Deborah Kenseth v. Dean Health Plan, Incorporated

Cir.2011). (2d Though ERISA’s duties undeniably and care are broader loyalty prohibition against self-dealing, than skill, “care, prudence, with the

acting eye single “with an to the inter-

diligence” beneficiaries,” participants

ests of

James, (internal quotation 305 F.3d at 448 omitted), necessarily requires that

marks

an ERISA not use assets for purposes.

its own

CONCLUSION reasons, foregoing

For the we AFFIRM grant court’s judg- district to Plaintiff.

ment KENSETH, A.

Deborah Plaintiff-

Appellant, PLAN, INC.,

DEAN HEALTH

Defendant-Appellee.

No. 11-1560. Appeals, States

United Court

Seventh Circuit.

Argued Dec. 2011.

Decided June (argued), Attorney, Goldman

Lisa C. Cates, Madison, WI, for Plain- Lawton & tiff-Appellant. (argued), M. Rottier Attor-

Catherine Madison, Clark, WI, ney, & for Boardman Defendant-Appellee. Craig, (argued), Attorney, L. Jr.

James Labor, Department of Office Solici- tor, DC, Washington, Amicus Curiae for Hilda S. Solis. MANION, ROVNER

Before TINDER, Judges. Circuit ROVNER, Judge. Circuit Deborah A. This is Kenseth’s second appeal against in a lawsuit filed Plan, Inc., insurer, her Health health seek ing remedy for an asserted breach of duty. The district court has granted summary judgment twice favor Dean, has denied Kenseth’s cross- summary judgment. motion for After the court ruled against district time, second but before Kenseth briefed appeal, Supreme Court issued its -U.S. Amara, opinion Corp. in CIGNA v. -, 1866, 131 S.Ct. 179 L.Ed.2d 843 (2011), clarifying relief available fiduciary duty breach of in an action under the Employment Retirement Income Secu rity seq. Act of et U.S.C. (“ERISA”). Because Kenseth has viable relief, again claim for we once remand vacate and to the district court for proceedings. further I. familiarity assume pri-

We will with our matter, in this opinion Kenseth Dean Plan, Inc., (7th Health 610 F.3d 452 Cir. ”). 2010) (“Kenseth I review only We will necessary disposition facts those appeal. the current Deborah gastric underwent vertical band ing, surgical procedure intended to facili- customer significant weight pa- department. loss obese Dean’s service As tate in our opinion: we noted earlier covered her procedure tients. The Approximately eigh- insurer at time. third page On the the 2005 Certifi- cate, later, doctor, heading under “Important Dr. Paul In- years teen formation,” reader is advised to to Huepenbecker, advised her have a sec- make such a call detailed informa- “[f]or operation to resolve acid ond severe reflux tion about the Dean Health Plan.” problems and other serious health later, Eight pages аt the of outset the of from complications were the result the Certificate’s of “Specific Bene- surgery. first Provisions,” fit a text box in bold letter- of surgery, At the time the second Ken- states, you “If ing are unsure a ser- Inc., Highsmith, a compa- seth worked for covered, please will vice call the ny provided group health insurance Department Customer Service at 1- employees through benefits to its Dean prior 608-828-1301 or 1-800-279-1301 (“Dean”). Health Plan is the Dean insur- having performed.” the to service No subsidiary ance services of Dean Health ascertaining coverage other means of is Inc., a Systems, large, physician-owned by án identified for services rendered in- physician-governed integrated plan provider. and health- system headquartered in delivery care (internal I, 610 at Kenseth F.3d 457-58 Madison, benefits Wisconsin.1 The avail- omitted). cites record The Certificate to Highsmith employees through able the Dean identifies as the claims administrator “Group Dean are set forth in a Mem- specifies and that Dean has the discretion Summary” Certificate and ber Benefit eligibility determine benefits and to (“Certificate”). The Certificate excludes construe the terms of the Certificate. “surgical hospi- treatment or 2005, Huepenbeck- On November Dr. the talization for treatment morbid obe- undergo er Kenseth a Roux-en- advised sity.” The also excludes “[s]er- Certificate gastric bypass Y in order to procedure supplies vices related to a non- and/or remedy many problems the caused service, or covered benefit denied referral surgery. Huepenbecker earlier Dr. authorization, prior denied or admis- clinic, at worked a Dean-owned and he I, 610 at 457. The sion.” Kenseth F.3d at surgery scheduled Kenseth for St. Madison, participants Mary’s Hospital Certificate directs with a Dean-affili- hospital.2 In questions provisions anticipation about its to call ated sur- “privately corporation, Group, A held Wisconsin of Premier Medical Insurance 53% Inc., which, turn, Systems, wholly physi- been a Dean [Health Inc.] Dean has owned physician-governed organiza- Health Plan. SSM Health Care cian-owned and owned Thus, inception. Ninety-five physician- percent tion since other 47% Premier. its Health by physician-shareholders. shareholders who owned of Dean of Dean is owned 95% Systems, majority Inc. interest percent also owned remaining five is owned Plan, the in Dean Health insurer issue http://www. SSM Health Care.” See (last here. visit- deancare.com/about-dean/overview/ 6, 2013). ed Dean itself June bills as "one largest integrated delivery hospital part sys- healthcare 2. The of the SSM Health Care percent country,” providing system, which five of Dean tems in the health ser- owns through Systems, forty- and vices a network of Dean-owned clin- Health Inc. also owns through percent and stake Dean Health See "[h]ealth ics insurance services seven Plan. http://www. According supra, Dean Health Id. to Dun & note and Plan.” Bradstreet, question, stmaiysmadison.com/services/pages/careers. time in Dean (last 2013). Systems, approximately aspx Health Inc. owned visited June that Dean had cifically, Kenseth asserted provided Huepenbecker Dr. gery, fiduciary duty by providing instruc- breached pre-printed a standard set cov- regarding unclear to call her insurance her Certificate that advised tions type surgery process misleading regarding erage company called date. her the scheduled to determine whether follow number service alleged customer also Dean’s covered. She would be Detmer, customer with Maureen spoke fiduciary duty when breached its refer the read- We representative. service procedure with a provide failed for the details of opinion earlier er to our authorita- which she could obtain through I, 610 F.3d at 459- call. See Kenseth surgery. Kenseth of her preapproval tive conversation, Detmer 60. After brief equitably estopped that Dean was asserted Dean would cover told relied coverage because she denying from co-payment. to a subject procedure $300 custom- by Dean’s provided on information surgery ask whether did not Detmer surgery that the representative er service for the surgery earlier to an was related claim, state law covered. In her would be obesity, and Kenseth of morbid treatment that Dean’s reliance Kenseth asserted Det- that information. did not volunteer weight- her non-covered nature of could Kenseth that she not warn mer did coverage for treat- deny to loss regarding assessment rely on Detmer’s not ran of a complications later afoul ment of review the did not coverage. Kenseth for regarding coverage statute Wisconsin although surgery, before Certificate conditions. pre-existing in the She in- past. had reviewed summary granted The district representa- oral relied on Detmer’s stead all of Ken in favor of Dean on judgment than process no other Dean provided tion. claims. affirmed seth’s We plan partici- for a calling customer service claim and the judgment estoppel as to the particular if a service pant to determine claim, condition but pre-existing Wisconsin covered. procedure would be pro remanded for further we vacated and sur- performed the Huepenbecker Dr. claim that Dean ceedings on Kenseth’s 6, 2005. On the next on December gery fiduciary duty to her. Ken breached its for deny coverage day, Dean decided I, found that the 610 F.3d at 462. We seth all services surgery and associated (construed Kenseth as the in favor of facts for related exclusion services based on the summary judgment) would party opposing service, name- benefit or to a non-covered breached its support finding that Dean obesity. of morbid ly, surgical treatment First, we noted fiduciary duty to Kenseth. discharged hospital from the Kenseth was duty to disclose that fiduciaries have but was readmitted on December information to beneficiaries of material 30, 2006, through January January from trusts, plan participants. case the surgery, from the includ- complications for I, duty That 610 F.3d at 466. Kenseth coverage Dean denied ing an infection. obligation not to mis encompasses both well, and hospitalization as for the second plan, of an ERISA participant lead the hospitals doctors and the Dean-affiliated to communi obligation also an affirmative $77,974. Kenseth a bill sent affecting material facts the interests cate appeals internal pursued all available I, plan participants. Dean, reconsideration of the asking for at 466. this instance: denial, change its Dean refused to encouraged only permitted Dean not but against then filed suit position. Kenseth ERISA, to call its customer service participants Dean, under asserting two claims par- about whether questions line with Spe- claim under law. and one Wisconsin tieular medical services were covered questions field from plan participants plan. readily One can infer and beneficiaries about their benefits. that Dean understood that callers like 610 F.3d at 471-72. We noted seeking Kenseth were to determine in that we were not upon called to decide in advance forthcoming whether medical this case whether a administrator like treatments would or paid would not be Dean has a give binding insured Dean, and to accordingly. coverage determinations of before a medi- Yet they callers were not warned that cal service is rendered. Because Dean could rely not on the advice that they had denied that Kenseth could obtain a were given by Dean’s customer service definitive decision advance of her sur- representatives and that Dean might la- gery, and because the Certificate itself en- deny ter claims for services that callers couraged plan participants with questions had been told would be covered. Nor about to call customer service were callers advised of a process by prior to having the service performed, we they which could a binding obtain deter- found that availability of definitive deter- mination forthcoming as to whether ser- minations was irrelevant in this instance. vices would be covered. The factfinder Rather, the critical omission on Dean’s could conclude that Dean a duty had part was its failure to communicate to make these disclosures so partici- Kenseth whether and how such determina- pants appropriate could make decisions I, tions could be obtained. Kenseth about their medical treatment. F.3d at 472-73. I, Kenseth F.3d We noted that ambiguity silence or Although “mistakes in given the advice in the regarding Certificate a means of to an insured which are attributable to the obtaining a binding coverage determina- negligence of the individual supplying that tion would be immaterial if the Certificate advice are not actionable as a breach of itself coverage was clear as to for Ken- fiduciary duty,” fiduciary may be liable surgery. Assessing seth’s language the for failing “to take steps reasonable Certificate, that, the we concluded al- furtherance of an right insured’s to accu- though average the might reader have un- rate and comрlete information.” Kenseth derstood that original Kenseth’s vertical I, 610 F.3d at 470. A fiduciary could banded gastroplasty surgery was excluded comply duty by with this providing accu- coverage, from it was far from clear that complete rate and explanations written policy excluded coverage for services the benefits available to plan participants. aimed at resolving complications from that 610 F.3d at 471. Nevertheless: surgery, long however ago original it because is foreseeable if not inevitable procedure may have place. taken Kenseth that participants and beneficiaries will I, Moreover, 610 F.3d at 474. the confu- questions have for plan representatives by sion created the language of the Certifi- benefits, about their our cases also rec- cate was by payments exacerbated Dean’s ognize an obligation on the part for earlier procedures provided tem- fiduciaries to anticipate inquiries such porary complications fixes for the Kenseth and to personnel select and train accord- suffered from the gastro- vertical banded ingly. fiduciary The satisfies that as- plasty. pect duty of its by of care exercising appropriate hiring, training, clarity caution Certificate also lacked on the supervising types employees participant means which a may obtain staff) (e.g., job benefits ‍​‌​​​​‌​​​‌​​​​‌​​‌‌​​​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​​‌‌​‌​‌‍it whose is to an coverage authoritative determination on fiduciary that Dean breached the obli- medical service. Kenseth particular Although at 476. the Certifí- gation that it to Kenseth as the owed to call participants customer cate advised party charged discretionary with author- if “unsure a service they service were of her ity to construe the terms health covered,” invitation was unac- will be grant deny and to her claim for warning that by a the callers companied including provide benefits— rely the statements of the not on could complete informa- her with and accurate representative, or that service customer tion. deny for a ser- might later Dean I, 610 F.3d at 480. Kenseth representa- service customer vice found We also the evidence was would callers be covered. tive assured the summary judgment to survive sufficient supported in the record an infer- Evidence of whether harmed issue Kenseth was partici- aware that that Dean was ence possible duty. breach of coverage questions pants often called produced evidence that she had likely to rely on what and that callers were undergone other treatments to ameliorate representatives told service customer condition, her although second supported infer- Other evidence them. the best surgery option permanent- was train not customer ence that did ly problems, not resolve neces- to warn callers that representatives service sary that she have that procedure De- they not on the answers they rely could 2005. We noted that by phone response to cover- cember given were Moreover, the age-related questions. might evi- be able to demonstrate did train indicated that Dean dence postponed surgery could have until representatives to advise customer service obtaining insurance that would cover the they might like how obtain callers procedure, or could undergone regarding partic- whether definitive advice cost, for a lower same elsewhere by would be ular medical services covered could have to pursue she continued fiduciary, As Dean policy. the a owed other, I, costly less treatments. Kenseth to administer duty “Kenseth the 610 F.3d at 481. interest, not its solely in her own.” Ken- opinion, At the time of our first the I, 610 F.3d at 480. We concluded: seth question to the answer of whether Kenseth case, factfinder In this the could con- seeking was that remedy ERISA author- duty clude that included an obli- this fiduciary duty izes for a breach of was far Kenseth, gation to warn whose call to from clear. Our case law at the time invited, customer service it had that she suggested that could not Kenseth recover rely its could not on what customer ser- monetary damages that resembled com- agent coverage vice her about for told I, pensatory relief. 610 Kenseth F.3d forthcoming surgery hospitaliza- that equitable held the We relief And, Dean tion. does not given 1132(a)(3) by authorized section included dispute that by there was means which only types typically relief that were she could infor- have obtained equity, injunctions, available in such as on, mation that have relied she could mandamus, and restitution. The make- factfinder further conclude that could whole relief that seemed to be by Dean was obliged also tell her beyond seeking scope was section what means obtain that infor- she could 1132(a)(3), according understanding to our facts, mation .... construed fa- These holding vorably Kenseth, Supreme Court’s Mertens lead us to conclude Assocs., that a reasonably factfinder could find v. Hewitt U.S. S.Ct. (1993). But 124 L.Ed.2d 161 affiliated entities to whom Kenseth owed a fully parties had not briefed issue debt due to the repre- “for a determi- relief and so we remanded (10) covered; sented would be pay a sur- seeking nation as to whether Kenseth is charge to equal to the amount equitable form of relief that is author- directly she owes to others due to Dean’s 1132(a)(3) and, so, by if ized U.S.C. (11) fiduciary duty; breach of pay Ken- on that claim as proceedings further attorneys’ seth’s fees and costs for this opinion.” are consistent with this (12) action; policy honor its of covering if 483. We noted costs incurred when a customer service identify a Kenseth was not able to form of representative mistakenly represents that appropriate relief facts (13) covered; a service will be honor ease, she would have failed to make policy covering medical expenses grant- out a claim on which relief could be mistakenly when Dean a partici- misleads ed and her claim would have to be dis- pant by failing to have a proper procedure missed. in place by which participant could remand, On Kenseth amended her com- obtain a binding coverage determination plaint clarify seeking. the relief she was before costs are incurred. R. 59. Specifically, See R. 59. Kenseth asked (1) the court to order Dean to an cure am- parties The filed cross-motions for sum- biguity in the plan description mary judgment on Kenseth’s remaining regarding procedure by a par- which claim for fiduciary duty. breach of ticipant may binding obtain a coverage de- district court declined to decide whether prior termination to incurring the costs of Kenseth had demonstrated as a matter of (2) care; ambiguity cure the sum- law Dean breached its mary plan description regarding when to her because the court determined that it services related to noncovered services grant could not Kenseth the relief she (3) covered; are also amend the Cer- sought proved even a breach of clarify tificate to statements made fiduciary duty. Kenseth v. Dean Health representative customer service are not Plan, Inc., F.Supp.2d 1083-84 (4) Dean; binding on train customer ser- (W.D.Wis.2011)(“Kenseth ”). II The court vice representatives to inform callers that found that request Kenseth’s that Dean representаtives statements made hold her for the harmless cost of the sur- (5) Dean; binding are not implement a gery really plea compensatory procedure by which persons seeking cov- damages equitable that are not available as erage non-emergency information in situa- 1132(a)(3). relief under section The court tions receive a binding determination also concluded that it not grant any could plan of whether the particular pro- covers of requests change plan, Kenseth’s to (6) treatments; cedures or amend the Certificate, policies or Dean’s and plan to describe that a participant may practices longer because Kenseth was no a receive a binding coverage determination participant plan. F.Supp.2d Dean’s incurring before costs for a non-emergen- Finally, at 1092-93. the court determined treatment; (7) cy pay pro- Kenseth’s care that Kenseth entitled to an award viders the amount Dean paid would have attorneys’ fees because she had if the repre- services had been covered as only very achieved (8) limited success sented phone; to Kenseth on the en- lawsuit, course of the join defendant’s subsidiary or parent corporations of legal position justi- Dean from collecting substantially fees for ren- had been services (9) Kenseth; dered to make whole all un- F.Supp.2d fied. 784 at 1094-96. Kenseth contends that Ken- part, its Dean in favor of For judgment from appeals identify any form of failed to seth has Dean. available to her under the equitable relief II. matter, As a threshold facts of the case. that Kenseth has not shown judg Dean claims granted the district After bring entitled to “participant” the case that she is a Dean and before in favor of ment 1132(a)(3). Court More- appeal, Supreme a claim under section was briefed - Amara, over, U.S. lacks Corp. Dean claims Kenseth CIGNA decided 1866, 179 L.Ed.2d 843 -, injunctive standing pursue prospective S.Ct. to (2011). contends that Kenseth appeal, On Dean provision. under that same relief re that we reverse and requires pursuit CIGNA of mone- again attacks Kenseth’s proceedings. Under for further mand equitable damages as unavailable as tary relief argues, equitable 1132(a)(3). con- under section Dean relief CIGNA money including payment, may include equitable relief pursuit tests Kenseth’s resulting from a for a loss compensation that are not defen- against Dean affiliates also fiduciary duty. Kenseth breach lawsuit, challenges in the and also dants conclusion objects the district court’s to (both attorneys’ fees pursuit Kenseth’s that, place to Ken possible if it was even equitable relief and as an exercise position she was before seth back in discretion). Dean asks us district court’s duty, fiduciary the breach of conclusion to affirm the district court’s incurred the costs of would have that Kenseth failed to demonstrate options she had no other anyway because the harm she had she could have averted problems. nature of her health given the by the given been accurate information law, on the facts and the The court erred Finally, representative. customer service contends, and the record raises contends that Kenseth is not entitled question of fact on her other least a triable liability on the as- judgment timely had been told in a options if she of her claim for breach of pect surgery would not be manner that duty. Although her insurance. covered issue, to decide the district court declined A. maintains that she is entitled Kenseth also begin with an overview of We CIGNA claim summary judgment on her partial the under- significantly case that altered fiduciary duty its that Dean breached standing relief available under set forth in our the manner we 1132(a)(3). 1998, Cigna changed section Moreover, Kenseth original opinion. company’s for the pension plan its basic adequately has demon claims that she employees. original plan provided standing injunctions to seek strated her annuity benefit in the form of an defined change practices requiring Dean of pre-retirement calculated on the basis longer plan no though even she was service; salary length the new time moved for sum participant at the provided retiring employees most that she was mary judgment. She asserts calculated other lump sum cash balance injury, plan participant at the time of the that turned out to be far less favor- means plan insurance for that she had a different already who had employees able. For time, again a Dean and that she is now plan, some benefits under the old earned That should be suffi plan participant. those benefits into plan the new converted cient, Finally, she asks that she contends. employee’s amount in the new opening we the district court to reconsider order employees The balance account. attorneys’ fees. cash entitlement

877 so, challenged adoption plan, doing the of the new provides participants with claiming Cigna give that failed to them the documents that describe proper changes. notice of the The district (and modifications) plan the in readily agreed Cigna court that violated its disclo- Here, understandable form.... the Dis- ERISA, obligations finding sure under trict Court found that the same entity, company’s descriptions the initial of CIGNA, filled both roles.... But that is plan significantly incomplete the new were always not the case. Regardless, we misleading. The court also concluded have found that carefully ERISA distin- employees likely the were harmed guishes these roles.... And we have no the notice violations. The district court reason to believe that the statute in- plan Cigna reformed the new and ordered tends mix responsibilities the by giv- pay accordingly, citing benefits section ing the power administrator the to set 1132(a)(1)(B)as the source of its authority. plan indirectly by terms including them 131 S.Ct. at 1870-72. CIGNA summary plan the descriptions. Supreme The granted Court certiorari CIGNA, 131 S.Ct. at 1877. The Court to consider showing “likely whether a thus concluded that summary documents harm” is plan partici- sufficient to entitle provided by plan the administrator could pants to recover benefits based on faulty not themselves constitute the terms of the disclosures. at S.Ct. CIGNA plan purposes section issue, 1876. reaching Before howev- 1132(a)(1)(B), a court could not er, the Court determined that section authority find in that section to reform a 1132(a)(3), rather than section plan as written. 131 S.Ct. at 1878. 1132(a)(1)(B), provided authority for the 1132(a)(3), hand, Section on the other forms relief that the district participant, “allows a beneficiary, or fidu CIGNA, granted. at S.Ct. ciary ‘to appropriate obtain other equita 1876-78. The Court noted that section ’ ble to redress ... parts violations of relief 1132(a)(1)(B) enforcing addressed ” of ERISA ‘or the terms of plan’ plan, terms of a not changing them. 131 CIGNA, (emphasis 131 S.Ct. at 1878 Moreover, S.Ct. at 1876-77. plan sum- original). The district court had been re maries could not be enforced if they luctant to grant relief under section contained the plan terms itself. 131 1132(a)(3) perceived because of limitations S.Ct. at distinguished 1877. The Court Supreme under precedent Court in the between the itself and the summaries types of relief available under that section. which consist of information about Anticipating that the available relief would Likewise, Id. plan. carefully statute remand, be an issue on the Court there distinguished the plan sponsor roles fore types addressed what of equitable (usually the employer) that created the relief are hvailable under section plan, basic terms of the and the ad- 1132(a)(3). Mertens, S.Ct. ministrator: the Court had interpreted “ap the term plan’s The sponsor (e.g., the employer), propriate equitable categories relief’ as settlor, like a trust’s creates the basic that, prior merger relief of law and terms plan, and conditions of the exe- equity, typically were in equity. available cutes written instrument containing CIGNA, 1878; Mertens, 131 S.Ct. conditions, those terms and and provides U.S. at A claim S.Ct. 2063. in that procedure” instrument “a sought compensatory damages making against amendments.... plan’s ad- ministrator, Mertens, non-fiduciary, fiduciary, trustee-like as did the claim in manages plan, follows its traditionally legal, equitable, terms

878 CIGNA, Second, the 131 at 1878. Simi district ordered S.Ct. nature. Annuity & Ins. Great-West Life larly, Cigna deprive employees in could not the of Knudson, 204, 122 S.Ct. Co. v. accrued, 534 U.S. they already benefits a reme had (2002), Court L.Ed.2d 635 the CIGNA, 151 dy resembling estoppel. 131 by plan a fidu brought a claim considered “[e]q at 1880. noted that S.Ct. The Court money of seeking reimbursement ciary estoppel place per uitable to the ‘operates beneficiary from a tort a received plan in son entitled to its benefit the same that the mon The Court noted defendant. in position he would have been had the ” particular was not the mon ey question in CIGNA, representations been true.’ 131 defendant, making ey by the tort the paid Eaton, at (quoting S.Ct. 1880 J. Handbook legal equitable rather than claim one Equity Jurisprudence 176 p. brought a claim could not be relief. Such (1901)). 1132(a)(3). Great-West, under section 534 Third, perhaps and most relevant to the CIGNA, 207-16, 122 708; S.Ct. U.S. case, circumstances of Kenseth’s the Court at 1878-79. S.Ct. approved of the district court’s order to noted, in the The claim Court CIGNA plan pаy already-re- administrator to from both of these cases. This differed money tired beneficiaries the to owed beneficiary plan a a against was a suit as reformed: plan them under the in as fiduciary (typically treated ERISA a But the fact that this relief takes trustee) regarding the terms of money form of a payment does not re- (typically treated under ERISA category move it from the of tradition- trust). CIGNA, at 1879. Prior S.Ct. ally equitable Equity pos- relief. courts merger to equity, law and such a the power provide sessed to relief in brought only suit in a court could monetary “compensation” the form of traditionally equita The available equity. resulting for a loss from a trustee’s included, among things, ble remedies other prevent breach of duty, or the trus- positive negative injunctions, manda CIGNA, unjust Indeed, prior tee’s enrichment. mus and restitution. 131 S.Ct. at merger law and equity specially equity this Courts tailored right monetary remedy fit the kind of they against remedies to nature trustee, sought protect “‘[ejquity because suf called a “surcharge,” sometimes ” remedy.’ to be right fers not without a “exclusively was equitable.” CIGNA, (quoting 131 S.Ct. at 1879 R. (1st

Francis, of Equity Maxims Am. ed. remedy The surcharge extended to a 1823)). by fiduciary breach of trust committed The found that Court the relief entered violation of encompassing by the CIGNA resembled court in district Thus, imposed upon fiduciary. in- First, equitable traditional remedies. sofar as an is award make-whole relief district court ordered reformation concerned, the fact that the defendant in remedy terms of the order ease, defendant Mer- unlike misleading false that Cig information tens, analogous to a trustee makes a provided. na noted that Court critical difference. (as power opposed to reform contracts (citations CIGNA, written) S.Ct. the power to enforce contracts as omitted). The parentheticals Court thus traditionally to courts of eq reserved uity clarified that relief prevent as a means to fraud or correct come CIGNA, damages money mistakes. 131 S.Ct. at 1879. the form of when the de

879 fiduciary, of a An fiduciary is a trustee breach ERISA under fendant the Court’s reasoning, surcharged duty. could be under sec 1132(a)(3) tion only upon a of showing available, elucidated relief Having the harm, proved by actual a preponderance of appropriate legal the turned to the Court the evidence. That actual harm might determining for whether an standard reliance, consist of detrimental “but injured. plaintiff has The ERISA been might also come from the loss of right a requirement noted that “any Court first of protected by or ERISA its antecedents.” trust-law equity.” harm must come from the law of NA, CIG 131 S.Ct. at 1881. As CIGNA, 131 S.Ct. at There is no Kenseth, also the casé with in CIGNA need to demonstrate detrimental reliance the breach of an involved remedy may a decreed before unless transgression information-related by the remedy specific imposes the such a re defendant. In particular, Cigna provided quirement. Id. For when example, courts misleading documents when remedy of used the of equity estoppel, announcing changes to plan. the The a they traditionally required showing of Court found that it a necessary was reliance, detrimental a demonstration that plaintiff to demonstrate relied the defendant’s statement influenced the those documents or she even saw the plaintiff, resulting conduct of the in preju An employee may flawed documents. Thus, imposes when a dice. court a reme employees assumed that fellow or dy estoppel, plaintiff must demon informal workplace discussions would alert strate detrimental reliance. Id. changes them to harmful plan. The Court hastened to add that not all required Court then summárized the proof equitable remedies a require showing of of harm: example, detrimental reliance. For that, We believe to obtain by relief sur- equity might reform contract to 102(a) charge §§ violations and understanding reflect the mutual 104(b), plan participant beneficiary contracting parties where fraudulent injured must show that violation him misrepresentation materially or omission so, or her. But he to do or she need contract, affected substance of the only show and harm causation. Al- plaintiff negligent even if the in not though always it is not necessary mistake, realizing long as that neg so meet the more rigorous implic- standard ligence not fall did below standard of reliance,” it in the words “detrimental CIGNA, prudence. shown____And reasonable 131 S.Ct. at actual harm must be we showing 1881. Nor was detrimental prejudice conclude that the standard of necessary justify remedy reliance must be from princi- borrowed surcharge. equity “simply Courts of ples, obligations as modified and beneficiary injuries trust or ordered a made whole identified ERISA itself. In- circumstances, a trustee’s following breach trust. formation-related viola- tions, injuries are potentially too equity such instances courts would ‘mold , various nature insist that harm protect rights the relief the ben always must vigorous meet more eficiary according to involved.’” the situation equi- “detrimental harm” standard when NA, CIG S.Ct. ty imposed requirement. strict no such (quoting Bogert Bogert, G. & G. Trusts (rev. CIGNA, and Trustees 2d p. ed. (emphasis S.Ct. at 1881-82 1995) (hereafter added).3 “Bogert”)). ‍​‌​​​​‌​​​‌​​​​‌​​‌‌​​​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​​‌‌​‌​‌‍“the Noting that relevant stan- 102(a) 104(b) 1024(b). 1022(a) correspond §§ 3. Sections to 29 U.S.C. discontinuing notified him that it was his depend upon equita- the will

dard of harm the District Court theory by which medical because he had not been ble benefits the relief,” the Court left “it to provides place. entitled in the first to the benefits in analysis conduct that District Court plan The had been the administrator under 131 S.Ct. at 1871. the instance.” first that re- impression mistaken Gearlds was ceiving disаbility benefits at the long term B. early time he retirement in fact took when a relief available for breach the So years three those had ceased ear- benefits 1132(a)(3) duty under section fiduciary plan, lier. the Gearlds was there- Under held, previously we have is than broader ineligible fore for medical benefits avail- the district court could and than broader Gearlds a early able retirees. asserted Supreme anticipated before the 1132(a)(3) claim under section for breach Monetary CIGNA. decision Court’s in. equitable and fiduciary estoppel, automatically consid is compensation seeking damages past his and future “equitable.” than rather The “legal” ered among expenses, things. medical other as a fiduciary, defendant the identity of the The F.3d at 449-50. district court duty, fiduciary and the nature breach of a complaint for to state dismissed the failure important are in characteriz the harm sought a claim only because Gearlds com- Servs., ing Entergy the relief. Gearlds pensatory money damages, which were not (5th Cir.2013) (“The Inc., 448, 450 F.3d equitable available as relief under section recently expan Supreme stated Court 1132(a)(3). 709 F.3d at 450. kind of relief available under sion of the 503(a)(3) plaintiff the suing when is On Fifth appeal, the Circuit re-evaluated relief plan fiduciary sought and the makes Supreme the the claims under Court’s de- for losses caused the plaintiff whole CIGNA, in cision and concluded that sim- fiduciary duty.”). breach defendant’s ply characterizing money damages as McCravy v. Metropolitan See also Life legal remedy longer no was end of (4th Cir.2012) Co., Ins. inquiry. Surcharge, 709 F.3d at 451. (under traditionally “remedies CIGNA held, equitable money was an form of equity, in expressly in courts of available damages might be available for a estoppel surcharge, are indeed cluding fiduciary duty. breach of 709 F.3d at 451- suing un plaintiffs available tо fiduciaries though 52. This was true even Gearlds 1132(a)(3)”). der Section had not specifically surcharge included in course, Kenseth, suing plan is Instead, prayer his for relief. he had requesting and she relief to asked to whole in the be made form of make her whole Dean’s breach of fidu- benefits, compensation for lost re- ciary Although there fac- duty. are some quested “equitable any other relief or oth- differences, tual there are also a number of erwise,” might he to which entitled. parallels relevant between case Kenseth’s Cigna, request After such a stated a viable case. Gearlds to take agreed Gearlds’ relief, claim according the Fifth early because adminis- plan retirement Circuit. at 452-53. The court orally writing him and in trator told therefore remanded for the district court he to receive medical bene- would continue plan determine whether the administra- fits. then waived Gearlds medical benefits fiduciary duty tor breached its and wheth- plan under his wife’s retirement available er the warranted the breach re- had re- reliance on assurances he Gearlds, lief of surcharge. F.3d plan ceived from the administrator. Sev- later, eral years plan administrator Gearlds, NA, took McCravy

Like action held that limited to rebanee on an assurance she would be premiums return under section was the 1132(a)(3). covered benefit. As McCravy, 690 F.3d at 178-79. Gearlds, Dean, plan fiduciary, case appeal, On the Fourth agreed Circuit mistakenly assumed facts would have McCravy expanded CIGNA plan par- entitled Kenseth to benefits as a plaintiffs relief and remedies available to ticipant. administrators both asserting fiduciary duty breaches of under Gearlds’ and Kenseth’s cases later deter- 1132(a)(3). section In particular, the court plan participants mined that the were not McCravy equita- found that stated a viable actually entitled to the benefits under the ble claim for in make-whole relief Gearlds, plan. terms of the Like amount of proceeds the life insurance lost pled fiduciary duty by plan breach because of the of fiduciary trustee’s breach her, in misleading administrator and like duty. McCravy, 690 F.3d at 181. She now to made Gearlds she seeks whole seeking was limited to a return of money damages. with determined, premiums, the court because claim, In remanding Gearlds’ the Fifth CIGNA, under courts the power to in part Circuit relied on the Fourth Cir- provide equitable in relief the form of mon- in McCravy. McCravy pur- cuit’s decision etary compensation for a loss resulting daughter chased life insurance for her from a trustee’s breach duty, or to through employer-sponsored her acciden- prevent unjust the trustee’s enrichment. plan. tal death and dismemberment 690 F.3d at 181-82. The court thus plan F.3d at 178. The allowed employees that, agreed McCravy as the benefi- purchase coverage to for eligible de- trust, ciary of a rightfully she could seek to pendent plan, children. Under the chil- surcharge the trustee insurer in the eligible coverage long dren were so proceeds amount of life insurance lost be- unmarried, they dependent were on the fiduciary cause of that trustee’s breach of employee, age insured and either under duty. 690 F.3d at 181. The court noted school, if in nineteen not enrolled or under limiting damages to the return of age twenty-four they if were enrolled full- premiums created a “perverse incentive” in McCravy time school. elected the cov- wrongfully accept premi- for fiduciaries “to erage eighteen-year-old daughter, for her ums, if they even had no idea as to wheth- pay premiums and continued to until her er coverage they existed—or even affir- daughter age died at the of 25. When matively McCravy, knew that it did not.” claim, McCravy plan filed a adminis- all, greatest 690 F.3d at 183. After pay McCravy’s trator refused to because fiduciary risk the faced in that scenario daughter eligible was not under the terms ill-gotten gains, would be the return of plan. plan The instead offered to only plan risk that would materialize if a premiums. McCravy return the contend- participant made claim for benefits. ed that the plan’s actions constituted a plan participants paid pre- instances where fiduciary duty breach of because the plan claims, fiduciary miums but never filed accept premiums, leaving continued to her reap would from risk-free windfall em- impression daughter under the that her ployees who had paid for non-existent ben- was covered. Because she believed her court, According McCravy efits. insured, daughter McCravy was did not could pursue equitable also a claim for purchase alternate insurance. She assert- estoppel prevent deny- the insurer from fiduciary duty ed claims for breach of court, ing right estoppel. ruling daughter’s The district her the to convert prior Supreme coverage policy. Court’s decision to an individual CIG- she believed she remanded because reversed and The court at 182. alter- explore did not in the covered. Kenseth court to determine district for the coverage, options treatments or be- MeCravy could suc- nate instance whether first cause she had been led believe administrator proving ceed in pay for this treatment.4 her and Dean would fiduciary duty to breached estoppel surcharge equitable whether Thus, under CIGNA in the circum- remedies appropriate were money damages as an seek make-whole at 181-82. presented. stances 1132(a)(3) remedy section under differences, that Dean if she can fact demonstrate factual Despite some duty to her and that breached its MeCravy parallels to Ken provides also CIGNA, damages. the breach caused her administrator seth’s situation. Gearlds, 1881-82; 709 F.3d at 131 S.Ct. at MeCravy, continuing accept premi 450-52; McCravy, F.3d at 181-82. believing ums, MeCravy into lulled opinion in our first poli under the We determined was covered daughter ques on partici ambiguous was the Dean, encouraging plan Certificate cy. by coverage of whether there was for the coverage information be tion pants to call for Kenseth underwent. by telling procedure corrective undergoing procedures, fore I, 610 F.3d at 474-76. The Cer Kenseth pro for the pay that Dean would Kenseth was unclear in that it failed to cedure, alerting Kenseth that tificate also by not by which a identify participant she re means rely not on the advice she could an authoritative determination ceived, believing may into obtain lulled Kenseth question, though even Dean proce on a cover the cost would process alternate conceded such existed. MeCravy did not obtain dure. ize, and the transactions were as forbid giving incorrect advice 4. The risk to Dean of plan in they than the risk was even less den for benefit of others as would have MeCravy himself.”); did not even face the because Dean Bo been on behalf of the trustee Although prospect returning premiums. 543(V) (trustee gert, may compelled Systems, and Dean Health Dean Health Inc. pay equal profits into trust fund amount 1, (see ownership note Plan share the same by agents to deter made in order trustee from attempted supra), to demon Kenseth has not authorizing agents engage disloyal ac providers stood strate that her Dean-affiliated tions, profit by even where trustee did not of fidu gain possible breach from Dean’s actions); agents’ Corp., Amara v. CIGNA court, ciary duty. According to the district 6649587, 242, 254-55, F.Supp.2d 2012 WL *8 ap providers would collect Kenseth’s health 20, (D.Conn. 2012) (trustees may Dec. be sur $35,000 approved proximately if Dean charged they personally prof where claim, for more than but could bill Kenseth breach, they in situations where ited from denied the claim. twice that amount if Dean negligently knowingly permit parties third II, F.Supp.2d at 1084. The See Kenseth property) (citing to benefit from the trust Mor hospital where Kenseth had the Curran, 1267, (2d rissey v. 650 F.2d Care, owned Health which owned SSM Cir.1981)). Metropolitan See also Ins. Co. Life percent Systems, five Inc. and of Dean Health 108, 2343, Glenn, 554 U.S. 128 S.Ct. forty-seven Dean. percent interest in See (2008) (when an 171 L.Ed.2d 299 insurance MeCravy, this supra. notes 1 & As with plan pays company both administers a "perverse incen potentially scenario created pocket, this dual benefits out of its own role may general, In fiduciaries tivéis]” Dean. reviewing creates a conflict of interest that to favored or profits not direct from a breach court should consider as a factor in determin they may any than parties related third more ing plan whether a administrator abused its pocket profits Mosser v. Dar themselves. denying row, benefits under section 267, 272, discretion 95 L.Ed. 341 U.S. 71 S.Ct. 1132(a)(1)(B), depending (1951) ("We on the circum which the trustee think that case). particular right right had to author stances of the no to do he had no I, II, 610 F.3d at 476. The Certifi medical bills.” Kenseth 784 F.Supp.2d uncertainty by cate created further invit at 1084. We can comfortably say now ing participants to call customer service if Kenseth is able to demonstrate a breach coverage questions warning but not fiduciary duty as we set forth in our they rely them that could not ad opinion, first and if can she that the show they vice received. breach caused her damages, may seek ambiguous 478. The was thus in at appropriate equitable remedy including and, important respects least three inas make-whole relief in the form money Gearlds, bring thus a claim damages. But as was the case CIGNA damages against for make-whole Gearlds, McCravy, we leave it to the fiduciary. plan’s This is true even if the district court in the first instance to fash- language unambiguously supports the fi relief, ion appropriate and to deter- duciary’s deny decision to coverage. See mine whether surcharge or some other Inc., Health, Koehler v. Aetna equitable remedy appropriate under the (5th Cir.2012) (even 182, 189 plan’s particular presented circumstances here. language unambiguously supports the ad decision, ministrator’s a beneficiary may C. administrator still seek to hold the to con The district court concluded that even if flicting plan summary terms Kenseth could demonstrate a breach of through a breach of claim under fiduciary duty Dean, she could not 1132(a)(3)); section CGI Techs. & Solu prove that Dean’s actions harmed her. (9th Rose, 1113, Inc. v. tions conclusion, reaching this the court found Cir.2012) (under CIGNA, court, a district that the breach was give Dean’s failure to sitting equity court of in a section Kenseth correct information regarding the 1132(a)(3) action, need not honor the ex lack of coverage procedure. for the The press an plan terms of ERISA where tra proper remedy, make-whole the court rea- equitable ditional notions of relief so re soned, place would be to Kenseth back McCutchen, quire); Airways, US Inc. v. position she would have been in if (3d 671, Cir.2011), cert. Dean provided - had correct information. granted, U.S. -, 36, 133 S.Ct. appropriate The comparison, the court de- (2012) (“the L.Ed.2d 674 importance of the termined, options was assess Kenseth’s inviolable, plan written benefit is not but is ifas she were still ill but had the correct subject upon equitable doctrines —based information that would not pay and, principles modification in —to prоcedure. for the deed, found that even reformation under [11321(a)(3)”). ‍​‌​​​​‌​​​‌​​​​‌​​‌‌​​​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​​‌‌​‌​‌‍Kenseth Indeed, itself, had failed to demonstrate that in CIGNA approved forego the Court she could have elected to sur- district court’s decision to reform the gery. terms of the The court that remarked and then order the pay administrator to presented had not evidence that she could according benefits to the plan. reformed have waited until she obtained alternative coverage insurance or that she could have court, The district without the benefit of procedure obtained the for less. elsewhere “[m]any might remarked that CIGNA any Because Kenseth did not set forth surprised to learn that defendant has [the] surgery, viable alternatives no legal duty things right” to make after court concluded that she would in- have “lulling believing into that [Kenseth] she surgery curred the cost of the whether or had expensive operation, only provided to reverse not Dean had the correct infor- procedure course after the performed, was leaving regarding coverage. with stack of mation The court the treatments she had Dean have continued breach

thus concluded II, surgery Kenseth. Kenseth at a receiving not harm been and had did F.Supp.2d at 1091. later date. had, fact, 42, produced opinion, evi- R. at 21. In our first we also

But Kenseth proceeded not have “presented dence that she would concluded that Kenseth had ev- that Dean surgery had she known with the permit the factfinder to idence would pay produced for it. She also would conclude that she was harmed Dean’s that, surgery was the although evidence fiduciary duty.” alleged breach correct her option permanently best Nothing 610 F.3d at 481. the record other viable alternatives were problems, this time convinces us that our appeal testified Sрecifically, available. earlier conclusion was flawed. representative that if the customer service Nevertheless, Dean now contends procedure had told her the would not have Kenseth must come forward covered, been she would have considered alternative, specific more evidence of a alternatives, if her other checked to see produce that she must some other insur surgery, policy husband’s would cover the policy ance would have been available Huepenbeeker and returned to Dr. to ex- her, policy and that her husband’s con 21, plore options. other R. 34.5 tained the same exclusions as the Dean short, “probably testified that she she policy. disagree. We This is a classic surgery wouldn’t have had the it wasn’t dispute produced of fact and Kenseth has Huepenbeck- covered.” R. at 34. Dr. sufficient evidence she could have that, although er he surgery averred expense or all avoided some performed the most effective treat- surgery at that time. Her Dean-affiliated conditions, ment for Kenseth’s “she could agreed doctor that she could contin have had continued treatments other, ued less-effective treatments for at receiving been and had the at a time, period least some treatments that Indeed, later date.” R. at 3. objection covering Dean had been without effectively point conceded the when it indi- Christiansen, up point. Abigail to that Dr. response cated that it dispute” had “[n]o physician who referred Kenseth to Dr. Proposed Finding to Kenseth’s of Fact stating: Huepenbeeker, also believed that there viable, non-surgical option, was a as did surgery performed Huepen- Dr. Chua, Dr. Thomas another doctor Kenseth 6, 2005,

becker on December was the prior deciding surgery сonsulted with most effective treatment for Ms. Ken- However, Huepenbeeker.6 very seth’s conditions. she could Dr. R. 21. At the Moreover, policy through employer average plan 5. The available were received. an at the relevant time did Kenseth's husband might reader not understand that the word coverage surgical exclude for treatment of "complications” could include issues that obesity, "expenses morbid and also excluded nearly twenty years original after the arise complications for treatment of non-covered procedure. Finally, we do not know how the 34-3, procedures R. or services.” 62-63. administrator for this other would language This creates some of the same ambi- language particular applied have guities present plan. that are For Dean's case. circumstances Kenseth's example, original surgery Kenseth’s for mor- obesity bid was covered her insurer when notes, According 6. to Dr. Christiansen’s Dr. procedure. policy she underwent This Chua recommended continued dilation and language pay complica- could be read to for injections surgical steroid instead of revision that, resulting although tions from services no of the affected area. covered, longer they at the were covered time least, undone, negotiated gery could have a low- could not be the cost un- procedure either with the er cost for the incurred. Kenseth could not seek insur- hospital or some other fa- Dean-affiliated retroactively negotiate ance with other noted, district court because cility. As the providers for already services had place that Dean had in agreements performed. been Dean’s actions had the paid would providers, its the insurer have singular making impossible effect of providers ap- Kenseth’s Dean-affiliated place position Kenseth back the literal $35,000, than half of the proximately less she would have been in if the breach had $77,974that those billed Kenseth providers occurred, very not and also rendered diffi- II, procedure. for proof cult the of viable alternatives. See Undoubtedly, F.Supp.2d Ind., Inc., (2d In re Beck negotiated price could have between Cir.1979) (“[cjourts kindly do take $35,000 $77,974 hospi- with a rational arguments by fiduciaries who have breach- (or tal, given foregone that she could have that, obligations they ed their if had not delayed) surgery at least at that time. this, everything done would have been the an place Dean wishes to on Kenseth same.”). Dean, notably, presented has no proving that other additional burden evidence that the was Kenseth’s treatments would have been effective until only option. coverage she obtained alternate insurance case, Kenseth testified that she noted, just surgery. But as we Ken- probably undergone would not have already genuine seth has created a issue of procedure Dean had denied material fact on this issue with her own manner, a timely and her doctor has testimony opinions and with the of three (Drs. averred that viable alternatives were avail- Huepenbecker, doctors different Chua) Christiansen, Moreover, oppor- able. Kenseth lost the that she could aggressive have continued less treatments. tunity negotiate price a lower with ei- course, Of it is difficult to assess in hind- providers ther the Dean or some other sight might responded how Kenseth have opportunity likely provider, would to these less drastic and less expensive given large gap have fruitful be- been treatments, and whether she would pay tween what Dean contracted to forego surgery been able to until she ob- providers providers those what nеgotiated tained alternate insurance or charged patient. Kenseth as an uninsured price procedure that she could testimony, opinions Kenseth’s doctors’ afford without insurance. Kenseth did not available, that alternatives were and the explore options gave other because Dean simple economics situation are every to that it reason believe would enough genuine to create a issue of fact option cover the that her Dean-affiliated regarding whether Kenseth could have doctor considered the treatment. best She some or all of the she in- avoided costs insurance, attempt did not seek alternate curred. therefore vacate the district We hospital might perform to find a that contrary. finding court’s to We leave cost, surgery for a lower or seek out other to to the district court on remand deter- Instead, opinions. doctors or she took an mine in the first instance the amount of irreversible course of action in reliance by loss caused Dean. approval by given to her Dean’s cus- tomer a representative, service reliance D. that Dean invited with its directive in the turn to entitled We whether Kenseth is participants Certificate for to call with questions regarding a of on the coverage. judgment The sur- to as matter law court to enter of are free to direct district her claim for breach of

liability aspect favor). court declined But we do duty. judgment appellant’s The district fiduciary that after it determined issue no commonly step, to reach this not take this and see prove any breach that Kenseth could separate ques- reason at this time to just have her. As we actually harmed causation tion of breach from the issues of determined, produced sufficient Kenseth and relief that the district court must still was harmed so that she evidence Nevertheless, analysis some is re- decide. Dean’s actions consti- question of whether that argument of a new quired light fiduciary duty must be a of tuted breach of appeal in this and because Dean raises opinion, we set our first answered. challenges to issues Dean’s continued a would constitute forth the facts appeal. we resolved the first fiduciary duty, and noted breach in our first The framework we set forth all, undis- most, those facts were if not extensively where we addressed opinion, to reach the issue But we declined puted. duty, fiduciary still issue breach herself had not filed Kenseth because the duties that applies. We framed both summary judgment and cross-motion fiduciary Dean owed Kenseth as a and the that we not on notice Dean was therefore (or inaction) taken Dean that actions entering judgment on contemplating were would a breach of those duties. constitute I, at 483. 610 F.3d this issue. Kenseth I, 610 F.3d at 464-81. In Kenseth remand, for sum- did move On I, fiduciary obliged to we noted that on notice so Dean was mary judgment and information, and has a disclose material the court of court and the district duty plan participant. not to mislead a the issue. As we appeals might address noted, previously declined to ad- at held 610 F.3d 466. We the district to was entitled dress whether Kenseth an an obli- insurer has affirmative but we do partial summary judgment, gation provide complete accurate and so in the first instance. See 28 U.S.C. beneficiary inquires information when Assocs., 2106; § Turner v. J.V.D.B. & I, coverage. about her insurance (7th Cir.2003) (fed- Inc., 991, 998 330 F.3d 468; 610 F.3d Bowerman Wal-Mart authority appeals eral have the courts (7th Stores, Inc., 226 F.3d Cir. entry 2106 to direct under 28 U.S.C. 2000). time, fiduciary At the same will judgment doing when so would negligent misrepre not be held liable for circumstances); just Trejo v. under the agent sentations made of the Cir.2003) (7th Shoben, 878, 886 plаn participant long as the so have the discretion to af- (noting that we documents themselves are clear and the court’s decision to dismiss if firm a district steps has taken reasonable discovery reveals that the de- subsequent avoid such errors. Kenseth fendant would have been entitled to sum- on the claim that was dis- mary judgment important way in which the “The most missed, plaintiff-appellant and the fails to fiduciary complies of care is facts identify what additional favorable complete written provide accurate through revealed might possibly have been explanations available to benefits discovery additional the claim had not plan participants and beneficiaries.” Ken- dismissed); been v. American Swaback I, F.3d at 471. Even with reason- seth (7th Corp., Techs. Info. documents, ably though, par- well-written Cir.1996) (in instances in which the facts inevitably questions, will ticipants appellant and law establish that is law, acknowledge cases an obli- judgment entitled to as a matter of we and so our anticipate ferred Kenseth to a gation plan surgeon, Huepen- for fiduciaries Dr. accordingly. train Id. Dr. inquiries regard- staff becker. Christiansen’s notes are clear and the plan ing If the documents this visit indicate that she discussed fiduciary appropriately has trained staff to possible three treatments with Kenseth: (1) fiduciary inquiries, field will not be held dilation and injections steroid at the ministerial, non-fiduciary agent if a stricture, liable point of the a treatment that given incomplete has or mistaken advice to previously relief; had provided temporary I, at 472. (2) an insured. Kenseth surgical pouch resection of the or the ambiguous But if the documents are or banding, which Dr. Christiansen noted topic, incomplete recurring on require being paid pocket”; “would out of that may representa- be liable for mistakes (3) gastric or new bariatric surgery. R. in that answering questions tives make 21, at 16. Dr. Christiansen noted that she (cid:127) subject. suggested to Kenseth that she see Dr. Huepenbecker “so that she can see wheth- documents, reviewing

After we really er or not this does need to be con- concluded that the 2005 Certificate was surgery simply sidered bariatric that it ambiguous on the issue of for repaired get paid needs to be and if it will surgery. average Kenseth’s The reader point feeling for. At this she is so misera- may well have understood that just pay ble she decide to for it pay surgical for would treatment of herself however.” R. at 16. These obesity person seeking morbid for a that regarding notes indicate some confusion surgery general 2005. But the exclu- procedures whether certain would be con- sion for supplies “services related and/or they sidered noncovered because were bar- service, to a non-covered benefit or denied iatric surgery opposed repair to a authorization, prior referral or or denied Dr; might be covered. Huepenbecker, for admission” was far from clear. setWe part, original his averred that Kenseth’s many ambiguities forth the contained surgery procedure was a common at the provision opinion. our earlier See it, time she had that most at that insurers 610 F.3d at 474-75. For exam- it paid time and that he believed Dean ple, at the time Kenseth had the original routinely surgery pa- covered this for his procedure, it was in fact covered 1980s, tients the late around the time health insurer. average reader would surgery. that Kenseth had her He noted unlikely classify a procedure as a repair was meant to correct a “non-covered service” if it had in fact been complication surgery of the earlier compre- covered. Nor would that reader nоt obese at time Kenseth was complications hend that the treatment of surgery. the corrective He believed occurring eighteen years some after the proce- Dean would cover the corrective original surgery entailed services “related dure: to a A non-covered benefit.” more natural

reading general of this exclusion is that it my It that Dean understanding would apply supplies to services and provide coverage Health Plan would contemporaneously were needed for a non- complication prior VBG covered service. Ias believe Dean covered the VBG in and 1990’s and therefore 1980’s language might puzzle As much as this in a complications prospec- should cover average patient, it turns out that manner. tive also created confusion for at least two 1, 2005, Thus, R. 34-2. one doctor was uncertain

Kenseth’s doctors. On November Christiansen, Dr. be covered procedure Kenseth saw who re- whether the would “solely participants doc- in the interest of the and Dean-affiliated by plan, Dean’s (A) that it would be. affirmatively believed tor and beneficiaries for the exclu- and — (i) of: benefits to purpose providing sive opinion in our first determined We also beneficiaries; ... participants their signifi- contained other that the Certificate (B) care, skill, Namely, prudence, with the [and] the Certificate ambiguities. cant identify by a means which a diligence does not under the circumstances beneficiary may obtain an participant prevailing prudent then that a man act- as to whether authoritative determination ing capacity in a like and familiar with service will be covered particular medical such matters would use in the conduct of I, Kenseth by plan. enterprise an of a like character and ” there was a that means Yеt Dean conceded with like aims.... U.S.C. could obtain such a participants which 1104(a)(1). determination, yet a means that Dean has I, 465-66. Instead, the Certificate direct- clarify. to argument That leads us to Dean’s new Dean’s ed the reader to contact customer fiduciary duty. appeal, on breach of On “unsure if a service line she was service its to opposition Dean focuses directive, though, That will be covered.” judgment for this on Kenseth’s issue be- by a accompanied warning was so, extent, doing havior. a certain to rely the caller could not on the answer Dean conflates the issue of breach with the I, given. 610 F.3d at 476-77. example, issue of causation. For seriously dispute our Dean does not ear- complains that Kenseth did not read the policy ambigu- lier conclusion that the warning Certificate and so did not see the above, plan fiduciary noted ous. As we any person no oral statements of shall duty provide comply could ma- with modify, or reduce increase benefits. Dean participants terial information to and its deposi- notes that Kenseth admitted at her provid- not to mislead participants that, statement, tion had she read this ing clearly-written plan ap- documents and training inquiries staff to field propriately would have understood it. addressed We remand, terms. On regarding opinion both of these facts in our first district court must next assess the issue of analysis. see no reason to alter our earlier training. customer service Dean concedes No doubt Kenseth would have understood represen- it did not train customer service the general proposition that oral state- they tatives to warn callers that could not ments could not increase benefits. But rely given they on the advice when called calling she was not Dean to ask for in- inquire procedure whether would be creased benefits or a modification of the Inviting plan participants covered. to call plan; calling she was to ask what benefits questions customer service with their re- provided the Certificate respect garding coverage warning without I, upcoming surgery. they rely on the given could not answers exactly F.3d at 479. This is what might lulling the effect of into callers Certificate invited her to do: call customer they believing rely could and should questions regarding service with the mean- of Dean’s customer the advice service ing of the Certificate. representatives regarding interpreta- complains Dr. Dean also Christian- tion of Dean’s Certificate. Kenseth sen that surgery discussed with Kenseth F.3d at 477-79. The district court must out-of-pocket expense would because practice consider whether such a is consis- complication it would be considered a of a fiduciary’s tent with a obligation carry respect plan: prior surgery. Construing out its duties with bariatric Dean, plan Dr. what information is relevant to the in Christiansen facts favor “surgical re- own Kenseth that administrator’s assessment of a cover- discussed with banding” than pouch age plan participant. issue is a In section of and/or instance, Dr. out-of-pocket. be Christiansen Kenseth told the would customer not an expert representative also noted that she was service that she was sched- surgery and therefore gastric bariatric to “a uled have reconstruction of a Roux- Huepenbecker to visit Dr. Detmer, wanted Kenseth representa- en-Y stenosis.” really “whether or not this tive, to determine “what asked that had to deal with” considered bariatric sur- does need to be replied and Kenseth that “it had to deal simply repaired that it needs to be gery or esophagus the bottom of the with because get paid if it for.” R. 21. As we аnd will all I having.” the acid reflux was R. above, nor noted neither Dr. Christiansen case, In any though, at 30. this fact is not definitively advise Huepenbecker Dr. could fiduciary duty material to the breach of would cover the Kenseth on whether Dean that we forth in our opinion: set earlier clearly procedure. did not ex- support finding The facts that Dean it, participants clude and Dean advised fiduciary duty breached to its regarding coverage to call questions with by providing her with a of her service, exactly which is what customer insurance benefits that was less than did. That Dr. Christiansen was surgery, by clear for her as opinion procedure of the that one would be inviting her to call its customer service out-of-pocket might and that others representative questions with about cov- covered increased the need for Kenseth erage failing but to inform her that ap- how the clarify with Dean Certificate represen- whatever customer service plied to her circumstances. Dean, tative told her did not bind Finally, Dean that Kenseth did failing asserts to advise her what alternative and accurate infor- provide complete pursue not channel she could in order to rep- mation to the Dean customer service obtain a definitive determination of cov- resentative when she called with her cov- erage surgery. advance of her particular, she did not erage question. at 456. Kenseth’s proposed surgery mention that failure to volunteer additional information complications to address from the intended regarding origin of her illness is not under- gastric banding surgery she had any of material to Dean’s actions omis- gone eighteen years earlier to treat mor- in breaching fiduciary duty as we sions obesity. Kenseth testified that she did bid possible defined that breach our first that in- specifically not decidе to withhold duty opinion. Whether Dean’s breach formation, why could not recall she did damages Kenseth’s is a different caused it, mention other than to comment that (or question, but Kenseth’s actions omis- a limit- calling she was from work had sions) nothing to do with whether 21, at Ken- ed amount of time. R. 30-31. fiduciary. As Dean breached its surgery using seth instead described the yet, Dean has offered no rebuttal ex- surgeon’s her best recollection of her policy, regarding ambiguity facts planation. Notably, the customer service the invitation to call customer service if the representative did not ask Kenseth any coverage questions, the absence prior was related to a bariatric given by that the customer warning advice surgery. Dean, not bind and the failure service did course, other means participants to advise general, Of adminis- assessment of cover- in a to know to obtain a definitive position trator is far better injury that the will be re- speculative, leave it incurring costs. We age prior to deter- on remand a favorable decision. district court dressed breached its mine whether Earth, Inc. v. Laidlaw Friends the of so, must determine the court duty. If (TOC), Inc., 167, 528 U.S. Envtl. Servs. (as any to opposed that breach whether 693, 180-81, 145 L.Ed.2d 610 120 S.Ct. Kenseth, cause) then and harmed other (2000). Moreover, plaintiff a must demon equitable relief to rem- appropriate fashion standing for each form of relief strate harm. edy the may standing have to sought. plaintiff ‍​‌​​​​‌​​​‌​​​​‌​​‌‌​​​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​​‌‌​‌​‌‍A relief, injunctive damages but not pursue E. example, depending on the circum seeking surcharge, to In addition Earth, 528 U.S. stances. Friends of injunctions requiring Dean sought Kenseth 185, Finally, plaintiffs 120 S.Ct. 693. Certifícate, ambiguities cure to amend litiga in the outcome of the personal stake train description, cus summary plan in the throughout continue the course tion must imple and representatives, tomer service litigation. оf the Arizonans for Official The district procedures.7 different ment Arizona, 67, 43, 520 U.S. 117 English v. that, although these are clear court noted (1997) 1055, (plain- L.Ed.2d 170 S.Ct. 137 under equitable relief available ly forms of resignation employment from state tiffs 1132(a)(3), had not re Section claim be- mooted her First Amendment end from Dean since the ceived insurance longer statute no challenged cause the 2006, a new employer when her chose of speech and she thus lacked a governed her further found that it was plan. The court relief). would be prospective that Kenseth claim for merely speculative still-vital plan in the future. participant a in Dean’s Certainly, at time that Kenseth filed that, thus concluded because The court action, standing pursue she had pro not benefit from the Kenseth could However, injunctive prospective relief. injunctions sought, she she lacked spective in employer’s change plans insurance this relief. standing pursue part mooted that of her case. The district rejected claim that court Kenseth’s standing: To demonstrate might standing maintained because she (1) must show it has suffered plaintiff in again participant plan, become a Dean’s (a) in fact” that concrete “injury is merely characterizing specula- the claim as (b) actual im- particularized and or Ryan, tive. See Sierakowski v. 223 F.3d minent, conjectural hypothetical; not or Cir.2000) (in (7th 440, order to 443 invoke (2) injury fairly is traceable to the defendant; jurisdiction, plaintiff Article III in search action of the challenged (3) merely prospective equitable as relief must show a likely, opposed it is enjoin Spiritual Assembly sub National 7. Kenseth also asked court to See also sidiary parent corporations from Hereditary of Dean Under Guardian Bahá’is U.S. collecting general, a court fees from her. Spiritual Assembly ship, v. Inc. National mаy against nonparties. not enter orders U.S., Inc., 837, (7th 628 F.3d Bahá'is 847 " principle general application 'It is a in Cir.2010) (noting the extent to which an in Anglo-American jurisprudence that one is not against junction may nonparties); be enforced by judgment personam litiga bound in a 65(d) (codifying general prin Fed.R.Civ.P. designated party tion which he is not may only ciple parties bind that courts party by or to he which has not been made rule). noting exceptions to this " process.’ Taylor Sturgell, service of 553 exceptions argument that makes no 880, 884, 2161, U.S. 128 S.Ct. 171 L.Ed.2d apply general rule here and so the Lee, (2008) (quoting Hansberry v. enjoin nonparties. these 32, 40, 115, (1940)). U.S. 85 L.Ed. 22 61 S.Ct. immediacy of significant complaint argued likelihood and mentioned but injury). late). sustaining some direct only first time after remand is too Schroeder, United States v. 536 F.3d Apparently, after the court entered (7th Cir.2008) (any issue that could judgment, again partici- became a appeal been but was not raised on when her pant Dean’s health hus- remanded); waived and thus not up plan through for the his United signed band Husband, employer. say “apparently” States v. new We be- 250-51 (7th Cir.2002) sup- (same); motion cause we denied Kenseth’s United States v. (7th this information plement Morris, Cir.2001) the record with and so this fact not on part is the record (parties cannot use the accident of remand appeal. Although the district court was issues). opportunity as an to reopen waived judgment correct the time entered event, any participant Kenseth was a prospec- Kenseth was not entitled to injury the time she suffered the for which time, injunctive tive relief at that we leave relief, she seeks and so we need not ad it to the district court on remand to deter- dress this waived issue further. mine in the first instance if Kenseth’s new Second, the district court declined to in participation Dean’s revives her award attorneys’ fees to Kenseth under injunctive prospective claims for rehef. 1132(g)(1), court, section which allows in Lane, 370, Young See 373-74 discretion, to award reasonable attor- (7th Cir.1991) (although prisoners’ First neys’ fees and party. costs to either See injunctive seeking Amendment claims re- § At 1132(g)(1). 29 U.S.C. the time the against prison lief officials became moot issue, court decided this Kenseth had ob- they when were transferred to other insti- only litigation. tained limited success in the tutions, they were entitled on remand to however, At point, partial this she has won opportunity demonstrate their summary judgment on her breach of fidu- for prospective injunctive claims relief re- ciary duty may yet signif- claim and obtain they likely mained live because were to be equitable icant relief on that claim on re- offending re-transferred to the prison). mand. The court again should therefore consider whether to award fees to Kenseth

F. party as a degree with “some of success on turn finally We to a few loose ends. the merits.” Hardt v. Reliance Standard First, belatedly argument Dean raises an Co., 242, 2149, Ins. 560 U.S. 130 S.Ct. Life “participant” Kenseth was not a 2158, (2010); Raybourne 176 L.Ed.2d 998 term in is defined the statute and York, v. Cigna Ins. Co. New Life bring therefore is not entitled to a claim (7th Cir.2012) (ERISA 1076, F.3d 1088-91 1132(a)(3). under predicates section litigant theory who had one claim and one argument this on the idea that Kenseth throughout litigation, claim on which participant any was not a Dean plan ultimately completely prevailed, he January February between 2007 and may entirety be entitled to fees for the 2011, when the district court judg entered litigation though he even lost a few ment in favor of Dean. Dean could have along way). skirmishes raised this pro issue the first round of ceedings in the district court and in the III. appeal may first but did not do so. Dean substantially changes un CIGNA our opportunity by not now use the created derstanding equitable of the relief avail remand to raise this issue for the first 1132(a)(3). time. Mortgage Corp., v. Fleet able under section Mirfasihi (7th Cir.2008) (issue argued F.3d has relief in make-whole there was for the for a ous on whether monetary compensation form of start of the Certificate failed surgical procedure; from the breach of that, ap identify participant now know a means which litigation. We circumstances, relief propriate could obtain an authoritative determination 1132(a)(3). See under section coverage question; available and the Certifi- on a CIGNA, at 1881-82. We remand 131 S.Ct. call participants cate invited customer address so that the district coverage questions but did not service with its fi Dean breached question of whether they rely any warn them that could that breach was duty and whether duciary they advice received. Kenseth any harm that Kenseth suf cause of fiduciary duty breach of at 469-78. On the it to the district Finally, we leave fered. claim, grant we vacated the in the first instance court to determine to Dean and for a judgment “remand[ed] equitable relief should take what form as to whether Kenseth is determination particular circumstances light seeking any form of relief that is presented here. 1132(a)(3) and, authorized 29 U.S.C. so, on that claim proceedings for further Remanded. Vacated opinion.” are consistent with this Ken- as MANION, concurring. Judge, Circuit I, seth 610 F.3d at 483. doctors of Deborah Kenseth’s After one remand, court again On the district undergo a Roux- recommended granted summary judgment, this address bypass procedure to gastric en-Y things, other concluding, among time gastric band- complications from an earlier availability Kenseth had not shown the surgery, Kenseth called Dean to ask ing “appropriate equitable relief’ for Dean’s surgery was covered whether the fiduciary duty. In its purported breach of representa- The Deаn policy. insurance decision, acknowledged the court district the nature of the sur- tive asked Kenseth writing that it “not on a blank slate” was replied proce- that the gery and Kenseth great in part Supreme and relied the to the bottom of her dure was related Court’s decision Mertens v. Hewitt As- reflux; acid Kenseth never esophagus and socs., 2063, U.S. S.Ct. to her earlier mentioned the connection (1993), L.Ed.2d 161 and this court’s hold- I, 610 gastric banding surgery. Kenseth I, ing in Kenseth both of which called into speaking F.3d at 459-60. After with her availability of an question the in- supervisor, representative the Dean 5-7; remedy. 9- Opinion District Court surgery formed Kenseth that the would be covered, subject co-pay. to a Follow- $300 However, after the district court issued ing her of the con- surgery, Dean learned decision, Supreme the Court’s decision gastric nection between the Roux-en-Y - Amara, U.S. -, Corp. v. CIGNA bypass procedure gastric and the earlier (2011), 131 S.Ct. 179 L.Ed.2d 843 cov- banding surgery and denied Kenseth In the court came down. district CIGNA erage. In court held that Cigna had held that had breached its fidu summary judg- Dean was not entitled to ciary plaintiffs by changing the duties to fiduciary duty ment on Kenseth’s breach of pension plan employ the nature of its specifically claim had where: Kenseth ees, misleading employees the while called to the determine whether incomplete” no giving “significantly them covered; was Dean had informed her This changes. tice of the Id. 1872-73. (subject surgery would be covered employees worse off large left a number co-pay), coverage; but later denied $300 pension plan. Among ambigu- the Certificate of Insurance was than under old “[e]quity possessed power the new courts Cigna transferred to things, other monetary in the form of “repre provide relief amounts that did pension plan ‘compensation’ resulting for a loss from a the benefits” that thе full value of sent] duty, prevent trustee’s or to pen under the old breach employees had earned unjust enrichment.... appeal, Supreme [T]his trustee’s plan. sion Id. On monetary remedy against kind of a trus- propriety of the dis Court considered tee, ‘surcharge,’ sometimes called a remedy. trict court’s It held reforma ” ‘exclusively equitable.’ Id. That lan- tion and then enforcement of the reformed 502(a)(1)(B). CIGNA, guage though, sup- § from does not was not authorized port the conclusion that make-whole relief employees But it also noted that money damages to in the form of is recovera- Cigna Corporation might be entitled “appropriate equitable ble as relief’ under monetary remedy surcharge recover a 502(a)(3). McCravy Metropolitan § “appropriate equitable relief’ under See (4th Co., 502(a)(3), Ins. Cir. for the defendant’s breach of Life 2012) (“In sum, portion [CIGNA v.] duties. Id. at 1875-80. Supréme Amara in which the Court ad vacating opinion the district court’s 502(a)(3) propo dressed stands [§ ] to the district remanding the case traditionally available sition remedies proceedings, for further the court expressly including es equity, courts of extensively on this case relies CIGNA. toppel surcharge, are indeed available 876-80; I Opinion agree 30-32. fiduciaries.”). plaintiffs suing and that requires CIGNA reversal CIGNA quotes The court in this case the sur monetary payment makes clear that a charge language from and also qualify appropriate equitable as “an reme CIGNA Servs., Inc., CIGNA, Entergy v. dy” when a is involved. relies on Gearlds (“But (5th Cir.2013), and at 1880 the fact that this 709 F.3d 131 S.Ct. at of which money payment McCravy, takes the of a both relief form remedy. The category surcharge it from also discuss the does not remove relief.”). today might I discussion lead some traditionally equitable also court’s plaintiff that a can re agree wrongly that we should leave it to the district believe 502(a)(3) § monetary damages under appropriate court in this case to fashion cover surcharge. by calling sought in the relief Opinion relief the first instance. 883. Rather, holding. that “if Kenseth is able That was not CIGNA’s disagree, though, I surcharge type is one fiduciary duty a breach of CIGNA noted to demonstrate remedy may appro- opinion, equitable in first and if of which as we set forth our situations, including, pos- priate in certain she can show that the breach caused her case, of that where the appropriate sibly, an the facts damages, she seek of trust affected the amount remedy including make-whole re breach equitable to the beneficiaries’ re- money damages.” Opin money in contributed lief the form of initially, paid and then tirement accounts ion at 883. “surcharge” is not eventually. out And money did not hold that dam- CIGNA any monetary given the moniker simply equitable remedy. an ages appropriate are were, equitable an harm —if it payment for Rather, the fact CIGNA concluded that be no need for other then there would money that “relief takes the form of restitution, remedies, eq- such as payment does not remove it from the cate- trust. estoppel, or a constructive uitable traditionally equitable relief.” Id. gory of Moreover, explained while CIGNA Supreme Court 131 S.Ct. 1880. rem- surcharge might appropriate be an point, explaining: then illustrated (‘Whether McCravy’s it was an of fi say far as to 181-82 breach edy, go it did not so CIGNA, ultimately will succeed See duciary claim remedy. appropriate (“We surcharge appropriate is an whether cannot know with S.Ct. at 1880. 502(a)(3) § remedy under in the circum remedy the District Court certainty which questions of this case are appropri stances imposing, to be nor understood itself ately resolved in the first instance before the District Court will whеther find court.”); Entergy Gearlds the district un- appropriate to exercise discretion Services, Inc., (5th Cir. 502(a)(3) remedy impose § der 2013) (“We leave to the district court the remand. We need not decide which reme- determination whether Gearlds’s breach of on the facts of this appropriate dies are fiduciary duty may prevail claim on the added). case....”) The CIGNA (emphasis merits and whether the circumstances made clear that its “decision Court also surcharge.”). the case warrant the relief of part upon in the circum- important rests ” money damages And it does not mean that here,.... 131 S.Ct. at present stances 502(a)(3). are available under Thus, that CIGNA concluded that a remedy surcharge might appropriate end, be an up it will be to the district case,1 of that does not mean given the facts an equitable to determine whether this, so, is appropriate remedy remedy that it or and if appropriate, which McCravy, other, one, cases. See following F.3d at a trial.2 I agree And do funds, surcharge might beneficiary 1. A made sense in CIG- out of the trustee’s own brought purpose NA because the breach of trust involved the either in a suit money accounting amount of contributed to beneficiaries’ on an where the trustee is sur- initially, paid accounts and then charged beyond retirement the amount of his admitted eventually. out That scenario mirrored the liability. law trust situation where the common sur- making payments Thus the of unauthorized utilized, charge remedy beneficiaries, as demonstrated to other the conversion of the supporting citations in CIGNA. For property, negligence recording trust in- instance, discussing surcharge remedy affecting property, struments the trust or in CIGNA, Supreme Court cited the Re- obtaining security, collecting or in the trust (Third Trusts) § 95. That Sec- statement property, property or in the retention of entitled, “Surcharge liability tion is breach worthless, wrongful until it is sale of trust ” provides: "If a trust breach of trust property, negligence or or misconduct loss, including any failure causes to realize investments, making retaining or income, gain, capital appreciation or may give right rise to a in favor of benefi- proper would have resulted from administra- money damages ciaries to recover from trust, tion of the the trustee is liable for the trustee. compensate necessary fully amount to for the The court also cited Lida Princess Thurn & (Third § 100.” breach. See Restatement 456, 464, Thompson, Taxis v. 305 U.S. 59 100, 95, Trusts) §by similarly pro- § cited 275, (1939), S.Ct. 83 L.Ed. 285 which held loss, vides: "If a breach of trust causes a power require that a court had the to income, including any capi- failure to realize to take trustee over from the trust the invest gain, appreciation that tal would have re- improperly ments the trustee had made and administration, proper sulted from the benefi- expended to restore to the trust the amount may to ciaries are entitled restitution and them, surcharge and to the trustee for surcharged have the trustee for the amount generally Bogert losses incurred. See & G. G. necessary compensate fully for the conse- (rev. Bogert, § Trusts & Trustees 862 2d ed. quences Supreme of the breach.” The Court 1995). Bogert Bogert, & also relied on G. G. Trusts (rev. 1995), § & Trustees 2d ed. which 502(a)(3) only "equi- 2. Because authorizes explained that: right jury table relief” there is no to a trial. McDougall Partnership, For a breach of trust the trustee Ltd. be v. Pioneer Ranch (7th Cir.2007); by pay damages directed the court to Nat’l Sec. fiduciary duty which harmed on breach of required that a trial is the court duty appropri- and that and whether there is an fiduciary claim the breach of granting Dean to her re- equitable remedy court erred available the district ate summary judgment.3 remand. questions main important Finаlly, I believe it reasons, judgment. I concur in For these CIGNA, that, this “deci- again, like stress the cir- important part upon sion rests ” here,.... 131 S.Ct. at present cumstances above, circum- noted those

1871. As and asked are that Kenseth called

stances surgery would be cov-

Dean whether the policy her insurance and the

ered checking with

representative, even after FINDLAY, Plaintiff-Appellee, Jason wrongly informed Kenseth supervisor, (subject surgery was covered that the v. cover- co-pay), but Dean later denied $300 LENDERMON, Defendant- Jonathan age; and the Certificate of Insurance Appellant. there was ambiguous on whether The Certifi- surgical procedure. for the No. 12-3881. identify “to a means cate also failed Appeals, States Court of United participant may obtain an authori-

which Circuit. Seventh coverage ques- tative determination on a tion,” participants to call and “invit[ed] May 2013. Argued coverage questions customer service with 14, 2013. Decided June warning they them that could not but not they Opin- advice received.” rely on cannot holding in Kenseth

ion is in separated from these facts fiduciary “duty is a

this context that there

to disclose material information” ‍​‌​​​​‌​​​‌​​​​‌​​‌‌​​​​​‌‌‌​‌​‌​‌‌​‌‌‌‌​​‌‌​‌​‌‍“also an affirmative obli-

participants, and material facts af-

gation to communicate

fecting plan participants.” the interests of there was a

Opinion 872. Whether Iola, (3d only issue claim. Had the Sys., n. 10 Inc. v. Co., relief, Cir.2012); Keystone Carbon appropriateness Cox been the However, Cir.1988). (3d F.2d clearly-erroneous standard review jury trial States, Kenseth and Dean consent to both apply. Se. & Sw. See Cent. would agrees, the case could and the district court LLC, SCOFBP, Fund v. Areas Pension 39(c). jury. But even tried before a Rule Cir.2011) ("We (7th ordinarily F.3d then, jury determine what is whether a could grant of a district court’s review "appropriate case is relief” de Pioneer judgment in an ERISA case novo. questionable. Schepel Buick & See Pals however, When, Ranch, F.3d at 575. Truck, Inc., (7th GMC the char- only district court is issue before the Cir.2000). facts, undisputed subsidiary acterization of right party not have the and where a does agree I that we review the district court’s trial, clearly-erroneous standard of jury summary judgment de novo be- decision on Id."). applies. review dispute on the breach cause there is a factual

Case Details

Case Name: Deborah Kenseth v. Dean Health Plan, Incorporated

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 13, 2013

Citation: 722 F.3d 869

Docket Number: 11-1560

Court Abbreviation: 7th Cir.