Yvonne MORAN, Plaintiff-Appellant, v. AETNA LIFE INSURANCE COMPANY, Defendant-Appellee.
No. 87-6733.
United States Court of Appeals, Ninth Circuit.
Decided April 4, 1989.
Argued and Submitted Nov. 4, 1988.
872 F.2d 296
Nor has Hunt demonstrated that the proposed prior restraint would effectively protect his rights. Nebraska Press, 427 U.S. at 562, 565-67, 96 S.Ct. at 2804, 2805-07. NBC‘s docudrama aside, substantial and unrestrained publicity concerning Hunt and the Billionaire Boys Club has already been exposed to the public.
We conclude, therefore, that the denial of the preliminary injunction “was based on a consideration of the relevant factors” and there has been demonstrated no “clear error of judgment.” Zepeda, 753 F.2d at 725.
V
NBC urges us to adopt the position expressed in Judge Goodwin‘s concurrence in CBS. Judge Goodwin suggested that there is no conflict between the sixth amendment right to a fair trial and the first amendment right to publish information, because both constitutional guarantees are limitations upon government, not upon citizens. CBS, 729 F.2d at 1184 (Goodwin, J., concurring). Whatever Hunt‘s rights may be under the sixth amendment, NBC argues, he cannot possibly restrain the right of a purely private actor, NBC, to broadcast without prior restraint. Hunt thus failed to state a claim against NBC, and was thus not entitled to injunctive relief.
We need not determine the precedential value of the proposition stated in Judge Goodwin‘s concurrence in CBS. All three judges on the panel concurred fully in the opinion written by Judge Norris, which decided the case as described above. 729 F.2d at 1184. It is true that Judge Goodwin‘s concurrence also garnered a second vote through the “complete agreement” of Judge Reinhardt. Id. This may constitute a majority vote on that issue. However, because we already conclude on other grounds that there was no abuse of discretion in denying Hunt‘s motion for a preliminary injunction, we need not address NBC‘s argument that Judge Goodwin‘s CBS concurrence is binding and correct. To the extent that it is, however, it would constitute a separate and adequate reason why there was no abuse of discretion by the district judge.
AFFIRMED.
Michael P. McNamara, Gibson, Dunn & Crutcher, Los Angeles, Cal., for defendant-appellee.
Before FLETCHER, ALARCON and KOZINSKI, Circuit Judges.
ALARCON, Circuit Judge:
The Plaintiff/Appellant Yvonne Moran, (Moran) appeals from the district court‘s grant of summary judgment in favor of Defendant/Appellee Aetna Life Insurance Company (Aetna) and the denial of Moran‘s motion for summary judgment. Moran sued Aetna as a “Plan Administrator” under the Employee Retirement Income Security Act of 1974 (ERISA),
Moran contends that Aetna is liable under section 1132(c) because its claims supervisor advised her attorney that Aetna was the plan administrator. Because Aetna was not the plan administrator under the applicable statutory language, we disagree and affirm.
I
Moran was an employee of the law firm of Meserve, Mumper & Hughes (employer) and was insured under an Aetna policy. Aetna provided the employer with a booklet describing the plan for distribution to the employees. The booklet does not identify a plan administrator. Aetna also provided Moran with a health insurance identification card which states that “[t]his group Health Benefits Program is administered by Aetna Life Insurance Company.”
Moran received chiropractic treatments from Dr. Jim Takeda in July 1986. Dr. Takeda submitted a claim for his services to Aetna in the amount of $364.00. On September 16, 1986, Aetna sent a check for $104.00 in payment of the claim. Aetna also informed Dr. Takeda and Moran of the benefits provided under the plan and denied a portion of the claim.
Moran‘s attorney, Richard MacNaughton, wrote to Aetna on September 29, 1987, requesting a copy of the Plan Documents and the insurance policy. Mr. MacNaughton also inquired whether Aetna was the “Plan Administrator” of the plan.
Ruthie McNatt, Aetna‘s claims supervisor, replied to MacNaughton‘s letter on November 10, 1986. She explained why Aetna denied a portion of the claim. McNatt also stated that “[y]our [plaintiff‘s counsel‘s] assumption that Aetna is the plan administrator is correct.”
MacNaughton claims to have sent letters to Aetna on December 5, 1986, January 10,
On April 3, 1987, Moran filed this action in the district court against Aetna under
The district court entered summary judgment in Aetna‘s favor on November 30, 1987. Moran has filed a timely appeal from that order. She also seeks review of the September 14, 1987 order denying her motion for summary judgment.
II
The district court had jurisdiction over this matter pursuant to ERISA, Section 502(e)(1),
We review a grant of summary judgment independently and without deference to the district court‘s conclusion “and will affirm if the pleadings and supporting materials show the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Medallion Television Enterprises, Inc. v. SelecTV of Calif., Inc., 833 F.2d 1360, 1362 (9th Cir.1987) (Citation omitted).
Aetna argued in support of its motion for summary judgment that it cannot be sued under section 1132(c) because it is not the plan administrator under section 1002(16)(A). Moran responded that Aetna should be estopped from denying that it is the plan administrator because of the representation of its claims supervisor.
Section 1132(c) provides:
Any administrator ... (2) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... within 30 days after such request may in the court‘s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.
“In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney‘s fee and costs of action to either party.”
An administrator has a duty of disclosure and reporting:
The administrator of each employee benefit plan shall cause to be furnished in accordance with Section 1024(b) of this title to each participant covered under the plan and to each beneficiary who is receiving benefits under the plan—
(1) a summary plan description described in Section 1022(a)(1) of this title: and
(2) the information described in Section 1024(b)(3) and 1025(a) and (c) of this title.
ERISA further requires that “[t]he administrator shall, upon written request of any participant or beneficiary, furnish a copy of ... instruments under which the plan is established or operated.”
An administrator of an ERISA plan has a duty to provide a plan summary and other documents to each participant upon request under sections 1021(a) and 1024(b)(4). Failure or refusal to provide such documents
Section 1002(16)(A) defines a plan “administrator” as follows:
The term “administrator” means—
(i) the person specifically so designated by the terms of the instrument under which the plan is operated;
(ii) if an administrator is not so designated, the plan sponsor; or
(iii) in the case of a plan for which an administrator is not designated and a plan sponsor cannot be identified, such other person as the Secretary may by regulation prescribe.
The group policy in the instant matter does not designate an administrator under section 1002(16)(A)(i). Therefore, the “plan sponsor” is the administrator under section 1002(16)(A)(ii). The term “plan sponsor” refers to “the employer in the case of an employee benefit plan established or maintained by a single employer.”
III
The United States Supreme Court has stated: “We are reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA.” Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). The Supreme Court further stated that when “a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.” Id. (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979)).1 The precise question presented in Russell concerned the types of remedies available under ERISA. The Supreme Court held that ERISA does not provide a cause of action for extracontractual damages to a beneficiary caused by improper processing of benefit claims. Id. Section 409(a) could not extend relief because other sections of ERISA benefit individuals. Id. at 142-43, 105 S.Ct. at 3090-91.2
We believe that the rationale and policies articulated by the court in Russell require us to limit liability under 1132(c) to the targets expressly identified by Congress in section 1002(16). Congress has provided for three classes of persons who may be sued as the plan administrator under section 1132(c). Because Aetna was not designated as plan administrator in the policy and is not the plan sponsor, it is not liable
Both parties agree that Aetna is not the plan administrator as defined by section 1002(16). Moran states in Plaintiff‘s Reply Memorandum in Support of her Motion for Partial Summary Judgment that “[d]efendant contends that it is not the Plan Administrator. Plaintiff obviously agrees. That is the very reason that plaintiff has brought this motion on the Estoppel Theory.” We have recently refused to apply estoppel to a claim governed by ERISA. In Davidian v. S. Cal. Meat Cutters Union, 859 F.2d 134, 136-37 (9th Cir.1988), we held that ERISA forbids recovery against a benefit fund based upon estoppel. Davidian sought recovery of benefits from a benefit fund based on estoppel, claiming a fund employee misled him as to the limitations of a health insurance plan. We rejected Davidian‘s estoppel theory based in part on our earlier decision in Thurber v. W. Conf. of Teamsters Pension Plan, 542 F.2d 1106 (9th Cir.1976) (per curiam) that “a benefit plan could not be equitably estopped from denying benefits if payment would be inconsistent with the written plan.” Davidian, at 135.4
Similarly, we cannot equitably estop Aetna from denying it is the plan administrator if permitting recovery in this action would be inconsistent with the express language of section 1002(16)(A). It should be noted that Moran has not sought to recover against Aetna for breach of fiduciary duty under sections 1132(a)(2) and 1109(a). Instead, Moran has elected to bring an action against Aetna solely under section 1132(c), which provides a remedy against persons designated by Congress as plan administrators.5
We believe that the Supreme Court‘s refusal to expand the remedies available under ERISA in Russell precludes us from extending liability under section 1132(c) to other persons not named by Congress. The statute expressly identifies in section 1002(16) the persons or entities that may be sued under section 1132(c). We do not have the power to rewrite the statute to extend liability to a business entity that has mistakenly identified itself as the plan administrator by its agent. The district court did not err in granting Aetna‘s motion for a summary judgment.
IV
Moran did not allege a separate cause of action for breach of a fiduciary duty. Moran now asserts for the first time on appeal that Aetna breached a fiduciary duty owed to Moran by not providing accurate information concerning the plan administrator. Because Moran did not present this theory of recovery to the district court, we decline to address it in this appeal. See United States v. Immordino, 534 F.2d 1378, 1381 (10th Cir.1976) (contention not presented to trial court for consideration will not be considered by court on appeal).
V
In Moran‘s notice of appeal Moran also seeks review of the denial of her sum
The denial of a summary judgment motion is appealable after the entry of a final judgment. 10 C. Wright, A. Miller, and M. Kane, Federal Practice & Procedure, § 2715, at 636 (2d ed. 1983) “At that time, the party who unsuccessfully sought summary judgment may argue that the trial court‘s denial of the Rule 56 motion was erroneous.” Id. at 638-39. We have jurisdiction to review the denial of Moran‘s motion for summary judgment since the district court entered a final judgment on November 30, 1987.
In her motion for summary judgment, Moran argued that Aetna was estopped from asserting that it was not the plan administrator for Moran‘s ERISA health plan because of the false representation of its claims supervisor. As discussed above, Congress has expressly limited the persons who may be sued under section 1132(c). We cannot make an end run around the statute by creating an additional class of persons liable as plan administrators under an estoppel theory.
The summary judgment entered in this action on November 30, 1987, and the denial of Moran‘s summary judgment on September 14, 1987, are AFFIRMED.
FLETCHER, Circuit Judge, dissenting:
This case presents a novel issue of law: does ERISA preempt a federal law claim of estoppel where an insurance company erroneously holds itself out as the plan administrator? This circuit has held that
[e]ven though ERISA preempts common law theories of contract law, the principles of equitable estoppel apply to pension plans. In this circuit, estoppel is available against a nongovernmental party who has made a knowing false representation, or concealment of material facts, to a party ignorant of the true facts, with the intention that the other party should rely on the representation, and the other party actually and detrimentally relies on it.
Dockray v. Phelps Dodge Corp., 801 F.2d 1149, 1155 (9th Cir.1986) (where employer informs striking worker that he is being dropped from payroll because no work was available, rather than because he was refraining from work, employer is estopped from denying plaintiff pension benefits).
ERISA preempts state law contract theories based on estoppel, Ellenburg v. Brockway, Inc., 763 F.2d 1091, 1095 (9th Cir. 1985), but not federal claims based on estoppel. Id. at 1096. We stated in Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496 (9th Cir.1984), that courts retain broad authority to develop interstitial ERISA common law:
Congress realized that the bare terms, however detailed, of these statutory provisions would not be sufficient to establish a comprehensive regulatory scheme. It accordingly empowered the courts to develop, in the light of reason and experience, a body of federal common law governing employee benefit plans....
... Congress viewed ERISA as a grant of authority to the courts to develop principles governing areas of the law regulating employee benefit plans that had previously been the exclusive province of state law....
... The courts are directed to formulate a nationally uniform federal common law to supplement the explicit provisions and general policies set out in ERISA, referring to and guided by principles of state law when appropriate, but governed by the federal policies at issue.
Id. at 1499-1500 (holding that ERISA does not have retroactive application); see also Misic v. Building Service Employees Health & Welfare Trust, 789 F.2d 1374 (9th Cir.1986) (although
Mass. Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985) is not dispositive on the issue
The result in Russell was dictated by the plain language of the statute, and by the fact that § 1109 was concerned principally with upholding the financial integrity of the plan. Id. at 141-42 & n. 9, 105 S.Ct. at 3090 & n. 9. In contrast, § 1132(c) is specifically concerned with protecting the beneficiary‘s interest in obtaining plan information, providing that “[a]ny administrator” can, in certain circumstances, “be personally liable to such participant as beneficiary.” This case is much closer to Misic, which expanded the class of potential plaintiffs beyond those expressly enumerated in § 1132(a)(1)(B), than to Russell, which dealt with remedies. I see no rational basis for expanding the class of plaintiffs by reference to federal common law while refusing to permit expansion of the class of defendants by reference to that same body of law. Indeed, the statutory provision is the same in both cases: § 1002, the definitions provision.
The majority‘s reliance on Davidian v. Southern Cal. Meat Cutters Union, 859 F.2d 134 (9th Cir.1988) also is misplaced. That case merely continues a line of decisions holding that a benefit plan cannot be estopped from denying benefits if payment would be inconsistent with the written plan. See, e.g., Thurber v. Western Conf. of Teamsters Pens. Plan, 542 F.2d 1106 (9th Cir.1976). Those decisions are based on the application of the law of trusts: the2 written terms of a plan cannot be altered so as to divert contributions made on behalf of covered employees. Id. at 1109. This is not a suit against a trust fund: § 1132(c) provides that the administrator, not the fund, is liable to the beneficiary. “This distinction is critical.” Davidian, at 136. Davidian expressly noted that estoppel may be available against individual trustees and plan administrators, since “recovery against individual fiduciaries would not directly diminish the fund.” Id.
It is apparent that absolutely no authority, statute or case law, prevents this court from applying the doctrine of estoppel in this case.2 Furthermore, applying estoppel here would further substantial policies of ERISA.
Aetna is a sophisticated purveyor of insurance and administrator of ERISA plans. It distributed materials to plaintiff‘s employer and to plaintiff that were consistent with its being the plan administrator for1
Contrary to the majority‘s argument, Moran could not have determined that Aetna was not the plan administrator merely by consulting §§ 1132(c) and 1002(16). § 1132(c) does not define “plan administrator.” The definition in § 1002(16) requires reference to “the terms of the instrument under which the plan is operated.” There is considerable doubt that such an instrument was ever provided to Moran or placed into evidence. Aetna seeks to rely on the fact that its group insurance policy does not identify a plan administrator, assuming that § 1002(16)(B) would then apply, making Moran‘s employer the plan administrator.
There are two flaws to such reasoning. First, the group insurance policy cannot be the written instrument for purposes of § 1002(16), because it fails to “provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.”
Aetna should be subject to the penalties that may be assessed in the court‘s discretion against a plan administrator under § 1132(c). I would reverse and remand to the district court to reach the merits of plaintiff‘s estoppel claim.