Gross v. Sun Life Assurance Co. of Canada, 763 F.3d 73

Background

Dia-hann Gross claimed long-term disability benefits from Sun Life based on chronic pain conditions; Sun Life denied benefits largely relying on surveillance video evidence.
On appeal this court held that plan language requiring disability be "satisfactory to us" does not confer discretion sufficient to trigger arbitrary-and-capricious review, overturning earlier circuit precedent.
The court found the administrative record inadequate for a merits determination and remanded for further proceedings, instructing a fuller, fairer reconsideration of the videotape and medical evidence.
Gross moved for attorney’s fees under 29 U.S.C. § 1132(g)(1) based on achieving “some degree of success on the merits”; Sun Life argued she was not entitled and that any fee motion was premature.
The panel concluded Gross achieved a non-trivial merits success (change in standard of review plus remand) and that her fee motion is ripe; it remanded to the district court to calculate a lodestar fee and costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gross achieved "some degree of success on the merits" under Hardt to be eligible for fees	Gross argued the panel’s rulings (particularly rejection of "satisfactory to us" discretion) and the remand constitute meaningful success	Sun Life argued remand alone is only a procedural victory and no benefits were awarded, so Gross is not eligible	The court held Gross achieved "some degree of success": the change in standard of review materially strengthened her claim and the remand required substantive reconsideration, so she is eligible for fees
Whether the fee motion is ripe now or premature pending remand proceedings	Gross argued the appellate judgment is final and fees for work to date are ripe; delay would hinder counsel retention and access to counsel	Sun Life argued fees should wait until benefits are finally resolved	The court held the fee request is ripe: appellate decision is final and delay could harm counsel availability; piecemeal fees are acceptable here
Whether the court should exercise discretion to award fees under the Cottrill factors	Gross argued factors (culpability, deterrence, benefit to others, ability to pay) support an award	Sun Life disputed culpability and emphasized plaintiff’s mixed litigation success	The court applied the five-factor test and found four factors (culpability, ability to pay, deterrence, public benefit) favor Gross, while relative merits did not; overall discretion favors awarding fees
How to calculate the fee amount	Gross proposed lodestar method totals for hours/rates and costs	Sun Life disagreed with entitlement and amount; district court better suited for detailed lodestar analysis	The court remanded to the district court to perform the lodestar calculation and consider Hensley adjustments and costs

Key Cases Cited

Gross v. Sun Life Assur. Co. of Can., 734 F.3d 1 (1st Cir. 2013) (appellate merits decision changing standard of review and remanding)
Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010) (eligibility for ERISA fees requires “some degree of success on the merits”)
Brigham v. Sun Life of Canada, 317 F.3d 72 (1st Cir. 2003) (prior circuit precedent on plan discretion that was reconsidered)
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008) (ERISA fiduciary duties and standards for claim handling)
Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220 (1st Cir. 1996) (five-factor test for ERISA fee awards)
Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method and adjustments for reasonable attorney’s fees)
Gastronomical Workers Union Local 610 v. Dorado Beach Hotel Corp., 617 F.3d 54 (1st Cir. 2010) (discussion of "some success" standard under Hardt)
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) (precedent on fee awards when statute omits prevailing-party requirement)
Ray Haluch Gravel Co. v. Cent. Pension Fund, 745 F.3d 1 (1st Cir. 2014) (lodestar endorsed for fee calculation)