On September 2, 2009, District Judge William E. Smith of the Rhode Island U.S. District Court filed a Memorandum and Order, delaying his final judgment on the case of D & H Therapy Associates v. Boston Mutual Life Insurance Co. until all of the matters which were not under the jurisdiction of the Employee Retirement Income Security Act (ERISA) could be resolved (you may find the arguments presented to Judge Smith of interest; we discussed them in an earlier article titled Was Boston Mutual’s Decision to Terminate Long-Term Disability Insurance Correct?). On March 8, 2010, both sides asked Judge Smith to reconsider his earlier order.
Background of Disability Lawsuit Reviewed.
Judge Smith originally heard arguments in this case on March 16, 2009. At issue was whether Boston Mutual Life Insurance Company (Boston Mutual) had wrongfully terminated Robin Dolan’s long-term disability benefits. The former employee of D & H Therapy Associates, LLC was also a 50% stockholder in the S corporation and paid taxes on 50% of the net profits of both D & H Therapy and another corporation she was a stock holder in, Associated Professional Management, Inc. (APM).
After paying disability benefits to Dolan for five years, Boston Mutual performed an audit on Dolan’s tax returns from 2001 – 2004. When Dolan’s dividend income was added to her part-time employment income, it became apparent to the disability insurance company that she had been receiving more than the $6000/month allowed by the policy. Not only did the insurance company notify Dolan that it was terminating benefits, Boston Mutual demanded that she repay the $145,958.32 the disability insurance company claimed it had overpaid her since January 1, 2002.
When Dolan’s disability attorney filed the lawsuit, he listed five counts in his complaint against Boston Mutual. Of the five, two dealt with matters relevant to state law. The remaining three were governed by the Employee Retirement Insurance Security Act (ERISA).
Boston Mutual moved that the entire complaint be dismissed and moved that its counterclaim demanding that Dolan reimburse the benefits that had been paid to her by mistake be favored by the Court. The disability attorney moved that Judge Smith find Boston Mutual liable based on the three ERISA counts, and asked the judge to dismiss Boston Mutual’s counterclaim.
After reviewing the administrative record and all the additional evidence provided by both sides, Judge Smith dismissed all three of Dolan’s counts in the complaint and upheld Boston Mutual’s decision to terminate her long-term disability benefits. At the same time, the Court denied summary judgment on Boston Mutual’s counterclaim for restitution of the overpaid benefits.
Both Disability Attorney and Insurance Attorneys Raise Timely Issues for Court’s Consideration.
Both Dolan’s disability attorney and Boston Mutual’s attorneys urged Judge Smith to reconsider his rulings on each side’s motions for summary judgment.
- Dolan’s disability attorney argued that the Court used the wrong standard of review and must reconsider its validation of Boston Mutual’s benefits termination.
- Boston Mutual moved the Court to reconsider its ruling on it counterclaim for overpaid benefits.
Disability Attorney Moves for Reconsideration of Standard of Review.
In his decision, Judge Smith had grappled with how to apply the Supreme Court’s recent Glenn decision which had an impact on how courts in the U.S. were to determine the appropriate standard of review when a disability insurance plan administrator manages the plan and is the payor of benefits under the disability plan.
MetLife Ins. Co. v. Glenn found that this dual role creates a conflict to interest which the Court must consider when determining whether the plan administrator abused its discretion when it denied benefits. At the same time, this decision made it clear in the discussion that the Court was not recommending a de novo review, but rather something that stopped short of this standard. Firestone Tire & Rubber Co. v. Bruch continued to provide the precedent for setting the appropriate standard of review.
During the time that Judge Smith was deliberating his opinion, the First Circuit Court of Appeals issued its first opinion impacted by Glenn. While Denmark v. Liberty Life Assurance Co. of Boston recognized that Glenn had rejected the theory that market forces would offset the effects of any conflict of interest, the Court found that the best way to weigh structural conflicts of interest remained “abuse of discretion” as laid out in Firestone. The Court found that when factors were juxtaposed against each other, any one factor could act as a tiebreaker.
Denmark made it clear that plan administrators needed to include the procedures they used to mitigate or prevent conflicts of interest from influencing benefit decisions. This information had not been part of Denmark’s administrative record. The First Circuit had voided the District Court’s decision in favor of the disability insurance company and had sent the case back to the District Court for reconsideration under Glenn’s new guidelines.
Disability Attorney Urges Reconsideration of Basis for Decision.
Dolan’s disability attorney urged Judge Smith to reconsider his earlier ruling in the light of Denmark’s remand and the accompanying directives to the District Court. The disability attorney especially focused on the need to inquire into what procedures Boston Mutual employed to insulate the plan administrator from the conflict created by the financial impact of benefits decisions. Judge Smith did so.
Originally, Dolan’s disability attorney had argued that Boston Mutual had changed its method for calculating earnings from only considering W-2 income as earnings to including partnership and shareholder distributions as earnings. Boston Mutual argued that this was not the case. Rather, Dolan had taken her time in providing the financial documentation Boston Mutual requested, allowing the disability insurance company to continue paying benefits even though her earnings exceeded the plan’s limits. The plan had always been interpreted the same way, but until they performed an audit, the overpayments had not been detected.
Judge Smith read the entire plan and reached the conclusion that Boston Mutual’s interpretation of what the policy promised was the most logical interpretation. A second reading failed to change his mind. He found that neither Denmark nor Glenn applied, because whether or not Dolan was disabled or not was not the issue. Instead the issue was whether the insurance company had interpreted its policy language reasonably. Judge Smith found that Boston Mutual had and he concluded that Dolan and her disability attorney had not. The motion to reconsider the standard of review was denied.
Disability Insurance Company Seeks Reconsideration of Counterclaim Decision.
By the time Boston Mutual discovered that it had been paying long-term disability benefits to Dolan even though her monthly income exceeded 80% of her pre-disability income, they had already paid her $163,661.57. The disability insurance company claimed they had the right to collect the overpayment under ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), which allows a fund administrator to seek only “appropriate equitable relief.”
Judge Smith had denied Boston Mutual’s motion for summary judgment on the counterclaim based on the Supreme Court ruling in Great-West Life & Annuity Ins. Co. v. Knudson where the insurance company had been denied the right to tap into funds that had been paid into a Special Needs Trust after Knudson sued the person who had caused the accident. The trust was to take care of Knudson’s ongoing care after a car accident.
This decision had not been unanimous, but the final consensus of the decision had established the principle that the insurance company had to identify money or property that clearly belonged to them. Funds the insurance company had dispersed had to have been placed in savings or used to purchase specific property. If the property had already been dissipated, the ruling stated that an equitable lien could not be established. The court also ruled that the insurance company could not force someone to go into debt to pay the insurance company back.
Boston Mutual had failed to present any evidence establishing that Dolan had either money or property in her possession that had been purchased by her long-term disability benefits. Without this prima facie evidence, Judge Smith had concluded that Boston Mutual had no grounds upon which to collect the overpayment.
Boston Mutual asked Judge Smith to consider a more recent case, Sereboff v. Mid Atlantic Med. Servs., Inc. This case was similar to Knudson. Mid Atlantic had paid for the Sereboffs medical costs, with the stipulation that if the Sereboffs recovered these costs from a third party, Mid Atlantic was to be reimbursed. When the Sereboffs went to court, Mid Atlantic filed a lean against the anticipated proceeds. The Sereboffs were successful in their suit, but failed to pay Mid Atlantic. Mid Atlantic sued the Serreboffs, seeking a preliminary injunction requiring them to set aside a portion of their tort settlement. Ultimately the case went to the Supreme Court where Mid Atlantic won because it was seeking to recover funds that the insurance company could specifically identify as theirs because they were in a separate fund.
Judge Smith then turned to the first decision to address this issue in the First Circuit, Cusson v. Liberty Life Assurance Co. of Boston. Cusson had started receiving long-term disability benefits while undergoing chemotherapy. Her disability benefits provider notified her that she had to apply for Social Security disability benefits (SSDI) or her benefits would be reduced. Then disability video surveillance demonstrated that she was doing more than she claimed she was capable of. The insurance company terminated her disability benefits and Cusson took Liberty Life to court.
When she was approved for SSDI, with a retroactive date that overlapped the dates that Liberty Life had paid her benefits, the disability insurance company filed a counterclaim based upon Sereboff. The long-term disability plan targeted the specific disbursement from Social Security which was under Cusson’s direct control. The District Court and the First Circuit both agreed that Liberty Life could access these funds for equitable relief under ERISA.
Judge Smith went on to evaluate how Sereboff and Cusson would apply to Dolan’s situation. While the policy language made it clear that she could be held accountable for reimbursing any overpayments, even if they were Boston Mutual’s fault, the policy on its own failed to create an equitable claim. In addition to this, she had not received compensation from a third party.
Judge Smith had every reason to believe that Dolan had spent the benefits she received for their intended purpose, groceries, rent, and other living expenses. Boston Mutual was not seeking specific funds that were 1) easy to identify; 2) in Dolan’s possession and control; and 3) not part of Dolan’s general assets. Knudson made it clear that Boston Mutual was seeking “to impose personal liability”¦ for a contractual obligation to pay money.” This changed the counterclaim from one seeking equitable relief to one seeking a legal claim for restitution.
Because of this, ERISA law preempted the basis of Boston Mutual’s counterclaim as a matter of law. Judge Smith not only denied Boston Mutual’s motion for summary judgment on their counterclaim for overpaid benefits, his dismissed it as a matter of law. He then went on to grant Dolan’s disability attorney’s motion that summary judgment should be granted his client on the counterclaim.
This case clearly highlights the importance of hiring a disability insurance attorney who keeps up on the most recent court decisions. Disability insurance law is extremely complex and has many subtle nuances. Disability attorneys must know the reasoning used by judges within their immediate circuit, as well as the reasoning of other circuits across the country.