Kennard v. Means Industries, Inc., 660 F. App'x 333

Kennard, a long-time employee of Means Industries, stopped working due to injuries, settled a workers’ compensation claim for $220,000, and applied for disability retirement benefits under Means’s ERISA Plan.
Plan Administrator denied Kennard’s disability claim as not "permanently disabled." District court affirmed; this court reversed in Kennard I and instructed the district court to award disability retirement benefits.
On remand the district court entered judgment for Kennard but remanded to the Plan Administrator solely to determine the amount of benefits owed.
The Plan Administrator offset Kennard’s $220,000 workers’ compensation redemption against Plan benefits and concluded Kennard was entitled to $0; the district court affirmed that determination.
Kennard appealed, raising: (1) request for judicial notice of another employee’s transcript, (2) claim that the remand violated this court’s prior mandate, (3) argument that Means forfeited its offset defense, and (4) that the Plan Administrator’s $0 award was arbitrary and capricious.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Judicial notice of third-party transcript	Kennard: transcript supports his position and undercuts Means	Means: transcript substance is not proper judicially noticed evidence	Court denied judicial notice of substantive assertions; may notice existence but not rely on transcript content
Scope of prior mandate / remand	Kennard: prior opinion forbade remand to Plan Administrator; district court violated mandate by remanding amount determination	Means: remand to determine only the precise amount of benefits remaining within mandate	Court (majority): remand to Plan Administrator to determine amount did not violate mandate; district court acted within scope
Waiver/forfeiture of offset defense	Kennard: Means forfeited offset by failing to plead/brief it at summary judgment or before Administrator	Means: offset preserved by general denial, pre-remand letter and repeated invocation to Administrator and district court	Court: no forfeiture — Means preserved offset (notice + opportunity to rebut), so defense allowed
Arbitrary and capricious review of $0 benefits	Kennard: Plan Administrator’s offset resulting in $0 was arbitrary and capricious	Means: Administrator’s offset and calculation were proper	Court declined extended discussion and affirmed district court’s well-reasoned order affirming Administrator’s $0 determination

Kennard v. Means Indus., Inc., [citation="555 Fed. App'x 555"] (6th Cir.) (prior panel decision remanding to district court to award benefits)
Shelby Cty. Health Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355 (6th Cir.) (award of benefits without remand when record lacks evidence to support denial)
In re Omnicare, Inc. Sec. Litig., 769 F.3d 455 (6th Cir.) (limits on judicial notice of substantive assertions)
Smith v. Sushka, 117 F.3d 965 (6th Cir.) (failure to plead affirmative defenses does not invariably bar later assertion where plaintiff not prejudiced)
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439 (6th Cir.) (plaintiff’s notice and opportunity to rebut can cure failure to plead defense)
Phelps v. McClellan, 30 F.3d 658 (6th Cir.) (waiver of affirmative defenses for failure to plead)