Heller v. Cap Gemini Ernst & Young Welfare PlanHeller v. Cap Gemini Ernst & Young Welfare Plan
MEMORANDUM AND ORDER
I. INTRODUCTION
At issue in this case is the plaintiff Edward Heller’s (“Heller”) 29 U.S.C. § 1132(a)(1)(B) claim that the defendants CapGemini U.S. LLC (“CapGemini”) and American International Life Assurance Company of New York (“American”) wrongfully denied him accidental death benefits under the ERISA-governed insurance policy of his now deceased wife, a former employee of CapGemini. American denied Heller benefits because his wife was no longer employed by CapGemini at the time of her death and therefore not covered under the unambiguous terms of the policy.
According to Heller, it has not been established that his wife was not covered under the policy at the time of her death. Alternatively, Heller maintains, even if his wife was no longer covered, CapGemini waived the defense of non-coverage by collecting premiums after coverage terminated under the terms of the policy. American waived this defense as well claims Heller, because it willingly accepted the premiums from CapGemini and did not offer to refund them.
A. Factual Background
1. Parties
Heller is the husband of Patricia Heller (“Patricia”), now deceased. Pl.’s Rule 56 Statement (“Pl.’s Facts”) [Doc. No. 20] ¶ 4. Patricia was an employee CapGemini from March 1991 until her resignation in January 2003. Def. American’s Rule 56 Statement (“American’s Facts”) [Doc. No. 23] ¶¶ 7, 9.
The defendant Cap Gemini Ernst & Young Welfare Benefit Plan (“the Plan”) is an insurance plan governed by the Employee Retirement Income Security Act (“ERISA”). Pl.’s Facts ¶2. The plan is sponsored by CapGemini and provided to its employees. Def. CapGemini’s Rule 56 Statement (“CapGemini’s Facts”) [Doc. No. 34] ¶ 1.
American issued a Group Accident Insurance Policy to CapGemini effective July 1,2001. PL’s Facts ¶ 11.
2. Patricia’s Employment with Cap-Gemini
Patricia commenced employment with CapGemini as a consultant in March 1991. PL’s Facts ¶ 6. As an employee, Patricia was enrolled in the Plan as amended from time to time. Id. ¶ 8. The benefits of the Plan included accidental death coverage. Id. As a Plan participant, Patricia paid the full cost of her accidental death coverage through premiums deducted from her biweekly paychecks. Id. ¶ 9. Heller was the beneficiary of Patricia’s $1,000,000 accidental death coverage. Id. ¶ 10.
Effective July 1, 2001, American issued a Group Accident Insurance policy to Cap-Gemini.
Id.
¶ 11. The policy provided
Through its agent Fidelity, CapGemini prepared a document entitled “CAP GEMINI ERNST & YOUNG U.S. ACCIDENTAL DEATH & DISMEMBERMENT SUMMARY PLAN DESCRIPTION” (“summary”) which became effective September 2002. Pl.’s Facts ¶ 14. According to Heller, the summary described the main provisions of the accidental death and dismemberment Plan as of July 1, 2002 and superceded any prior accidental death and dismemberment plans or programs. Id. American denies that the summary contained the “main provisions” of the accidental death and dismemberment Plan and that the summary superceded any prior accidental death and dismemberment plans or programs. Def. American’s Resp. to Pl.’s Rule 56 Statement ¶ 14. Rather, American submits, the summary contained “part of the plan document for the [accidental death and dismemberment] Plan and the [accidental death and dismemberment] Plan [not the summary] super-cede[d] and replace[d] any prior group [accidental death and dismemberment] plans or programs.” Id. (fourth and fifth alterations in original).
According to Heller, CapGemini acknowledges that it has no evidence that Patricia was given a written copy of the summary and merely maintains that it made the summary available to employees on CapGemini’s “HR Portal and the Fidelity benefits website.” Pl.’s Facts ¶ 15. CapGemini denies ever stating that it lacks evidence that Patricia was given a written copy of the summary. Def. CapGemini’s Resp. to Pl.’s Rule 56 Statement [Doc. No. 46] ¶ 15.
In January 2003 Patricia resigned from CapGemini, her last day of work being Friday January 24, 2003. PL’s Facts ¶ 16. The following Wednesday (January 29, 2003) while traveling for her new employer in Atlanta, Georgia, Patricia died from injuries sustained while riding in a taxi that collided with a tree. American’s Facts ¶¶ 12-13. Patricia’s death was an “accidental death” within the meaning of the Plan. PL’s Facts ¶ 18. CapGemini was informed of Patricia’s death by telephone on January 29, 2003. Id. ¶ 19. Through an e-mail dated January 30, 2003, Maryanne Alvarez, an associate in CapGemini’s National Benefits Department notified American’s Claim Manager Myra Zimmerman of Patricia’s January 24, 2003 departure from CapGemini and her January 29, 2003 accidental death. Id. ¶ 20.
On January 31, 2003, CapGemini issued Patricia’s final paycheck.
Id.
¶ 21. Although Patricia had left CapGemini prior to the last week of January, a “full” $12.00
1
premium for participation in the benefits plan was deducted from Patricia’s paycheck.
Id.
¶ 22. CapGemini forward
On February 27, 2003, Heller submitted an American Proof of Loss Claim Form seeking accidental death benefits under the accidental death and dismemberment Plan. Id. ¶ 27. On March 20, 2003, Kristina Gorman of the CapGemini Benefits Center certified that the information contained in the proof of loss claim form was true and correct. Id. ¶ 29. Heller’s claim form stated: (1) Patricia commenced work on March 25, 1991; (2) Patricia had $1,000,000 in accidental death benefits in force; (3) Patricia’s effective date of coverage was July 1, 2001; (4) Patricia’s date of death was January 29, 2003; (5) Patricia’s last day of work was January 24, 2003; (6) Patricia’s “date premium paid to” was January 29, 2003; and (7) Patricia’s “termination date of coverage” was January 29, 2003. Id. ¶ 30(a)-(g).
Through an e-mail sent to CapGemini on April 14, 2003, Jill Vivian (“Vivian”) of American requested a “copy of the payroll register for the last paycheck that was issued [to Patricia].” Id. ¶ 31. According to Vivian’s e-mail, such information was “necessary to verify whether premiums for this coverage were being deducted and the date that premiums for this coverage were paid through.” Id. 2 In a letter to Heller dated the same day, Vivian informed Heller that American was seeking payroll and premium information from CapGemini. Pl.’s Facts ¶ 32. The letter stated further that “[ojnce we determine the reason your spouse was not actively at work after January 24, 2003, we will advise you of the status of this claim.” Def. CapGemini’s Resp. to PL’s Rule 56 Statement ¶ 32 (alteration in original).
By e-mail dated April 28, 2003 Carolyn Berish (“Berish”) of CapGemini responded to Vivian’s April 14, 2003 inquiry as follows:
Patricia had payroll deductions of $12.00 for the period 1/1/03 — 1/15/03 and the $12.00 full premium for the period 1/16/03 — last date worked. There was no rebate of any premium, although her coverage ended on last date worked, which was 1/24/03. This is standard payroll practice ....
PL’s Facts ¶ 33.
On April 29, 2003, Berish faxed a copy of Patricia’s last pay stub to American.
Id.
Through an e-mail dated May 12, 2003, Berish provided American with the summary for the accidental death and dismemberment Plan and a copy of a ‘VP Continuation of Benefits Summary Sheet.”
Id.
¶ 34. According to Berish, the continuation of benefits summary was provided to departing employees, but she was researching further to confirm the exact version of the form given to Patricia “apparently because the form was in the process . of being updated at the time of [Patricia’s] departure.”
Id.
By e-mail dated May 13, 2003, Berish informed American that “[i]t was determined that Pat Heller did not receive the Continuation of Benefits VP Summary sheet upon her termination, al
On May 29, 2003, Vivian of American prepared a claim summary recommending the denial of Heller’s claim. Id. ¶ 36. Vivian noted that she had reviewed the premium verification documents and that Cap-Gemini as policyholder “confirmed that premiums for this coverage were paid through her last day worked and her coverage under this Policy ended on her last day worked.” Id. ¶ 36(a)-(b). On June 9, 2003, Heller contacted American to check the status of his claim. Id. ¶ 37. American informed Heller that a recommendation for denial was being reviewed by management and explained the reasons for the denial. Id. Upon hearing American’s explanation, Heller advised American that Patricia’s premiums had been paid for the entire month of January 2003. Id American advised Heller that according to Cap-Gemini, premiums were paid to the last day Patricia worked. Id. According to Heller, this assertion is contrary to the information contained in Berish’s April 28, 2003 e-mail. Id. ¶ 38.
By letter dated June 23, 2003, American denied Heller’s claim for benefits under the Plan. Id. ¶ 40. American’s denial letter referenced eight sources of information on which it based its decision but it did not cite Berish’s April 28, 2003 e-mail which noted that Patricia paid a “full premium” for the month of January. Id. ¶ 41. The denial letter stated that it was CapGemini, not American that determined the dates premiums were paid through. Id. ¶ 42. According to American’s letter, CapGemini “confirmed that premiums for this coverage were paid through her last day worked and her coverage under this Policy ended on her last day worked.” Id.
American’s denial letter did not address Heller’s June 9, 2003 telephone call during which he noted that premium payments were deducted from Patricia’s paychecks for the entire month of January 2003. Id. ¶ 44. Nor did American’s letter offer to rebate the “unearned premiums.” Id. According to American’s denial letter, “on January 25, 2003 [Patricia] ceased to be a member of an eligible class of persons ... and on January 29, 2003 when the injury occurred her coverage was no longer in force.” Id. ¶ 45. The letter went on to state that because Patricia had not submitted a conversion application prior to her death, no coverage was available. Id. ¶ 46.
Heller later contacted CapGemini to follow up on Patricia’s premium payments and on July 31, 2003, Lynne Oldham (“Old-ham”) of CapGemini wrote to Heller as follows:
As we discussed, Cap Gemini Ernst & Young (“CGE & Y[”]) has previously communicated with [American], the insurer underlying the Accidental Death and Dismemberment Plan (“AD & D Plan[”]) with respect to your wife’s last payroll deductions for such insurance. The purpose of this letter is to confirm to you that we did so and to provide you with the content of that communication. On April 28, 2003, Carolyn Berish (CGE & Y Employee Benefits)responded to a standard question posed by [American] with regard to final payroll deduction. Carolyn’s email was sent to Jill Vivian ( [American]) with a copy to Deborah Giles ([American]). The e mail indicated the following:
“Patricia had payroll deductions of $12,000 for the period 1/1/03 -1/15/03 and the $12.00 full premium for the period 1/16/03 — last date worked. There was no rebate of any premium, although her coverage ended on last date worked, which was 1/24/03. This is standard payroll practice.”
In a subsequent e mail, Tracy McGee (CGE & Y Employee Benefits) clarifiedto Deborah Giles ([American]) that the last day of employment was actually 1/25/03.
Id. ¶ 47.
On August 13, 2003, Oldham again wrote Heller to “further clarify” that CapGemini “did indeed take two full payroll deductions” from Patricia’s January 2003 paychecks. Id. ¶ 48. On August 20, 2003, Heller appealed American’s denial of his claim. Id. ¶49. Heller argued that because full payroll deductions were taken from both of Patricia’s January 2003 paychecks she was covered under the policy for that entire month. Id. Additionally, Heller claimed, “Patricia had 31 days during which she was entitled to extend coverage under the policy.” Def. American’s Resp. to Pl.’s Rule 56 Statement ¶ 49.
On October 3, 2003, American received a legal opinion letter from the law firm of Mirick, O’Connell concerning Heller’s claim for accidental death and dismemberment benefits. Pl.’s Facts ¶ 50; Compl. [Doc. No. 1], Ex. 9 at 1. The opinion letter noted inter alia that “[t]he sole grounds for Mr. Heller’s appeal is that because [CapGemini] deducted the full premium amount for January from Mrs. Heller’s paycheck, the coverage continued though [sic] January 31, 2003.” Pl.’s Facts ¶ 50; Compl., Ex. 9 at 5. The opinion letter went on to conclude that given the clear language in the policy indicating that coverage had ceased, the premium payment did “not make Mrs. Heller eligible for benefits at the time of her death.” Compl., Ex. 9 at 5.
On October 7, 2003 American delivered a memorandum to American’s ERISA Appeals Committee. PL’s Facts ¶51. That memorandum, prepared by Vivian, informed the committee that CapGemini “confirmed that premiums for this coverage were paid through the last day worked and her coverage under this Policy ended on her last day worked.” Id. The memorandum also noted that the grounds for Heller’s appeal included the fact that Patricia “made bi-[weekly] premium payments through payroll deduction[s]” and that “[b]ecause full deductions were made from both of the payroll checks in January 2003, she was covered under the policy through the end of January.” Id.
On October 22, 2003, American prepared its ERISA Appeal review. Id. ¶ 52. The notes prepared by American indicated that Heller’s sole ground for appeal was that because Patricia’s premiums had been paid for the full month of January, 2003, she was covered at the time of her January 29, 2003 death. Id. 3 On December 11, 2003, American informed Heller by letter that the ERISA Appeals Committee was upholding the June 23, 2003 denial of benefits. Id. ¶ 53. The denial letter did not mention or address Heller’s argument regarding Patricia’s premium payments. Id. ¶ 54. Rather, the letter repeated American’s earlier rationale that Patricia’s coverage terminated on her last day of work and because she failed to apply for a conversion policy, there was no coverage at the time of her death. Id.
By letter dated December 20, 2004, counsel for CapGemini sought to change the administrative record as to Patricia’s receipt of the VP Benefits Summary Sheet upon her separation for CapGemini.
Id.
¶ 59. CapGemini contended that Patricia was, in fact provided with the summary
3. Relevant Plan Provisions and Documents
CapGemini is the plan administrator and named fiduciary of the accidental death and dismemberment Plan. American’s Facts ¶ 1. The Plan authorizes CapGemini to delegate its fiduciary responsibility. Id. ¶ 2. CapGemini delegated its authority to American as evidenced by the summary, which provides that American is responsible for evaluating claims and paying benefits under the Plan. Id. ¶ 3. The summary provided that American had “sole discretionary authority to determine eligibility for benefits and to interpret the terms of the insurance policy.” Id. ¶ 4.
The Group Accident Insurance Policy issued by American provides that an insured’s coverage under the policy
ends on the earliest of: (1) the date this Policy is terminated; (2) the premium due date if premiums are not paid when due; (3) the date the Insured requests, in writing, that his or her coverage be terminated; or (4) the date the Insured ceases to be a member of any eligible class(es) of persons as described in the Classification of Eligible Persons section of the Master Application.
CapGemini’s Facts, Ex. 2 at 3 (emphasis added). The Master Application referenced in the policy lists “Class I” of eligible persons as “[a]ll active full-time employees working an average of 30 hours per week, all active part-time employees working an average of 20 hours per week, and all retirees of [CapGemini].” Cap-Gemini’s Facts, Ex. 17 at 1.
According to the portion of the summary entitled “Termination of Coverage”, coverage under the accidental death and dismemberment Plan “will cease on the day in which one of the following occurs:” (1) “You are no longer employed by a participating employer”; (2) “The [accidental death and dismemberment] Plan terminates or is amended to exclude the class of individuals that includes you or your dependents”; (3) “If you become eligible for coverage under a plan intended to replace this coverage”; (4) “If [American] terminates the policy”; (5) “If the Company discontinues the Plan”; or (6) “If premiums due under the insurance policy have not been timely paid”. CapGemini’s Facts, Ex. 1 at 9. Additionally, the summary contains a provision regarding conversion of Plan benefits. Id. at 10. Under this provision, coverage may be converted to an individual policy if a written application is received by American within 31 days after coverage ends. Id. It is undisputed that Patricia did not exercise the conversion option.
4. Heller’s Claims
Heller’s Complaint originally contained five counts. Compl. ¶¶ 39-50. Count I alleges that “[b]ecause Patricia paid premiums for her [accidental death and dismemberment] coverage to January 31, 2003, the plaintiff is entitled to $1,000,000 [in accidental death and dismemberment] benefits arising from Patricia’s January 29, 2003 accidental death.”
Id.
¶ 40. Count II alleges that because CapGemini deducted the “full $12.00 premium” from Patricia’s last paycheck (which American accepted) and because CapGemini and American were aware of Patricia’s Janu
Count III alleges that because CapGem-ini admits that its regular business practice was to deduct “full” premiums from departing employees’ final paychecks, Heller is entitled to $1,000,000 in accidental death and dismemberment benefits. Id. ¶ 44. Counts IV and V have been voluntarily dismissed. American’s Facts ¶ 21. Although Heller’s Complaint does not enunciate the precise legal premise on which he bases his claims, he has since indicated that he proceeds under the theory that because the defendants continued to collect premiums from Patricia after she separated from CapGemini, they have “waived” any defense that Patricia was no longer covered under the terms of the Plan at the time of her death. Pl.’s Mem. in Supp. of Mot. for Summ. J. (“Pl.’s Mem.”) [Doc. No. 19] at 2-3. 4 Further, Heller argues that the defendants have failed to demonstrate that Patricia’s coverage had terminated at the time of her death. PL’s Opp’n to Defs.’ Mot. for Summ. J. (“PL’s Opp’n”) [Doc. No. 36] at 5-6.
II. DISCUSSION
A. Standard of Review
The matter before the Court was originally docketed as cross motions for summary judgment. Prior to oral argument, however, the parties agreed that this Court was to treat the matter as a case stated.
Continental Grain Co. v. Puerto Rico Mar. Shipping Auth.,
Courts review a denial of benefits under an ERISA benefits plan
de novo,
“unless the plan ‘gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,’ in which case the question becomes whether the denial was arbitrary and capricious.”
Radford Trust,
Heller recognizes that under the Plan Administrative Document, CapGemini, as plan administrator was given discretionary authority to interpret the Plan, make factual findings, determine rights, and decide disputes. Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) [Doc. No. 36] at 2; PL’s Facts ¶ 61. Nonetheless, Heller maintains, because it is undisputed that it was not CapGemini but
American
that made and communicated the decision denying benefits, American cannot rely on language in the Plan Administrative Document granting CapGemi-ni discretionary authority. Pl.’s Opp’n at 2. As CapGemini points out however, it was permitted to and did delegate its discretionary authority to American as evidenced by the summary, which provided that American “has the sole discretionary authority to determine eligibility for benefits and to interpret the terms of the insurance policy. All determinations and interpretations made by [American] are conclusive and binding on all parties.” Def. CapGemini’s Reply in Supp. of Mot. for Summ. J. (“CapGemini’s Reply”) [Doc. No. 38] at 2;
see Sidou v. Unumprovident Corp.,
Although the Plan Administrative Document permits such delegation, Heller maintains, “no procedures for such delegation (as required by ERISA) were set forth in the Plan Administrative Document.” Pl.’s Opp’n at 2 (citing
Rodriguez-Abreu v. Chase Manhattan Bank,
CapGemini does not discount ERISA’s delegation requirement discussed in Rodriguez-Abreu and observes, for that very reason, the Plan Administrative Document specifically provides:
The Plan Administrator shall be authorized, to the extent deemed advisable, to designate persons or entities to carry out fiduciary responsibilities allocated to each, and to rely upon such information, data, statistics, or analysis provided by such person or entities who perform functions under the Component Plans.
CapGemini’s Reply at 3 (emphasis added). Accordingly, CapGemini correctly maintains, it followed the necessary procedures required by ERISA.
Id.; see Lee v. MBNA Long Term Disability & Benefit Plan,
No. 04-3105,
Heller alternatively argues that because CapGemini failed to furnish Patricia with a copy of the summary, the Court should ignore the delegation of authority contained therein. Pl.’s Opp’n at 3. As Heller observes, ERISA requires that participants be “furnished” with a summary plan description.
Id.
(citing 29 U.S.C. §§ 1021-1024). Furthermore, Heller notes, “[w]here ERISA requires that materials, including but not limited to [summaries], be furnished to participants, the relevant ERISA regulations require administrators to use measures reasonably calculated to ensure
actual receipt
of the material by plan participants .... ”
Id.
(citing 29 C.F.R. § 2520.104b — 1(b)(1);
Leyda v. AlliedSignal Inc.,
Heller acknowledges that although 29 C.F.R. § 2520.104b-l(c) permits disclosure through electronic media, it requires that “[t]he administrator take[ ] appropriate and necessary measures reasonably calculated to ensure that the system for furnishing documents — (A) Results in actual receipt of transmitted information (e.g., using return-receipt or notice of undelivered electronic mail features, conducting periodic reviews or surveys to confirm receipt of the transmitted information).” Pl.’s Opp’n at 3-4 (citing 29 C.F.R. § 2520.104b-l(c)) (emphasis added).
Heller contends that merely making the summary available to Patricia through CapGemini’s HR portal was insufficient to “furnish” Patricia with the summary because such a measure was not reasonably calculated to result in her actual receipt. Id at 4. Moreover, Heller argues, the Court should ignore the summary because CapGemini has failed to provide any evidence of Patricia’s actual receipt of it. Id. CapGemini counters that the electronic posting of the summary was reasonably calculated to ensure actual receipt by Patricia because “repeated reminder voice-mails were sent to employees referring them to the resources available to them regarding their benefits.” CapGemini’s Reply at 4. Additionally, CapGemini points out, similar “emails were also sent to plan participants during the annual enrollment period.” Id.
Whether Patricia was properly furnished with a copy of the summary, however, does not affect CapGemini’s effective
Because Patricia’s receipt of the summary does not affect the summary’s underlying substance and more precisely, its indication of CapG'emini’s delegation of discretionary authority to American, the denial of benefits in this case should be reviewed under an arbitrary and capricious standard of review.
Rodriguez-Abreu,
B. Termination of Patricia’s Cover- : age Under the Plan
According to Heller, comparison of the summary and the actual policy reveals a conflict as to the date that coverage terminates. Pl.’s Opp’n at 5. As mentioned above, the relevant portion of the Group Policy provides that coverage ends on “the date the Insured ceases to be a member of any eligible class(es) of persons described ... in the Master Application.” Id. Under the relevant provision of the summary, Heller points out, coverage terminates when an individual is “no longer employed” by the participating employer. Id. According to Heller, this constitutes a conflict between the Group Policy and the summary. Id. Because the summary expressly states that in the event of conflict between the summary and Group Policy, the terms of the Group Policy control, Heller maintains, the Court should ignore the language of the summary. Id.
Heller next points out that according to the Master Application referenced in the Group Policy, the relevant eligible class includes “[a]ll active full-time employees working an average of 30 hours per week.”
Id.
According to Heller, this description reveals an ambiguity as to the date coverage terminates.
Id.
at 5-6. That is, “[n]either the word ‘active
9
’, nor the man
In response, CapGemini notes that both the summary and Group Policy state that when an insured is no longer an employee, coverage ceases. CapGemini’s Reply at 5. In other words, even though identical language was not used in both documents “the only reasonable interpretation of both provisions is that coverage ceased when one is no longer an employee.” Id. Additionally, CapGemini notes, even if an ambiguity did exist, Heller cites no decisions within the First Circuit reasoning that where an ambiguity exists concerning the active employee requirement, the employee is to be considered covered under the policy. Id. Rather, CapGemini points out, “this is simply a question of interpretation of Plan language, a task that has been delegated to [American].” Id.
Assuming arguendo that Heller is correct in his assertions that there is a conflict between the Group Policy and the summary, that the Group Policy governs, and that there exists an ambiguity in the Master Application, it is inconceivable that Patricia was an “active full-time employee [ ] working an average of 30 hours per week” at the time of her death under any reasonable interpretation of that language. Pl.’s Opp’n at 5. It is uncontested that Patricia had left the employ of CapGemini and was working for a new employer at the time of her death. It is simply impossible for Patricia to have been both an active and former employee of CapGemini at the same time. 10
Thus, the unambiguous language of the Plan makes clear that Patricia’s coverage terminated when she left the employ of CapGemini.
Burnham v. Guardian Life Ins. Co.,
Heller argues further that because the defendants repeatedly misled him and failed to address his argument regarding unearned premiums, the decision denying benefits was “incorrect, unreasonable, arbitrary, and capricious” as matter of law. Pl.’s Mem. at 14-19. Specifically, Heller points out, during his June 9, 2003, tele
This argument, however, is unavailing. Whether American retained an unearned premium does not change the fact that
under the terms of the Plan,
Patricia was not covered at the time of her death. While Heller may have a valid claim against CapGemini for the apparent overcharge, that does not alter the terms of the Plan.
Dusablon v. Raytheon Corp.,
No. 96-11000-NG,
C. Waiver of Non-Coverage Defense
Heller’s chief argument focuses not on the terms of the Plan but the defendants’ alleged waiver of them. Pl.’s Mem. at 2-14. According to Heller, “it is well established law that ‘[acceptance and retention of premiums with knowledge of the facts may serve to create a waiver’ ... as to defenses inconsistent with such retention.”
Id.
at 10 (citing 17 Lee R. Russ, Couch on Insurance § 239:121 at 239-138 (3d ed.2000)). Waiver is “the voluntary and intentional relinquishment of a known right” which is “determined from all of the facts and circumstances surrounding each case.”
Alan Corp. v. Int’l Surplus Lines Ins. Co.,
To advance his argument, Heller notes first that although the Fifth Circuit is the only federal jurisdiction to recognize a general waiver doctrine under ERISA, this Court has the authority to fashion a federal common law remedy under ERISA based on waiver principles.
Id.
at 3, 5 (citing
Iwata v. Intel Corp.,
To support this proposition, Heller relies heavily on the First Circuit’s decision in
Glista v. Unum Life Ins. Co. of Am.,
Before reaching its decision, the court observed that “[s]ome courts have held that the administrator waived defenses to coverage not articulated during the claims review process when the administrator had sufficient information to have raised those defenses if it so chose.” Id. at 131 (citations omitted). The court noted further that “other courts have held that state common law doctrines of waiver have no place in review of ERISA claims ....” Id. (citations omitted). The court concluded that “[ujnder these circumstances, we think the ‘appropriate equitable relief is to hold Unum to the basis it articulated in its internal claims review process for denying benefits, i.e., the Treatment Clause.” Id. at 132.
CapGemini observes that the facts of
Glista
are “very different from the case at bar.” Def. CapGemini’s Opp’n to Mot. for Summ. J. (“CapGemini’s Opp’n”) [Doc. No. 45] at 10. The distinguishing feature of
Glista,
CapGemini suggests, is the fact that Unum in failing to provide the claimant with the proper basis for its denial, violated an
express provision of ERISA
requiring insurers to clearly identify the rationale behind a denial.
Id.
CapGemini notes that this is “very different from the present case where Defendants always gave [Heller] the same, consistent answer
The court in
Glista
articulated the precise reasons for its decision to bar Unum from raising a new basis for denying benefits.
Glista,
Third, Unum had sufficient information before it to raise the defense earlier and “offered no explanation” for why it had not previously done so. Id. Finally, the court cited the seriousness of the participant’s medical condition which according to the court, “calls for resolving this controversy quickly.” Id. Based on the forgoing factors, the court concluded that equitably, Unum must be held “to the basis that it articulated in its internal claims review process for denying benefits, i.e., the Treatment Clause.” Id. As American has consistently asserted the same basis for its denial of benefits and does not now seek to assert an alternative justification, Cap-Gemini is thus correct in its assertion the concerns raised in Glista are inapposite here. CapGemini Mem. at 10.
Moreover, CapGemini points out, as the court ruled in
Alan Corp.,
“[i]n Massachusetts, the doctrine of waiver does not control where an insured argues that an insurance company has waived the limits of coverage defined in an insurance policy.... [Nor can wjaiver [] be used to extend coverage of an insurance policy [or] create primary liability.” CapGemini’s Opp’n at 11 (quoting
Alan Corp.,
As the First Circuit ruled in
Rodriguez-Abreu,
“[ijssues of relinquishment of rights and waiver are governed by federal common law developed in ERISA cases
rather than by particular state law
although state law may inform the development of the federal common law.”
Rodriguez-Abreu,
Even assuming that it is possible for American to have “waived” its right to deny coverage under the federal common law applicable to ERISA
13
, Heller has not
Thus, by accepting premiums and paying benefits for a substantial period of time after learning that coverage lapsed under the plan’s explicit terms, the insurer in Pitts clearly signified its understanding that coverage continued despite the policy language. By acting in a manner wholly inconsistent with non-coverage, the insurer evinced its intentional and voluntary capitulation of its right to disavow the existence of coverage. Id. Unlike the insurer in Pitts, American accepted only a single $6.00 premium following the termination of Patricia’s coverage. Further, American has consistently maintained that despite the $6.00 charge, coverage terminated upon Patricia’s separation from CapGemini and has steadfastly refused to pay benefits.
Moreover, unlike the collection at issue in Pitts, after coverage lapsed under Patricia’s policy, American did not collect a premium at a time when Heller reasonably relied on the availability of coverage. That is, the single premium at issue in this case was not charged until after Patricia died. PL’s Facts ¶21. Given the Plan’s explicit language that coverage terminates upon an employee’s separation from Cap-Gemini, it cannot be suggested that Heller relied on the availability of benefits at the time the “unearned” premium was charged. Rather, it was not until he received his wife’s final paycheck and discovered that a “full” $12.00 had been deducted, that Heller sought benefits under the Plan. Thus, based on the Plan’s explicit terms, there could have been no expectation of coverage at the time the “unearned” premium was charged.
Conversely, in
Pitts,
premiums were
continuously
charged and benefits paid for months after the insurer learned the participant was disqualified under the plan.
Pitts,
Heller also relies on the Second Circuit’s decision in
Lauder v. First Unum Life Ins. Co.,
The court began its waiver analysis by revisiting its earlier decision in
Juliano v. Health Maint. Org. of N.J.,
In
Lauder,
the insurer’s original basis for denying benefits was that coverage had terminated when Barbara Lauder’s (“Lauder”) injury was sustained.
Lauder,
As in its earlier decision in Juliano, the court distinguished “between policy conditions, which could be waived by the insurer’s conduct, and the parameters of underlying coverage”, which could not. Id. at 381 (citation omitted, emphasis added). The court noted that “waiver could not be used to expand the policy so that the insured extended its coverage to more than it originally bargained.” Id. (citation and internal quotation marks omitted). The court explicitly noted that “Lauder’s case does not raise [this] concern. Waiver here would not create coverage where none would otherwise exist; rather, Lauder’s disability is exactly the type contemplated by the policy.” Id. at 381.
The court observed that although Lauder provided the insurer with sufficient information for it to pursue an investigation of her disability, the insurer simply “chose not to do so.” Id. Thus, the court noted, what the insurer actually had waived “was its right to investigate” and ruled that “the underlying disability itself was established.” Id. (second emphasis added). Therefore, “[b]ecause finding waiver in this case would not expand the coverage bargained for ... we believe Lauder’s claim is distinguishable from Juliano’s ...” Id. at 382.
As the foregoing discussion demonstrates, even if this Court were to follow
Lauder,
that decision provides Heller no aid. Because Patricia was no longer a CapGemini employee at the time she died, coverage did not exist under the Plan. Therefore, applying waiver would run counter to Lauder’s admonition against using that doctrine to create coverage where it would not otherwise exist.
Id.
at 381;
see also, Blum v. Spectrum Rest. Group,
In
Lauder,
before examining whether the
type
of benefits sought was contemplated by the policy, the court was first required to determine whether coverage
existed
at the time of Lauder’s injury.
Lauder,
In any event, Lauder is also inapposite because it expressly limited its recognition of waiver principles to previously unassert-ed defenses to coverage which the insurer had knowledge of when asserting its initial defenses. As the court noted,
First UNUM knew of Lauder’s claim of disability, chose not to investigate it, and chose not to challenge it. It therefore waived its right to rely on lack of disability as a defense ....
Because we do not consider this the appropriate set of facts on which to create a federal common law doctrine of waiver in the ERISA context, we limit our holding to the circumstances of this particular case.
Id.
at 382. As mentioned above, American continuously and consistently has asserted the same defense to coverage, namely that
The facts of this case are more akin to those in the Eighth Circuit’s decision in
Sippel v. Reliance Std. Life Ins. Co.,
Following the insurer’s denial of accidental death benefits, Mr. Sippel’s wife (“Sippel”) brought suit under ERISA seeking policy benefits. Id. Sippel argued that the insurer was “estopped” from denying that an effective conversion took place because a premium of $5.80 was deducted from her husband’s final paycheck and forwarded to the insurer. Id. at 1263. The court “assume[d] that this payment represented the premium for the first month of what would have been converted into individual coverage.” Id. In rejecting Sippel’s argument the court observed:
In some circumstances receipt of a premium can work an estoppel against an insurance company, but we do not believe, at least in an ERISA case, that this can occur when the language of the policy is as clear as it is here.
Id. (emphasis added). While Heller’s claim advances a theory of waiver as opposed to estoppel, the Eighth Circuit’s reasoning is not unhelpful in this context. Just as Sippel concluded that estoppel was inapplicable to similar facts, this Court is unpersuaded that waiver has been proven here.
Heller has not cited a single case in which waiver has been applied to facts such as these, i.e., where only a single week’s premium was charged at a time when no coverage existed under the unambiguous terms of the policy. This Court declines to apply waiver principles to American’s and CapGemini’s non-coverage defense because the one-time retention of $6.00 in unearned premiums is insufficient to demonstrate a voluntary and intentional relinquishment of the Plan’s explicit terms.
Alan Corp.,
In sum, the evidence shows that at most, American and CapGemini overcharged Patricia for her coverage. While Heller may have a valid claim for the return of the premium, he cannot use that overcharge as a means of bringing his wife’s untimely and tragic death within the ambit of the Plan. Further, Heller has failed to meet his burden of establishing that American and CapGemini intentionally and voluntarily abdicated the Plan’s coverage requirements by charging and retaining an unearned premium.
III. CONCLUSION
Accordingly, American’s and CapGemi-ni’s Motions for Summary Judgment [Doc Nos. 21 & 29] are ALLOWED and Heller’s Motion for Summary Judgment [Doc. No. 18] is DENIED.
SO ORDERED.
Notes
. That is, the total premium charged for participation in the benefit plan is $24.00 per month or $6.00 per week. Id. ¶ 26. From each bi-weekly paycheck $12.00 was deducted. Rather than deducting $6.00 from Patrier's final paycheck (to reflect that she was no longer employed, during the final week of January), a “full” $12.00 premium was charged. Heller's claim rests almost entirely on this $6.00 overcharge.
. As CapGemini points out, Vivian's email also requested that CapGemini verify ‘‘[t]he specific reason Patricia Heller was not actively at work after January 24, 2003 .... Did she terminate her employment with [CapGemini]? .... Did she retire from [CapGemini]?” Def. CapGemini's Resp. to PL's Rule 56 Statement ¶ 31.
. Prior to filing suit, Heller requested "copies of all materials provided to the ERISA Appeals Committee.” Id. ¶ 52 n. 1. Despite representing that it had provided Heller’s counsel with a complete copy of the administrative record, neither the October 7, 2003 memorandum to the ERISA Appeals Committee nor the October 22, 2003 ERISA appeal review were provided to Heller until after this suit was filed. Id.
. Both American and CapGemini initially construed Heller’s Complaint as invoking equitable estoppel principles. Def. American’s Mem. in Supp. of Mot. for Summ. J. [Doc. No. 22] at 12; Def. CapGemini’s Mem. in Supp of Mot. for Summ. J. ("CapGemini’s Mem.”) [Doc. No. 30] at 15.
. This Court previously had the occasion to observe:
Cases challenging denial of benefits under an ERISA-governed plan frequently reach a stage where the parties file cross motions for summary judgment. In many instances, however, resolution of the case rests primarily or exclusively on evaluation of the administrator’s or fiduciary’s decision in light of the record it had before it, a record that is typically already before the court at the summary judgment stage. Should such cases proceed past the summary judgment stage, the "trial” may well consist of nothing more than presentation of the administrative record to the same judge who considered it at the summary judgment stage, because neither party is likely to have a right to a jury trial....
ERISA cases based solely or even primarily on the administrative record are thus uniquely fit for pre-trial resolution [as a case stated].
Radford Trust
v.
First Unum Life Ins. Co. of Am.,
. See proposed Fed. R.App. P. 32.1(a) (proscribing restrictions on the citation to unpublished opinions that are not similarly imposed on published opinions). Proposed subsection (a) reads:
No prohibition or restriction may be imposed upon the citation of judicial opin- ■ ions, orders, judgments, or other written dispositions that have been designated as "unpublished,” "not for publication,” "non-precedential,” "not precedent,” or the like, unless that prohibition or restriction is generally imposed upon the citation of all sources.
Id. As already required by some circuits, Subsection (b) of the proposed rule provides that a copy of an unpublished opinion cited in a court document and not available on electronic databases must be submitted to the court. See, e.g., 1st Cir. R. 32.3(a)(3).
But see generally Niketh Velamoor, Proposed Federal Rule of Appellate Procedure 32.1 to Require that Circuits Allow Citation to Unpublished Opinions, 41 Harv. J. on Legis. 561 (2004) (identifying potential shortcomings of the proposed rule).
.As the court in
Watson
noted, 29 U.S.C. § 1132(c)(1)(B) "specifies the relief available to such plaintiffs, allowing for penalties of $100 per day [that the information is not furnished after being requested] 'and such other relief as [the court] deems proper.' ”
. Heller makes no such allegations.
. The First Circuit previously has suggested, however, that the term "active, full-time employee” as used in an insurance policy is unambiguous.
Perry v. New England Bus. Serv.,
. Thus, even if an ambiguity exists as to whether Patricia “worked an average of 30 hours per week during January 2003”, Pl.'s Opp’n at 6, because there is no question as to whether Patricia was an “active employee ” of CapGemini at the time of her death, it is clear that she was not covered under the Plan. Stated differently, whether Patricia worked an average of 30 hours per week in January 2003 is only relevant if it is first established that she was an active employee of CapGemi-ni at the time of her death.
. Contrary to Heller’s assertion, it is not clear that American "misled” him about Patricia's premium payments. To support his claim that American lied about being informed by CapGemini that premiums were paid only through the last day that Patricia worked, Heller relies on Berish’s April 28, 2003 e-mail to American. Id. at 12. According to Heller, that e-mail provided American with knowledge that CapGemini had charged Patricia for a period covering the entire month of January 2003. Id. Berish’s e-mail, however, stated that $12.00 was charged for the period covering January 16, 2003 through the "last day worked." Pl.’s Facts ¶ 39 (emphasis added). Heller assumes that because American knew that $12.00 was charged, it understood those premiums to cover a period beyond the last day worked. This does not necessarily follow. Rather, Berish’s e-mail demonstrates that American knew that Cap-Gemini had overcharged Patricia for her coverage pursuant to CapGemini's standard payroll practice.
. Heller attempts to define waiver more broadly. According to Heller, the waiver definition includes intentional conduct inconsistent with a claimed right. Pl.’s Reply Mem. in Supp. of Mot. for Summ. J. and in Opp'n to
. Although this Court does not attempt to answer whether in the First Circuit the underlying parameters of coverage can be waived, such a result does not appear likely.
See Perry,
. To be sure, whether an insurer induces reliance on the availability of coverage is
not
an element of waiver. This factor is relevant, however, because waiver is determined by all of the facts and circumstances surrounding a case.
Alan Corp.,
. Consonantly, in
Burger v. Life Ins. Co. of N. Am.,
. The same limitation was recognized in
Russo v. Abington Mem'l Hosp.,
No. 94-195,