Brown v. Am. Life Holdings, Inc., 190 F.3d 856, 859 (8th Cir. 1999) (quoting
Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992)).
Andersen contends that Rasmussen had actual knowledge of Andersen’s alleged breach
by April 8, 2003, when Rasmussen left a voice mail requesting that Gallowitz verify that the
STD forms were the only forms Rasmussen needed to complete at that time. As a result,
Andersen argues that Rasmussen “knew on April 8, 2003, that he had not received forms or any
other information regarding long term disability benefits.” Def.’s Mem. [Docket No. 6] at 6.
However, although Rasmussen was aware on April 8, 2003, that he had only received STD
forms, the facts alleged in the Amended Complaint make plausible Rasmussen’s claim that he
had no actual knowledge he was required to submit any other forms until Andersen sent him the
LTD forms in November 2004. Am. Compl. ¶¶ 9-11. Assuming the facts of the Amended
Complaint are true, Rasmussen did not have actual knowledge of Andersen’s alleged breach of
its fiduciary duty to timely provide requested forms until November 2004. Rasmussen filed this
litigation in September 2007, which is within three years of November 2004. Therefore,
Andersen’s motion to dismiss Rasmussen’s ERISA breach-of-fiduciary-duty claim is denied.
C. Whether Rasmussen’s Other Claims are Timely
Count Two of the Amended Complaint asserts that Andersen’s conduct “caused
[Rasmussen] to lose 30% of his benefits to which he was entitled under the LTD policy per 29
U.S.C. § 1132(a)(1)(B).”4 Am. Compl. ¶ 23. Count Three claims that Andersen’s conduct “was
5 ERISA § 503, 29 U.S.C. § 1133, states that in accordance with Department of Labor
regulations, “every employee benefit plan shall . . . provide adequate notice in writing to any
participant or beneficiary whose claim for benefits under the plan has been denied . . . and . . .
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.”
a failure to comply with ERISA claims procedures in violation of 29 U.S.C. § 1133.”5 Andersen
argues that these claims are untimely. The parties agree that Eighth Circuit precedent recognizes
that “ERISA contains no limitations period [for these claims], and Minnesota’s two-year statute
of limitations governing contract actions to recover unpaid benefits applies.” Abdel v. U.S.
Bancorp, 457 F.3d 877, 880 (8th Cir. 2006); Def.’s Mem. at 7; Pl’s Opp’n [Docket No. 14] at 7.
“The question of claim accrual, however, is governed by federal common law.” Abdel, 457 F.3d
at 880. “In a federal question case, and in the absence of a contrary directive from Congress, the
‘discovery rule,’ according to which a plaintiff’s cause of action accrues when he discovers, or
with due diligence should have discovered, the injury that is the basis of the litigation, is used to
determine when a plaintiff’s federal claim accrues.” Union Pac. R.R. Co. v. Beckham, 138 F.3d
325, 330 (8th Cir. 1998). The Eighth Circuit “ha[s] given conflicting signals about whether an
ERISA claim accrues at the time of the initial denial or after the timely exhaustion of
administrative remedies under the plan.” Abdel, 457 F.3d at 881.
For the purpose of Andersen’s Motion to Dismiss, the Court will follow the parties’
assumption that an ERISA denial-of-benefits claim accrues at the time of the initial denial. See
Def.’s Mem. at 8; Pl.’s Opp’n at 7-8. Rasmussen argues that the insurance carrier’s March 7,
2005, letter was not a formal denial of benefits because it failed to notify Rasmussen of his
administrative remedies under the LTD plan and of his right to bring a cause of action. Such
6 29 C.F.R. § 2560.503-1(g)(1)(iv) is a Department of Labor regulation that implements
ERISA § 503.
notice is required by 29 C.F.R. § 2560.503-1(g)(1)(iv).6 Rasmussen contends that, at the earliest,
his claim accrued in November 2005, when the insurance carrier denied his appeal and provided
the notice required by 29 C.F.R. § 2560.503-1(g)(1)(iv).
Assuming arguendo that the March 7, 2005, letter was a denial of benefits, an issue
remains as to whether the limitations period should be equitably tolled from March 2005 until
November 2005 because of the lack of notice regarding Rasmussen’s administrative and judicial
remedies. The Eighth Circuit has not addressed whether defective notice is grounds for
equitable tolling. At least one court of appeals has held that defective notice under 29 C.F.R. §
2560.503-1(g) is grounds for equitable tolling, but not if the plaintiff was aware of his right to
bring a cause of action. Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 324-26 (2d Cir.
2004). If the limitations period for Rasmussen’s ERISA denial-of-benefits claims is tolled until
November 2005, then Counts Two and Three of the Amended Complaint, which were first
asserted in September 2007, are timely under the applicable two-year limitations period. The
Court finds that development of the facts through discovery is necessary before deciding whether
the limitations period for Rasmussen’s ERISA denial-of-benefits claims should be equitably
tolled from March 2005 until November 2005.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant Andersen Corporation’s Motion to Dismiss [Docket No.
3] is DENIED.
s/Ann D. Montgomery
Dated: February 4, 2008.


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Work-Related Injury
Wrongful Death
Dog Bite
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My insurance may cover

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Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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