MEMORANDUM OPINION AND ORDER
This matter is before the Court on cross-motions for judgment on the administrative record filed by plaintiff Nicole Cultrona
I. BACKGROUND
A. The Plan and the Policy
Nationwide Life provided an accidental death and dismemberment (“AD & D”) benefit under the Plan’s Group Accident Insurance Policy No. 0014234-30 (the “Policy”). (First Am. Compl. [ECF No. 17] ¶ 11; Answers ¶ 11; Admin. Rec. [ECF No. 19] at 262.
Under the Policy, a benefit is payable in the event that an insured suffers an “Injury” because of an “Accident.” (Id. at 269-70.) The Policy defines an “Injury” as “bodily injury caused by the direct result of an Accident occurring while a Covered Person’s coverage is in effect under this Policy which results independently of all other causes in a covered loss.” (Id. at 265.) An “Accident” is defined as “an unintended or unforeseeable event or occurrence which happens suddenly and violently.” • (Id. at 264.) Where an Injury results in loss of life within 365 days of an Accident, the benefit paid is 100% of the insurance amount. (Id. at 270.)
Section X of the Plan provides a list of exclusions under which the AD & D benefit will not be paid. Prior to January 1, 2010, Exclusion 12 provided that no benefit was payable for injury or death occurring where “[t]he Covered Person being deemed and presumed, under the law of the locale in which the Injury is sustained, to be driving or operating a motor vehicle while under the influence of alcohol or intoxicating liquors.” (Id. at 279.) Effective January 1, 2010, • Exclusion 12 was amended to remove the language pertaining to driving or operating a motor vehicle, now excluding payment of a benefit where “[t]he Covered Person being deemed and presumed, under the law of the locale in
On May 1, 2010, Mrs. Cultrona, an employee of a Nationwide affiliate, became eligible to participate in the Plan and elected to do so. (Am. Compl. and Answers ¶¶ 12-13.) As Mrs. Cultrona’s lawful spouse, Shawn Cultronа (“Mr. Cultrona”) was a “Covered Person” under the Plan. (Admin. Rec. at 264.) Mrs. Cultrona was the designated beneficiary under Mr. Cultrona’s coverage. (First Am. Compl. and Answers ¶ 16.)
B. The Accident and Its Investigation
On June 5, 2011, a tragic incident occurred at the Cultrona home in Twinsburg, Ohio. At approximately 11:30 a.m. that morning, Mrs. Cultrona entered her home and found Mr. Cultrona lying on the floor of their first-floor bathroom. (Admin. Rec. at 339-40.) Mr. Cultrona was prone on the floor with his neck and chin resting against the edge of the bathtub and his abdomen resting on the floor. (Id. at 340.) Mrs. Cultrona touched Mr. Cultrona, and, feeling that his body was cold, immediately called 911. (Id.)
When paramedics arrived on the scene, they noticed a pool of blood on the floor of the garage next to a car. .(Id.) The paramedics assessed M r. Cultrona’s condition, and he was pronounced dead at the scene. (Id.) Later that day, detectives from the Twinsburg Police Department and an investigator from the Summit County Medical Examiner’s office arrived and further investigated the home. (Id.)
According to the Twinsburg Police investigative report, Mr. Cultrona spent the evening of June 4, 2011 and the early morning of June 5, 2011 drinking with friends. (Id. at 384, 388-89.) A cousin of Mr. Cultrona’s saw him at a bar in the early morning of June 5, 2011, and described Mr. Cultrona as appearing intoxicated, “stumbling and walking into chairs.” (Id. at 386.) One of Mr. Cultrona’s friends, who had drinks with him in the evening of June 4, 2011, described Mr. Cultrona as an alcoholic. - (Id. at 389.) Speaking to police officers аt the scene, Mrs. Cultrona stated that Mr. Cultrona “may have gotten drunk and fell down, as he has done in the past.” (Id. at 375.)
On June 6, 2011, the Medical Examiner’s office performed an autopsy of Mr. Cultrona, issuing a report, signed by Chief Medical Examiner Lisa Kohler, M.D., determining that Mr. Cultrona died of “[ajsphyxia by extreme and restricted position (positional asphyxia). II: Acute-ethanol intoxication.” (Id. at 342.) The report stated the manner of death as “ACCIDENT: Prolonged and extreme hyperextension of neck and torso while intoxicated.” (Id.) The report continued, in more detail:
The postmortem toxicology and microscopic liver findings are consistent with an active period of alcohol binge drinking. The autopsy examination did demonstrate M r. Cultrona to have a scalp laceration consistent with a fall shortly prior to his death; however, the autopsy examination did not demonstrate fatal brain injury, nor is there evidence that the scalp laceration resulted in exsanguination (fatal hemorrhage). Furthermore, the autopsy examination demonstrated no evidence of natural disease which might support a natural mechanism for sudden loss of consciousness. Although the appearance of the scene initially raised some concern for foul play, the autopsy examination ultimately failed to demonstrate findings specifically indicative of a physical altercation. The Manner of Death is ruled accident.
(Id. at 330.) A toxicology report showed that Mr. Cultrona’s blood serum was tested and found to contain 0.220% ethanol by volume. (Id. at 337.)
On June 28, 2011, Mrs. Cultrona submitted an. accidental death claim form to defendant StarLine, requesting payment of 100% of the benefit under the Plan, totaling $212,000. (Id. at 429-30.) After receiving Mrs. Cultrona’s claim form, Star-Line enlisted EMSI Investigative Services (“EMSI”) to locate the police report, medical examination, autopsy report, and toxicology report for Mr. Cultrona’s death. (Id. at 423.) EMSI found these documents, along with Mr. Cultrona’s driving record, and provided them to StarLine. (Id. at 318-404.) StarLine forwarded the documents to Nationwide Life, which concluded, “that we have basis to deny this claim using the alcohol exclusion and/or the fact that the cause of death (positional asphyxia) does not appear to meet the [PJolicy definition of accident or injury.” (Id. at 313.) Nationwide Life directed StarLine to draft a denial letter and approved the draft. (Id. at 308-13.)
On October 21, 2011, StarLine sent Mrs. Cultrona the denial letter, which stated that Nationwide Life, upon review of the Policy, Mr. Cultrona’s death certificate, and the reports from the Twinsburg Police Department and the Medical Examiner, was denying payment of the benefit based on Exclusion 12. (Id. at 297-99.) In attempting to quote the exclusion, StarLine mistakenly provided the text from thе pri- or version of Exclusion 12, which contained the reference to “driving or operating a motor vehicle while under the influence of alcohol or intoxicating liquors.” (Id. at 298.) Mrs. Cultrona’s counsel responded to StarLine on November 10, 2011, disputing the finding on the basis that Mr. Cultrona was not driving a motor vehicle when his accident occurred, and therefore Exclusion 12 could not apply. (Id. at 295.) On November 17, 2011, StarLine responded to Mrs. Cultrona’s counsel, apologizing for the error, explaining that “[t]he Exclusion cited in our denial letter dated October 21, 2011, was quoted incorrectly,” and explaining that Exclusion 12 was amended in January 2010. The letter then quoted the amended language, attaching the amendment itself, and stating that “[biased on the amended Exclusion 12 language," Nationwide has determined that the denial shall prevail.” (Id. at 290.)
D. Mrs. Cultrona’s Appeal and the Instant Lawsuit
On November 18, 2011, Mrs. Cultrona’s counsel responded to Star Line’s November 17 letter, providing notice of appeal and asking for:
[C]opies of all documents that you contend prove that Nationwide provided notice of Amendment No. 1 (effective Jan. 1, 2010) to Mrs. Cultrona and all documents comprising the administrative record and/or supporting Nationwide’s decision. Ms. Cultrona maintains that she did not receive proper notice of Amendment No. 1 and maintains that Amendment No. 1 is otherwise ineffective to serve as a basis for denying coverage.
(Id. at 287.) On November 22, 2011, Star-Line responded to Mrs. Cultrona’s counsel, confirming receipt of the November 18, 2011 letter, stating that “[a] copy of your letter has been sent to Nationwide and all further correspondence including any information that you specifically requested in your correspondence will come directly from them[,]” and providing Nationwide’s contact details. (Id. at 283.) StarLine also forwarded “the complete claim file” to the BAC on December 1, 2011 (Id. at 243), and the BAC received the file December 2, 2011 (Id. at 242). On December 6, 2011, the BAC wrote to Mrs. Cultrona’s counsel and indicated that it would render a decision on her appeal within 60 days. (Id. at
On January 19, 2012, the BAC sent Mrs. Cultrona’s counsel a letter denying her appeal. (Id. at 236.) The letter stated that the denial was based upon review of the Plan, the Policy, Mrs. Cultrona’s appeal letter, and StarLine’s claim file, including, but not limited to, correspondence between StarLine and Mrs. Cultrona’s counsel, the death certificate, the medical examiner’s report, the toxicology report, and the police report. (Id.) Upholding the denial of Mrs. Cultrona’s claim under the amended Exclusion 12, the BAC concluded that Mr. Cultrona “was under the influence of alcohol or intoxicating liquors at the time of the accident....” (Id. at 237.)
On February 23, 2012, Mrs. Cultrona brought suit in this Court agаinst the Plan, Nationwide Life, and StarLine. (Compl. [ECF No. 1].) On June 26, 2012, she amended her complaint to add the BAC. (Am.Compl.) In her amended complaint, Mrs. Cultrona asks the Court to overturn defendants’ denial of her benefit claim, assess statutory penalties for failure to provide Plan documents upon request, award damages for breach of fiduciary duties, and award attorney’s fees.
II. LAW AND ANALYSIS
A. Standard of Review for Motions on an Administrative Record
In Wilkins v. Baptist Healthcare Sys., Inc., the Sixth Circuit developed a framework for district courts to employ in adjudicating an ERISA action:
1. As to the merits of the action, the district court should conduct a de novo review based solely upon the administrative record, and render findings of fact and conclusions of law accordingly. The district court may consider the parties’ arguments concerning the proper analysis of the evidentiary materials contained in the administrative record, but may not admit or consider any evidence not presented to the administrator.
2. The district court may consider evidence outside of the administrative record only if that evidence is offered in support of a procedural challenge to the administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part. This also means that any prehearing discovery at the district court level should be limited to such procedural challenges.
3. For the reasons set forth above, the summary judgment procedures set forth in Rule 56 [of the Federal Rules of Civil Procedure] are inapposite to ERISA actions and thus should not be utilized in their disposition.
B. Denial of Mrs. Cultrona’s Claim
Mrs. Cultrona believes that the denial of her claim was arbitrary and capricious for five reasons:
(1) Because the BAC applied Ohio state law instead of local Twinsburg, Ohio law as the “law of the locale” under Exclusion 12;
(2) Because, even under Ohio law, Exclusion 12 could not apply;
(3) Because neither the denial letters nor the administrative record reference the specific Ohio statute defendants relied upon in applying Exclusion 12;
*843 (4) Because the BAC failed to consult a proper health care professional when ruling on Mrs. Cultrona’s appeal; and
(5) Because defendants “switched their rationale” for denying Mrs. Cultrona’s claim, demonstrating a “predisposition to deny” it “regardless of the merits.”
1. Standard of Review
The decision of an ERISA plan administrator to deny benefits is reviewed de novo unless the benefit plan grants the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch,
Under the arbitrary and capricious standard, a district court must affirm the decision of the administrator if the record evidence establishes a reasonable basis for the decision. Davis v. Ky. Fin. Cos. Ret. Plan,
The arbitrary and capricious standard of review is not, however, a mere “rubber stamp” of the plan administrator’s decision. Id. at 661. “Deferential rеview is not no review, and deference need not be abject.” McDonald v. W.-S. Life Ins. Co.,
' Although the courts must take into account any conflict of interest on behalf of the plan administrator in reviewing a denial of benefits, Firestone,
Mrs. Cultrona argues that the BAC was operating under a conflict of interest when it denied her. claim. (PL’s Mot. at 587, 589-90.) Indeed,'because Nationwide appoints members of the BAC, the instant case presents the sort of situation that the Sixth Circuit urged courts to be wary of in Emerson. However, Mrs. Cultrona offers only general observations about the structure of Nationwide and the BAC, not specific circumstances that would indicate the importance of the conflict in this particular instance. The Court, upon its own inquiry, finds no such circumstances. Accordingly, while the Court will consider the conflict in determining whether the BAC’s decision was arbitrary and capricious, it will not afford the conflict significant weight. See Judge,
2. The BAC Acted Reasonably in Applying Ohio Law as the “Law of the Locale”
Mrs. Cultrona asserts that the BAC failed to apply Exclusion 12 reasonably because the “law of the locale” referenced therein must be construed to mean the local law of Twinsburg, Ohio, not Ohio state law. To support this argument, she points to numerous uses of phrases such as “applicable state law” and “laws of the state” elsewhere in the Policy, suggesting that Nationwide made a conscious decision not to reference state law in the text of Exclusion 12. (Pl.’s Opp’ n at 642.)
Simply from a logical perspective, Nationwide’s references to state law elsewhere in the Plan do not, in this instance, lead to the inference that “law of the locale” must mean the local law of Twins-burg, Ohio. The word “locale” is used in Exclusion 12 to refer to the place where an Injury, as defined in the Policy, is sustained. (Admin. Rec. at 249.) Because nothing in the Plan requires an Injury to occur within the United States to be covered thereunder, a reference to “state law” in Exclusion 12 would not have properly captured instances in which an Injury was suffered outside the country.
Further, other courts have read similar “law of the locale” language to refer to state law rather than local law. See Hargrave v. Parker Drilling Co., No. 10-0141,
3. The BAC Acted Reasonably in Concluding That Mr. Cultrona Was Under the Influence of Alcohol Under Ohio Law
Ohio does not have a statute defining “under the influence” or “intoxication” in a general sense: Instead, the terms appear in various statutes forbidding specific activities. The most well known example, Ohio’s drunken driving statute, forbids, among other things, operating a vehicle with a blood alcоhol content at or above 0.08%. Ohio Rev.Code § 4511.19. The statute also, however, forbids simply operating a vehicle “under the influence of alcohol” without defining “under the influence.” Id. Ohio’s prohibition against operating watercraft while under the influence mirrors the drunken driving statute in these respects. Ohio Rev.Code § 1547.11. Ohio’s worker’s compensation statute explicitly references the drunken driving statute, establishing a rebuttable presumption “that an employee is intoxicated or under the influence” if the employee would be under the influence per the drunken driving statute. Ohio Rev.Code § 4123.54. In less specific fashion, another Ohio statute prohibits the carrying or use of firearms “while under the influence of alcohol” without establishing impermissible blood alcohol levels or defining “under the influence.” Ohio Rev.Code § 2923.15 Finally, Ohio’s disorderly conduct statute provides, in pertinent part, that “[n]o person, while voluntarily intoxicated, shall ... [e]ngage in conduct or create a condition that presents a risk of physical harm to the offender or another, or to the property of another.” Ohio Rev.Code § 2917.11(B)(2).
Some courts have interpreted state statutory blood alcohol limits established in specific contexts to create a general presumption of intoxication that can operate outside of those contexts. See Veal,
The weight of persuasive authority, however, including cases from within this circuit and Ohio state law, counsels that application of state statutes setting blood alcohol limits for specific activities outside of those contexts is improper. See, e.g., Loan v. Prudential Ins. Co. of America,
i. The Sixth Circuit’s Loan Decision Does Not Control
Mrs. Cultrona believes that the Sixth Circuit’s decision in Loan controls and shows that the BAC acted arbitrarily and capriciously in denying her claim. In Loan, the court examined Kentucky law in order to define the phrase “being legally intoxicated” in an alcohol exclusion in an ERISA plan.
The Court finds that Loan does not control. To begin with, Loan is an unpublished decision, and “[i]t is well-established law in this circuit that unpublished cases are not binding precedent.” Bell v. Johnson,
Thus, even if Loan were mandatory authority, the opinion would stand for, at most, two things: (1) an inferred rule that this Court should apply the definition of “intoxication” adopted by the Ohio Supreme Court, which has not addressed the issue, and (2) that the Court may not import the definition of “intoxication” from a state motor vehicle statute, which defendants explicitly disclaim any reliance upon. (Defs.’ Opp’n at 665.)
ii. It Was Reasonable for the BAC to Rely Upon Ohio Rev.Code § 313.19
Rather than basing its denial upon one or more Ohio statutes setting limits on blood alcohol content with respect to performing specific activities, the BAC claims
The cause of death and the manner and mode in which the death. occurred, as delivered by the coroner and incorporated in the coroner’s verdict and in the death certificate filed with the division of vital statistics, shall be the legally accepted manner and mode in which such death occurred, and the legally accepted cause of death, unless the court of common pleas of the county in which the death occurred, after a hearing, directs the coroner to change his decision as to such cause and manner and mode of death.
The pertinent question, then, is whether it was reasonable for the BAC to believe that, undеr § 313.19, a coroner’s unchallenged finding of intoxication as a cause of death constitutes “deemfing] and presuming], under [Ohio law],” that a decedent was “under the influence of alcohol or intoxicating liquors.” The Court finds that it was.
The Ohio Supreme Court has held that, under § 313.19, “the coroner’s factual determinations concerning the manner, mode and cause of the decedent’s deáth, as expressed in the coroner’s report and death certificate, create a non-binding, rebuttable presumption concerning such facts in the absence of competent, credible evidence to the contrary.” Vargo v. Travelers Ins. Co.,
The medical examiner’s report states that the cаuse of Mr. Cultrona’s death was “[a]sphyxia by extreme and restricted position (positional asphyxia). II: Acute ethanol intoxication.” (Admin. Rec. at 342.) “Acute ethanol intoxication” is listed as “[e]vidence of positional asphyxia,” and the examiner states that Mr. Cultrona “died due to apparent positional asphyxia when he became unconscious while intoxicated (passed out)” and that “[t]he postmortem toxicology and microscopic liver findings are consistent with an active period of alcohol binge drinking.” (Id. at 343.) Similarly, the death certificate lists “Acute Ethanol Intoxication” as a “significant condition contributing to death but not resulting in the underlying cause,” and describes Mr. Cultrona’s injury as “Prolonged And Extreme Hyperextension Of Neck And Torso While Intoxicated.” (Id. at 421.)
Mrs. Cultrona has not attempted to rebut these findings, and instead offers the conclusory and unsupported ' statements that “[a] coroner’s determination is not law,” and, even if it were, “ § 313.19 does not deem and presume Mr. Cultrona, as a matter of law, to have been ‘under the influence of alcohol’ in his bathroom.” (PL’s Opp’n at 643.)
The administrative record shows, however, that the medical examiner found Mr. Cultrona to have been intoxicated by alcohol at the time of his death and that his
4. Defendants Substantially Complied with ERISA’s Procedural Requirements in Their Communications with Mrs. Cultrona
Mrs. Cultrona claims that defendants could not have reviewed § 313.19 because their denial letters do not refer specifically to that statutory section and it does not appear in the administrative record, and therefore defendants acted arbitrarily and capriciously in denying her claim. This argument requires the Court to examine whether the communications between defendants and Mrs. Cultrona meet ERISA’s procedural requirements for the handling of benefits claims, including those having to do with denial letters. According to 29 U.S.C. § 1133:
In accordance with regulations of the Secretary, every employee benefit plan shall—
(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the spеcific 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.
The implementing regulations require that a plan administrator provide a claimant with “written or electronic notification of any adverse benefit determination,” which must provide:
(i) The specific reason or reasons for the adverse determination;
(ii) Reference to the specific plan provisions on which the determination is based;
(iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; [and]
(iv) A description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review[.]
29 C.F.R. § 2560.503-l(g).
When evaluating benefits decisions for procedural errors, the Court “utilizes a ‘substantial compliance’ standard.” Kent v. United of Omaha Life Ins. Co.,
Both denial letters substantially comply with the requirements of § 1132. Each lists that defendants reviewed the medical examiner’s report, the toxicology report, the death certificate, and the police report, determining therefrom that Mr. Cultrona was intoxicated at the time of his death. (Admin. Rec. at 236-37, 297-98.) Each also refers to the specific Plan provision upon which the determination was based: Exclusion 12, the alcohol exclusion. (Id. at 237, 298.)
Mrs. Cultrona does not cite to any authority to support her contention that defendants had to specifically reference § 313.19 in their denial letter or that § 313.19 has to be referenced in the administrative record in ordеr for defendants to assert that they relied upon it in determining that Mr. Cultrona was “under the influence of alcohol or other intoxicating liquors.” Defendants’ communications, taken as a whole, fulfilled the purposes of § 1133; that is, they insured that Mrs. Cultrona understood the reasons for the denial and her rights to appeal the decision. See Kent,
5. The BAC Was Not Required to Consult a Medical Expert in Making Its Determination
Mrs. Cultrona also argues that the BAC acted arbitrarily and capriciously by failing to “consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment,” as she alleges is required under 29 C.F.R. § 2560.503-l(h)(3)(iii). The regulations make clear, however, that 29 C.F.R. § 2560.503-l(h)(3) pertains only to “group health plans.” “The term ‘group health plan’ means an employee welfare benefit plan to the extent that the plan provides medical care ... to employees or their dependents ... directly or through insurance, reimbursement, or otherwise.” 29 U.S.C. § 1191b(a)(l).
Simply put, the Plan is not a group health plan. Kallaus v. Nationwide Death Benefit Plan, No. 2:09-CV-0899,
Further, “[t]he need for an independent medical examination is a case-specific matter and that issue is subsumed by the question whether the decisionmaker
The case law thus places no obligation on the BAC to consult with an independent health care professional. As in Cornish, the administrative record in. the instant case contains no disputed evidence on the cause of Mr. Cultrona’s death.' The BAC acted reasonably in acknowledging what was clearly indicated by voluminous, undisputed evidence.
Mrs. Cultrona also alleges that the BAC’s failure to consult an independent medical expert violated its own charter. (PL’s Mot. at 593.) The BAC charter requires a medical expert, “[f]or appeals that involve a medical issue,” to “be present at the meeting for discussion of the appeal,” and explicitly prescribes that “[s]uch expert may be member- of the BAC....” (PL’s Mot. Ex. A at 612.)
Ultimately, Mrs. Cultrona has not set forth any authority related to a plan administrator’s compliance with and construction of terms within its own charter. Even if Mrs. Cultrona had established that the BAC’s violation of its own charter constituted arbitrary and capricious behavior, however, she has not shown that the BAC exceeded the charter’s bounds in this case. Her appeal did not raise any issues related to the autopsy report, toxicology report, death certificate, or the police report. The stated basis of her appeal was simply that “shе did not receive proper notice of Amendment No. 1” and that “Amendment No. 1 is otherwise ineffective to serve as a basis for denying coverage.” (Admin. Rec. at 287.) Without any evidence in the administrative record to suggest that Mrs. Cultrona was attacking the findings in the aforementioned documents, the Court cannot say that the BAC acted unreasonably in determining that her appeal did not involve a “medical issue,” and thus was not an appeal that required the presence of a medical expert during its discussion.
Finally, Mrs. Cultrona contends that defendants acted arbitrarily and capriciously by “switching their rationale” for denying the benefit. (Pl.’s Mot. at 595.) A plan administrator “may not initially deny benefits for one reason, and then turn around and deny benefits for an entirely different reason, after an administrative appeal, without affording the claimant an opportunity to respond to the second, determinative reason for' the denial of benefits.” Balmert v. Reliance Standard Life Ins. Co.,
Defendants argue that the mistaken use of an outdated Exclusion 12 in their first denial letter was corrected and that Mrs. Cultrona was afforded the opportunity to respond to defendants’ denial based upon the amended Exclusion 12. (Defs.’ Opp’n at 673.) The administrative record supports defendants’ position. StarLine’s first denial letter is dated October 21, 2011. (Admin. Rec. at 297.) Mrs. Cultrona’s counsel faxed correspondence to Star-Line on November 10, 2011, disputing that the outdated Exclusion 12 applied to Mr. Cultrona’s injury. (Id. at 295.) -StarLine responded on November 17, 2011, quoting the amended version of Exclusion 12, apologizing for the mistake, reiterating its denial, and referencing Mrs. Cultrona’s appeal rights in the October 21 denial letter. (Id. at 290.) Mrs. Cultrona’s counsel responded November 18, 2011, informing StarLine to “consider this [fax to be] notice of appeal of your November 17, 2011 letter continuing to deny coverage and disclaiming liability for payment under the Policy.” (Id. at 287.) After receiving the claim file from StarLine, the BAC conducted a review of Mrs. Cultrona’s appeal and sent its denial letter on January 19, 2012. (Id. at 236.)
Because the administrative record shows that Mrs. Cultrona appealed after being informed by StarLine of the amended Exclusion 12 and its intention to uphold its denial, StarLine afforded Mrs. Cultrona the opportunity to respond to the proper rationale usеd to deny her claim. Moreover, the Court is not convinced that the BAC’s denial letter denies benefits for “an entirely different reason” than the one given by StarLine. StarLine’s letter of November 17, 2011 is effectively a correction of its first denial letter of October 21, 2011. Accordingly, the BAC’s denial letter is based on the exact same reasoning as that of StarLine.
For the foregoing reasons, the Court finds that defendants acted reasonably in denying Mrs. Cultrona’s claim for benefits. Consequently, Mrs. Cultrona’s motion for judgment on the administrative record on Counts III and IV of her amended complaint is denied, and defendants’ motion for the same is granted.
C. Statutory Penalties under 29 U.S.C. § 1132(c)(1)
In addition to the full amount of the Plan benefit, Mrs. Cultrona seeks statutory penalties under 29 U.S.C. § 1132(c)(1) for the BAC’s alleged failure
Section 1132(c)(1) provides for a remedy in the event that a plan administrator violates, .among other provisions, ERISA § 104(b)(4), which is codified at 29 U.S.C. § 1024(b)(4). Section 1024(b)(4) provides, in pertinent part:
The administrator shall, upon written request' of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agree.ment, contraсt, or other instruments under which the plan is established or operated.
ERISA gives district courts “discretion” to impose up to $110 a day in penalties against “[a]ny administrator ... who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... by mailing the material requested ... within 30 days after such request----” 29 U.S.C. § 1132(c)(1)(B) (establishing a maximum penalty of $100/day); 29 C.F.R. § 2575.502c-l (increasing the maximum penalty to $110/day).
1. The BAG Did Not Have a Duty to Provide Mrs. Cultrona with All Documents “Relevant” to Her Claim.
As part of her claim for statutory damages, Mrs. Cultrona asserts that 29 U.S.C. § 1029(c)
Section 2560.503-1 is a regulation implementing 29 U.S.C. § 1133. VanderKlok v. Provident Life and Accident Ins. Co.,
2. The BAC Breached Its Statutory Duty to Provide Mrs. Cultrona with the Plan Documents Upon Her Written Request
Although the BAC did not have a duty to provide Mrs. Cultrona with all documents relevant to her claim, it did have a duty to provide her with the Plan documents upon written' request. Mrs. Cultrona contends that the BAC breached that duty.
In a letter to StarLine sent November 18, 2011, Mrs. Cultrona’s counsel, in addition to providing notice of Mrs. Cultrona’s appeal, requested “all documents that you contend prove that Nationwide provided notice of [the amendment to Exclusion 12] to Mrs. Cultrona and all documents comprising the administrative record and/or supporting Nationwide’s decision.” (Admin. Rec. at 287.) StarLine responded on November 22, 2011, confirming receipt of the letter and stating that “[a] copy of your letter has been sent to Nationwide ...: ” (Id. at 283.) The BAC does not dispute that it “eventually received a copy of Plaintiffs November 18, 2011 letter....” (Defs.’ Opp’n at 674), and the administrative record shows that the BAC received the .letter on- December 2, 2011 (Admin. Rec. at 236, 242). The BAC ruled on Mrs. Cultrona’s appeal (Admin. Rec. at 236-38), but Mrs. Cultrona did not receive the requested documents until June 12, 2012 (Am.ComplA 53). Mrs. Cultrona seeks statutory damages from the BAC under 29 U.S.C. § 1132(c)(1) for its delay in sending her the documents.
Mrs. Cultrona agrees with defendants that the documents sought in her November 18, 2011 letter are not “expressly listed in [§ 1024(b)(4) ]” (Pl.’s Mot. at 599) and argues that the phrase “other instruments under which the plan is established or operated” in § 1024(b)(4) is a broad “catch-all” provision that includes her request (PL’s Reply at 689). The BAC argues that the documents requested by Mrs. Cultrona are not “other instruments under which the plan is established or operated” under § 1024(b)(4).
The Sixth Circuit has interpreted the “other instruments under which the plan is established or operated” language of § 1024(b)(4) not as a broad “catch-all,” but as a phrase that must be “limited to those class of documents which provide a plan participant with information concerning how the plan is operated.” Allinder v. Inter-City Prods. Corp.,
The documents Mrs. Cultrona requested related to Nationwide’s providing (or not providing) notice of the amendment of Exclusion 12 do not concern the operation of the Plan. See Collins v. Commonwealth Indus., No. 07-57-C,
Similarly, the administrative record is not part of the disclosure requirements of § 1024(b)(4). See Weddell v. Ret. Comm, of Whirlpool Prod. Emps. Ret. Plan, No. 3:07-CV-6,
However, despite the fact that Mrs. Cultrona’s document request is worded in broad terms, both the request and Mrs. Cultrona’s representation of that request in her briefing show that she sought, among other things, a copy of the AD & D Policy itself. The Policy, which contained the disputed Exclusion 12, was certainly one of the “documents ... supporting Nationwide’s decision” to deny benefits. StarLine says as much in its denial letter. (Admin. Rec. at 297) (“Based on a review of the subject insurance [Pjolicy____”). Similarly, Mrs. Cultrona notes that her document request was motivated in part by “being provided with the wrong Plan documents on two occasions,” and that defendants “failed to provide the correct [P]lan documents containing the new Exclusion 12.... ” (PL’s Mot. at 601.)
At the time of Mrs. Cultrona’s request, the Policy was clearly among the “currently operative, governing [P]lan documents,” all of which are “instruments under which the plan is established or operated” for the purposes of § 1024(b)(4). Curtiss-Wright Corp. v. Schoonejongen,
3. Mrs. Cultrona Has Not Shown That She Was Prejudiced by Defendants’ Breach
A showing of prejudice to the claimant is a “logical concern” in a court’s decision to impose a penalty under § 1132(c)(1)(B), Gatlin v. Nat. Healthcare Corp.,
None of the parties briefed the issue of prejudice, nor did they discuss the amount of the penalty that should .be assessed if the BAC is found to have violated § 1024(b)(4). Mrs. Cultrona does .mention that the BAC’s failure to provide the Plan documents “impaired Mrs. Cultrona’s ability to understand her rights-under the Plan and to evaluate the arguments to be raised during the appeals process.” (Pl.’s Mot. at 601.)
Moreover, nothing in the administrative record as a whole suggests that Mrs. Cultrona was prejudiced by the BAC’s failure to provide her with the Plan documents. Mrs. Cultrona claims to have been “provided with the wrong Plan- documents on two occasions” (PL’s Mot. at 601), but the administrative record does not'contain'any written requests for documents, as required by § 1024(b)(4), except her letter to StarLine giving notice of appeal, which the BAC received on December 2, 2011. Further, Mrs. Cultrona- did receive Plan Amendment I, which amended,' among other things, Exclusion 12, from StarLine on November 17, 2011. (Admin. Rec. at 290-91). Mrs. Cultrona, thus, had a complete set of correct Plan documents ■ prior to giving her notice-of appeal.
4. The BAC Is Assessed a Statutory Penalty of $55/Day for Brеach of . , Its Duty to Mrs. Cultrona
’Although Mrs. Cultrona has not shown that she was prejudiced by defendants’ breach of their duty to disclose, this Court will nonetheless assess a penalty upon the BAC in light of the purpose of § 1132(c)(1), namely, “to punish plan administrators who fail to comply with requests for documents which ERISA requires them to provide.” Knights of Columbus,
Because the BAC breached its duty to Mrs. Cultrona to disclose the Plan documents upon written request, Mrs. Cultrona’s motion for judgment on the administrative record is granted in part and denied- in part as to Count I of her amended -.complaint. The BAC’s corresponding motion is thus granted m part and denied in part.
Mrs. Cultrona also brings claim- for breach of fiduciary duty against' all defendants pursuant to 29 U.S.C. § 1132(a)(3). In that claim, Mrs. Cultronа alleges that all three defendants breached their fiduciary duties by failing to evaluate and apply the “law of the locale” in denying her claim. She also contends that StarLine made a material misrepresentation regarding Mrs. Cultrona’s claim by citing a prior version of Exclusion 12, and that Nationwide Life made material misrepresentations by providing incorrect Plan documents. •
As a preliminary matter, defendants contend that Mrs.' Cultrona cannot bring her breach' of fiduciary duty claim under § 1132(a)(3) because it is duplicative of her claim for benefits under § 1132(a)(1)(B). Indeed, a denial of benefits claim cannot be “repackaged” as a breach of fiduciary duty claim and brought under' § 1132(a)(3). Wilkins,
Mrs. Cultrona’s allegations that defendants breached their fiduciary duties by misapplying the “law of the locale” are an exact duplicate of her denial of benefit allegations and cannot be brought under § 1132(a)(3).
“To establish a claim for breach'of fiduciary duty based on Alleged misrepresentations- concerning coverage under an employee benefit plan, a plaintiff must' show: (1) that the defendant was acting in a fiduciary capacity when it made the ' challenged representations; (2) that these [representations] constituted material misrepresentations; and (3) that the plaintiff relied on those misrepresentations to [her] detriment.” Moore, 458 F.3d at 488, A fiduciary breaches his duty by providing plan participants with materially misleading information, “regardless of whether the fiduciary’s statements or omissions were made negligently or intentionally.” Krohn v. Huron Mem’l Hosp.,
1. StarLine and Nationwide Life Were Not Acting As Fiduciaries When They Made the Alleged Misrepresentations
ERISA defines a fiduciary as follows:
“[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.”
29 U.S.C. § 1002(21)(A). “[F]or purposes of ERISA, a ‘fiduciary’ not only includes persons specifically named as fiduciaries by the benefit plan, but also anyone else who exercises discretionary control or authority over a plan’s management, administration, or assets.” Moore,
Mrs. Cultrona argues that StarLine and Nationwide Life were acting as fiduciaries because each was appointed by the BAC “to deliver [P]lan documents, manage the Plan, and aide [sic] in the disposition of Plan assets.” (Pl.’s Mot. at 602.) Regardless of the fact that this is not made clear in the portions of the record Mrs. Cultrona cites for this proposition, the proper inquiry is not whether StarLine and Nationwide were fiduciaries in general, but whether they were “acting as a fiduciary (that is, [were] performing a fiduciary function) when •taking the action subject to complaint.’’ Pegram v. Herdrich,
Beginning with StarLine, Sixth Circuit case law is informative on this issue. In the leading case, Baxter v. C.A. Muer Corp.,
Similarly, StarLine performed only ministerial functions in its initial denial of Mrs. Cultrona’s claim. StarLine processed the claim and denied payment of the benefit under the terms of the Plan, but review of Mrs. Cultrona’s appeal was conducted not
With respect to Nationwide, defendants correctly point.to two problems with Mrs. Cultrona’s allegations at the outset. First, as mentioned earlier, Mrs. Cultrona uses the term “Nationwide” to refer collectively to defendant Nationwide Life and its parent corporation, non-party Nationwide Mutual Insurance Company (Am. Compl. ¶ 3), a reference defendants objected to in their answers (Answers ¶ 3). Because Mrs. Cultrona alleges that she requested. and received incorrect Plan documents from “Nationwide,” she has not established that those requests were received and processed by defendant Nationwide Life. Second, Nationwide Life has not admitted the allegations, and no evidence appears in the administrative record to substantiate them. For these reasons alone, judgment on the administrative record for Nationwide Life is proper. Additionally, even if Mrs. Cultrona had properly stated her allegations against Nationwide Life and Nationwide Life had admitted to those allegations, Nationwide Life would nonetheless be entitled to judgment on the administra: five record because its response to Mrs. Cultrona’s request for Plan documents was a ministerial function, and thus Nationwide Life would not have been acting in a fiduciary capacity.
2. Mrs. Cultrona Did Not Rely to Her Detriment on the Misrepresentations of StarLine and Nationwide. Life
. Even if StarLine and Nationwide Life were acting in fiduciary capacities, Mrs. Cultrona has not established that she relied on their alleged misrepresentations to her detriment. In response to receiving materials documenting an outdated version of Exclusion 12, that which explicitly limited the exclusion to the context of operating a motor Vehicle, Mrs. Cultrona claims that she did “not hav[e] additionál examination or testing performed on Mr. Cultrona’s body or regarding whether he passed out or fell in the bathroom[.]” (Pl.’s Mot. at 603.) But Mrs. Cultrona was quoted an incorrect Exclusion 12 from StarLine over four months after Mr. Cultrona died. Further, StarLine. corrected its error within a month, and- Mrs. Cultrona offers no explanation of why testing or other investigation could have been performed- after four months, but not after five. In addition, assuming arguendo that her allegations- against Nationwide Life are true, Mrs. Cultrona would have first received incorrect Plan documents from Nationwide Life eighteen days. after- Mr. Cultrona’s death, and again over four months, later. Mrs. Cultrona did not orden additional testing- or other investigation in .the seventeen days following Mr. Cultrona’s death, even though the autopsy was performed the day after he died.. The injury having occurred in her home, she had access to the scene, and she could have interviewed witnesses, but there is nothing to indicate that she conducted her own investigation. Moreover, Mrs. Cultrona provides no theory, nor points to any evidence in the record, to ■ suggest that additional testing or investigation into Mr. Cultrona’s. cause of death would have had any effect on her claim.
Because StarLine and Nationwide Life were not acting in a fiduciary capacity when they made ■ misrepresentations to Mrs. Cultrona, and because Mrs. Cultrona did not rely on those misrepresentations to her detriment, Mrs. Cultrona’s motion for judgment on the. administrative record is
E. Attorney’s Fees
Lastly, Mrs. Cultrona seeks attorney’s fees. In an ERISA action brought by a participant or beneficiary, “the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). When exercising this discretion, the Court considers the following five factors:
(1) the degree of the opposing party’s culpability or bad faith;
(2) the opposing party’s ability to satisfy an award of attorney’s fees;
(3) the deterrent effect of an award on other persons under similar circumstances;
(4) whether -the party requesting fees sought to confer a common benefit on all participants and beneficiaries of an ERISA plan or resolve significant legal questions regarding ERISA; and
(5) the relative merits of the parties’ positions.
Sec’y of Dep’t of Labor v. King,
Other than one reference to an “approximate” total, Mrs. Cultrona has submitted no information regarding the amount or the calculation of her attorney’s fees. Moreover, Mrs. Cultrona’s, motion for fees is premature, and is therefore denied without prejudice to renewal. See Fed. R.Civ.P. 54(d)(2).
III. CONCLUSION
For the foregoing reasons, plaintiff Nicole Cultrona’s mоtion for judgment on the administrative record is GRANTED IN PART AND DENIED IN PART with respect to Count I of her amended complaint, and the BAC is assessed a statutory penalty of $8,910. Mrs. Cultrona’s .motion is DENIED with respect to Counts II, III, and IV,,and her motion for attorney’s fees is DENIED WITHOUT PREJUDICE as premature. Additionally, defendants’ motion for judgment on the administrative record is GRANTED IN PART AND DENIED IN PART with respect to Count I of Mrs. Cultrona’s complaint and GRANTED with respect to Counts II, III, and IV. This case is closed. Each party to bear its own costs.
IT IS SO ORDERED.
Notes
. Mrs. Cultrona's motion is styled as an "Amended Motion for Judgment on the Administrative Record, Summary Judgment, and for an Award of Attorney's Fees,” while Defendants' motion is styled as a "Motion for Summary Judgment.” In this circuit, however, a procedural framework has been put in place for ERISA actions that calls for judgment on the administrative record, not summary judgment procedures. Wilkins v. Baptist Healthcare Sys., Inc.,
. In her amended complaint, plaintiff refers to defendant Nationwide Life Insurance Company and non-party Nationwide Mutual In
. References to specific pages in the case record are made to the continuous page numbering applied to the page header by the Court's electronic docketing system.
. In Loan v. Prudential Ins. Co', of ■America,
. Citing an Ohio Jury Instruction, defendants argue that " ‘intoxication’ implies more impairment than ‘under the influence of alcohol.’ ” (Defs.' Opp’n at 665.) An Ohio appellate court, however, has stated that "[u]nder common law in Ohio, the term ‘intoxication’ is a term of art and is often used interchangeably with the phrase 'under the influence,’ ” McKeehan v. Am. Family Life Assurance Co. of Columbus,
. The Court stresses that its determination is particularized to the specific facts of this case. The Court expresses no opinion on the reasonableness of reliance upon § 313.19 in any other circumstances.
. StarLine's October 21, 2011 letter referred to an incorrect version of the exclusion, an error that was corrected in its November 17, 2011 letter. (Id. at 290-91.)
. Although the BAC charter is not part of the administrative record, Mrs. Cultrona attached it to her motion in an attempt to show bias on behalf of the BAC. Because this is a procedural challenge to the BAC’s denial, evidence outside the administrative record can be considered. Wilkins,
. Indeed, the medical examiner is a disinterested medical expert and, therefore, the BAC effectively relied on the findings of an independent medical professional who was charged by law to "decide on a diagnosis giving a reasonable and true cause of death....” Ohio Rev.Code § 313.15. It was eminently reasonable for the BAC to rely
. 29 U.S.C. § 1029(c) reads:
Format and content of summary plan description, annual report, etc., required to be furnished to plan participants and beneficiaries
The Secretary may prescribe the format and content of the summary plan description, the summary of the annual report described in section 1024(b)(3) of this title and any other report, statements or documents (other than the bargaining agreement, trust agreement, contract, or other -instrument under which the plan is established or operated), which are required to be furnished or made available to plan participants and beneficiaries receiving benefits under the plan.
. 29 C.F.R. § 2560.503 — l(h)C2)(iii) provides:
Full and fair review. Except as provided in paragraphs (h)(3) and (h)(4) of this seсtion, the claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit determination unless the claims procedures—
(iii) Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to paragraph (m)(8) of this sectionf]
. Paragraph (m)(8) of the regulation states:
(8) A document, record, or other information shall be considered "relevant’,’ to a claimant’s claim if such document, record, or other information
(i) Was relied upon in making the benefit determination;
(ii) Was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;
(iii) Demonstrates compliance with the administrative processes and. safeguards required pursuant to paragraph (b)(5) of this section in making the benefit determination; or
(iv) In the case of a group health plan or a plan providing disability benefits, constitutes a statement of policy or guidance with respect to thе plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether*853 such advice or statement was relied upon in making the benefit determination.
. Plaintiff originally brought this claim against Nationwide, StarLine, and the BAC (First Am. Compl. § 43), but plaintiff has since conceded that only the BAC can be liable under § 1132(c) (Pl.’s Opp’n at 645).
. Presumably referring to Mrs. Cultrona’s admission that she did not seek documents “expressly listed in [§ 1024(b)(4) ],” the BAC argues that “it is undisputed that [plaintiff] made no request for plan documents in connection with her counsel’s November 18, 2011 letter....” (Defs.’ Opp’n at 676.) As shown above, this is not the case.
. In fact, an email exchange'in the administrative record, provided to the BAC on December 2, 2011, suggests that a Starline employee originally intended to provide the full Policy to. Mrs.- Cultrona along with Amend.ment -I in StarLine’s November 17, 2011 letter, but was dissuaded from doing so by a Nationwide employee. (Id. at 288-89.)
. This is true notwithstanding the fact that the Court’s resolution of those allegations with respect to Mrs. Cultrona’s improper denial of benefits allegations would also resolve them here. Because these are the totality of Mrs. Cultrona’s breach of fiduciary duty allegations against the BAC, that claim with respect to the BAC is meritless.
. This should not be construed as a remark upon the merits of Mrs. Cultrona's premature motion for attorney’s fees, nor upon any future motion for fees and/or costs that any party may choose to bring. Should such a . motion, be brought before the Court, the Court 'will evaluate it anew.